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Pushing the Boundaries? Maritime Delimitation and evolving ICJ jurisprudence on International Law of the Sea

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Maritime delimitation is the process that involves “establishing lines separating from each other the maritime areas in which coastal states exercise sovereignty or jurisdiction”.[1] It is one of the most extensively researched fields in international law. The understanding of the delimitation process lies at the intersection of legal and spatial analysis. The International Court of Justice (ICJ) delivered its landmark ruling in Somalia v. Kenya concerning the dispute of “Maritime Delimitation in the Indian Ocean” on October, 12, 2021. This article aims to explore the legal, geographical and political implications of the decision.

Historical Background

Boundaries are man-made and a political phenomenon. They are more so at sea, than on land, because maritime boundaries have no natural character. As former ICJ judge Bedjaoui exquisitely noted: “Having always shunned land relief despite the fact that it is visible, man cannot but shun still more underwater relief which is out of his sight.”

The regime of the high seas, including the continental shelf were the priority topics in the first conference of the International Law Commission (ILC) and its travaux preparatoires, which led to the 1958 Geneva Conventions. The central theme of the conference as regards to the delimitation of maritime zones was the quest for a material criteria. This quest resulted in all the provisions of the subsequent 1982 UNCLOS relating to maritime delimitation, embodying the “equidistance principle”. The three provisions of the UNCLOS—Articles 15, 74(1) and 83(1), form the backbone of the legal framework in maritime delimitation. Maritime delimitation disputes in the past include the famous Grisbadarna Arbitration, North Sea Continental Shelf Cases, Anglo-French Arbitration, Dubai/Sharjah Arbitration, Tunisia/Libya Case, Romania/Ukraine Case and the Gulf of Maine Case.

The Dispute

Both Somalia and Kenya are neighboring countries with a shared boundary which intersects at the Indian Ocean in the south-east. This maritime zone holds vast oil and gas reserves which are a bone of contention for both the states. Both countries have ratified the 1982 UNCLOS and are bound by it. In 2009, both countries signed a MoU in which they agreed to a maritime delimitation process in the future by negotiations, however the Somalian legislature later rejected this. In 2012, the Kenyan government awarded several offshore exploration blocks to foreign oil companies in the disputed zone. The Somalian government contended that this was a violation of its continental shelf and Exclusive Economic Zone (EEZ).

Both the states have applied a complete opposite approach to the delimitation process. Somalia contended that the maritime boundary should run a parallel path in the south-east direction along the countries’ land borders. Pursuant to the UNCLOS provisions, such an approach would yield an equidistance line through the maritime areas as required by international law. Somalia requested the ICJ to declare all hydrocarbon exploration activities by Kenya in the disputed zone as a violation of its territorial sovereignty and a breach of obligations under the UNCLOS and customary international law.

On the flip side, Kenya argued that both states had already agreed to a maritime boundary line which runs parallel to the latitude. Taking this approach, Kenya contended that the boundary line should take a 45-degree bend at the coastline to make it parallel to the latitudinal line. This would eventually give Kenya control over a much larger piece of the disputed maritime zone. Kenya also argued that Somalia had acquiesced to such an approach, which was tantamount to tacit agreement.

The Ruling

The ICJ rejected Kenya’s claim that both states had, through tacit agreement, established a maritime boundary which ran parallel to the latitudinal line. Kenya’s claim was founded on the premise that Somalia had failed to protest for a prolonged time to such a boundary line of the territorial sea, EEZ and the customary extended continental shelf within 200nm. Moreover, this boundary line was consistent with both countries’ practices vis-à-vis fisheries, naval patrols, oil & gas exploration and scientific research. The Court held that there was no compelling evidence to establish a tacit agreement, which must be “more than the demonstration of longstanding oil practice or adjoining oil concession limits”. It concluded that no agreement had been reached on a ‘de-facto maritime boundary’.

In addition to this, the court applied the usual “equidistance principle” methodology to determine maritime boundary delimitation. The ruling was an effort to maintain consistency with the existing case-law and the relevant provisions of the UNCLOS. The decision noted that in absence of compelling factors, there was no reason to depart from its “usual practice”. The court employed the long-standing and existing procedure. Firstly, it identified the coastlines and baselines and the extent of any entitlements that overlap. Secondly, the delimitation of the territorial sea was done using the median-line rule. Finally, the court proceeded to delimit the EEZ and the continental shelf within and beyond the 200nm.

The ‘equidistance principle’ methodology is not compulsory under the 1982 UNCLOS, but as the decision noted: “Since the adoption of the Convention, the Court has gradually developed a maritime delimitation methodology to assist it in carrying out its task.” In using the methodology, a provisional equidistance line is drawn from appropriate base points (used as reference points) from the coast. This is done objectively and in such a manner that the result obtained is equitable. In the present case, the court strictly adhered to geographic factors and rejected Kenya’s assertions of any political, strategic or economic factors to be considered in making an adjustment. The only adjustment that the court made was on the basis of concavity of the shoreline. This concavity of the shoreline has resulted in an inequitable delimitation which was highlighted by the separate opinions of three judges (Abraham, Yusuf and Robinson). The court also employed a retrospective proportionality test to verify the fairness of the adjusted equidistance line. The results found that the ratio between the maritime areas which pertain to Kenya and Somalia was 1:1.3 in favor of Kenya.

The implications

The role of non-geographical factors in influencing the maritime delimitation process has been a hot topic among international law experts. Political and economic aspects are the most important motivators of maritime boundary disputes, and are the crux of concepts like continental shelf, EEZ and territorial seas. The ICJ has not considered these dimensions in its maritime delimitation jurisprudence. It is now well-settled that non-geographical factors do not play a significant role in employing the delimitation methodology of maritime zones. However, the ICJ has not explicitly stated that such considerations are irrelevant or cannot be invoked in the future. Interestingly, the ruling highlighted that “relevant circumstances are factors which are mostly geographical in nature, but that there is no closed list of relevant circumstances”.

Similar to the ‘International Tribunal for the Law of the Sea’ (ITLOS) ruling in Bangladesh v. Myanmar, the ICJ also maintained its jurisdiction in the present dispute, notwithstanding the absence of recommendations from the ‘Commission on the Limits of the Continental Shelf’ (CLCS) pertinent to delimitation beyond 200nm. This was also consistent with ICJ’s previous ruling in Nicaragua v. Colombia, where the court had upheld its jurisdiction to delimit the maritime zone beyond 200nm on the basis of scientific data submitted to CLCS, although the commission had not yet issued its recommendations. In the present case, President Donoghue expressed her reservations on this issue in her separate opinion and Judge Robinson also criticized the Court’s decision to proceed with delimitation beyond 200 nm.

Another key aspect of the case was the ongoing seismic and drilling activity being conducted by Kenya in the disputed maritime area while the case was pending adjudication. Somalia had alleged that Kenya’s unilateral activities in the zone constituted a breach of Articles 74(3) and 83(3) of UNCLOS and a violation of its sovereignty. Legal experts argue that Somalia had correctly argued the possible infringement of its sovereign rights. However the ruling rejected the claim and relied on the ITLOS decision in the Ghana v. Côte d’Ivoire case. It held that any unilateral activities carried out by a State in a disputed maritime area to which another State has also laid claims do not violate the latter’s sovereignty, even if the area is later allocated to that State. Moreover, the court evinced that activities of a ‘transitory character’ (i.e. granting of oil contracts or performance of seismic surveys) did not suffice to jeopardize the reaching of a final agreement. But the court emphasized that unilateral drilling in disputed maritime areas causing permanent harm to the marine environment did attract the state obligations pursuant to Articles 74(3) and 83(3) of UNCLOS, as held in Guyana v Suriname. However, that was not the case in the instant dispute.

Conclusion

The judgment shows a desire by the ICJ to contribute to the continuum of consistent delimitation jurisprudence by maintaining that the ‘equidistance/relevant conditions method’ is now a standard in the maritime delimitation process. It also underscores the importance of material criteria associated with coastal geography, such as concavity and coastal length while disregarding non-geographical factors related to unilateral activities in the disputed maritime area. However, there are still inconsistencies and discrepancies in the ICJ’s ruling. As noted, the decision considered concavity outside the relevant coastlines; delimited the continental shelf beyond 200 nm despite the absence of recommendations by the CLCS; and confusingly held on to the view that delimitation is constitutive of sovereignty. It is pertinent to note that the courts and tribunals under Part XV of the UNCLOS have failed to reach a consensus about which stage of the proceedings the absence of the CLCS’s recommendations should be considered. The disagreement by the four judges (Robinson, Xue, Yusuf and Abraham) in their opinions pertinent to the way the Court adjusted the provisional median line within 200nm is also noteworthy. Judge Yusuf aptly highlighted in his separate opinion that it “may also lead in the future to a Court-created new problem between the Parties”, for example encroaching the sea-bed area”.


[1] Caflisch, Lucius. “Maritime Delimitation Disputes—What Modes of Settlement?.” In The Hamburg Lectures on Maritime Affairs 2009 & 2010, pp. 69-87. Springer, Berlin, Heidelberg, 2012.

Tanzeel ur Rehman is an undergraduate law student at University of Sindh, Pakistan. He has a passion for creative and legal writing. He aspires to be an International lawyer.

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International Law

The Unabashed Irony of the UNSC Reforms

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The war in Ukraine has prompted multiple factors to breach the historical course. Oil prices have flickered near record highs, commodity valuations are through the roof, and global inflation is untenable. A robust western response to the Russian invasion is a rare display of western concord, not seen since the end of World War II. The waning neutrality of Finland and Sweden is the recent chapter in this NATO vs Russia saga. Nevertheless, conflicts as such are nothing new to global diplomacy. A recap of the yesteryears enlists multiple examples of Russian brutality – from Georgia to Chechnya to Ukraine to Syria. However, the dialled-up reaction to the invasion today is somewhat eccentric; divergent from the traditional path of diplomacy and instead focused on the economic (and political) derailment. Tough sanctions were already biting hard, pushing Russia on the verge of an international default – the first in decades. Adding weight to injury, the United Nations General Assembly (UNGA) convened earlier to reform the decades-old system of veto of the United Nations Security Council (UNSC).

The consensus vote now dictates a supplementary meeting to defend any vetos cast in the Council. Since its inception, five permanent members of the Security Council – the US, UK, France, Russia, and China – can cast a veto to block any resolution presented in the Council. Now, the General Assembly must meet within ten days of any veto cast in the Security Council to demand an explanation from the veto casting member. In theory, the reform is intended to ask for an explanation from the big five regarding their regular abuse of veto power. However, it hardly curbs the power of the big five when it comes to utter disregard for international law or advancing barbaric allies. The Russian invasion of Ukraine has kickstarted this odd trail towards accountability in the Security Council. Curiously, Russia would not be in the hot seat much longer. The United States, on the other hand, has a long-winded history of power abuse.

While the veto of the Russian envoy has incensed the western bloc, the US has consistently used its veto to guard allies from accountability for their inhuman conduct. In 1977, the US blocked sanctions against the apartheid regime in South Africa. An authoritarian government that programmed actual death squads to detain, torture, and murder the black community. Mr. Joe Biden recently casually tossed the word ‘genocide’ to describe the atrocities of Russia in Ukraine. However, he failed to mention the cruelties inflicted by his own nation. His convoy to the UN delivered an emotional spiel when the Russian envoy vetoed the resolution. “Russia cannot veto accountability,” she said. Well let us unravel the convoluted history of human rights abuse and the misuse of veto power by the United States.

Since 1989, the US has cast three vetos to defend its own illegal invasions. Exactly how destructive were these invasions? According to a Senior US Defence Intelligence Agency, the first 24 days of Russia’s bombing of Ukraine were less catastrophic than the first 24 hours of US bombing in Iraq in 2003. Since 2001, the US (and its allies) have dropped over 337,000 bombs and missiles – 46 per day – on nine countries. A UN assessment mission reported that the US-led campaign against the Islamic State of Iraq and Syria (ISIS) was the heaviest bombing anywhere in decades. The report also counted 40,000 verified civilian deaths in Iraq and Syria. I haven’t even discussed Afghanistan, Vietnam, or Panama. I have even skipped past the US proxy wars in Angola and Zimbabwe. The brutality of the United States is the fact that makes this UNSC reform a joke in the guise of hypocrisy.

The United States cast 25 of the last 30 vetos to defend Israel from international condemnation. According to data published by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), about 5,600 Palestinians were murdered between 2008 and 2020, while nearly 115,000 were injured. Last year alone, the 11-day Israel-Palestine war killed 275 Palestinian civilians – including 61 children and 35 women. The war decimated about 94 buildings in Gaza and displaced over 72,000 Palestinians. How did the law-abiding US respond to such human rights abuse? The so-called ethical United States blatantly blocked the UNSC joint statement – three times in a single week. Imposing sanctions on Russia while supplying military aid to Israel, it doesn’t take a genius to grasp the duplicity of the United States at display.

In my opinion, the UNSC reform would not change anything for the better. Sure, this stipulation could guilt-trip Russia into embarrassment. But an explanation of a veto would unlikely deter seasoned diplomats, rendered blasé about the atrocities inflicted by their nation, from justifying their abuse of power. The US, for instance, would only resort to lexical gimmicks in its defense of Israel. “Right to defend itself” has been the general parlance of the US to describe the Israeli genocide in Palestine. I do not doubt that the US (and the rest of the big five) have skilled envoys to weave emotional speeches and complex jargon to justify vetos in the Security Council. It is only a matter of time before this explanatory bid would be nothing but a PR segment to further the agenda of mocking international law. Nonetheless, it is funny how once the tables are turned, the veto seems an inconvenience rather than the traditional hedge against the backlash. I am particularly enjoying how the US is finally feeling the folly of its ways.

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International Law

Russia-Ukraine War, China and World Peace

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image source: war.ukraine.ua photo: Vadim Ghirda

On May 3, when asked about the possible causes of the Ukrainian tragedy, His Holiness Pope Francis speculated about an “anger” probably “facilitated initially by NATO’s barking at Russia’s door. I cannot say whether this anger was provoked, but it was probably facilitated”.

What do the Pope’s words mean? In short, they mean that in international relations – of which the Holy See is Master of the Art – two things count: respect for the other and ignorance. The former is to be always placed as a founding element of peace, the latter is to be eradicated, especially in countries like Italy and in many others, as a factor of war.

Why was the Soviet Union respected and why the same respect and consideration is not owed to Russia? Why with the Soviet Union, after the normalisation of the Prague Spring, did a still divided but wise Europe (today, instead, united only by the banks’ and bankers’ money) and a sharp-witted West, with Russia’s agreement, launch the Helsinki Conference on Security and Cooperation in Europe? Why instead did a powerless Europe, a semi-colony of the United States of America – with the UK as the 51st star on its flag – together with the White House, pretend not to see what was happening in Ukraine? Why did they turn a blind eye to this conflict, which has been going on since 2014, and fomented the rise to power of people who, by inciting hatred against Russia, were under the illusion that NATO would come to their aid, turning Europe into a pool of blood for their purposes?

Do some people probably believe that Russia is still that of Yeltsin, ready to open up – in every sense – to the first master coming along? These are the cases in which respect is lacking and ignorance triumphs.

As to an example of ongoing and consistent respect in foreign affairs, it is useful to comment on a recent speech delivered on April 21 by China’s President Xi Jinping, which developed several points.

He pointed out that, for over two years, the international community has made strenuous efforts to meet the challenge of COVID-19 and promote economic recovery and development in the world. He added that the difficulties and challenges show that the international community has a shared future for better or for worse, and that the various countries must strive for peace, development, and win-win cooperation so as to work together and tackle the different problems that gradually emerge on the scene.

With a view to facing the health emergency, China has provided over 2.1 billion vaccine doses to over 120 countries and international organisations and it will continue to make the pledged donations of 600 million doses to African countries and 150 million doses to the countries of the Association of South-East Asian Nations (ASEAN) to proactively help bridge the vaccine gap.

With specific reference to the economic recovery, President Xi Jinping pledged to keep on building an economy open to the world, strengthening macroeconomic policy coordination and preserving the stability of industrial and supply chains, as well as promoting balanced, coordinated and inclusive development globally. He said: “People need to be put first and development and social welfare must be prioritised. It is important to promote pragmatic studies in priority areas such as poverty reduction, security, food, development finance and industrialisation, as well as work on solving the issue of unbalanced and insufficient development, and move forward by establishing job creation initiatives.”

With regard to the recent war clashes, President Xi Jinping deems necessary to jointly safeguard world peace and security. I wish to add that the Cold War-style mentality – what is happening in Ukraine, i.e. the West disrespecting Russia, considering it an enemy as in the past, but not as strong as in the days of the CPSU – can only undermine world peace. Hegemonism aimed at conquering Eurasia – as the land that holds the remaining raw materials on the planet – and the policy of the strongest country can only undermine world peace. The clash of blocs can only worsen the security challenges of the 21st century.

Why, while the Warsaw Pact (of which the People’s Republic of China was never a member and never wanted to be a member) was dissolved, did the same not happen with NATO? China has always wanted to promote world peace, never wanting to be part of aggressive and barking alliances.

China pledges to advance the vision of common, integrated, cooperative and sustainable security and to jointly preserve world peace and security. It pledges to respect all countries’ sovereignty and territorial integrity; to pursue non-interference in other countries’ internal affairs, and to respect the development path and social system chosen by peoples. It pledges to abide by the aims and principles of the UN Charter; to reject the warmongering mentality (opposing the good countries by default vs. the bad ones conventionally); to oppose unilateralism and to reject the policy of bloc confrontation. China takes all countries’ security concerns and legitimate interests into account. It pursues the principle of indivisible responsibilities and builds a balanced and effective security architecture. It opposes one country seeking its own security by fomenting insecurities in the others. China seeks dialogue and consultation, as well as peaceful solutions to inter-State differences and disputes. It supports all efforts for the peaceful settlement of crises. It refrains from double standards and rejects the arbitrary use of unilateral extraterritorial sanctions and jurisdictions.

It is crucial to adopt a comprehensive approach to maintain security and respond together to regional disputes and planetary challenges such as terrorism, climate change, cybersecurity and biosecurity.

Global governance challenges must be addressed together. The world countries are on an equal footing when it comes to sharing fortunes and misfortunes. It is unacceptable to try to throw anyone overboard. The international community is currently a sophisticated and integrated device. Removing one of its components makes it very difficult for it to function, to the detriment of the party that is deprived by others of its own guarantees that call into question the very existence of a State – such as trying to deploy nuclear warheads a few kilometres from a capital city.

Only the principles of broad consultation, joint contribution and shared benefits can promote the common values of humanity, foster exchanges and inspire reciprocity between different civilisations. No one should believe to be better than another by divine grace or manifest destiny.

True and genuine multilateralism must be pursued and the international system centred on the United Nations and the world order based on international law must firmly be preserved. Great countries, in particular, must set an example in terms of respect for equality, cooperation, credibility and the rule of law to be worthy of their greatness.

In ten years of President Xi Jinping’s leadership, Asia has maintained overall stability and achieved fast and sustained growth, thus creating the “Asian miracle”. If Asia does well, the whole world will benefit. Asia has continued to strive to develop, build and maintain its strength, i.e. the basic wisdom that makes the continent a stabilising anchor of peace, an engine of growth and a pioneer of international cooperation.

These achievements come from as far back as the aforementioned Chinese refusal to join aggressive military blocs. They are based on the Five Principles of Peaceful Coexistence drafted by Prime Minister Zhou Enlai on December 31, 1953, published on April 29, 1954, and reaffirmed at the Bandung Conference on April 18-24, 1955: (i) mutual respect for each other’s territorial integrity and sovereignty; (ii) mutual non-aggression; (iii) mutual non-interference in each other’s internal affairs; (iv) equality and cooperation for mutual benefit; (v) peaceful coexistence.  

They are based on the Eight Principles for Foreign Aid and Economic and Technical Assistance proposed by the aforementioned Zhou Enlai before the Somali Parliament on February 3, 1964, which became the emblem of China’s presence in Africa: (i) China always bases itself on the principle of equality and mutual benefit in providing aid to other nations; (ii) China never attaches any conditions or asks for any privileges; (iii) China helps lighten the burden of recipient countries as much as possible; (iv) China aims at helping recipient countries to gradually achieve self-reliance and independent development; (v) China strives to develop aid projects that require less investment but yield quicker results; (vi) China provides the best-quality equipment and materials of its own manufacture; (vii) in providing technical assistance, China shall ensure that the personnel of the recipient country fully master such techniques; (viii) Chinese experts are not allowed to make any special demands or enjoy any special amenities.

Over the last ten years President Xi Jinping has successfully applied the Chinese doctrine in international relations, following and implementing his country’s multi-millennial traditions of diplomacy. ASEAN’s central place and role in the regional architecture has been strengthened in Asia, preserving the order that takes all parties’ aspirations and interests into account. Each country, whether large or small, powerful or weak, inside or outside the region, contributes to the success of Asia’s development, without creating war frictions. Each country follows the path of peace and development, promotes win-win cooperation and builds a large family of Asian progress.

The ASEAN countries are the following: Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar (Burma), Philippines, Singapore, Thailand, Vietnam (Papua New Guinea and East Timor as observers).

Furthermore, the fundamentals of China’s economy – its strong resilience, huge potential, ample room for manoeuvre and long-term sustainability – remain unchanged. They will provide great dynamism for the stability and recovery of the world economy and wider market opportunities for all countries.

The People’s Republic of China will be fully committed to its new development rationale. It will step up the establishment of a new growth paradigm, and redouble its efforts for high-quality development. China will promote high standards; expand the catalogue for the creation of new computer software; improve investment promotion services and add more cities to the comprehensive pilot programme for opening up the service sector.

China will take concrete steps to develop its pilot free trade zones and the Hainan Free Trade Port will be in line with high-standard international economic and trade rules and will move forward with the institutional opening process.

China will seek to conclude high-level free trade agreements with more countries and regions and will proactively endeavour to join the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Digital Economy Partnership Agreement (DEPA).

China is moving forward with the Silk Road (Belt and Road) cooperation to make it increasingly high-level, sustainable and people-centred. China will firmly follow the path of peaceful development and will always be a builder of world peace, as well as a contributor to global development and a defender of the international order.

Over the last ten years, under President Xi Jinping’s leadership, the People’s Republic of China has been following the old Chinese saying: “Keep walking and you will not be discouraged by a thousand miles; make steady efforts and you will not be intimidated by a thousand tasks”.

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International Law

The More Things Change…

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The brutality of ethnic cleansing is complete.  It does not distinguish between mother and son, young and old, child or adult.  It goes about its gruesome business without conscience or moral compensation.  It is the conversion of man into an unthinking beast.  It is Putin, Zelensky, Modi and Xi Jinping … all rolled into one.  It is us.  The seed is there, needing only fertile soil to germinate. 

The EU announces more aid to Ukraine — mostly military aid; the US announces more aid to Ukraine — mostly military aid.  The Ukrainians saying ‘we will never surrender’ continue to fight.  The Russians asking for talks are not backing down.  Ukraine’s real value to the world is as an exporter of grain which helps to stabilize grain prices.  Feeding a war therefore, runs counter to such stability.

On the heels of covid and its inflationary fallout, who wants a rise in food prices?  Not India, not Africa, not the EU and Russians are already feeling the pinch.  Perhaps grain exporters in North America could be an exception.  Yet at what cost?

According to the UN Secretary General, Antonio Guterres, the Security Council failed to prevent the war or to end it.  How can it when the most influential member and its European allies are busy funding it?

Human strife is displayed on almost every continent.  Stone throwing at ultra-nationalists by Palestinians after Friday prayers is a routine accompanied sometimes by tragedy.  One side provokes, the other side retaliates.  Stones are thrown, fights  breakout.  The authorities respond and more Palestinians are killed — fifteen last Wednesday.  Is this the big story in Israel?  Of course not.

A TV report accused millionaire Naftali Bennet, the current prime minister, of extravagant expenditure from the public purse at his home, which currently serves as his official residence.

Mr. Bennett disclosed that $26,400 of taxpayer money was spent on his home each month including a $7,400 food bill.  His defense avers that his conduct is within the rules and that his predecessor Benjamin Netanyahu spent, on average, $84,300 per month during his tenure.

Noting his efforts at parsimony, he pointed out he did not employ a cook as he is entitled to.  Instead, the family sent out to restaurants, presumably the best ones, to have food delivered.  Sensitive to the criticism, he states he will henceforth pay for all the food from his own picket.

Sara Netanyahu, his predecessor’s wife, had to admit misusing public funds during a similar scandal and was obliged to pay a $15,000 fine.  The prime minister is paid $16,500 per month — average monthly salary in Israel is $3,500.

Plus ça change …

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