Environmental Legislation in Times of Conflict:

The Case of Lebanon

Ali Ayoub

International Master of Science in Environmental Technology and Engineering

(IMETE)

Environmental Legislation

Prof. Dr. Frank Maes

2014-2015

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Table of Contents

List of Abbreviations ................................................................................................... 3 Introduction .................................................................................................................. 4

Historical Background ........................................................................................................ 5 The Case of Lebanon In 2006 ............................................................................................. 6

International Environmental Law ............................................................................. 6 International Environmental Law vs. The Law of War .................................................. 7

Environmental Legislation and its Applicability ...................................................... 8 International Environmental Legislation In Force During Conflicts ............................. 8

International Conventions ................................................................................................. 9 Environmental Guidelines and Their Applicability ....................................................... 11

Stockholm Declaration .................................................................................................... 11 Rio Declaration ............................................................................................................... 12

Programme of Action For Sustainable Development .................................................... 13 The Precautionary Principle (PP) .................................................................................... 13 The Polluter Pays Principle (PPP) .................................................................................. 14

State Responsibility and Commitment .................................................................... 15 Applicability of International Environmental Law During Conflicts .................. 17

Fate of International Environmental Law During Conflicts ......................................... 18 Compliance in Times of Conflict: The 2006 War in Lebanon ............................... 18

Background Of The Case Study ...................................................................................... 20 Factors Affecting Compliance .................................................................................. 21

Three key factors ............................................................................................................... 21 External factors ................................................................................................................. 21

Properties of The Activity ............................................................................................... 21 Characteristics of The Agreement ................................................................................... 22 International Community ................................................................................................ 23

Internal Factors ................................................................................................................. 24 Local Capacity to Comply with The Protocol ................................................................ 24 Lack of Political Will ...................................................................................................... 25 Physical And Financial Ability ....................................................................................... 26

Means of Settlement and Compensation .................................................................. 26 Diplomatic Settlement ....................................................................................................... 27 Judicial Settlement ............................................................................................................ 27 Political Settlement ............................................................................................................ 27 Security Council's Commitment to Lebanon .................................................................. 28

Conclusion .................................................................................................................. 28 References ................................................................................................................... 30

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List of Abbreviations

EU: European Union

FUND: International Fund for Compensation for Oil Pollution Damage

ILC: International Law Commission

IMO: International Marine Organization

MARPOL: International Convention for the Prevention of Pollution from Ships

MEDU: Coordinating Unit for the Mediterranean Action Plan

MAP: Mediterranean Action Plan

OECD: Organisation for Economic Cooperation and Development

OILPOL: International Convention for the Prevention of Pollution of the Sea by Oil

PP: Precautionary Principle

PPP: Polluter Pays Principle

REMPEC: Regional Marine Pollution Emergency Response Centre for the

Mediterranean Sea

UN: United Nations

UNCLOS: The United Nations Convention on the Law of the Sea

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Introduction

If we assume that the human right to life, liberty and security, mentioned in

the third item of the International Bill of Human Rights, are fundamental rights of

every individual, and that a sound environment is a condition for human survival and

continuity. Protection of the environment from human actions and negative behaviors

must be a priority, a notion that becomes an even more important priority during

conflicts. It has been shown throughout the history of warfare, that the environment

has always been the major victim, where damages in many cases can be long-termed

and irreversible. Although international legislation is present to protect the

environment during wars, this legislation is often not effective, or not subject to

application.

The following paper investigates environmental legislation and compliance

during wars, with a focus on International Environmental Law (IEL). The Israeli

hostility on Lebanon in 2006 was chosen as a case study, where it constitutes the

latest example of ignoring environmental laws during the conflict. International

environmental conventions are discussed, especially the Barcelona Convention in

relation to the oil spill that occurred in the course of aggression. The legislative

circumstances are also reviewed along with the reasons behind the not applying the

convention, and the necessary steps that had to be taken Internationally by the

Lebanese government. Finally, the Lebanons right to receive compensation for

environmental damage caused by the oil spill resulting from the mentioned aggression

is assessed.

Since the early seventies of the last century, the continuing deterioration of the

natural environment, resulted in an increase in awareness to the devastating impact on

nature, caused by human, intentionally or negligently. This increasing awareness lead

to growing efforts of various environmental agencies, to adopt a set of conventions,

and legislation related to environmental protection. The adoption of these

conventions, during periods of war in particular, was the concern of various

legislations in order to protect the environment in all its various components such as

water, air, forests, and energy sources, the components of infrastructure, and the life

of people living during these periods.

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Historical Background The first use Environmental record date for the war back to the year 512 BC,

when Scythians, tribes settled north of the Black Sea, or what is known today

Crimean peninsula, burned lands in their areas in order to impede the progress of the

Persians. Since then, we have witnessed numerous aggressive military threats to the

natural environment, which has been causing accidental harm as a consequence of the

attack on a military target.

This relationship was further demonstrated over the past few decades, during

any large-scale military operations that have occurred, due to conflicts in the second

half of the twentieth century. In spite of the fact that environmental protection comes

as a later priority when lives are in danger, environmental consequences of military

interventions should be given more attention. Military operations in some cases, may

lead on the long term to environmental damage with a more disastrous effect than

hostilities, caused by soil contamination, agricultural cycles, as well as the

consequences of famine and drought, and population displacement. The price of

social, political and environmental destruction is too high, an issue, which shed the

lights on the reconstruction efforts of conflict zones after war ends. The relationship

between the environment and military action can be seen in three ways: the

environment is a victim of armed conflict, or potentially exploited as a weapon during

the conflict, or it can be the background of the armed conflict (Partidario, 1996).

However, due to the fact that most environmental problems do not stop at a

countrys border, as well as the idea that the destroying the planets ecosystem may

set limits to human expansion, warned politicians and the public to the need to create

an international legislation. In response to this, the adoption of a growing range of

environmental rules, known as the International Environmental Law. These rules

include a wide range of issues, including the prevention of environmental damage and

recovery, and promote international cooperation in dealing with the effects.

The adoption of several sets of principles of international environmental law

and rules that are applied by the parties to the conflict, both regionally and

internationally, would enhance the growth of interest in International environmental

issues. The rules reflect the interdependence of these groups, and international mutual

reliance under growing globalization. The progress of these principles and rules

gradually, depends on the need for new scientific proof, to prove that environmental

pollution has occurred, and that the effects requiring treatment quickly. The

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International Environmental law covers wide range of environmental damage that

entails responsibilities and consequences during periods of peace, which raises the

question if international environmental law applies to similar damage resulting from

an armed conflict, and to what extent. This paper primarily seeks to examine whether

the law International Environmental valid or applicable in during periods of conflict,

and whether it can be imposed in a practical way in which the affected country can

use the international environmental law to hold polluters responsible (Takshe, 2011).

The Case of Lebanon In 2006 The availability of Israel's war on Lebanon in 2006 is an excellent case study

analysis of the power of international environmental law and its implementation, and

compliance. Here is a summary of the situation at hand:

The war Broke out in July 2006 war in Lebanon, when the Lebanese

resistance Hezbollah kidnapped Two Israeli soldiers, and the reply came after through

Israeli aggression in less than 24 hours, and it was much larger, and immeasurable

reaction to the kidnapping of two soldiers. The war caused great human and material

losses, and long term damage to infrastructure, not to mention the severe

environmental damage. Never before in Lebanese or regional history a damage like

was witnessed, caused by oil spill, after the Israeli Air Force targeted fuel tanks In

Jiyeh power plant.

This war has paralyzed Lebanon; with the international community trying to

protect the environment and reduce the environmental damage both domestically and

internationally. and along with the tragic human toll, and the destruction of the

country's infrastructure, this has had a devastating effect on the conflict environment.

The bombing of the Jiyeh power plant in July 13 of that year has led to the leakage of

15 thousand tons of oil to the Mediterranean. Fires caused by flammable oil resulted

in air pollution, especially in the south of Beirut. The Israeli naval blockade hindered

immediate cleanup efforts and damage assessment for three weeks, which aggravated

the magnitude of this damage, leaving a significant negative impact on the

environment and the health of the Lebanese citizens.

International Environmental Law

Armed conflicts have caused environmental damage since old times. The

states that damage the environment during armed conflict, violate the legal

responsibilities, whether Regional or international, as well as impose undesirable

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effects on the natural environment where damage lasts sometimes for very long

periods. The environmental effects of the war were documented and archived, while

actions are needed to focus attention on relieving the harmful effects of conflicts on

the environment. Unlike the laws governing armed conflict, the laws relating to the

environment do not strike deep roots in history, and are considered new. International

environmental protection did not emerge as a matter of concern, until the 1970s

(Westing, 1988).

Nevertheless, the law of countries over time recognizes the connection

between military activities and environmental degradation. For these reasons, the

majority of conventions seeking to protect people from the effects of war, mention the

protection of the environment, even Indirectly. There are separate groups of

conventions aimed at protecting the environment in itself, but it is believed that

environmental protection may be better achieved if included within the principles laid

down for armed conflicts, since those principles have the biggest legal impact and

political power, in addition to being widely accepted at the national and international

levels (Claudio, 2007).

Two questions are raised in this regard, concerning environmental legislation

during wartime: first, what kind of protection granted by the international law of the

environment in the course of times of war? Second, does the international

environmental law work effectively, and can it be enforced during the war, when the

rules of the traditional legal systems are not working as usual?

International Environmental Law vs. The Law of War There are two definitions used in the discussion of environmental law and the

law of war, especially related to the words War and Environment. In law, the

term War is linked to the use of force between states for political, or economic

reasons, or to impose the will of one state on other weaker ones victim countries. It

includes disputes and armed military occupation. The debate on how to define the

term Environment, where everyone understood the meaning of the term

Environment, but was unable to define it (Speier, 1941).

The international environmental laws and the law of war form a very

important set of legislation. The first has developed over the past few decades, but the

second was set since a longer period. International environmental law includes

objective, procedural and constituent regulations with a primary objective to protect

the environment. In the recently period, the law of war put restrictions on the

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destruction of the environment, similar to these listed in International Environmental

Law, and by restricting the means of environmental destruction, the law of war

imposes on the warring states to take the environmental impacts of their actions into

consideration (Sands, 2003).

The law of war is primarily intended to relieve human suffering and protect

their lives, the main focus of environmental law is the protection of the environment,

which may also lead to maintain and improve the conditions of the citizens. The first

principle of the Rio Declaration on Environment and Development states that

Human beings are at the centre of concerns for sustainable development, which

means that the protection of the environment is not a goal but a necessity in order to

ensure a dignified life that is safe for humans.

There are common points to a large extent between the law of war and

International Environmental Law, where the first targets the benefit of mankind, while

the second aims to the survival of society. and more than that, the law of war seeks to

reduce the environmental destruction in the name of humanity, while environmental

law limits environmental destruction in the name of nature, which humans are a part

of. In other words, both philosophies seek to alleviate the suffering of human beings.

Moreover, the environmental law sometimes explains some of the terms of the law of

war relating to the reduction of environmental damage in periods of armed conflicts

(Schafer, 1979).

Environmental Legislation and its Applicability

Currently, there is a disparity in how to deal with international environmental

law regarding the issue of its applicability during periods of conflict. Some

conventions deal directly or indirectly with the issue of applicability in times of

conflict, whether as a statement or implication. Other conventions clearly state the

suspension and cancellation, or immediate non-validity during periods of conflict.

The rest of the conventions, miss any clear description of their effectiveness during

conflicts.

International Environmental Legislation In Force During Conflicts In the presence of more than two signatories, international conventions are

considered binding legal documents. Any breach of the convention entails a

responsibility on the offending state. Several mechanisms have been put forward in

order to facilitate compliance with these conventions. In the following conventions

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that apply directly, or indirectly, to the protection of the environment during periods

of armed conflict:

International Conventions The United Nations Convention on the Law of the Sea UNCLOS (1982)

This convention entered into force in 1994, and developed the legal

framework to promote international peace and security within the scope of the marine

environment. The convention mentions that states are responsible for protecting and

conserving the marine environment, and must prevent, reduce, and control any type of

marine pollution. These restrictions are limited when the convention states that the

terms of this convention relating to the protection of the marine environment and

preservation shall not apply to any warship, destroyer, or any ships or aircraft owned

or operated by the state, and is currently used in non-commercial government

services.

Additionally, there may be ships engaged in an armed conflict is not covered

this exception, since pollution can also occur from non-ships sources, such as power

plants located on the beach. Although not clear to what extent UNCLOS offers

environmental protection in armed conflicts, it is important to take into account the

possibility of Applicability in cases similar to the oil spill in Lebanon, which occurred

after Destruction of the oil facility near the beach (Jiyeh power plant), by Israeli

hostile military activities (Schmitt, 1997).

International Convention for the Prevention of Pollution of the Sea by Oil OILPOL (1954)

The International Convention for the Prevention of Pollution of the Sea by Oil

(OILPOL) is a convention that prevents ships from unloading oil within 80 kilometers

from the beach. A clear signal to its applicability during periods of war, is stated in

case of war or other hostilities, the government which is deemed to have been affected

by this war, can fully suspend the effects of this convention on the whole territory or

part of it (IMO, 1954).

The International Convention for the Prevention of Pollution from Ships MARPOL (1978)

MARPOL adds to the terms of the International Convention for the Prevention

of Pollution of the Sea Oil (OILPOL), which prohibits oil dumping in the sea, to

include other harmful materials. The aim of MARPOL convention is to prevent all

types of intentional pollution, and reduce the accidental discharge of harmful

substances. In terms of applicability during periods of conflict, the convention

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excludes military-state ships and aircraft through a paragraph sovereign immunity, but

demands that parties should make sure that such ships and aircraft comply with the

obligations to a possible extent (IMO, 1978).

Convention For Protection Against Pollution In The Mediterranean Sea and Its Protocol (Barcelona Convention)

The Barcelona Convention For Protection Against Pollution In The

Mediterranean Sea, and the dumping protocol were adopted in 1976. The convention

calls for the countries to reduce marine pollution to a minimum, and promote marine

protection. In addition, states are required to comply with the precautionary principle

and polluter pays principle in development processes. The convention was clear that

none of its contents could contradict with the application of the United Nations

Convention on the Law of the Seas (UNCLOS).

In addition, the convention includes the same type of exception clause

mentioned in the United Nations Convention on the Law of the Sea (UNCLOS), and

the convention International for the Prevention of Pollution from Ships (MARPOL),

which recognizes sovereign immunity on warships and vessels owned and operated

by the parties that, and engaged in non-commercial government services. Although

warships are exempted, the validity of the Barcelona Convention during armed

conflict remains active. This is evident in the adoption of Barcelona convention by the

International Maritime Organization as a basis for providing guarantees to Lebanon,

following Israel's bombing of the Jiyeh power plant in 2006, causing the oil to leak

into the Mediterranean Sea (UNEP, 1995).

Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention 1972)

According to the context of this convention, signatory countries calling for

recognition of their duty to highlight some specific places that are part of the heritage

of mankind and protect them. The convention provides that any outbreak or threat of

armed conflict would be enough to put any classified world heritage property as

endangered. The convention includes an item that demonstrates the continuing

validity of the convention during periods of conflict. This convention can be used to

limit the damage that affects an ecosystem to the maximum extent possible. This

requires a entry into force of the convention during the hostilities, by requiring each

party to pledge not to carry out any deliberate actions might damage directly or

indirectly harm, cultural or natural heritage objects and sites previously identified in

the convention (UNESCO, 1972).

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London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London Convention 1972)

London Convention was considered one of the first international agreements

that protect the marine environment from human activities, in effect since 1975. The

objectives of the convention and its protocol is the effective control for all sources of

marine pollution, and to take all practicable steps to prevent pollution of the seas as a

result of unloading waste and other materials.

An exemption from the requirements of the convention are two cases, the first

one, allows such a discharge when there is a need to ensure the safety of human life or

ships, or aircraft, or other man-made structures, or if such discharge is the only way to

avoid a real risk, if the danger caused by the discharge is less than the consequences

of not discharging. Secondly, a special permission can be issued in emergency

situations on what may constitute an unexpected threat to human health without the

presence of any other solution. It is possible, under these exceptions, especially the

second exception, that a concerned state would argue that the discharge for military

purposes was a need to protect Human lives. However, this is not likely to be a

compelling case (IMO, 1972).

Environmental Guidelines and Their Applicability Environmental guidelines, by their nature are not legally binding, although

some of them may be considered customary international law. These guidelines are

developed for guidance and direction, and depending on the extent of recognition and

resolution of these guidelines, their rulings are binding on states. There are several

legal guidelines, dealing with the issue of environmental protection during periods of

conflict, although their provisions remain incomplete.

Stockholm Declaration In 1972, the Stockholm Declaration of the United Nations Conference on the

Human Environment was adopted. It is said that this adoption was the first attempt by

the international community for the legalization of environmental issues. I did not

have any international organization responsible for environmental legislation format,

while at that time; international procedures to ensure implementation of and

compliance with international environmental agreements were not available.

Principle 21 of the Stockholm Declaration mentions that states under the Charter of

the United Nations and the principles of international law, have a sovereign right to

exploit their own resources in accordance with their own environmental policies, and

its their responsibility to ensure that activities within their jurisdiction or supervision

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do not produce any harm to the environment of other states or areas behind national

borders. This responsibility extends to include activities that fall under the supervision

of the state, or the activities carried out by citizens or ships or aircraft. Principle 21 is

considered as a rule in customary international law, since it is not limited in time and

place. So the application of this rule by states applies everywhere: land, territorial

waters, the continental shelf, and the high seas, outer space, even when they are in a

state of war with other countries (Molitor, 1991).

The other interesting principle in our case is principle 22, which declares that

states should take all measures necessary to ensure that exercising activities within the

scope of their authority or supervision does not cause harm through pollution to other

states and their environment, and that pollution caused by events from activities

within the scope of their authority or supervision, does not spread behind the area

where the sovereignty rights are exercised in accordance with this agreement. In

addition, this principle mentions that states should cooperate with each other to

develop international law for taking responsibility and paying compensation to the

victims of pollution and other environmental damages caused by the activities carried

out or supervised within the scope of authority, against states located in areas beyond

the scope of its authority (Tarasofsky, 1993).

Rio Declaration United Nations Conference on Environment and Development was held in Rio

de Janeiro in 1992, in the presence of the most influential leaders of the countries of

the world. The conference came at a time when there is a need to strengthen

international environmental law, and it has really helped in the development of these

laws. The main objective was to gather the various legal strategies of states to protect

the environment and development.

Some have argued that the direct interpretation of the principle may impose

liability on environmental damage during the war, even when the damage justification

under international humanitarian law of war law. Principle 13 of the Rio Declaration

with It is similar to principle 22 of the Stockholm Declaration, but with an additional

prominent feature, principle 13 of the Rio Declaration addresses the issues of

responsibility, where states are required to formulate a national law dealing with

responsibility and compensate victims of environmental damage. In addition, states

are demanded with the formulation of international law related to liability and

compensation.

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Also some important concepts were included in the Rio Declaration, such as

the precautionary principle, and the polluter pays principle of as well as the

demand for conducting environmental impact assessment. The most important point

was in dealing with the issue of environmental protection through armed conflicts,

where principle 24 of the Rio Declaration states that war is devastating in the nature

to sustainable development, so countries should respect international law that protects

the environment in times of armed conflict, and cooperate in its development

according to necessity. Furthermore, the Rio Declaration stresses in principle 25 that

peace, development, and protection of the environment are interrelated with each

other and form an integral whole (UNEP, 1992).

Programme of Action For Sustainable Development This programme is another important legal document developed through the

Rio Conference. This document does not mention environmental protection during

periods of conflict; however, Article 39.6 mentions the necessity of taking actions

into account in accordance with international law, even in times of armed conflict,

and environmental destruction on a large scale.

The Precautionary Principle (PP) The precautionary principle first appeared in international legal documents

during the mid-eighties of the last century, this principle was indirectly mentioned in

previous rules, particularly in the environmental policies of West Germany, at the

time. The main objective of this principle is providing guidance to the application of

International environmental law and its development. The meaning of this principle

and its impact is still the focus of controversy. Despite the fact that the precautionary

principle may be able to provide the basis for an early international legal action to

address threatening environmental issues, some people downplayed the ability of this

principle in controlling human activities that may be harmful to the environment, and

the reduction of these activities (Nash, 2000).

Precautionary protection received global support with time, relating to

different environmental issues. However, the exact meaning of this principle, and its

status in international law are still not fully understood.

The countries do not have a clear and common understanding for the

precautionary principle. Generally, the precautionary protection means that states are

required to act carefully and cautiously when making decisions about activities that

may be harmful to the environment. Perhaps the explanation is that the precautionary

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principle requires that the set of activities, or substances that may be harmful to the

environment, to be blocked, or entirely restricted. Even though there was no clear

scientific evidence that such activities or substances are harmful to the environment,

or that their consequences are non-unpleasant.

In other words, absence of scientific proof shall not be an excuse not to react

or to postpone acts that may prevent environmental degradation. The crucial point is

to know the enough level of scientific proof to convince states that an action is

required, and how different interpretations of the precautionary principle result in

fundamental differences in its application. The traditional approach to the current of

this principle is that the burden of proof is the responsibility of the person or party

who opposes the activity is, and thus the opposing party must prove that the action

may have potential negative impacts on the environment.

The legal status of the precautionary principle continues to evolve, and is

supported by various agreements and conventions. This shows that the precautionary

principle has received universal support, thanks to the argument that the principle is

now considered customary law, and that states are required to abide by it under the

law, without any complaints arising from the results of its application, even if not

legally binding. It should be noted that international courts did not accept this

principle as considered customary law without any conditions (Handl, 2007).

The Polluter Pays Principle (PPP) Another principle essential considered in the environmental international law,

is namely the polluter pays principle (PPP), which is a principle of environmental

policy demands that the polluters must bear the cost of pollution. The immediate goal

of the polluter pays principle is internalizing environmental externalities of economic

activities, where prices of goods, and any other services, reflect the full environmental

cost of production. In economic terms, this principle promotes effectiveness, and from

the legal side, it supports justice and encourages international environmental policy

coordination, it also determines how costs are distributed within the state (Bugge,

1996). The polluter pays principle is now widely recognized as a principle of

international environmental law, a fundamental principle of environmental policy, for

the Organisation for Economic Cooperation and Development (OECD) and the EU

alike. However, this principle remains vulnerable for many interpretations, especially

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when it comes to the nature and value of included costs, and the circumstances in

which the principle does not apply (Long, 2000).

The polluter pays principle did not receive universal support, as it is not clear

whether it can be considered a customary law, since its mostly applied at the national

level, but it does not provide guidance when it comes to cross-border issues. The

increasing importance of the polluter pays principle of comes from the growing

interest in the relationship between the environment and economic development, in

addition to the use of economic agreements in environmental protection and policy

law (Bugge, 1996).

Now there is clarity and more definitions of the polluter pays principle in two

main areas: the first one deals with the extent of costs of pollution that the polluter

should pay. In spite of that principle includes the cost of pollution prevention and

control, it is not clear whether the cost of decontamination, cleaning and

rehabilitation, is also included. The parties differ on whether the polluter must pay all

costs of causing pollution, especially when it comes to relations among nations. The

second area deals with exceptions that apply to the principle, and the rules that govern

granting subsidies, there is a need for more work on this issue, especially to determine

the effect of the polluter pays principle subsidy rules (Takshe, 2011).

The amendments to previous agreements and ongoing reviews, there are some

legal loopholes that need to be resolved. It additionally shows that international

humanitarian law in force during wartime, incorporates a variety of standards or rules,

which may be used to determine individuals or states responsibility for

environmental damage. But these standards or rule are not sufficient to ensure the

safety of the environment during periods of conflict. Among the reasons for this lack

of environmental protection, are the unspoken high standards for environmental

protection, and the justified environmental damage in order to allow for acts deemed

necessary by military exigencies. These shortcomings explain why the rules were not

applied in actual cases where environmental damage has occurred (Caron, 2000).

State Responsibility and Commitment

The Paris Convention in 1973 aimed to end the US war on Vietnam, and put

forward the principle of compensation. Later, environmental protection during armed

conflicts was given particular importance by several international conventions. To

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date, settlement of compensation claims related to war-related environmental impacts

was either by means of diplomacy or by political means, specifically through

decisions of the United Nations (Cueller, 2003).

The International Law Commission (ILC) was able to put the finishing

touches on the draft rules of state responsibility for wrongful international acts in

2001. The basic elements of the draft committee rules of international law relating to

the violation of an international commitment are:

A- Commitment to stop the act in the event of its continuation, and provide

appropriate guarantees not to repeat it if circumstances require so.

B- Repair the damage, and that includes fully restoring things to their original

condition, or compensation if such restoration is not possible or too expensive.

The affected state, or any other authority with legal right can apply for claims

if the obligation is due to a group of countries, or to the international community.

Cases can be differentiated according to whether a violation of international

environmental commitment affects the interests of a particular nation, or affects its

citizens, or the interests of the populations of different states as a whole. When

damage within the borders of any nation, it is easy to work on the suspension and get

compensation. But it's not easy when science is unable to prove the damage, or when

the damage is extended over a long distance, or at the beginning of its inception, in

such cases the International Law Commission fails to secure a satisfactory corrective

solution (Crawford, 2000).

If the damage had already occurred, then the act of intervention is too late to

prevent environmental harm, which in some cases cannot be reversed. The other issue

is that some of the main aspects of international law are not fully implemented, while

most of the environmental laws do not provide specific guidance for the application of

the draft rules of state responsibility. With the complexity of environmental pollution

and damage caused by it, nobody can be a fully acquitted. The states tend to avoid

blaming other countries for any damage, as they fear to also get exposed to blame for

environmental damage (Crawford, 2000).

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Applicability of International Environmental Law During Conflicts

Many researchers have analysed the applicability of international

environmental law during periods of conflict, and discussed this issue through a lot of

methodologies and theories. Their research shows that there is two main factors

should be taken into account when discussing the applicability of international

environmental law during armed conflicts.

First, it is important to distinguish between the environmental international

law applicable in armed conflict, and the applicable laws in internal conflicts.

Although many countries engaged in international disputes commit to international

environmental law, they sometimes fail to respect their obligations. It is also

important to know the reasons behind this failure, and whether they are justified by

necessity.

As for the second, maybe there is a difference in the applicability of

international law, during an armed conflict between two offenders, compared with the

conflict between the party and another neutral party. This discrimination concludes

that the impact of international environmental law depends, to a large extent, on

whether the environmental damage caused by the offending party, was to another

offending or a neutral party. Researchers say that the international environmental law

does not apply to the case of conflict between two warring parties, to leave the issue

of responsibility to environmental protection laying only on the law of war (Westing,

2000).

It seems that the effectiveness of international environmental law

automatically expires with the start of the conflict, despite the fact that the scope of

this law and its limitations are open for debate. Moreover, there are factors that affect

the possibility and means of survival of the treaty in force, including the real intention

of the two signatories, and the type of the relevant treaty and the context from which

it was reached. The main debate is on identifying the relevant factors, and the

importance of connection among them. A lot of approaches and theories are

developed to assess whether environmental treaties applicable to periods during the

war, including the theory of classification, and the theory of intention, in addition to

exploring the context and nature of any treaty (Takshe, 2011).

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Fate of International Environmental Law During Conflicts A wide range of research work is available regarding the applicability of international

environmental law during the war, and its continued effectiveness. It is important that

the international community seeks to study the applicability of international

environmental law during internal and international conflicts alike. There is a need for

further analysis and clarification in terms of how to apply international environmental

law during the war, in order to make decisions.

A number of significant conflicts that have occurred and continue to occur in

the world is shifting the attention of public opinion more and more towards

environmental degradation during periods of conflict, since it is no longer possible to

ignore the problem of the environment being a victim of wars. The international

community that wants to play a role on the world stage, needs to be aware the

negative impact of military operations on the environment. The international

community cannot afford to ignore the long-term effects of such operations,

especially if it seeks to maintain peace and help rebuild countries out of crisis

situations.

However, the mere recognition of the environmental degradation is not

enough, and addressing the issues associated with this decline or resulting from it, is

an instant need. It is difficult to determine whether the protection offered to the

environment through international law is sufficient. This judgment could be

objectively evaluated, relying on several components, including the social, economic

and political considerations. Also, the measurement of the effectiveness of

international environmental law depends on the criteria used.

Compliance in Times of Conflict: The 2006 War in Lebanon

Lebanons response and compliance with the emergency protocol of the

Barcelona convention, came following the massive oil spill from the Jiyeh power

plant to during the war of July 2006, restricted under the divided Lebanese

government, and brutal Israeli aggressor.

Analyzed further in this section is the extent that was reached to overcome the

many problems in the beach cleanup process. Also observed is the history of the

coastal environment in Lebanon, and its prevailing condition, focusing on the history

of marine pollution, the relevant environmental conventions. Lebanon, despite the

lack of overall compliance with the basic protocols main items, contributed largely to

19

the response level, with aid from external factors, in addition to internal factors.

Factors explained further include the level of international attention, and aid allocated

to Lebanon after the war, and the structure of the protocol-based collaboration, and

the readiness of countries under the protocol. Among the internal factors is the strong

response by the civil society led by local environmental non-governmental

organizations.

The increased number and importance of international and regional

environmental conventions, since the mid-eighties of the twentieth century, evolved

into multilateral disparate systems. The effectiveness of international conventions is

usually measured by the extent of compliance with it, and it is determined by the

actions taken under international commitment. This paper discusses the level of

compliance of Lebanon to the emergency protocol of Barcelona convention during the

oil spill from the Jiyeh power plant in July 2006. The research seeks to explore the

status of international systems, and the application of the relevant conventions, in a

country that has suffered from a sharply divided government caused by internal

instability and political differences. A country that is under constant threat from

Israel, which shows blatant rejection in taking responsibility for the environmental

damage inflicted on Lebanon, as a result of its aggressive military activities.

The oil spill from the Jiyeh plant, and efforts to clean up the beach that

followed, an important case study for compliance, and for several reasons. First,

Lebanon signed the Barcelona conventions emergency protocol, and is therefore

expected to possess the necessary mechanisms for preparedness, response and

cooperation. Whether these mechanisms are put into implementation depends on the

extent to which Lebanon complied with the protocol. Secondly, any study focused on

Lebanons compliance with the emergency protocol should give a general

understanding about the impact of factors related to the country, and external factors

related to the international environment, or the protocols stance on Lebanons

compliance. Third, the oil spill in Lebanon is an issue of great importance, compared

to the normal oil spill incidents, and for several reasons.

This situation that occurred was a result of precise targeting during a military

operation, and the source of the oil spill was on land not from a ship at sea, and

because the response and the process of cleaning, on a large scale, started after more

than a month on the occurrence of leakage. However, the response framework

outlined in the protocol incorporates the same basic requirements for all oil spills,

20

whether incidental, or within operating activities, and it was expected to be partially

implemented in the case of the oil spill in Lebanon.

Background Of The Case Study In the summer of 2006, Israel launched an all-out war on Lebanon. Israeli

forces targeted the Jiyeh power plant, 30 km south of the capital Beirut, and 70

kilometers north of the international border between the two countries, causing

leakage of massive oil spilled along the Lebanese coast. The attack led to the fire in 4

out of 6 fuel tanks in the power plant, completely burning them. The fifth tank was

partially burned, while the tank was the sixth tank was under the ground. About 10

thousand tons of fuel was burned, while the remaining quantity was rescued (UNEP,

2006).

Estimates showed the burning of about 45 thousand tons of heavy fuel oil, and

leakage of about 15 thousand tons of fuel that spread to the northern side of the power

plant, contaminating 150 out of 210 kilometers of the Lebanese coast. The oil spill

also reached the Syrian coast, to contaminate about 7 kilometers from it. This is not

the first time that Lebanon is witnessing an oil leakage, but previous similar incidents

were not on such a high magnitude, and did not cause losses of this size (UNEP,

2006).

The Convention for the Protection of the Mediterranean Sea against pollution

and its emergency protocol, deal with oil spill preparedness and response

mechanisms. Lebanon as a member states in this convention, was expected to take

appropriate action, in a timely manner, towards the implementation of the protocol, to

enable it to achieve the desired emergency level response, as required by the case.

However, before the 2006 war, Lebanon was unable to take significant steps towards

the implementation and compliance with the agreement, apart from regular

participation in the meetings, which are held every two years.

Among the steps required under the Barcelona convention protocol, are

reporting and development of contingency plans, finding ways for fighting pollution,

development and application of monitoring activities, and the dissemination of

information about the national competent authorities, and direct instructions to vessels

bearing the countrys flag for reporting on incidents that cause, or are likely to cause

marine pollution. The following analysis is of the factors that may have influenced the

compliance of Lebanon to the Barcelona convention during the war (UNEP, 1995).

21

Factors Affecting Compliance

Factors influencing compliance were divided into key factors, internal and

external factors. The internal factors are directly related to Lebanon, while the

external factors include the activity in question, characteristics of the Protocol, and

the international community. External factors are also relate to international assistance

to Lebanon during the Israeli war, cooperation based on the protocol, readiness of

other countries, and The Regional Marine Pollution Emergency Response Centre for

the Mediterranean Sea (REMPEC) formed under the Protocol.

Three key factors The war waged by Israel, and the blockade imposed on Lebanon during

which, and the magnitude of the oil spill, and the three main factors that influenced in

Lebanons response. These factors made it difficult to determine clearly whether

Lebanon would respond in a better way if there was no war, or if the oil spills were

less serious.

These three factors led to three limitations that influenced, to a large extent, in

Lebanons compliance. First, it was not possible to take measures relating to the

response, particularly air and sea surveillance of the oil spills, because of the ban put

by Israel, and lasting more than a month. Secondly, Lebanon is unable to allocate the

funds required, or to obtain sufficient resources to fight an oil spill of this magnitude.

Thirdly, the war and the blockade delayed the arrival of experts and aid to help with

the oil spill.

External factors Some external factors facilitated Lebanons compliance with the emergency

protocol, while other factors have contributed to the hindering of compliance. The

factors that affect Lebanons compliance, cooperation, and response to the problem of

the oil spill are beyond the scope of the protocol and content.

Properties of The Activity The Lebanese coast is home to more than 2.3 million citizens, stretching from

the south of the country until the north. On this coast, a large number of fuel tanks and

hundreds of industrial plants are distributed. National marine harbors and ports

receive ships and boats delivering fuel supplies fuel tanks, as well as waste resulting

from fuel and waste oil. The 2006 oil spill in Lebanon was not the first marine

pollution, or the first threat for marine life in Lebanon, but it was the largest to date in

terms of magnitude.

22

It is known that the cleanup of heavy fuel oil after a spill is an extremely

difficult issue, mainly because of its sticky nature and high volatility and higher

plodding, and the possibility of its disintegration into tar balls and sinking to the

bottom of the sea, leading it to stay for a longer period in the marine environment. It

is expected that it will take years to eliminate the threat of pollution from marine life.

There has not been any adequate assessment to see whether pollution has long marine

life in the Mediterranean, but all initial reports expect potential future damage. In the

case of the oil spill in Lebanon, there is no accurate information about the timeframe

of the effects, but the currently available information suggests different possibilities.

For example, the United Nations Development Programme (UNDP) stated in 2007

that the oil spill will have serious impact on marine biodiversity, which is expected to

last between 10 and 50 years, and catastrophic impacts on the coastal region are

expected to last between one and 10 years (Takshe, 2011).

Other than the issue of armed conflicts, the extent of the economic impact of

oil spills depends on other factors, including the type of oil, the characteristics of the

affected ecosystems and their economic use, and the difficulties involved in cleanup

operations and their duration. For example, it is estimated that the potential impact of

oil spills on natural resources may range between a minimum of 2% and a maximum

of 50% of the total economic, social, and environmental costs.

Data mentioned above shows the contribution of oil spills to the overall

vulnerability of the coast, in Lebanon and neighboring countries. There is a need for

further action, in order to reach critical decision with respect to the impact of the oil

spill. More than 8 years after the oil spill in 2006, no contingency plans were put to

deal with the situation. The activities were limited to field observations and sampling

by the Ministry of Environment on the site of the oil spill. The Lebanese authorities or

the international community carried out no additional work, and therefore we would

not know the real impact of the oil spill, unless there is constant surveillance

(REMPEC, 2007).

Characteristics of The Agreement A common limitation in a number of emergency protocol materials is

attributed to the to the terminology used. There is general terms frequently used in the

provisions of the protocol, similar to cooperation, taking the necessary actions,

and the parties can ask for help ... the parties shall make possible help with their best

effort. However, the accuracy of requirements contained in the text may influence

23

the level of outcome and application or compliance. Although the protocol calls on

states to help and cooperate with each other, in response, it does not specify the extent

of cooperation and boundaries, or assistance, or the continuation of this cooperation.

And provide undertakings states, based on the willingness to pay is not the real cost of

the cleaning process (Takshe, 2011).

And despite the fact that the new prevention and emergency protocol includes

a more accurate and detailed materials than the emergency protocol, it is also very

flexible related to the extent of cooperation and assistance. If we assume that the

states have complied with the protocol, and has achieved a level of uptime, and

received compensation from the polluter, such general provisions may not be

conclusively resolve the problem of the oil spill. But if we assume that Lebanon was

not ready, and that the polluter (Israel) did not express any intention to pay, the

additional fact that the Protocol does not identify the extent of assistance means a

serious risk that Lebanon will be unable to cover for the estimated cost of coverage.

This cost is not less than 50 million euros, as mentioned in the International

Assistance Action Plan to clean marine and coastal oil pollution in Lebanon, which

was claimed by Lebanon to clean the shores from pollution. Until May 2007, the

assistance received was less than 5% of the required amount (Takshe, 2011).

International Community The international community relating to Emergency Protocol includes the

signatory parties to the protocol, organizations interested in all aspects related to

marine pollution with oil, as well as international meetings and conferences and

programs dealing with marine pollution. These components form an international

community can affect in the compliance of any country with the convention and its

emergency protocol, which includes a large network of international and regional

institutions.

Among the institutions and prominent players in this regard: International

Marine Organization (IMO), the United Nations Environmental-Mediterranean

Action Plan (UNEP-MAP), The Regional Marine Pollution Emergency Response

Centre for the Mediterranean Sea (REMPEC), and state members of the Barcelona

Convention and the emergency protocol. The most comprehensive international legal

document that addresses issues related to oceans, is the United Nations Convention on

the Law of the Sea (UNCLOS), with improvements during the Third United Nations

24

Conference on the Law of the Sea (UNCLOS III) in 1973, which entered into force in

1994.

The focus of our case study is The Regional Seas Programme, which is related

to the Mediterranean basin. A Coordinating Unit (MEDU), based in Greece, manages

the Mediterranean Action Plan (MAP). The Mediterranean Action Plan offers the

application strategy of the Barcelona Convention for the Protection of the

Mediterranean Sea against pollution. Related protocols include dumping from ships

and aircraft, the prevention of pollution from ships, emergency response, pollution

from sources on land, pollution at sea, and hazardous waste, particularly in natural

reserve areas. These organizations play a pivotal role in promoting application and

compliance, providing mechanisms, strategies, tools, and programs that states can use

for the application of the emergency protocol. Since the emergency protocol is

centered on cooperation through the immediate publication of information,

development of contingency plans, and providing assistance; it makes the measures

taken by the various countries within such provisions, interconnected and

interdependent (UNEP, 1995).

Internal Factors Internal factors in Lebanon, such as the absence of a legal contingency plan,

and the national response to emergency situations, contributed to the lack of

readiness. Among the internal factors: limited human capacity, technical and

administrative abilities, the lack of political will, and the weakness of financial

capability.

Local Capacity to Comply with The Protocol Cleanup operations require the abundance of financial and technical resources on a

large scale. Even if Lebanon complied with the protocol, it was not possible to get a

sufficient capacity that allows the cleanup of the oil spill in 2006.

Some of the local stakeholders have responded following the oil spill in 2006,

and they were able to mobilize working groups under their special authorization,

while other organizations needed an official guidance from their relevant government

bodies. Through the Regional Centre for Emergency Response arising from marine

pollution in the Mediterranean region, there were at least four trained personnel in the

Ministry of Environment, the Ministry of Transport and Public Works, the Lebanese

Navy, and the National Center of Marine Science, skilled enough to take over the

response to the problem of oil leakage. The Ministry of Transport and Public Works

25

and the National Center of Marine Science did not take any actions, as a formal

request was required a from the Ministry of the Environment (as the coordinating

body in response to the problem of the oil spill) (Takshe, 2011).

In spite of the absence of any formal request from the Ministry of

Environment, the Lebanese Navy took its own initiative (in August 2006) and

awarded the Lebanese army a mandate to respond to all kinds of disasters, including

severe pollution. Lebanese navy and the Civil Defense participated in cleanup efforts

after authorization from the Ministry of Defense and the Ministry of Interior.

Lebanese navy the first cleanup measures started immediately after the ceasefire,

along with training volunteers. The navys participation was ended after the awarding

of the cleaning process to private companies, in addition to the organizations that

have undergone training by REMPEC, and those that have been involved previously

in the Special Committee. Lebanese academic institutions also played a role in the

scientific assessment, since a number of universities in Lebanon have capacity and

knowledge in the field of marine Biology. Non-governmental organizations have

played a role in the cleaning process, and filed reports on the oil spill to the media,

and monitored the scale of pollution, In addition to its role as a pressure and

monitoring group (Takshe, 2011).

Lack of Political Will The main internal factor impacting Lebanons compliance with the emergency

protocol is political will. Lack of political will in the drafting of laws on planning for

emergencies, and the establishment of a national committee to respond in such cases,

was the main factor that hindered compliance with a number of terms of the protocol.

Since a special committee put most of the required steps for legislation in 2000, it

seemed that compliance with item about emergency planning in the protocol become

under implementation. The next step was the delivery of the draft laws to the Minister

of Environment, to be discussed in the Council of Ministers, and then sent to the

House of Representatives for consideration and approval, to become part of the

Lebanese legislation system. Despite the absence of any convincing justification for

the lack of political will to draft laws, the reason can be attributable to the political

turmoil in Lebanon, and marine pollution issue getting minimum attention in the local

environmental agenda.

Following the oil spill, and despite the emergency plan not entering into

effect, the Ministry of Environment could require have requested individuals trained

26

by REMPEC to participate in the leadership of the response to the oil spill. Their

expertise could also be invested in the training of the team who was coordinating the

cleaning process, as well as the oversight of those efforts. Under Lebanese law, the

Ministry of environment handles all relevant procedures as well as all the key

decisions to respond to the problem of the oil spill. It should be noted that the

Minister of Environment, under the circumstances related to the political situation is

stable in the country, resigned in November 2006 (Takshe, 2011).

Physical And Financial Ability Before the oil spill in 2006, the physical capacity of Lebanon was mainly

focused in the private sector companies, which were only enough to address oil spills

with a limited scope. If we take into account the assistance, which arrived in the

country to support the response to the face of the oil spill following the 2006,

incident, we can assume that Lebanon now has the physical capacity required to

combat oil spills in the future.

Lebanon did not have the financial resources to fight the oil spill in 2006, and

it was confirmed in May 2007 that less than 5 per cent of the required resources

available at that time. This is due to the fact that marine pollution is not a priority in

Lebanon, which did not identify any mechanisms to finance the response to such

pollution, either through the creation of a national fund, or through the International

Convention on the Establishment of an International Fund for Compensation for Oil

Pollution Damage (FUND). Lebanons partial compliance with the emergency

protocol was influenced by a number of external factors, as well as internal factors.

However, the absence of political will to draft relevant laws formed a major obstacle

(Takshe, 2011).

Means of Settlement and Compensation

There are three methods common to settle any international dispute between

conflicting parties: diplomatic, judicial, and political settlement, compensation for

environmental damage can be done through these three channels. States with disputes

can resort to other peaceful means of their own. The following section addresses these

channels, and indicates whether Lebanon can claim compensation from Israel, and

what are the barriers facing such demands, if any.

27

Diplomatic Settlement The main advantage of diplomacy is being a flexible mean for settlement,

which can be a perfect solution in less important cases, when the conflict is limited

and contending states want to take the first step is to sit down and negotiate until an

agreement is reached. However, it does not seem that this applies to the case of

Lebanon. Diplomacy can also be the only solution to provide when the law is applied

fitfully, for example, when states refuse to recognize each other (Lebanon does not

recognize Israel, and the Jewish state considers Hezbollah a terrorist group), so there

is no legal basis for settlement, and a rejection of judicial relations.

The disadvantages include not leading to a binding legal decision, and

therefore committing an illegal act is not considered a breach of international

responsibility for a state that do not apply this means. For this reason, nothing could

force Israel to pay reparations for the damage caused to Lebanon, especially if we

take into account the fact that Israel has yet to take responsibility for the damage

caused. It is also entirely dependent on the goodwill of the parties involved, and at the

present time, we cannot expect any goodwill from a state that has continued its attacks

on Lebanon for decades (UNDP, 2007).

Judicial Settlement Judicial settlement includes several steps. It begins the process of arbitration,

which, in the event of failure means that the disputing parties can resort to

international judicial authorities. Currently, there are two international jurisdiction

bodies that have the authority to consider the case of Lebanon and Israel, namely the

International Criminal Court and the International Court of Justice. The main

obstacles facing the use of judicial settlement in the case of Lebanon are the both

countries did not approve the convention for the establishment of the International

Criminal Court, in addition to the high improbability that Israel would approve any

one-sided request submitted by Lebanon to the International Court of Justice

(Blumenthal, 2001).

Political Settlement The third means of settling international disputes, including environmental

ones, is to resort to the UN Security Council, a political body of the United Nations.

The Security Council formulates demands for warring parties to cease hostile actions,

or condemns aggression. Some decisions go even further, and demand the aggressor

to pay compensation to the affected country. Unfortunately, not all the decisions have

28

been applied, given use of veto power states, as the United States often does to protect

Israel from condemnation. The United States used its veto against 40 out of 56

decisions taken by the Security Council against Israel's between the years 1972-2006.

None of the decisions that were issued after 2006 includes a single article

condemning Israels uneven assault or rather the goals of some of its aggressive

operations, such as the bombing of the Jiyeh power plant. In resolution 61/194, the

Secretary-General of the United Nations, calls for the Government of Israel to take

responsibility for the payment of immediate compensation to the Government of

Lebanon, to meet the costs of restoration of environmental damage caused by the

destruction, including the restoration of the marine environment. To date, the Israeli

government has not taken any responsibility for the prompt and adequate payment of

compensation to the Government of Lebanon (UN, 2006).

Security Council's Commitment to Lebanon The current international solutions to protect the environment during periods

of conflict are far from being effective. Despite the presence of a group of

international laws dealing with this subject, their inadequacy has been proven in both

scientific research and academic debate. The availability of ways to settle the dispute

between Lebanon and Israel depends on Israel's recognition of the consequences of

their repeated acts of aggression against Lebanon, with no future signs of a diplomatic

solution or a settlement between the two countries (Orellana, 2005).

Lebanon unilateral resort to the UN Security Council seems to be the only

option. By doing so, Lebanon can request the approval of more stringent and binding

decision through the Security Council. Such new resolution can demand Israel

immediate compensation that covers all the environmental damage caused by the war

on Lebanon, and establish a committee to compensate Lebanon. If Lebanon submits

the request, the results of this legitimate issue will show how ready the international

community is to deal with the problem of environmental damage during periods of

war (Sands, 2003).

Conclusion

Conflicts result in environmental damage, while such damages and

environmental attrition lead to more wars, and laws must exist to stop this vicious

circle. But unfortunately, the current legislation is not effective to protect the

environment from any damage caused by wars. Related items are a few and not

29

practical nor valid, while their basic objectives are to restrict or ban the high levels of

damage or specific types of weapons.

For this reason, compliance alone cannot solve the problem of gaps in the

existing law, and there is a need for more improvements, such as effective

application. There is a need to amend existing environmental agreements and

conventions, ranging from the reduction of the limit, which requires the application of

environmental provisions of additional protocol, to the application of the same

standards of environmental protection in international and non-international armed

conflicts. In addition, it is important to adopt a convention to protect the environment

during armed conflict, in spite of the fact that some states may announce their

opposition to it, as there is a clear reluctance by many countries about the acceptance

of the very moderate obligations imposed by environmental treaties.

It is likely that a long time is needed before reaching an international solution

for environmental protection during armed conflict, and become widely adopted. It is

true that there are various treaties and conventions relating to environmental

protection during periods of conflict, however, their inadequacy and effectiveness was

based on academic controversy mentioned before, as well as images of the

devastation caused by the ongoing conflict.

There is no doubt that claims to protect the fragile global environment, will

form one of the biggest challenges that human society will face in the coming decades

and centuries. The sanctity of nature and needs should be taken into account in all

aspects of human activities, including armed conflict and national security. Whatever

the case, it is needed to establish a balance between the reality of military necessity

and the need to ensure the survival of the human race with other forms of life.

Conventions, protocols, conference decisions, and current international resolutions

can act as a starting point for the development of the limits of armed conflicts.

However, if the international community wants to address the issue of environmental

protection seriously, it must stem from a definite desire of each individual country, in

order to ensure effective compliance to the rules of war in relation to the protection of

planet earth.

30

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