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

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

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

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.

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
5

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
6

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
7

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
8

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
9

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).
10

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
11

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.
12

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
13

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

14

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
15

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).

16

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).

17

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
18

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,
19

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).

20

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.
21

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
22

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

23

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
24

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
25

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.

26

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
27

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
28

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.

29

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