In December 2014, the United Nations General Assembly endorsed a request to Israel to compensate Lebanon for environmental damages to the latter’s coastal and marine territories following an oil spill. While the endorsement does not provide binding measures, it is the first time that the General Assembly has included a compensation figure — eight previous resolutions had not. In reaching this point, Lebanon has worked to identify its legal options justifying Israel’s responsibility for the spills — its next step will be to determine the scope of its argument and in which jurisdiction to pursue it.
Resolutions and politics
The first such decision, asking Israel to compensate Lebanon for an interim figure of $856 million, resulted in the General Assembly voting 170–6 in favor of the resolution — Israel, the United States, Canada, Australia, Micronesia and the Marshall Islands all voted no. The compensation request is in regard to oil spills from Israeli Air Force attacks on oil storage facilities during the 2006 war. The resolution also acknowledged comments from an August report by UN Secretary General Ban Ki-moon, noting “The Secretary General expressed grave concern at the lack of any acknowledgment on the part of the government of Israel of its responsibilities vis-à-vis reparations and compensation.”
[pullquote]If a binding resolution were reached, it would open a can of worms to all compensation liabilities for the damages caused by Israeli aggression against its neighbors[/pullquote]
According to a statement released by Lebanon’s Permanent Representative to the UN, Nawaf Salam, “Lebanon considers this to be a major progress, especially [since] a figure has been put forward as a basis for compensation using a clear and legal method of calculation.” Though General Assembly resolutions are not legally binding — UN Security Council decisions are — they do generally reflect world opinion says Nasri Diab, a lawyer studying Lebanon’s legal recourse. As such, a statement obtained by Executive from the Israeli Mission to the United Nations rejected the resolution, stating that it “has long outlived the effects of the oil slick, and serves no purpose other than to contribute to institutionalizing an anti-Israel agenda at the UN.”
Politics aside, the environmental effects of the spill are not to be trivialized. The destruction of seaside oil storage tanks in Jiyeh, some 30 kilometers south of Beirut, spilled oil into the Mediterranean which then spread up the coastline of Lebanon and into Syrian waters, suffocating marine life, destroying fishing, breeding grounds and fauna and flora, both onshore and off.
Yet what does Lebanon hope to achieve from these legal proceedings? Is it in pursuit of a moral judgement against Israel or does the government of Lebanon actually expect Israel to provide financial compensation for environmental damages? What does seem clear, as indicated by Israel’s staunch reaction to each decision reached by the General Assembly, is that if a binding resolution were reached, it would open a can of worms to all compensation liabilities for the damages caused by Israeli aggression against its neighbors dating all the way back to the country’s inception in 1948.
Just a few days into the July War of 2006, Israeli air force planes swooped into Lebanon, bombing the Jiyeh power station and its oil storage facilities, spilling more than 15,000 metric tons of heavy fuel oil into the sea. Another 55,000 tons stored onsite burned, causing a plume of black smoke reportedly visible from 60 kilometers away. It was a “major disaster” according to a 2009 paper for the National Council for Scientific Research — a public research institute in Lebanon. The oil extended nearly 3,100 square kilometers shortly after the spill, reaching the northern coast of Lebanon — “from both volume and geographic perspectives, most of the Eastern Mediterranean basin was affected,” the research concluded. In the months following the spill, surveying by the Italian Coast Guard of oil sinking to the sea bottom off the Jiyeh coast was measured to cover an expanse of 50,000 square meters, and that oil “occupied every space between the rocks.”
Green Line, a local environmental NGO, described the oil spill as catastrophic with “tremendous negative environmental, social and economical [effects] both [in] the short term and long term,” adding, “It damaged marine ecosystems, destroyed fishermen’s livelihoods and rendered coastal areas lifeless.” The United Nations Environmental Program’s 2007 report had a similar conclusion, saying that the “spill resulted in significant contamination of the shoreline.”
Marine life suffered as a consequence; invertebrates such as crustaceans and algae were covered in oil and population recovery is expected to take several years. No significant losses were reported among sea birds, but fauna for the birds was smothered, affecting migratory patterns. Lebanon’s coastline — a breeding sanctuary for sea turtles to nest and hatch their offspring, such as the Green Turtle species — was heavily affected as were breeding waters for sharks and Bluefin Tuna. In addition marine plant life suffocated where the oil spill blocked sunlight.
Richard Steiner, an environmental consultant with Oasis Earth, described the environmental damages caused by the spill to be quite serious. Though Steiner has not studied the long term effects of the spill since his initial research for a 2006 report commissioned by Lebanon’s Ministry of Environment and the International Union for the Conservation of Nature, he acknowledges that, “We know that large marine oil spills can have very long term ecological effects. And human health was certainly affected by the smoke plume from the burning oil.” Steiner also concluded that damage can take time to show, citing the Exxon Valdez spill in Alaska as an example, “Some fish population collapses did not occur until 3 years after the initial spill.”
[pullquote]“The people who could have mitigated the spill could not do their job at that time because of the blockade”[/pullquote]
For Diab, the compounding factor of the spill was due to Israeli negligence — their naval, land and air blockade of the Lebanese territory intensified the damage, “The people who could have mitigated the spill could not do their job at that time because of the blockade. For long weeks the spill was there without the possibility to clean it up.” Steiner, corresponding with Executive via email, added, “Certainly, if there had been a prompt and full scale response to the spill, far less damage would have occurred.”
Indeed, as Steiner wrote in his report published one month after the spill, the Israelis would not allow even aerial observations. “I asked the French Embassy in Beirut for support to conduct an aerial survey with their relief helicopters along the coast, to ascertain the extent of remaining offshore oil, and to better guide what response options might be necessary. After several attempts by the French ambassador as well as [the] European Union to secure clearance from Israel for this flight, Israel refused to grant clearance at that time.”
In the immediate aftermath of the spill, funds to aid Lebanon in its cleanup were relatively miniscule. As part of a previous resolution Lebanon had agreed that the Lebanon Recovery Fund — a fund to aid Lebanon in its recovery and reconstruction — would host the Eastern Mediterranean Oil Spill Restoration Trust Fund that would receive any funds earmarked for the cleanup. The former fund received nearly $46 million in contributions from 2006 to 2008 with roughly another $6 million added in 2013 by Germany. After factoring in another $3 million for interest, total contributions amounted to just over $54 million — the latter fund received zero.
Secretary General of the United Nations, Ban Ki-moon, had urged donors in previous resolutions to provide funding specifically to clean up the spill and monitor the recovery, but to date no contribution has been made to the fund according to comments received by Executive from Rony Gedeon, Monitoring and Evaluation Officer at the UN Resident Coordinator’s office in Beirut. Gedeon did point out that the resolution highlights bilateral contributions, “A project is currently under development by the Government of Lebanon for funding by the European Union that will include a component on the sound management of recovered wastes.” Gedeon added that from 2006–2009 the UN mobilized support for the cleanup which saw contributions of some $3 million; additional money, expertise and specialized equipment for the oil spill cleanup effort was obtained by Lebanon from various other international donors. However, Steiner argues that the “International response to this intentional environmental damage was terribly insufficient.”
“The General Assembly and the Secretary General in his reports have asked for a figure of what Lebanon is claiming from Israel,” says Diab who has been an integral figure in preparing Lebanon’s legal case. Working with a number of stakeholders — the Ministry of Environment, UNDP and the Ministry of Foreign Affairs — Diab has laid out which avenues Lebanon might pursue to obtain compensation from Israel for the damages caused by the oil spill. The first step, though, was calculating a figure that would hold up under legal scrutiny. “For eight years, the General Assembly had already said that Israel is liable and responsible for the damage. Now a figure has been put [down] and this is the most important thing,” Diab says.
[pullquote]The conflict had a devastating effect on Lebanon with significant impacts to the economy[/pullquote]
Ban Ki-moon, in an October 2013 report to the General Assembly, advised UN bodies to build on the World Bank’s initial economic assessment of the environmental degradation resulting from the spill. The 2007 report concluded that the conflict had a devastating effect on Lebanon with significant impacts on the economy, environment and public health. The report cites degradation due to the oil spill amounting to $240 million, but Diab says this figure was incomplete and omitted the passive use value (value on public goods not in use, like the monetary value of a national park) of the coastal resource — for this Diab calculates an additional amount of $218 million since 2006, totaling $458 million.
Adjusting for global inflation and lost opportunity in terms of an interest rate, Diab explains, leads to a compensation valued at $856.4 million by 2014 as requested in the resolution, but the figure might continue to climb. “There is no limitation. As long as you have damage that will appear in the future and which you can prove is linked to the oil spill, it should be covered. That’s why it is an interim figure and not definitive.”
In the months following the spill, Steiner, the environmental scientist, tells Executive that “The spill, and of course the war, had profound negative effects on local businesses, including fishing and tourism. Most were shut down for a time period during the spill, and lost considerable economic value during that time.” He adds that in meetings in the months after the spill with both the governments of Israel and the United States he had, “Proposed a $1 billion restoration and compensation fund, to be paid by Israel.” By December 2006, the Israeli ministry of justice had rejected this proposal.
Diab, alongside a team of experts at Lebanon’s ministries and UN bodies, is ‘writing the book’ on legal compensation in relation to war and environmental damages — it is an area of law with limited precedence. Sure, Diab may not have as high a profile as another international legal expert with marital ties to Hollywood but, “If this decision will be translated into legal texts — whether environment or war — it will be important,” Diab blushes.
But the legal justification is not there yet. It has taken several years to obtain these decisions — nine General Assembly resolutions, and a resolution by the United Nations Human Rights Council — yet all are nonbinding. Diab has explored every option available to Lebanon through two reports including what he terms the “dead-ends” — the non-available options that seem plausible but for one reason or another are not. These would include many international conventions, for example the United Nations Convention on the Law of the Sea. “In Lebanon, we already have a problem in that we do not recognize the existence of Israel, so it is very difficult to invite Israel to join Lebanon before some international forums devised by certain treaties and conventions,” Diab explains.
Diab now is in discussions with the other stakeholders to begin preparing a third report looking at which legally binding option is most viable to pursue. “Lebanon now has a nonbinding resolution rendered by the highest institution of the United Nations after the Security Council. What Lebanon needs to do at this stage is see what it can do with it in order to have it enforced somewhere. We have other avenues but I’m not sure yet, it still needs to be studied.”
When pressed, Diab suggests the next step will define the scope of Lebanon’s legal argument, “The International Court of Justice would be a reasonable forum for the next stage, especially in its advisory jurisdiction.”