MAJAL, the urban academic observatory for construction and reconstruction established at ALBA university, recently issued a publication entitled “The Coast”[1]. The publication is a synopsis of a study that I co-authored with Sebastien Lamy (urban planner and legal scholar), under the supervision of Serge Yazigi (architect and urban planner). The research examines the legal framework that governs the seashore in light of the rampant attacks on it by investors and lawmakers, who grant licenses for law-violating projects while condoning thousands of existing projects through legislation that permit the settlement of these violations. Examining the legal framework of what is transpiring helps us understand the challenges faced and suggest recommendations for practical solutions to restore the coast’s vital role as a shared public space and ensure the citizens’ right to access it.

 

This article highlights the main outline of the above-mentioned research. It especially traces the change in [relevant] legal texts. It shows how the state gradually laid the foundation for [private] investment of the coast at the expense of public interest. It also underlines the need to rectify this approach in Lebanese law after Lebanon ratified the Madrid Protocol on August 1, 2017 on integrated coastal zone management in the Mediterranean. 

• 1925-2017: Decrees Denaturing the shoreline and Disfiguring the law

Maritime public domain was defined in 1925 under the legally binding decree no. 144/S that was issued under the French mandate by High Commissioner General Saraill on June 10, 1925. It “includes the seashore extending to the farthest point that waves reach during winter, as well as sand and gravel beaches”. Thus, the borders of maritime public property are not stable; rather, they are subject to change over time by natural factors such as beach erosion or sand accretion. However, the public domain’s area can expand, but it cannot be reduced even if the reach of the wave decreases as per definition, “It can neither be sold nor acquired as a property over time”. In other words, it is not possible to privatize any part of public property if the sea level falls. On the other hand, if the water level rises and catches up with adjacent private property, the limits of the public property area are then updated to include these parts. French law acknowledges the decision by the Constitutional Council that legalizes adding these parts to public maritime property without paying any compensation to the owner. At the same time, however, the decision allows the owner to build a barrier on the borders of his property – if judged necessary – to protect it from erosion.

 

In light of these regulations, what explains the existence of some real estate on seashores like those at Beirut’s Ramlet al-Baida? The property must have been erected prior to the enactment of the law,when buying a sandy beach was not prohibited, and probably, after the issuance of this law, the state did not at the time find justification for expropriation of this property (at least until proven otherwise). In fact, Article 3 of the decision protects property rights which “may not be taken away for public benefit unless after a prepaid and fair compensation”. On the other hand, the law opens the door for an exception: it allows for a temporary private occupancy in exchange for a fee, provided the rights of others are protected. The public administration shall be entitled to cancel it without compensation whenever it wishes. Several decrees were therefore issued after Lebanon’s independence to determine the details of this occupancy, but they distorted public interest concepts enshrined in the law, in order to serve investors. In 1949, a permanent committee was formed to set the charges required for occupancy of all public property. In 1963, such charges were set for the first time regarding an occupation without the construction of any building, and were subsequently amended in Decree 2522/1992 (which is still applicable) after allowing construction on the beach. The charges include all built up areas including basements, stilt floors, and balconies (whereas these spaces are not calculated in the total built-up area according to the Construction Law). The shift from a temporary occupancy to an authorization for occupancy that also includes a construction permit distorts Legislative Decision 144/S which prohibits permanent construction.

 

This resulted from a new vision for the Lebanese coast that emerged in the 60s, giving it a key role in economic growth and the policy of attracting investments. Decree No. 17614/1964 was issued to regulate the exploitation of public property that was not under investment. However, it only tackled the details of administrative procedures. The regime of occupation of maritime public domain applied today was established by Decree 4810 which was issued on June 24, 1966. The decree stipulates that for occupancy to be allowed, the investor should own a property adjacent to the maritime public property. It also restricted occupancy to areas that are classified as touristic or industrial, according to the zoning maps annexed with the Regulations governing Lebanese Beaches Decree.[2] The intended project must also bear a public character and economic justification as a prerequisite for obtaining the license. For the first time, ratios for Ground exploitation and total built up area were set for an occupancy of the beach (with the possibility of asking for exceptions to increase construction area). As a result, construction on the beach became permissible. The decree defines two clear phases: “a license to occupy public maritime property” and a “construction permit”, provided these constructions do not obstruct the shore’s continuity and should not prevent the integrity of the beach that must remain accessible to the public. These conditions are not respected by any touristic establishment along the coast today, although they are clearly mentioned on all occupancy permits granted. All these institutions monopolize the invested public property and erect barriers to prevent citizens from free access, contrary to all the laws that “guarantee the rights of others” such as law no. 144/S, occupancy decrees, and the Environment Law which “prohibits works on maritime or riverine public property that impede free access to coasts and sandy beaches”.

 

Decree 4810 set out the legal framework for the exemption that became applicable over the entire coast after abolishing the economic justification  clause in 1980 and allowing occupancy of all parts of the Lebanese seafront, regardless of their classification. In the absence of any planning, the random issuance of special decrees has resulted in an almost total deformation of the shoreline. In addition, thousands of buildings and resorts encroaching upon the seashore appeared during and after the war without accountability. A “wall of concrete” arose on the coast, disfiguring the environment and the identity of coastal cities and depriving citizens of their right to freely access the sea.

In this context, the Ministry of Public Works and Transport – Directorate General of Land and Maritime Transport – issued a detailed report in 2012 on occupancies and encroachments on coastal public property.

• More than 1068 Transgressions: Only About 20% of the Seashore is Available to the Public

The 2012 report of the Ministry of Public Works and Transport documented, in figures and names, the occupancies of the seashore which amounted to over 5 million square meters of total sum of sea filling, construction and area of occupied water surface, 54% of which infringe on maritime public property. This number is far from accurate. It does not include the sea filling of downtown Beirut, the Metn coast (the Marina Dbayeh), or Lebanese army installations. A recent study on the transformation of the coast prepared by the Institute of the Environment at the University of Balamand showed that the ​​sea filling alone amounted to 8 million square meters. This has catastrophic consequences for the marine environment and fish stock.[3] Only 40 km of the 220km Lebanese shore is still open to the public; i.e., about 20%. According to the report, the Lebanese state issued 73 decrees authorizing occupancy of public maritime property, while violations reached 1068. Consequently, the Ministry prepared a list of paid and unpaid fines. The result was surprising: only 9 fines were “paid and the violation removed” while 106 imposed fines remained unpaid. The report concluded with a draft law to settle violations of public maritime property.

 

Prior to any settlement, how are infringements addressed under the current legal framework of public maritime property? Article 23 of law no. 144/S is clear. It decrees the demolition of illegally constructed works and the imposition of a fine. In line with this, a joint decision was issued on January 11, 1974 by the ministries of public works and interior respectively. Both ministers gave joint instructions to coordinate giving tickets and removing violations of public maritime property at the expense of the transgressor. There was no mention of a settlement for infringements. until 1983, when the notion was introduced for the first time in Legislative Decree No. 144 but it was not implemented because of the political context of the war.

 

In October 2017, and following the exacerbation of transgressions, the proposed draft settlement was included in Article 11 of the Tax Policy Act under the title: “Addressing the Illegal Occupancy of Public Maritime Property”.[4] Once again, the gradual shift in terminology from “transgression” to “breach” to “illegal occupancy” reflects the legislator's bias towards investors’ interests at the expense of public interest. Even if the law states that “addressing the illegal occupancy of public maritime property does not grant the violator any acquired rights against the state”, it is sacrificing the seashore’s diverse cultural and environmental heritage. Instead of observing a public rights principle that takes into account the shore’s social and touristic function, the law adopts a purely financial approach on the pretext of funding the state’s wasted treasury. However, the fines imposed are very low, as the price per square meter was based on the 1992 estimate and resulted from low rates on annual fees ranging between 1.75% and 3.5%, depending on the infringement case. On the other hand, fees applied to the period following the date of addressing illegal occupancy do not exceed 1.5%. These percentages are very low for occupancy of public property compared – for example – with the rates of municipal fees on the rental value of private property which is 6.5% for residential premises and 8.5% for non-residential places. This means that this law will not actually bring significant financial revenues to the state’s treasury, contrary to the justifications behind its existence.

 

While the sea constitutes the entire western borders of Lebanon, Lebanese citizens are deprived of enjoying it. The shore is occupied by buildings and now landfills, especially with the Council of Ministers’ decision on January 11, 2018 to expand the Costa Brava and Tripoli. This violates the Environment Protection Law (no.444) which prohibits landfilling and shore polluting on the one hand, and the recommendations of the National Physical Master Plan of the Lebanese Territory (NPMPLT) on the other. If the Environment Protection Law does not effectively protect the coast, as it only presents intentions without practical measures of implementation, the Madrid Protocol which has been in force since August 31, 2017 offers a viable alternative. Lebanon committed to it and has to enact a law that develops an integrated vision for the coastal zone.

 

• Madrid Protocol and Lebanon's International Commitment: Integrated Coastal Zone Management

The Protocol aims to promote integrated management of the coastal zones in the Mediterranean, taking into account the protection of areas of ecological and landscape interest and the rational use of natural resources. In other words, the Protocol extends the scope of protection beyond the limits of public maritime property to include all coastal localities that by nature constitute a vital hinterland of the shoreline. The Protocol’s main recommendations are to uphold the principle of the coastal strip with a width of 100m where construction is prohibited (Article 8). It also proposes various measures to reduce linear urbanization on the coastline and to regulate passages that guarantee free access to the beach. These principles have been enshrined in France since 1986 with the adoption of “La loi Littoral” [Coast Protection Law] to protect it from real estate invasion and to allow citizens free access through coastal pedestrian streets “Sentier littoral”. This law is important because its provisions were included in the general urban planning laws. This means that a construction permit may be rejected if it violates one of the law’s conditions even if it is in conformity with the local detailed masterplan of the area.

 

Today, Lebanon has entered a new phase of legislation to protect the shore. It is not enough to ratify the protocol in order to make its provisions legally binding in Lebanon; the State must enlist its recommendations in the Lebanese law. Therefore, the Ministry of Environment proposed the Integrated Coastal Zone Management (ICZM) draft law in collaboration with the Institute of the Environment at the University of Balamand. The draft law includes the provisions of the Madrid Protocol on the Protection of the Beach and Marine Resources. Most importantly, it establishes a strip of 100m depth along the coastline within which construction is prohibited. It also preserves the citizen's right to freely access the beach by allocating pedestrian pathways on a regular basis within a maximum distance of 3,000 m to ensure the right of passage. A “ National Council for Integrated Management of the Coastal Zone” would be created to ensure the good governance of the coastal zone. One of the Council’s priorities is to develop a comprehensive strategic plan and a national masterplan for the entire coastal zone of the Lebanese territory. The Council has a juridical personality and enjoys financial and administrative independence.

This Council includes the heads of three groups of organizations among its permanent members, provided that the coalition includes a minimum of 20 environmental organizations; at least one of which is concerned with coastal and marine affairs. Thus, for the first time, civil society will be legally involved in the decision-making process in order to develop a future vision for the coast and its urban and natural development.  The Council shall adopt a participatory approach. In addition to the permanent members (ministers, representatives of the respective municipalities, the head of the higher council of urban planning, and the director general of the Council for Development and Reconstruction), some of the meetings are attended by invited members, including a representative of the Fishermen's Syndicate, the syndicate of seaside resort operators, and consultants in scientific, legal, engineering and other fields of expertise.

 

Although this step is welcome, political interference might threaten the council’s independence. The council is composed of a large number of ministers and is headed by the prime minister. It may therefore become a microcosm of the government especially since the draft law does not restrict membership in case of a conflict of interest. Moreover, the bill does not address a possible overlap of powers between this Council and the higher council of urban planning, or an overlap of the future masterplan of the coastal zone with the current local detailed masterplans and regulations  and with the The National Physical Masterplan of the Lebanese Territory (NPMPLT). The draft law only emphasizes that in case of a contradiction between the coastal zone masterplan and other guidelines, the former shall apply. This rule may disrupt the legal stability where old guidelines continue to be applied only partially. Therefore, it would have been better for the bill to require that all plans comply within specific and short deadlines in order to avoid any inconsistency. The bill should have forced public administrations to amend their guidelines, prohibiting construction therein. Currently, local regulations contradict or are inconsistent with those of the National Physical Masterplan of the Lebanese Territory because the NPMPLT  ratification decree did not take this measure and did not set any time limit. For the draft law to be truly effective, the legislator should not repeat the same mistake and ensure the conformity of all urban planning regulations on both local and national levels.

 

Finally, the draft law was recently submitted to the Council of Ministers. Therefore, the hope is that before it is approved, it will be reconsidered for improvement by adding legally binding details that do not require issuance of executive decrees. Only when such amendments are made will this law be effective in protecting the seashore, and as such complement the current Environment Protection Law to create a sustainable future vision for the Lebanese coast. It will also reduce the chaotic unplanned urbanization of the shoreline to highlight its environmental and natural value and restore its role as a vital social space enjoyed by all citizens.

 

This article is an edited translation from Arabic.

Keywords: Lebanon, Shoreline, Maritime Public domain, Ramlet al-Baida

• Cynthia Bou Aoun is a Beirut-based architect and member of Nahnoo

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[1] Lamy, Sébastien and Cynthia Bou Aoun, “Le littoral”, Majal, ALBA, Publications de l'Université de Balamand, 2017.

[2] Decree No. 4809, issued on June 24, 1966. Attached maps are an integral part of Decree 4810.

[3] Presentation by Manal Nader, Director of the Institute of the Environment, University of Balamand, at the conference entitled “The Lebanese Coast and the National Physical Master Plan of the Lebanese Territory”, Order of Engineers and Architects in Beirut, December 4, 2017.

[4] Law No. 64, October 20, 2017