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Right to Environment in Turkey: Benchmarking with the

Aarhus Convention
Evren Gldoan

Abstract
1992 Rio Declaration laid down the three procedural rights associated with the
right to environment, a third generation human right first mentioned by the
Stockholm Declaration of 1972. These procedural rights consist of access to
information, public participation and access to justice in environmental matters.
The right to environment is enshrined in various regional and global
international treaties as well as national legislation. The Aarhus Convention,
negotiated under the auspices of the United Nations Economic Commission for
Europe, is the most comprehensive and effective international treaty on right to
environment concluded so far. Therefore it serves as an ideal benchmark for
evaluating the regulation of right to environment. Such benchmarking is of
particular significance for Turkey since the country is neither a party nor a
signatory of the Aarhus Convention. Comparing Turkish law with the
provisions of the Convention, it can be stated that the state of affairs of the
right to environment in Turkey is approximate, but not equivalent to Aarhus.
Legislative amendments that needs to be made in order to advance the right to
environment in Turkey are identified.
Key Words: (1) Right to environment, (2) access to information, (3) public
participation, (4) access to justice, (5) Aarhus Convention, and (6) Turkish
environmental law

I.

Introduction

Both the severity of and importance given to environmental problems have


increased in the postwar period, the latter especially following the
environmental revolution of 1960s (McCormick, 1995: 47-68). These twin
processes is perhaps best embodied by the phenomenon of climate change
caused by global warming.
However there are many other environmental problems and issues, which relate
to different levels of governance from the local to the global, that call for action
by the appropriate authorities. Such action; be it legislative, executive or
judicial in nature, is not readily guaranteed due to a number of reasons such as
imperfect information, apathy, capture by private interests and lack of legal
grounds.
A human rights-based approach to environmental law and policy, whilst not
directly providing remedies to environmental problems, is the most available
and practical solution for ensuring that the competent authorities appropriately
take into consideration environmental issues. Indeed the right to environment, a
third generation human right, is today widely acknowledged in public
international law and recognized by a number of sovereign legal systems.
The most comprehensive and effective international treaty on the right to
environment concluded so far is the Aarhus Convention of 1998, negotiated
under the auspices of the United Nations Economic Commission for Europe
(UNECE). Therefore the Aarhus Convention provides an ideal benchmark for
evaluating the state of affairs with respect to the right to environment in
different jurisdictions.
The present article seeks to carry out one such exercise for Republic of Turkey.
Being a rapidly developing country, Turkey is faced with several environmental
problems affecting her populace. Being a candidate state carrying out accession
negotiations with the European Union she needs to align with acquis
communautaire, the environmental chapter of which requires significant
legislative and executive efforts including the adoption of the Aarhus
Convention which she is not a party. Therefore benchmarking the current state
of right to environment in Turkey with the Convention is a valuable effort.
In the second section of the article, first the development of the right to
environment is briefly examined. Then the substantial provisions of the Aarhus
Convention are identified and analyzed. In the third section, the state of affairs
in Turkey is established and compared with the provisions of the Aarhus
Convention. The final section concludes by laying down some proposals for
advancing the right to environment in Turkey based on the benchmarking
exercise.

II. Right to Environment and the Aarhus Convention


A.

Development of the Right to Environment

The right to environment is considered as a third generation human right. The


classification of human rights into three generations is an idea introduced by
Vasak (1977). According to the author the first generation rights are the civil
and political rights, the second generation are the economic, social and cultural
rights and the third generation consist of the so-called rights of solidarity1.
While there is no consensus on the scope of the third generation human rights
and even the merit of classifying rights into such generations (Alston, 1982;
Algan, 2004) the right to environment is widely recognized as being one, first
and foremost by Vasak.
The first appearance of the third generation rights in an instrument of public
international law was through the Proclamation of Teheran of 1968 adopted by
the United Nations International Conference on Human Rights (Kabolu, 1996:
9-11). However the Proclamation did not refer to the right to environment. It
was the Stockholm Declaration of 1972 adopted by the United Nations
Conference on the Human Environment that first mentioned the concept
specifically (Kiss, 1992). The first among the 26 principles laid down by the
Declaration states that:
Man has the fundamental right to freedom, equality and adequate conditions
of life, in an environment of a quality that permits a life of dignity and wellbeing, and he bears a solemn responsibility to protect and improve the
environment for present and future generations.

Stockholm Declaration lays down a comprehensive framework for the right to


environment; but it serves only as a normative reference and provides little, if
any, grounds for application. Kiss (1992) reminds in this context that rights are
abstractions that need procedural guarantees in order to be established. In other
words a right to environment is devoid of meaning without any rights for the
environment being provided.
It is not surprising to find out that it was the Rio Declaration of 1992 that
remedied this deficiency. The Declaration was adopted by the United

Nations Conference on Environment and Development that convened on


the 20th anniversary of the Stockholm Conference in order to reaffirm and
1

Vasak relates the three generations to the three principles of the French Revolution
liberty, equality and fraternity thus prefering the term solidarity for the third
generation. Accordingly rights of the first two generations are individual in nature
while the third generation human rights are collective. However the right to
environment is not necessarily a question of solidarity as environmental problems may
result in private damages that can be subject to civil law (Ulusoy, 1993).

build upon its achievements. Principle 10 of the 27 principles enshrined in the


Rio Declaration provides that:
Environmental issues are best handled with participation of all
concerned citizens, at the relevant level. At the national level, each
individual shall have appropriate access to information concerning the
environment that is held by public authorities, including information on
hazardous materials and activities in their communities, and the
opportunity to participate in decision-making processes. States shall
facilitate and encourage public awareness and participation by making
information widely available. Effective access to judicial and
administrative proceedings, including redress and remedy, shall be
provided.

Three procedural rights associated with the right to environment are identified
above: access to information, public participation and access to justice in
environmental matters. States are expected formulate these rights with a
positive approach, not merely recognizing them as negative rights.
Even though many international treaties of global and regional scope refer to
one or more of these three rights for the environment, it is only two treaties
negotiated under the auspices of UNECE that incorporate all three (Shelton,
2002). The first one is the Convention on Transboundary Effect of Industrial
Accidents of 1992 that was actually adopted three months before the adoption
of the Rio Declaration and may thus have served as a precedent for Principle 10
thereof. The second and more comprehensive one is the Aarhus Convention of
1998.
B.

Aarhus Convention

The Aarhus Convention is an outcome of the Environment for Europe political


process. In the Sofia Environment for Europe Conference of 1995, the third of
its kind, the Sofia Guidelines that concerns access to information and public
participation with respect to environmental decision-making was adopted and it
was further decided to work towards a convention relating to these matters. An
Ad Hoc Working Group was established in 1996 by the Committee on
Environmental Policy of the UNECE for preparation of a draft. Following ten
rounds of negotiations that witnessed intense participation by the civil society,
the Aarhus Convention or to give its full name that reflects the three rights for
the environment the Convention on Access to Information, Public
Participation in Decision-making and Access to Justice in Environmental
Matters was drafted. The Convention was adopted in the Aarhus Environment
for Europe Conference of 1998 (Stec and Casey-Lefkowitz, 2000), hence the
name Aarhus Convention. It entered into force in 2001 following what is
without any doubt a rapid ratification process. As of 2010 it has 44 parties
including the European Community.

Despite refraining from using a terminology of human rights, the Aarhus


Convention has a rights-based approach.
Furthermore the Convention
establishes these rights with respect to the public concerned and defines that
in a broad way2, thus ensuring a wide of scope of application (Ebbesson, 2002).
The three procedural rights provided by the Convention are referred to as its
three pillars through an analogy established with the spheres of competences
of the European Union (that has become outdated following the entry into force
of the Lisbon Treaty). The first so-called pillar is the access to information
provided in Articles 4 and 5. This right has been formulated with two
dimensions, one being reactive and the other proactive in nature. From the
perspective of public authorities the reactive dimension laid down in Article 4
involves providing the available information upon request by the public
concerned. Access to a restrictive category of information may be denied based
on the grounds of public interest. The proactive dimension laid down in Article
5 requires the parties to keep, update and disseminate such information. The
dissemination should involve progressively making environmental information
available in electronic databases that are easily accessible to the public. The
parties are also required to establish publicly available pollution inventories or
registers3.
The second pillar of the Convention concerns public participation to
environmental decision-making. This procedural right has three dimensions as
it has been formulated with respect to three different categories of
environmental decisions, namely specific activities; plans, programmes and
policies relating to the environment and executive regulations and/or generally
applicable legally binding normative instruments4, respectfully covered by
Articles 6 to 8 of the Convention. The most comprehensive provisions for
public participation are found in Article 6 with respect to a list of specific
activities given in Annex I of the Convention. According to Wates (2005: 5)
these activities overlap to a significant extent with those that require an

According to Article 2 of the Convention public concerned shall mean the public
affected or likely to be affected by, or having an interest in, the environmental decisionmaking; for the purpose of this definition, nongovernmental organizations promoting
environmental protection and meeting any requirements under national law shall be
deemed to have an interest.
3
A Protocol on Pollutant Release and Transfer Registers to the Convention has been
adopted in 2003 and entered into force in 2009 making it compulsory to establish
national registers for 86 specific pollutants originating from specific sources.
4
The Convention is not applicable to legislative organs. Therefore public participation
with respect to normative instruments is restricted to drafts prepared by the executive
organs.

environmental impact assessment or an integrated pollution prevention and


control (IPPC) license under European Union legislation5.
The third and final pillar of the Convention is access to justice. It is provided in
Article 9 with three dimensions, that is with respect to three distinct issues:
requests for information under Article 4 (Article 9/1), substantive and
procedural legality of any act, decision or omission subject to Article 6 and if
possible other relevant provisions of the Convention (Article 9/2) and any act or
omissions by private persons and public authorities which contravene
provisions of national law relating to the environment (Article 9/3), that is
general breaches of environmental law. The Convention utilizes access to
justice both in itself, i.e. as a means of prevention of breaches of environmental
law and as a guarantee for the application of the other procedural rights it
contains. However access to justice is restricted according to the scope of
national law with the exception of requests for information under Article 4.

III. Right to Environment in Turkey


Turkey is neither a party nor a signatory of the Aarhus Convention despite
having assumed the obligation to adopt the Convention by becoming a
candidate state to the European Union as the European Community is among
the parties. Adoption of the Convention has been blocked by the Turkish
Ministry of Foreign Affairs which fears that the non-discrimination provision in
Article 3/9 and the possibility of accession by any Member of the United
Nations provided in Article 19/3 might in combination result in requests that
adversely affect the national interest of Turkey in the conflicts over
transboundary waters with her neighbors in the Middle East6. This reservation
is groundless as it is based on a remote possibility and given that recourse can
be made to the safeguards provided under the Convention or by general
mechanisms of public international law in order to prevent any such adverse
effect from materializing.
Turkeys refusal to sign the Aarhus Convention does not mean that she is
against the right to environment. On the contrary the right to environment is
enshrined in the Constitution and ensured to a certain extent by procedural
rights.

An amendment to the Convention has been adopted in 2005 concerning public


participation in decisions on the deliberate release into the environment and placing
on the market of genetically modified organisms; but it has not yet entered into force.
6
Another UNECE instrument, Convention on Environmental Impact Assessment in a
Transboundary Context of 1991 (the Espoo Convention) is also blocked on similar
grounds.

However Turkey is not subject to the horizontal accountability provided by the


Aarhus Convention (Petkova and Veit, 2000) which, as stated above, is the most
comprehensive and effective international treaty on right to environment
concluded so far. The benchmarking exercise carried out below can thus also
be conceived as a horizontal audit. The exercise is made by identifying the
provisions of Turkish law relating to the different dimensions of the three
procedural rights, comparing them with the corresponding provisions of the
Aarhus Convention and evaluating them on a five point normative ordinal scale
(not available less advanced approximate equivalent more advanced)
that has been assigned values ranging from 0 to 4.
Beginning with the primary law, Articles 56/1 and 56/2 of the Constitution of
1982 provides that Everyone has the right to live in a healthy, balanced
environment. and It is the duty of the state and citizens to improve the natural
environment, and to prevent environmental pollution. The Constitution thus
lays down a right to as well as a duty of environment. However it makes no
reference to any rights for the environment without which neither a right nor a
duty can be materialized.
The procedural rights to environment are provided in the secondary legislation,
i.e. laws enacted by the Grand National Assembly of Turkey, primarily by the
Law no. 2872 on Environment as last amended by Law no. 5491.
The reactive dimension of access to information, the first pillar of the Aarhus
Convention, is provided by Article 30/2 of Law on Environment which states
that Everyone has the right to access information related to environment under
Law no. 4982 of 9/10/2003 on Right to Information. However requests related
to information that would harm environmental values such as breeding grounds
and rare species when disclosed may be denied under this Law. Article 2 of
the Law defines information related to environment as all existing written,
oral or visual information or data on water, air, soil, plant and animals and
activities that adversely affect or possibly adversely affect them as well as the
administrative and technical measures taken. This definition is narrower than
both the definition of information under Law no. 4982 on Right to Information
and the definition of environmental information under Article 2/2 of the Aarhus
Convention. The Aarhus definition covers information on many other elements
of environment, factors, activities and measures as well as the state of human
health and safety, conditions of human life and cultural sites and built structures
inasmuch as they are or may be affected. It is clear that the Law on
Environment is less advanced than the Aarhus Convention with respect to the
reactive dimension of access of information.
However it is possible to request information on the other elements of
environment covered by the Aarhus Convention under the general provisions of

Law no. 4982. Therefore while the Law on Environment is less advanced
Turkish law in general is approximate to the Aarhus Convention.
The Law on Environment does not include a specific and systematic provision
on the proactive dimension of the access to information. Article 12/3 and
Additional Article 7 oblige all private and public persons to provide the data
and information requested by the Ministry of Environment and Forestry. A
specific provision requests the Ministry to monitor air quality. Similar
provisions exist in the regulations issued under the Law. However there is no
general requirement for keeping, updating and disseminating environmental
information7. Therefore the proactive dimension of access to information is not
available in Turkish law.
Public participation, the second pillar of the Aarhus Convention, is subject to
different laws and regulations in Turkey. With respect to specific activities the
Regulation on Environmental Impact Assessment includes a detailed procedure
for public participation. The Regulation on the Protection of Air Quality also
provides for public participation through a written procedure (Gne ve okun,
2004: 118-9). rkmez (2006) criticizes the Regulation on Environmental
Impact Assessment by stating that the opportunities for public participation are
limited. However the provisions of the Regulation are equivalent to those of
Article 6 of the Aarhus Convention.
With respect to public participation to plans, programmes and policies relating
to the environment Article 3/e of the Law on Environment is significant. The
Article states that Right to participation is essential to the formulation of
environmental policies. The Ministry and local administrations are obliged to
establish the participatory environment whereby professional organizations,
associations, non-governmental organizations and citizens exercise the right to
environment. The wording of the provision, perhaps unintentionally, equates
right to environment with public participation.
However the Law itself does not live up to the principle laid down by the above
mentioned provision. Under Article 5, the High Environmental Board is the
body responsible from formulation of environmental policies. Article 4 of the
Law states that representatives from professional organizations, nongovernmental organizations, local administrations, universities and scientific
institutions shall be invited to the preparatory and evaluation work carried out
for the Board. Therefore public can only participate to the preparation of plans,
programmes and policies relating to the environment upon invitation and even
in that case only partially as there is no room for participation by regular
citizens. The same is true for other boards of the Ministry and the special
7

It should be mentioned that the Ministry is providing more information to the public
in recent years, for instance by publishing state of the environment reports online.

expertise commissions of the State Planning Organization. Moreover despite


the provision in Article 10 of the Law on Environment a regulation on strategic
environmental assessment that should provide new means of public
participation8 has not been adopted yet. Therefore public participation to plans,
programmes and policies relating to environment does not have strong
guarantees at the national level.
At the local level things are different as the representatives of non-governmental
organizations, professional organizations, trade unions and universities as well
as headmen and regular citizens can freely participate to and state their opinions
in the expertise commissions of the special provincial administrations,
metropolitan municipalities and municipalities under their respective laws, that
is Laws no. 5302, 5216 and 5393 (Gldoan, 2008: 61).
The Aarhus Convention itself does not advance this dimension of public
participation too far. Had it been associated with procedural rights, Article 3/e
of the Law on Environment would have been more advanced than the
Convention. Taking into consideration all of these factors, Turkish law is
approximate to the Aarhus Convention in public participation to plans,
programmes and policies relating to environment.
The final dimension of public participation concerns executive regulations
and/or generally applicable legally binding normative instruments. Since the
Aarhus Convention is not applicable legislative bodies the relevant Turkish

legislation is the Regulation on the Procedures and Principles of


Preparation of Legislation which is applicable to drafts of both executive
regulations and generally applicable legally binding normative instruments.
Article 6/2 of the Regulation states that Comments of the related local
administrations, universities, trade unions, professional organizations and nongovernmental organizations on the drafts should be made use of. Article 6/3
adds that Those drafts that concern the public may be brought to the public
attention by the proposing ministry through internet, press or publication before
being submitted to the Prime Ministry. The proposal shall be made after the
evaluation of the comments on the draft collected by this means.9 Article 8 of
the Aarhus Convention requires parties to promote effective public participation
for all executive regulations and normative instruments while the Turkish
legislation leaves that to the discretion of the relevant ministries. Therefore
Turkish law is less advanced than the Convention.
As stated in the previous section access to justice, the third pillar of the Aarhus
Convention is provided with respect to three distinct issues, namely requests for
8

The regulation is planned for alignment with Directive 2001/42/EC (SEA Directive).
Further provisions for participation are stipulated by the Circular of the Prime
Ministry no. 2007/6 for the drafts that require regulatory impact assessments.

access to environmental information, public participation in decisions on


specific activities and general breaches of environmental law. In the case of
requests for access to environmental information, Article 13 of the Law no.
4982 on Right to Information lays down a review procedure as requested in
Article 9/1 of the Aarhus Convention. The Regulation on Environmental
Impact Assessment and the Regulation on the Protection of Air Quality do not
include similar specific provisions. However Article 9/2 of the Aarhus
Convention does not necessitate a review procedure. In both cases recourse to
administrative justice is possible and this is sufficient for ensuring equivalence
with the Convention.
With respect to general breaches of environmental law, the Law on
Environment and administrative law should be read in tandem. Article 30/1 of
the Law on Environment embodies a right to application. The Article reads as:
Anyone who is damaged from or informed of an activity that pollutes or
corrupts the environment may apply to the relevant authorities and request
taking of necessary measures with respect to the activity or the suspension of
the activity. This provision goes beyond the right of petition provided by
Article 74 of the Constitution of 1982. However the Article mentions activities
damaging the environment and thus creates ambiguity with respect to
applications for preventive measures (Gne ve okun, 2004: 118) that do fall
within the remit of the right of information provided in the second paragraph of
the same Article. As a result applications for preventive measures can be
exercised under Law no. 3071 on the Use of the Right of Petition only.
This is an important deficiency from a legal point of view as the essential
function of Article 30/1 of the Law on Environment concerns administrative
justice. Under Article 2/1 of the Law no. 2577 on Administrative Procedure an
action of annulment against an administrative act can be filed only by those
whose interests have been breached by the act in question. According to the
jurisprudence of the Court of State, the supreme administrative court of Turkey,
such interest should personal, legitimate and actual. Article 30/1 ensures that
anyone can posit such an interest and thus have legal standing for actions of
annulment (zay, 2001). Indeed the Court of State begun interpreting the
element of interest in a broader form from 1986 onwards in cases that concern
environment (Ulusoy, 1993: 136-137) and this tendency is likely to overcome
any problems of legal standing under Law no. 3071 as well. Therefore it is
possible to state that Turkish law is also equivalent to the Aarhus Convention
with respect to the third dimension of access to justice.

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Table 1: Benchmarking Right to Environment in Turkey with the Aarhus Convention


Right for the
Environment

Aarhus Dimension

Aarhus
Article

Reactive

Art. 4

Proactive

Art 5

Specific activities

Art. 6

Plans, programmes
and policies

Art. 7

Executive regulations
or normative
instruments

Art. 8

Access to information

Art. 9/1

Specific activities

Art. 9/2

General breaches of
environmental law

Art. 9/3

Access to information

Public participation

Access to justice

Corresponding Turkish Law


Law on Environment Art. 30/2
Law on Right to Information
Regulation on EIA, Regulation on
the Protection of Air Quality
Law on Environment Art. 3/e & 4
Legislation
on
local
administrations
(Laws no. 5216, 5302 and 5393)
Regulation on the Procedures and
Principles of Preparation of
Legislation
Law on Right to Information
Law on Administrative Procedure
Law on Administrative Procedure
Law on Environment Art. 30/2
Law on the Use of the Right of
Petition Law on Administrative
Procedure

Source: Authors analysis

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Evaluation
Approximate
Not available
Equivalent
Approximate

Less Advanced
Equivalent
Equivalent
Equivalent

The result of the benchmarking exercise is summarized in Table 1 above. Table


2 below gives the resulting scorecard.
Table 2: Benchmarking Scorecard for Right to Environment in Turkey
Point
Not available
Less advanced
Approximate
Equivalent
More advanced

Value
0
1
2
3
4

Observations
1
1
2
4
0
Total
Mean

Total
0
1
4
12
0
17
2,13

Source: Authors analysis


The mean value obtained by the benchmarking exercise suggests that the state
of the affairs of the right to environment in Turkish law is only approximate to
the Aarhus Convention.

IV. Conclusions
The benchmarking exercise carried out in this study has identified the strengths
and weaknesses of the right to environment in Turkey. The strong dimensions
are those that are equivalent with the Aarhus Convention while the weak
dimensions are those that are especially less than approximate.
It is clear that in order to advance the status of right to environment in Turkey, a
number of amendments should be made in the Law no. 2872 on Environment.
First of all, the definition of environmental information provided in Article 2
thereof should be broadened in scope. Second, a new article should be inserted
to provide the proactive dimension of access to information with a legal basis.
Third, Article 4 should be revised to ensure that effective participation is
promoted by the interested public. Fourth, Article 30/1 should be amended to
include preventive measures against activities that may harm, but not yet
harmed the environment in order to remedy a possible loophole with
administrative justice.
Article 6/3 of the Regulation on the Procedures and Principles of Preparation of
Legislation should also be amended for making it compulsory for the Ministry
of Environment and Forestry and other ministries to bring to the public attention
any drafts that concern environmental matters and take into consideration the
comments from the public.

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Finally, Turkey should sign and ratify the Aarhus Convention, possibly, but not
necessarily with a reservation in order to address the concerns of the Ministry of
Foreign Affairs. It is true that Turkey can make the status of right to
environment equivalent to or even more advanced than what the Aarhus
Convention provides by amending its national laws and regulations. However
accession to the Convention would still be beneficial for the advancement of
right to environment in the country. First of all, under Article 90 of the
Constitution of 1982, the Convention would ensure that rights for the
environment cannot be challenged at the Constitutional Court. Also the
Convention would override in conflicts of norms, if any, with the other laws.
Second, Turkey would become subject to horizontal accountability for the right
to environment. Third, Turkish authorities would be able to benefit from the
best practices of the 44 parties to the Convention that has been accumulated
over the last decade. Fourth and finally, Turkey would make an important
progress with respect to the environment chapter of the accession negotiations
being carried out with the European Union and would be entitled to receive
funding for developing national inventories and registers required by the
Convention.

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