International Environmental Law

In General

Pursuant to the first sentence of the last paragraph of Article 90 of the Constitution, international treaties are applied in domestic law not automatically but through a domestic legal act. This is because, under this provision, “International agreements duly put into effect have the force of law”.

“No application may be made to the Constitutional Court with regard to these agreements on the ground that they are unconstitutional. In the event of a conflict between international agreements in the area of fundamental rights and freedoms duly put into effect and domestic laws owing to differences in provisions on the same matter, the provisions of the international agreements shall prevail”.

The Principle of Non-Regression and the Right to the Environment

One of the most important principles in the field of environmental protection conventions is the principle of “non-regression” (gerilememe). It means that at the universal, regional and national levels, every step taken in these fields (policies, legislation and practices) must go further than the previous one. In fact, this principle is implicitly contained in the expression “to improve the environment” in Article 56 of the Constitution.

“Everyone has the right to live in a healthy and balanced environment.
It is the duty of the State and citizens to improve the environment, to protect environmental health and to prevent environmental pollution”.

Initiatives to protect the environment are generally seen to have the effect of extending and developing fundamental rights and freedoms, above all the rights to life and health. This has also been given concrete form in the case law of the ECtHR. This is because, if there were no environment left to live in, it would not be possible to speak of other rights, first and foremost the right to life. This is also the main reason why it has been considered necessary to regulate the right to the environment separately in constitutions.

Air Pollution and Protection of the Atmosphere

International treaties on combating air pollution and protecting the atmosphere can be grouped under five headings:

 – adopted on 22.3.1985 The Vienna Conventionaims to prevent the adverse effects that changes in the ozone layer may have on human health and the environment. To this end, the Convention contains legally non-binding reduction obligations concerning the use of certain substances. – Signed on 16.9.1987 with the aim of supplementing the Vienna Convention, the Montreal Protocol contains legally binding provisions aimed at restricting, within a certain period, the production and use of CFC (chlorofluorocarbon) gases, which damage the ozone layer. – Signed in 1992 on the occasion of the Rio Summit, the United Nations Framework Convention on Climate Changecontains general principles, action strategies and certain legally non-binding obligations aimed at combating global climate change.

 – The filling-in of the legal framework established by the Framework Convention on Climate Change and the setting of legally binding emission reduction targets only became possible with the adoption in 1997 of the Kyoto Protocol was the instrument through which this was achieved. Setting out in detail how these emission reduction obligations are to be fulfilled, the Kyoto Protocol also provides flexible mechanisms for the implementation of these obligations by the parties. – Adopted in Geneva on 13.1.1979, the Convention on Long-Range Transboundary Air Pollutionobliges the states parties to take the measures necessary to prevent, in particular, long-range transboundary air pollution and to reduce such pollution gradually. In addition to developing and implementing common policies and strategies, this treaty contains provisions obliging the states parties to cooperate in exchanging information, holding consultations and conducting scientific research.

Protection of Nature and Biological Diversity

The principal international treaties containing provisions on the protection of nature and biological diversity are as follows:

 – also known as CITES or the Washington Convention, The Convention on International Trade in Endangered Species of Wild Fauna and Flora  contains provisions regulating trade in endangered species of wild fauna and flora. Varying degrees of protection measures are provided for nearly 30,000 plant and animal species listed in the appendices to this convention. – Another treaty signed in 1992 on the occasion of the Rio Summit, the Convention on Biological Diversity, aims to ensure the conservation and sustainable use of biological and genetic resources. – being an additional protocol to the Convention on Biological Diversity, The Cartagena Protocol on Biosafety addresses the potential risks that may be posed by genetically modified organisms (GMOs). In this context, taking into account risks to human health and focusing specifically on transboundary movements, the Protocol aims to contribute to ensuring an adequate level of protection in the safe transfer, handling and use of genetically modified organisms that may have adverse effects on the conservation and sustainable use of biological diversity. The Biosafety Board established in our country for this purpose was abolished in 2018 by Decree-Laws (KHK), its powers being transferred to the relevant ministries/boards; it was later re-established within the Ministry of Agriculture and Forestry by Presidential Decree.

 – adopted in 1979 and also known as the Bern Convention, the Convention on the Conservation of European Wildlife and Natural Habitats, aims to conserve animal and plant species and their natural habitats in the member states of the Council of Europe and the other states signing this convention, and to ensure inter-state cooperation in this regard. – The Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar Convention) was adopted in 1971 and aims to ensure that the parties identify wetlands of international importance within their territories and secure their conservation and wise use. This convention essentially aims to protect marshlands, which are among the most important breeding grounds for birds. – The United Nations Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, was adopted in 1994 with the aim of combating desertification and mitigating the effects of drought.

 – adopted in 1979 and also referred to as the Bonn Convention, The Convention on the Conservation of Migratory Species of Wild Animalshas as its main objective the conservation and restoration of the natural habitats of species threatened with extinction and the maintenance of a network of suitable habitats where necessary along migration routes. – Adopted in 1991, the Protocol on Environmental Protection to the Antarctic Treaty obliges the parties to protect the living communities, atmosphere, land, water, glacial and marine environment of Antarctica as the common heritage of mankind. – Adopted in 1972 and entering into force in 1975, the Convention Concerning the Protection of the World Cultural and Natural Heritageshould also be considered in this context. Monuments, groups of buildings and other sites defined under this convention are included by UNESCO in the World Cultural and Natural Heritage List and made subject to special protection.

Protection of Waters and the Marine Environment

The principal treaties on the international protection of waters and the marine environment are as follows:

 – adopted in 1973, The International Convention for the Prevention of Pollution from Ships (MARPOL 73) and the protocol prepared in 1978 to supplement it (MARPOL 78) essentially aim to prevent ship-source pollution of the seas and, where pollution occurs, to minimise the resulting damage. – Adopted in 1982, the United Nations Convention on the Law of the Sea established a general framework for rules on the protection of the marine environment and has significantly influenced subsequent treaties in this field and state practice. – Signed in Barcelona in 1976, the Convention for the Protection of the Mediterranean Sea against Pollution, aims to contribute to the protection of the marine environment of the Mediterranean Region. – adopted in Bucharest in 1992, The Convention on the Protection of the Black Sea against Pollution, aims principally at the protection of the marine environment of the Black Sea.

Treaties Containing Procedural Rules

The international treaties containing procedural rules on environmental protection can be grouped under three headings:

 – signed in 1991, entered into force in 1997 and also known as the ESPOO Convention, The Convention on Environmental Impact Assessment in a Transboundary Context regulates the participation of the parties and the public, and their other rights and duties, in the process of taking decisions on activities likely to cause significant adverse transboundary environmental effects. – Adopted in 1998 and also known as the Aarhus Convention, the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters aims to guarantee everyone’s right of access to environmental information, to participate in decision-making on environmental matters and to have access to justice in environmental matters. To achieve this aim, the states parties are obliged to compile environmental data and make it available to anyone who requests it. The Aarhus Convention is the first international convention to grant rights to everyone in the field of environmental protection.

 Turkey has not yet signed the Aarhus Convention, which entered into force on 30 October 2001, having raised various reservations. concerns that certain rights granted without distinction as to citizenship, nationality or domicile could threaten our country’s sovereign rights, fears that projects on transboundary waters such as GAP could be obstructed, arguments that our national security could be endangered, concerns that our country lacks the technical capacity to fulfil the obligations to be undertaken under the Convention, and concerns that investment decisions could be delayed, are the main reasons preventing Turkey from signing this convention. – signed in 1989, The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal proceeds from the premise that the generation and transboundary movement of hazardous and other wastes pose a major threat to human health and the environment, and aims to minimise the generation of such wastes in terms of quantity and hazard potential.

The Paris Agreement

 Since the Kyoto Protocol was due to expire in 2020, the Paris Agreement, to apply after 2020, was adopted at the 21st Conference of the Parties (COP21) held in Paris, France, in 2015. As of 5 October 2016, the condition that at least 55 parties accounting for 55% of global greenhouse gas emissions ratify the agreement was met, and the Agreement entered into force on 4 November 2016. Turkey signed the Paris Agreement on 22 April 2016, together with representatives of 175 countries, at the High-Level Signature Ceremony held in New York. The Agreement aims to enhance the implementation of the UNFCCC in the context of sustainable development and the eradication of poverty. The long-term goal of the Agreement is holding the increase in the global average temperature to well below 2°C above pre-industrial levels, preferably limiting it to 1.5°C; ensuring low greenhouse gas emission development and, while achieving these, not threatening food production is stated as another fundamental goal.

 Both in achieving the stated goals and in implementing the other articles, “common but differentiated responsibilities and respective capabilities”  has been adopted as a principle. Under this principle, countries are expected to submit every 5 years their “Nationally Determined Contributions” every 5 years. Although Türkiye was not yet a party to the Paris Agreement at the time, it first submitted its Intended Nationally Determined Contribution in 2015 and, after formally becoming a party to the Agreement, updated these targets in 2023. According to Türkiye’s nationally determined contribution, the 2030 target for reducing greenhouse gas emissions from the increase, previously 21%, has been raised to 41%.

The “Law on the Approval of the Ratification of the Paris Agreement” adopted by the Grand National Assembly of Türkiye was published in Official Gazette No. 31621 of 7 October 2021 and entered into force on 10 November 2021.

Detailed information is available on the official website of the Ministry of Foreign Affairs: http://www.mfa.gov.tr/