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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
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).
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
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.
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.
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.
10
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
11
Evaluation
Approximate
Not available
Equivalent
Approximate
Less Advanced
Equivalent
Equivalent
Equivalent
Value
0
1
2
3
4
Observations
1
1
2
4
0
Total
Mean
Total
0
1
4
12
0
17
2,13
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.
12
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.
13
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