AN ASSESSMENT OF THE STATUS QUO OF ENVIRONMENTAL LAW IN TURKEY:
THEORY AND PRAXIS
Firuz Demir YASAMIS *
Abstract
Despite the generally accepted
belief that the Turkish environmental law is rather non-relevant to the issues
related to the environmental protection and enhancement, the Turkish
environmental law is indeed adequate to deal with the environmental pollutions,
nuisance, and biodiversity losses. On the other hand there are certain
deficiencies which have to be addressed to further strengthen the efforts spent
on environmental upgrading. There are two deficiencies related to the
perfection of the promulgated environmental rules and an overall insufficiency
related to the effective enforcement of the rules and legislation. As far as
the perfection of the promulgated environmental rules are concerned the two
deficiencies mentioned above are the relative weakness of the environmental
regulations vis a vis the
environmental acqui communautaire of
the EU and the lack of financial and economic tools of environmental management
such as green taxes, marketable pollution quotas and means and ways of market
tools. This paper aims at explaining the strengths and weaknesses of the
Turkish environmental law. The thesis of the paper is this: The Turkish
environmental law is strong enough to deal with the environmental and
ecological problems provided that the existing legal principles and rules will
be interpreted accordingly; however, approximation to the EU’s environmental acquis will only serve to the betterment
and enhancement of the present conditions.
Key Words: Turkish environmental law, EU approximation.
Introduction and Background Information: Conditions in Turkey
Environmental problems inherently
contain conflict amongst related parties. While a considerable portion of the
society is creating a new source of wealth and prosperity for themselves by
using the natural scarce resources freely and not paying the due cost, the
remaining of the society is mandated to live under the negative impacts of
environmental pollution and degradation. In “Pigouvian”
economics doctrine this procedure is called as “externality” or more
meaningfully “negative externality”.
The common denominator of
environmental problems is being a negative externality for the rest of the
society and the economy. Some people get the advantage of polluting the
environment and some others will pay the price. The term of “external”
indicates the undesired impacts on others who has no will to create such
impacts and are not responsible for the outcomes. This conflict of interest may
arise amongst the real persons or between the real person and several legal
persons.
Effective management and resolution
of the conflict in environmental matters depends on the deliberation of the
legal principles and rules which are potential to solve the conflict and
donating the problems solvers such as public administrators and the judges with
sufficient amount of legal powers. For an effective environmental management
this is an indispensable prerequisite.
The development of environmental
rules and regulations has long history in almost every country. For instance in
the US, the Congress has accepted hundreds of pieces of legislation on the
protection of environmental values and public health. Likewise in Turkey, since
the establishment of the Republic in 1923, somewhat 50 pieces of legislation
has been enacted. The Code Civil has been accepted in 1926 and renewed in 2003.
The articles on “the right of the neighbors” do provide a solemn
basis for the resolution of environmental conflicts amongst the neighbors.
As far as the public law is
concerned the Law on Provincial Administration dating back to 1949 furnishes
governors and sub governors the full authority of taking all counter measures
for environmental and ecological degradation. The old Municipal Law as well as
the new one defines significant duties, functions, authorities and responsibilities
for municipalities on the protection and enhancement of urban hygiene. The Law
on the Protection of Public Health dating back to 1930 provides considerable
amount of authorities to the field representatives. In addition to these laws
numerous other administrative regulations have been put into effect for the establishment
and protection of urban law-and-order and public health.
As far as the pure environmental
legislation is concerned, the milestone is the 1982 Constitution in which the
right of environment has been accepted as a basic human right which denotes the
citizen right to live in healthful and stable environment. After the enactment
of the Constitution several new environmental laws and regulations have been
put into effect to realize the contextual requirements of the above mentioned
constitutional mandate. Naturally the Code on Environment of 1983 is the prime
outcome of this endeavor. This law defines the rights and duties of the
citizens, foresees the establishment of a mutually balanced relations between
the development and the concerns over the environmental protection, rules the
principle of best available technology for new investments, accepts the
principle of polluter pays, determines the elements of the environmental crimes
such as polluting the environment, describes the environmental responsibilities
of the citizens, furnishes the local administrators with environmental
authorities, eases the right of suing in the courts for environmental basis (a
pioneering role in the whole World) and establishes the basis of environmental
penal law in Turkey.
In addition to these the legislation
on the protected zones has also been established and a new administration
called the Administration of Protected Zones has been formed under the umbrella
of the Ministry of Environment.
Under the mandates of the Code on
Environment several regulations on the protection of air quality, water quality
and the soil including the Regulation on the Environmental Impact Assessment
have been put into effect.
Naturally, the decisions made by the
constitutional and normal judiciary in regard to the implementation of this
legislation have contributed considerably to the enrichment of legal assets,
teaching and the doctrine on environment law in the country.
Additionally, Turkey so far has
signed more than 50 bilateral and multilateral international environmental
conventions on the protection of global and regional environment.
The brief explanation made above
clearly underlines that Turkish environmental law was and is adequate to deal
with the environmental problems and to curb down the level of environmental
degradation before and after 1982. Public authorities were supplied with
sufficient authority which ranges from issuing fines to permanent closure of
the polluting premises.
What was missing in Turkey in this
regard was the technical procedure for vertical and horizontal legislation,
monitoring systems and laboratories, market type environmental management
tools, environmental funds and effective enforcement organization to apply the
environmental rules and regulations in the country. This basically deletes the
counter arguments on explaining why environmental enforcement was not so strong
in Turkey. It was quite possible to prevent the environmental crimes even
before the adoption and approximation of the EU environmental acquis.
However, the basic deficiencies and
insufficiencies should also be emphasized which also contributed to the
effective enforcement of environmental rules and regulations. One of these is
the inadequate reflection of the sustainable development principle into the
environmental legislation in Turkey. Another important short giving was the
absence of a meaningful balance between the environmental concerns and the
concerns over economic development and unemployment. Another deficient element
in the system was the inability of implementing the polluter pay principle in
the environmental pollution cases. This principle although accepted remained on
paper and not translated into real life effectively. Another reason in this
regard that I have identified was the quality of the regulations. Since they
are overwhelmingly translated from the legislation of different countries they
were not in line with the country’s public administration structure and
principles. Lastly, the lack of environmental inspection and/or police system
should also be spelled out as another systemic deficiency in the Country.
|
TABLE 1 RESULTS OF THE ADEQUACY OF LEGAL INFRASTRUCTURE |
|||
|
CRITERIA
STATEMENT |
MEAN |
SS |
CONSENSUS |
|
There is not adequate legal authority in the hands
of given by the environmental legislation to public authorities to prevent
the environmental problems in Turkey. |
3.32 |
1.02 |
Not achieved |
|
Environmental penalties and sanctions are severe
enough to detriment the potential environmental criminals or wrong doers not
to commit the environmental crime. |
3.18 |
1.16 |
Not achieved |
|
Lack of environmental police in Turkey is not an
important factor for environmental protection. |
3.50 |
1.20 |
Not achieved |
|
MEAN
OF THE MEANS |
3.33 |
1.13 |
Not
achieved |
In order to determine the
performance level of the Turkish public environmental management I have carried
out a study based upon the Delphi Technique several years ago. One of the
components that I intended to measure was related to the adequacy of the environmental
legislation in Turkey. The result of the survey which based upon Likert type of
scaling (ranging 1=fully agreed to 5=fully disagreed) is given in the table
below. (Yasamis 2006)
The above result clearly indicates
that the experts questioned were unsatisfied with the adequacy of the
environmental legal infrastructure. However, statistically speaking a consensus
has not been achieved. The reasons given by the experts are summarized below:
Those experts who posed positive
outlook on the issue stated that environmental legislation is adequate to deal
with the environmental problems however some of the positive respondents
indicated the need for upgrading. Some of them declared that the authorities
vested in the hands of local governments are unnecessarily taken over by the
central government officials in the same region. Therefore they believe that
extra authorities should be given to the local governments to deal with the
local environmental problems.
Those experts who stated that the
existing penalties and sanctions for environmental crimes are severe enough to
detriment the potential environmental wrong doers have based their statements
to the practice made in the field and indicated that severe sanctions are being
implemented after the control and inspection made in the polluting premises
which includes the permanent closure of the premise till the effective remedies
will be taken by the polluters. These experts believe that the existing
penalties are severe enough provided that they will be implemented accurately
and effectively.
Some of the positive respondents
also believe that the lack of environmental inspection or police system is not
important and they suggest that such a force should not be established. They
said that further empowerment of existing regular police force in the field of
environmental protection might result in higher performance and efficiency.
These experts used the example of “the Environmental Teams” established
in the Gendarmerie which fully established itself in the field to prevent the
environmental crimes. These experts also believe that EU’s main policy
preference is to protect the environment through environmentally friendly
policies rather than through the establishment of environmental police system
in the country.
Experts who expressed negative
statements on the issue have explained the reasons which caused them to believe
so as following: Powers and authorities given to the public officials are not
implemented uniformly throughout the country and indicated that the local
political pressures as the main reason for the variations in implementation and
enforcement. Some of the experts blamed the lack of conscientiousness over
environmental issues among the public at large. Some other experts have pointed
out non severity of the sanctions and said that the sanctions are not
discriminated according to the size of the premise and the content of the
environmental degradation. These experts believe that the lack of environmental
police and inspection system in the country is the main bottleneck for the
effective implementation of rules and regulations and strongly proposed the
establishment of a sui generis police
force for environmental criminals and effective training to be given. These
experts stated that the job description of environmental police should be
clearly prepared. According to them, environmental police force is both
necessary and useful either at the inspection stage as well as at the
enforcement stage. The experts indicated that a similar force should be
established in the police as it is already established by the Gendarmerie and
claimed that such a formation will enhance the auto control procedure for the
effective enforcement of environmental rules, regulations and standards. Some
of the negative respondents indicated that instead of uniformed police force,
the environmental inspection system/teams of the Provincial Environmental
Directorates would be more useful and effective.
Finally some cross tabulation
analyses have been made on the issue and the following conclusion are drawn:
-
Those experts who believe that environmental penalties
and sanctions are severe enough to curb down the environmental wrong doings
were related to private sector, governors and sub governors.
-
Provincial Directors of Environment and the mayors
have expressed both negative and positive outlooks on the issue.
-
But the international members of the panel,
academicians and the representatives of NGOs have expressed negative outlook on
the issue.
-
While the private sector and the NGO representatives
are not evaluating the lack of environmental police as a main bottleneck,
international experts, sub governors, mayors and academicians sees it as major
obstacle for an effective enforcement system. The governors have not expressed
a consensus of the issue and were divided in their opinions.
The Turkish Environmental Law: A Brief Outlook of Public Law
Despite the result of my research
mentioned above, I certainly come to the conclusion that the Turkish
Environmental Law as it is and without the interference of the EU environmental
acquis was good enough to solve the environmental disputes and conflicts
amongst the private persons and between the public and the private persons.
Further to that statement, I strongly believe that it is quite possible to
protect the environment by all means with the existing legislation provided that
they will be interpreted accordingly. This statement excludes the presence of
market type tools. It actually means that Turkey is able to protect its
environment and natural resources provided that there will be political will
behind it and also provided that public officials including the judges and
public at large are educated, trained and conscious over the environmental
problems. This will be explained briefly below:
The Turkish Constitution of 1982
since it is rather young is one of the pioneering Constitutions in the World
recognizing the right for healthful and stable environment. In the Article 56
of the Constitution the right of the environment is clearly spelt out for the
citizens provided that the State will fulfill its obligations within the limits
of economic and financial availabilities of the Country. Besides this main
clause, the Constitution is rather generous in other rights related closely to
the environment. The right free usage of the shores, fair distribution soil
property, right for a descent shelter, protection of historical, cultural and
natural assets, protection of forests, rational utilization of the natural and
underground resources of which the property rights belong solely to the public
are some to be underlined in this regard.
Same generosity also applies to the
Turkish Penal Law. The Penal Code of 1936 has recently been modified in
2004. However both old and new Penal Code provides so many opportunities in favor
of protecting the environment. Even it is possible to talk about a solid
Environmental Penal Law of Turkey.
In the old Penal Code, the
article 566 on the misdemeanors which pose threats to people was regulated. The
same article states if such threat comes from industry or commercial activities
this will be treated in an extraordinary manner.
Article 526 of the old Code gives
authority to public officials to issue orders for the protection of public
security, public law-and-order and public health and those who violate such
orders will be punished. There is no doubt that such an authority can be used
for environmental protection purposes.
The new Penal Code is also
pioneering Code in the World for environmental protection. Even in the first
article the Code states that the protection of the environment is one of major
aims of the law and consequently in the upcoming chapters (articles 181-184)
the definitions have been made for environmental crimes, noise and unlawful
urbanization (pollution in town planning).
In other articles of the new Code
several other environmentally related issues are regulated. The article 151
regulates the crimes committed to belongings of other people and harm to the
animals. Article 185 regulates food and drinking water tampering. Article 186
regulates the crimes related to the foods and drugs.
What is more interesting in the new
Code is the article 55 on confiscation of earnings gained from illegal and
unlawful engagements. Although the article does not specifically mentions the
word of environment it is quite easy to explain that those person who did not
comply with the emission and discharge responsibilities can be blamed for unjust
enrichment which can be sanctioned with the article 55 of the new Penal Code on
the basis that the money to be spent for treatment facilities not spent and
earned by the owner of the facility unlawfully.
The Code of Misdemeanors
has been put into effect in 2005. This code is a part of penal system in Turkey
and several environmental nuisances have been regulated and sanctions have been
attached to them in the article 41 titled as environmental pollution. These
include the following:
-
Unacceptable waste emission, disposal and discharge
-
Waste disposal from catering premises
-
Slaughtering facilities
-
Construction debris
-
Household item disposal
-
Disposal of discarded vehicles
-
Noise emission (Article 36)
Noise
is also regulated by the Law of Police Duties and Powers in addition to
the Noise Regulation. In the administrative law there are also
numerous codes which provide legal solutions to environmental and ecological
issues. The Code on Provincial
Administration regulates the
authorities of governors and sub governors. According to this Code provision of
peace and security, protection of personal immunities and right of usage and
exercise over personal properties, establishment of public well being are the
duties of governors and sub governors. All of these clauses definitely cover
the environmental concerns. Governors
and sub governors may issue general orders on the areas where there is no legal
arrangements and the people are obliged to obey to these orders. Otherwise they
will be penalized by the courts for defying the orders of authorized public
officials.
As far as the local governments are concerned,
three main codes are rather important: Municipal Code, Code of Greater Municipalities and the Code on
Provincial Special Administrations. The Municipal Code denotes the following as
the municipal duty: town planning, water and sewerage, urban infrastructure,
environment and environmental health, solid waste management, municipal police,
recreational areas, forestation and shelter.
Likewise the Code on Greater Municipalities which attaches a prime importance to the principle
of sustainable development denotes the following as the duties of the greater
municipalities: to take necessary measure to protect the environment,
agricultural lands and water reservoirs, forestation, solid waste management, disposal
and recycling of solid waste, environmental nuisances that can be caused during
transportation of construction debris and materials, solid waste management
services for hospitals and industry and the collection and disposal of waste
from the sea, protection of historical, cultural and natural assets, water and
sewerage and flood control.
On the other hand the Public Health Protection Code of 1930 has also provided rules on the urban hygiene, potable water,
combating with insects, house hygiene, public places, and hotels and set the
principles for new urban development areas. For the implementation of these
principles a coordinating assembly has been established in every province and
districts.
As another important
component of the Turkish environmental law the legislation of local governments
also contain remarkable arrangements for the protection and enhancement of
local environment. These legislations include the Code on Provincial Special Administration,
the Code on Greater Municipalities, and the Code on Municipalities and the Village Code. The new Code of Provincial Special Administration (2005) gives the
overall spatial planning within the province to the Provincial Special
Administration. Additionally combating with soil erosion and protecting the
soil are amongst the duties of these local governments.
The Village Code (1926)
assumes almost all of the local environmental problems of the village as the
responsibility of village administration: eradication of nuisances which might
cause malaria, provision of potable water, sewer services, sanitary discharge
of waste water, street cleansing and household and agricultural solid waste
management are amongst the responsibilities of the village administration.
The new draft Code of Villages also contains local environmental duties for the village administration.
In the draft, all of the functions related to the environmental protection are
assumed to be the major task of village administration. Additionally, the
following functions are also accepted as village administration
responsibilities: village infrastructure, village cemetery, forest protection,
solid waste management, recreational activities, parks and forestation.
The Code on Pastures (1998)
also designed a new approach to the management of arid and semi arid lands such
as pasture lands and grazing lands.
The Turkish administrative law and
the administrative procedures law also provide very important tools for
the protection of the environment. Turkey has a very strong administrative
judiciary which has the power of suspension of the rules made by the
administration and in which annulment and compensation cases can be launched
against the administration by the negatively impacted people. There are
thousands of cases on environmental issues.
What are most remarkable in this
venue are the very modern approach of the government under sunshine and the
related components of right of information and the right of petition. Turkish
citizens now have the right of information and may get any information from the
public administration. As far as the right of petition is concerned, the
citizens may apply to related agencies and may place petitions. The right of
petition for environmental concerns has been regulated in a very special manner
(Code on Environment, article 30). This article gives the right of demand an
action to stop the environmental pollution from the related public agencies.
The requested public authorities are obliged to give an answer within the next
60 days. Lack of response will be accepted as denial or rejection which will
automatically open the way for judicial intervention by the administrative
judiciary. If at the end of the judicial trial, the plaintiff’s case would be
accepted then the related authority has to obey the court decision and to take
necessary remedial actions. This provision which has been promulgated in 1982
is certainly beyond the Aarhus Convention.
It should also be emphasized that
Turkey is also a signatory to almost all global and regional conventions on
environment. And, according to the Turkish Constitution the international
agreements will be an integral component of the domestic law once they will be
ratified by the Assembly.
The Turkish Environmental Law: A Brief Outlook of Private Law
As
far as the Turkish private law is concerned there are also considerable amount
of legal documents on environmental issues. The most important of them is the Code
Civil of (1926) which is renewed in 2001. Article 730 of the Code states
that each property owner should discharge his/her authority over the personal
belongings not to harm or not to pose harm to others and otherwise they will be
asked to reconstitute the original conditions and to take necessary remedial
actions by the Court. The judge is also authorized to restrain the offenders
and ask him/her to pay compensation to the adversely impacted parties.
What is more important in this sense is the concept of the right of neighbors
in the Code Civil. The Article 737 of the Code Civil states that all those who
intend to exercise his/her rights over the personal property should refrain
themselves form causing adverse impacts on the neighbors. Specifically, excess
impact caused by smoke, vapor, dust, bad odor, noise and vibration are banned.
This clause is the most frequently used clause by the civil courts to prevent
the environmental nuisances/pollution caused by the local emitters or
dischargers.
The Code of Obligations also provides
an important opportunity for environmental problems. The article 61 of this
Code is on the unjust enrichment. The article stated that those who acquire an
item without any legal and just reason and cause harm to others has to return
the item acquired. The money saved by those environmental obligation evaders
can be considered as the example of unjust enrichment.
In parallel to this the article 41 of the Code of
Obligation regulates the unlawful/unjust/unethical actions. The article states
that those who commit harm to others willingly or by negligence have to
compensate the harm. Compensation also includes the cost of reconstituting the
original conditions (restoration) and exchanging with an acceptable value.
The Turkish Environmental Law: A Brief Outlook of Mixed Law
The
Environmental Code of 1982 [1] and
the related regulations put into effect by the Ministry of Environment and
Forestry (MEF) to implement the law are the examples of mixed law in Turkey.
The Environmental Code bases on two important concepts: sustainable environment
and sustainable development. The Code bases upon the following principles:
-
Protecting the environment and preventing the
pollution is everybody’s responsibility,
-
Public authorities and NGOs cooperates with each other
in protecting the environment
-
Investors should respect the sustainable development
principle
-
Investors should take into account the long range
impact on the natural resources and the benefits of the project
-
Right of participation is essential in environmental
decision making
-
Stopping the pollution at the source and reuse and
recycling compatible with clean environment concept should be given due
importance in polluting projects/activities
-
Polluter pays principle
-
Market type environmental management tools should be
developed
-
Ministries should try to spend maximum efforts to
comply with the requirements of international agreements
-
Areas to be protected should be well taken care of
through the Protected Zones Administration of the MEF
-
Environmental impact assessment is mandatory for
specifies projects
-
Environmental enforcement/inspection authority will be
exercised by the MEF in cooperation and collaboration with other central and
local government authorities
-
Sanctions will be implemented on violators including
the closure of the facility
-
Polluters will be responsible for the pollution and
right of compensation is reserved for the adversely impacted parties
-
Environmental management units will be established by
all potential polluters
-
Environmental volunteers
The article 8 of the Code states the
ban on pollution. Article states that emission and discharge of pollutants are
banned and those who act contrary should stop and prevent the pollution and
should to mitigate the adverse impacts on the environment.
The regulations put into effect by
the MEF for the implementation of the Environmental Code is given in the table
below:
|
TABLE 2 REGULATIONS PUT INTO EFFECT AS REQUIRED THE ENVIRONMENTAL CODE |
|
Controlling Used Oils |
|
Controlling Packaging Wastes
|
|
Controlling Medical Wastes |
|
Controlling Hazardous Wastes
|
|
Controlling Construction
Debris |
|
Controlling
Used Batteries |
|
Sanitary Waste Disposal |
|
Controlling
Wastes from the Ships and Taking the Wastes from the Ships |
|
Controlling
PCB and PCT |
|
General
Principles of Waste Management |
|
Controlling
and Inventory of Chemicals |
|
Controlling Soil Pollution |
|
Swimming Water Quality |
|
Controlling Water Pollution |
|
Treatment of Urban Waste Water |
|
Protecting the Water from
Nitrate Pollution Caused by Agriculture |
|
Controlling Environmental Noise |
|
Environmental Impact Assessment |
|
Environmental
Orders Planning |
|
Sand and Pebble Production |
|
Controlling Air Pollution
Caused by the Industry |
|
Controlling Air Pollution
Caused by Domestic Heating |
|
Air
Quality Assessment and Management |
|
Controlling Exhaust Gases |
|
Limiting
Electrical Appliances |
|
Regaining Landscape Degraded
by the Mining Activities |
|
Certification
of Tourism Facilities |
|
Limiting
Some Hazardous Materials Supply to the Markets |
|
Classification of Hazardous
Materials |
|
Licensing Environmental
Measurement and Analysis Laboratories |
|
Environmental Inspection |
|
Permits and Licenses |
EU Environmental Approximation Endeavors: System and Procedures
The Commission of the European Union
(herein and after will be named as Commission) has decided to launch an
approximation procedure for the candidate countries for the environmental
integration under the PHARE Program. This procedure aims at approximating the
environmental legislation of these countries to the environmental acquis communautaire (will be named as acquis)
of the European Union (EU). Accession negotiations have long been under way between
Turkey and the EU. As a natural outcome of the membership procedure Turkey has
been provided with a “road map” for full membership by the Commission. Turkey has
responded to the road map with a “National Plan for the Adoption of the
Acquis”. The adoption process has been under constant surveillance through
the annual Progress Reports of the Commission in which the overall conditions
of the membership status have been assessed and evaluated.
The Environment General Directorate
of the EU (later, as Environment DG) has developed several guiding and leading
documents to help to ease the pains of candidate countries to adopt the
environmental acquis of the EU.
Three of these documents are
comparatively more significant: “The
Handbook on the Implementation of EC Environmental Legislation” (EU 2007a), “Progress Monitoring Manual” (EU 2005) and “The Guide to Approximation of Environmental Legislation” (EU 1997).
The first document analyses the EU
environmental legislative documents promulgated until 2003. Although it has
been largely recognized as “out of date” it is still an important document to
introduce and explain the environmental regulations, directives and decisions.
However, the acquis accepted after 2003 should be integrated to the original
document in order to update the candidate countries.
The second document, “Progress Monitoring
Manual”, has already been updated recently and provides very important insights
on the adoption of the environmental acquis.
The third document, “The Guide to
Approximation of Environmental Legislation”, which is the newest one in the
series of projects assisting candidate countries in their efforts to adopt the environmental
acquis of the EU has been responded by these countries by developing their own
approximation strategies. The Turkish Ministry of Environment and Forestry has
published “EU Integrated Environmental Approximation Strategy: 2007-
The prevention of environmental
pollution and nuisances as well as enhancement of environmental quality within
the EU borders definitely relies on the principle of effective implementation
of environmental rules and regulations. This basically requires full and standardized
implementation of environmental management strategies in the member countries.
Therefore, the transposition of the EU environmental acquis is vital in achieving the above mentioned objective.
Although member countries and the
candidate countries on the way of full membership are obliged to adopt the acquis as an integral part of their
commitments to the Union, the process of transposition requires effective
guidance and consultancy especially towards the candidate countries in which
the environmental institutionalization and management in both public and
private sectors are relatively new and under equipped in terms of manpower,
infrastructure and know-how. (Dancee
2001)
Therefore, it is beyond any doubt
that a systemic tool is needed to help candidate countries in assessing the
existing conditions, determining the gaps and developing the draft texts of the
new environmental legislation. In this process, the candidate countries need
effective legal and technical assistance to solve the problem. The PHARE system
is designed to solve the problems encountered during enlargement and
approximation.
The EU Methodology of Approximation
The EU has already developed a
methodology for the purpose of adopting the environmental acquis during the
previous similar undertakings in other countries and already promulgated and
published several documents on the topic. The detailed analysis of the
legislations and documents indicate the following sequential steps to be
followed by the candidate countries. The developed methodology is summarized in
the Figure 1 below:
Figure 1: Summary of the Methodology
As indicated in the Figure 1, the
developed methodology begins with the
analysis of the existing conditions which tries to understand principles
stated, technical solutions developed and the administrative mechanisms set up
by the available legislative documents already promulgated and being
implemented by the concerned countries. This search will inevitably create two
results: existence of a national piece of legislation and absence of any
similar legislative undertaking by the concerned countries.
The second step is the comparison to be made between the
national document and the EU documents provided that there will be national
counterpart of the EU legislation. In this case the national experts of the
competent authority are assumed to identify the satisfactory and unsatisfactory
elements of national legislation vis a vis the UE legislation. If there
will be no national legislation a new initiative will be started to fulfill the
legal gap.
The third step is the preparation of “the tables of concordances”
(ToCs) as an outcome of the legal gap analysis.
In the fourth step the new legal text(s) will be designed and
written up basing upon the ToCs.
The next step is the promulgation step in which the main responsibility goes either
to the national parliaments or to the central governments of the concerned
countries.
The following and usually the last
step is the implementation phase in
which the implementation status and conditions will be assessed and evaluated.
The main technique so far developed for this purpose is the “implementation questionnaires”
(IQs).
Challenges for Turkey
The essential challenges for Turkey in
the field of environment are legal, administrative and financial in nature.
Although, this statement is seemingly correct and undisputable, it should
further be refined to include the institutional alignment with the candidate
countries. It is a known fact that the public administration structures of the
candidate countries (including central governments, the field organizations of
the central government and local governments) varies greatly depending on the
centralization/decentralization relations and federal/unitary types of political
regimes. Since there is no standard type of government structure in the member
countries, the structure of the public administration differs considerably amongst
the member States.
Naturally, the public services
including the environmental ones are allocated to different branches of
governments. In some, if not in most cases, this bare fact is somehow neglected
and pure translation of the EU text or the simple and easy conformity in
technical matters is accepted as a satisfactory solution to the transposition
problems. This is the main reason of failure in implementing the environmental
acquis in most cases especially in the most NIS countries and in Turkey.
As far as the technical aspects are
concerned, the laws and administrative regulations in this regard are rather satisfactory
and in full compliance with the EU standards. However, the administrative
apparatus which is supposed to be main leverage for the implementation of the
legislation is usually vaguely defined thus causing the ineffectiveness and
inefficiencies during the enforcement. The importance of this peculiar aspect
is more than that is acknowledged by the relevant parties. To overcome this
burden requires kind of actions which can be named as institutional ‘alignment’
or ‘fine tuning’ for the accurate implementation of the environmental acquis.
Therefore, the term of “administrative
challenge” should further be elaborated to the extent that the public
institutions which are responsible to carry out the tasks deliberated in the
legislation should be clearly spelt out and open and undisputable
responsibilities and the authorities of these institutions must be secured.
Otherwise, it is quite likely that the new legislation can stay on shelves
without an effective implementation and enforcement.
The second issue is related to the
implementation is monitoring. Environmental
approximation is mainly related to two monitoring activities: monitoring the transposition and monitoring the implementation.
Although they look like intensely
related to each other at the first glance, these two spheres are considerably
distant from each other when looked at closer. “Transposition” is comprised of series of actions ranging from
legal gap analysis to the promulgation of the legislative pieces either by the
Parliament or by the Government. On the other hand, “implementation” is
comprised of a different set of actions ranging from the strategy development,
policy formulation, institutional set ups, financial availabilities,
infrastructural amenities and human resources management. However, the issue of
“implementation” relates itself to the issue of ‘performance measurement’ at the public environmental organizations
which is a very complicated and difficult to solve in the field of
environmental management. Therefore, the issue of “implementation” deserves
further attention and clarification. (ECENA 2010)
Strategy, Approach and the Methodology for Approximation
The approximation
procedure/activities should include the following:
-
Listing of EU environmental acquis
-
List of national environmental legislation
-
Developing a matrix for comparison / reconnaissance
-
Drafting implementation questionnaires
-
Classification of the national legislation as absent,
non satisfactory and satisfactory
-
Legal Gap Analysis: Detailed analysis of non
satisfactory and lacking national environmental legislation
-
“Table of Concordances” (ToCs): for the non
satisfactory draft and adopted legislation
-
Gap filling proposals: Reports advising the
governments on the main principles, methodologies and content of the EU
legislations which are not yet adopted but should be adopted
-
Implementation questionnaires to measure the level of
performance of the already adopted EU legislations
-
Performance evaluation reports on the implementation
of already adopted acquis
-
Detailed analysis of competencies of the various
institutions (policy making, compliance monitoring and service provision)
-
Analysis of relationships and co-ordination between
institutions
-
Identification of gaps in the context of complying
with EU environmental acquis.
-
Identify all relevant the EC legislation in force in
each sector and review, article by article, all substantive and administrative
provisions having regard to related legislation (e.g. Decisions and
Recommendations) and to relevant case-law of the European Court of Justice
(e.g. case-law relating to the definition of ‘waste’ in the context of the
Waste Framework Directive) with a view to clarifying the normative requirements
of each provision.
-
Compare the normative requirements of each provision
of EC legislation with any national legislation currently in force or in draft
form with a view to identifying all gaps in formal legal transposition.
-
Perform a brief state of affairs review with regard to
the implementation of existing national legislation and its capacity to meet EU
standards and practices.
-
Directive by directive, assess which legislation and
rules are in place, what approximation activity has been performed and what
still needs to be done in terms of legal gap analysis.
-
Perform a broad stakeholder analysis, including roles
and responsibilities, as well as actual capacities and needs.
-
Define the roles and responsibilities within existing
institutions and identified stakeholders for the further legal transposition
and implementation of the directives.
-
Identify, in consultation with all relevant
stakeholders, gaps or challenges in relation to implementation of the relevant
legislation and in relation to investment.
-
Detailed Legislative Gap Analysis Report: Identifies
gaps in formal legal transposition and challenges in implementation and
investment and covers all 10 environmental sectors.
-
The report should include:
o
State of affairs baseline assessment report.
o
Legal baseline assessment report.
o
Stakeholder analysis report.
Areas to be Covered
|
TABLE 3 EC ENVIRONMENTAL
LEGISLATION CONSIDERED IN THE HANDBOOK BY SECTOR |
||||
|
SECTOR |
Directives |
Regulations |
Decisions |
Total |
|
1. Horizontal |
5 |
2 |
0 |
7 |
|
2. Air Quality |
18 |
1 |
10 |
29 |
|
3. Waste
Management |
17 |
3 |
8 |
28 |
|
4. Water
Protection |
11 |
0 |
1 |
12 |
|
5. Nature
Protection |
4 |
6 |
1 |
11 |
|
6. Industrial
Pollution Control and Risk Management |
6 |
2 |
7 |
15 |
|
7. Chemicals
and Genetically Modified Organisms |
8 |
5 |
4 |
17 |
|
8. Noise |
10 |
0 |
0 |
10 |
|
9. Nuclear
Safety and Radiation Protection |
5 |
3 |
0 |
8 |
|
10. Civil
Protection |
0 |
1 |
7 |
8 |
|
TOTAL |
84 |
23 |
38 |
145 |
Areas of environmental management
for approximation and the types and numbers of the environmental legislation of
the EU are given in the table above. Table also indicates the workload for
approximation. This is indeed a heavy job to be done. This work is now underway
since 2007 and with a fund secured by the EU a consultancy team has been hired
and still working. The outcome of this Project will determine the actual status
quo of the Turkish environmental law compared to the environmental acquis of the EU. (Baykara
2008)
In this regard the best source will
be the EU itself. In its latest progress report on Turkey the EU states the
following for environmental approximation. (EU 2009)
“Good progress can be reported
on horizontal legislation. Turkey has ratified the Kyoto Protocol. The
Environmental Impact Assessment (EIA) Directive has been transposed to a large
degree. However, procedures for public and transboundary consultations have not
been fully aligned. Some articles of the Environment Law, related to the
exclusion of petroleum, geothermal resources and mine exploration from
environmental impact assessment, has been cancelled by the Constitutional Court
in order to improve environmental protection. Turkey is not a party to the
Espoo and Aarhus Conventions. The Emissions Trading Directive has not been
transposed. A greenhouse gas emission trading scheme has not yet been
established. Transposition of the Strategic Environmental Assessment (SEA)
Directive is at an early stage. There has been no progress on transposition of
the acquis on environmental
liability, public participation and public access to environmental information.
Nor has Turkey yet started negotiations on the memorandum of understanding on
its participation in the Community civil protection financial instrument.
Limited progress can be reported on air quality. Turkey has adopted
legislation on the air quality framework legislation and daughter directives,
but its alignment with the acquis remains
to be confirmed. However, the administrative capacity for implementation of the
directive on regional air quality is not sufficient. The clean air centre in
Marmara has not yet been established. Some progress can be reported on the
trade of ozone depleting substances and the legislation related to sulfur
content of certain liquid fuels. No progress has been made legislation related
to the acquis on emissions of
volatile organic compounds and national emission ceilings. Limited progress can
be reported in the field of waste management. New legislation on
packaging waste was adopted. As regards implementation, there have been
complaints by EU companies about the implications of the by-law, adopted last
year, restricting use of certain hazardous substances in electrical and
electronic equipment. They argue that the new legislation is creating
difficulties for trade. No progress has been made regarding the directives on
landfill and mining waste. There has been no progress in the area of water
quality. The overall level of alignment remains low. The institutional
framework for water management is not organized on a river basin basis.
Transboundary consultations on water issues are at a very early stage. No
progress can be reported on nature protection. The continuing loss of
habitats is a cause for concern. The list of potential Natura 2000 sites has
not yet been compiled. Adoption of a framework law on nature protection and
implementing legislation on birds and habitats has again been postponed. A
national biodiversity strategy and action plan remains to be adopted. Legislation
in policy areas linked to nature protection requires particular attention. Limited
progress can be reported regarding industrial pollution control and risk management.
Turkey has aligned with some provisions of the Seveso II Directive and with the
Large Combustion Plants and Waste Incineration Directives. However, the overall
level of transposition and implementation capacity remains low. Introduction of
an integrated permit system is at an early stage. There has been good progress
in the field of chemicals. The legislation on signing the Stockholm
Convention on Persistent Organic Pollutants has been adopted. By-laws were adopted
on: the inventory and control of chemicals; compilation and distribution of
safety data-sheets relating to dangerous substances and preparations;
restriction of production, placing on the market and use of certain dangerous
substances and preparations; and classification, packaging and labeling of
dangerous substances and preparations. However, the overall level of
transposition remains low. The capacity is insufficient for effective implementation.
No progress can be reported on genetically modified organisms. Alignment
in the field of noise is well advanced. Preparation of noise maps and
action plans is at an early stage. Some progress has been made in the area of administrative
capacity. A by-law was adopted to enhance environmental protection by
defining procedures and principles for environmental inspectorates,
environmental management departments and certified inspection companies to increase
the effectiveness of the environmental inspection system. However, although the
Directorate-General for State Hydraulic Works has now been attached to the
Ministry of the Environment and Forestry, its objectives have still not been
streamlined with those of the ministry. No progress has been made towards
establishing a national environment agency. Responsibility for nature
protection is not clearly defined between the various competent institutions.
Administrative capacity needs further strengthening, including coordination between
the relevant authorities at all levels. Mainstreaming environmental protection
into other policy areas and ensuring that new investments comply with the
environmental acquis are at an
early stage. Some of the existing legislation, such as the Mining Law, the Law establishing
the Directorate-General for State Hydraulic Works and the tourism legislation are
still a major concern for natural areas.
Conclusion: Turkey has made progress in the field of chemicals and on horizontal
legislation by signing the Kyoto Protocol. Some progress can be reported on
waste, air quality, industrial pollution
and risk management and chemicals. However, the overall level of alignment
remains insufficient. Turkey has made no
progress in the areas of water quality, nature protection and GMOs.
Non-establishment of fully fledged EIA procedures is hampering further improvements
in implementation and enforcement of the EIA Directive.”(EU 2009)
What
are Missing in Turkey Compared to Acquis Communautaire
When compared
to the EU’s environmental acqui communautaire the followings seem to be missing
in the Turkish Environmental Law:
- Precautionary
principle: (EU 2000)
The
precautionary principle is not defined in the Treaty, which prescribes it only
once - to protect the environment. But in practice, its scope is much
wider, and specifically where preliminary objective scientific evaluation,
indicates that there are reasonable grounds for concern that the potentially
dangerous effects on the environment, human, animal or plant health may
be inconsistent with the high level of protection chosen for the Community. The
precautionary principle should be considered within a structured approach to
the analysis of risk which comprises three elements: risk assessment, risk
management, risk communication. The precautionary principle is particularly
relevant to the management of risk. The precautionary principle, which is
essentially used by decision-makers in the management of risk, should not be
confused with the element of caution that scientists apply in their assessment
of scientific data. Where action is deemed necessary, measures based on the precautionary
principle should be, inter alia:
· Proportional to the chosen level of
protection,
· Non-discriminatory in their application,
· Consistent with similar measures already
taken,
· Based on an examination of the potential benefits
and costs of action or lack of action (including, where appropriate and
feasible, an economic cost/benefit analysis),
· Subject to review, in the light of new
scientific data, and
· Capable of assigning responsibility for producing
the scientific evidence necessary for a more comprehensive risk assessment.
Examining
costs and benefits entails comparing the overall cost to the Community of
action and lack of action, in both the short and long term. This is not simply
an economic cost-benefit analysis: its scope
is much broader, and includes non-economic considerations, such as the efficacy
of possible options and their acceptability to the public. In the conduct of
such an examination, account should be taken of the general principle and the
case law of the Court that the protection of health takes precedence over
economic considerations.
- Economical
and market type of environmental management tools:
Market
type tools of environmental management are indicated below:
Emission/Discharge
Taxes/charges
User charges
Product taxes/charges
Deposition fees
Marketable pollution quotas
Non-compliance fees
Performance bonds
Liability payments
Subsidies
These
type tools did not yet get any kind of legal document in Turkey. In the
approximation procedure the main emphasis should be placed on these issues.
- Environmental
insurance and liability:
Insurance
against environmental accidents and risks have not been developed yet in
Turkey. Bhopal like environmental disaster will result in huge economic losses
for the companies. Similarly, environmental liabilities of the polluters have
not been regulated in detail. Turkey should initiate an attempt to regulate the
environmental insurance and liability system.
- Administrative
capacity:
Likewise
and also stated in the EU Progress Report of 2009, the administrative capacity
for environmental enforcement in Turkey has considerable space for improvement.
My study on the assessment of effectiveness of public environmental enforcement
agencies has also confirmed the above mentioned statement.
Conclusion
The Turkish
Environmental Law system is well developed in time. The existing legislation is
sufficient to protect the environment and ecology in the Country. Even some
legal arrangements are more progressive than other countries including the EU
environmental acquis. In this regard
a different approach, more environmentally oriented and concerned way of
interpretation is needed for the environmental and ecological principles and
the rules. However, a perfect approximation with the acquis will
definitely contribute to the enhancement of the Turkish Environmental Law
system.
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