3.2 Turkish Environmental Law: In the Context
of Private Law
It is not easy to find a substantial number of examples which refer to the protection
of the environment in the context of private law under TEL. This is largely because
the protection of the environment is predominantly regulated under public law and
notably under administrative law due to its characteristic of involving public and
common interests – not specific individuals but all humanity (Güneş, 2015:
301–303). However, though not directly related to the protection of the environment, the provisions regarding the rights of neighbours and the rules on legal
liability do make use of private law to protect the environment and cope with
environmental challenges.
Under the Civil Code (No. 4721), two important articles, Articles 730 and 737,
arise as the most important provisions regarding the indirect protection of the
environment. They contain provisions on the right to property and the limitations of
the right in line with Article 35, 1982 Constitution, and also Article 683, Civil
Code.
In fact, Article 35, 1982 Constitution sets forth that, “Everyone has property and
inheritance rights. These rights may be restricted by law just for the purpose of
public interest. The exercise of the right to property shall not be against the public
interest.”
On the other hand, Article 683, Civil Code, in accordance with the Constitution,
states that: “The owner is entitled to the use, enjoyment and disposition of his
property, as he wishes, within the limitations of the law order.”
Thus, it is clear that, even if everyone has the right to property, this right is
subject to some limitations under the law. Article 737, Civil Code, regulates one of
these limitations which is also indirectly related to the protection of the
environment.
The article states that:
Everyone, while using his competencies arising from immovable property and in particular
conducting his enterprise activities, is obliged to abstain from disorderly conducts which
can affect his neighbours in a negative manner.
Particularly, causing annoyance with smoke, steam, soot, dust, smell, making noise and
tremors which exceed tolerable levels among neighbours according to the immovable
property’s situation, quality and local custom is forbidden.
The rights proper to the local custom and related to the equalization of sacrifices arising
from unavoidable disorderly conducts are reserved.
That is, while using the rights and competencies regarding the property, it is
essential to take care of the neighbour’s rights as well. Activities conducted on the
property which could bother or negatively affect the neighbours are forbidden by
this article (note that such activities are not restricted to the ones listed under the
article; the usage of the word ‘particularly’ indicates that the activities listed are just
examples) (Güneş, 2015: 308).
3 Drawing a General Framework for Turkish Environmental Law
35
of Private Law
It is not easy to find a substantial number of examples which refer to the protection
of the environment in the context of private law under TEL. This is largely because
the protection of the environment is predominantly regulated under public law and
notably under administrative law due to its characteristic of involving public and
common interests – not specific individuals but all humanity (Güneş, 2015:
301–303). However, though not directly related to the protection of the environment, the provisions regarding the rights of neighbours and the rules on legal
liability do make use of private law to protect the environment and cope with
environmental challenges.
Under the Civil Code (No. 4721), two important articles, Articles 730 and 737,
arise as the most important provisions regarding the indirect protection of the
environment. They contain provisions on the right to property and the limitations of
the right in line with Article 35, 1982 Constitution, and also Article 683, Civil
Code.
In fact, Article 35, 1982 Constitution sets forth that, “Everyone has property and
inheritance rights. These rights may be restricted by law just for the purpose of
public interest. The exercise of the right to property shall not be against the public
interest.”
On the other hand, Article 683, Civil Code, in accordance with the Constitution,
states that: “The owner is entitled to the use, enjoyment and disposition of his
property, as he wishes, within the limitations of the law order.”
Thus, it is clear that, even if everyone has the right to property, this right is
subject to some limitations under the law. Article 737, Civil Code, regulates one of
these limitations which is also indirectly related to the protection of the
environment.
The article states that:
Everyone, while using his competencies arising from immovable property and in particular
conducting his enterprise activities, is obliged to abstain from disorderly conducts which
can affect his neighbours in a negative manner.
Particularly, causing annoyance with smoke, steam, soot, dust, smell, making noise and
tremors which exceed tolerable levels among neighbours according to the immovable
property’s situation, quality and local custom is forbidden.
The rights proper to the local custom and related to the equalization of sacrifices arising
from unavoidable disorderly conducts are reserved.
That is, while using the rights and competencies regarding the property, it is
essential to take care of the neighbour’s rights as well. Activities conducted on the
property which could bother or negatively affect the neighbours are forbidden by
this article (note that such activities are not restricted to the ones listed under the
article; the usage of the word ‘particularly’ indicates that the activities listed are just
examples) (Güneş, 2015: 308).
3 Drawing a General Framework for Turkish Environmental Law
35