3.3 Turkish Environmental Law: In the Context
of Public Law
Under Turkish environmental law, environmental issues are primarily regulated
under public law, through the legal provisions adopted within constitutional law,
international law, criminal law and, remarkably, administrative law.
3.3.1 Under Constitutional Law
In the Turkish legal system, the first time that protection of the environment was
directly regulated under the constitution was in the 1982 Constitution.
It was not even mentioned in the earlier Constitutions of 1924 and 1961.
Nevertheless, in a very broad interpretation, Article 49 (para. 1) of the 1961
Constitution is regarded as the basis of environmental protection and development
in Turkey. This Article states that: “It is the responsibility of the state to ensure that
everyone leads a healthy life both physically and mentally…” That is, this Article
implies that the protection and improvement of the environment need to be taken
into account as part of a healthy life.
Building on this, the Constitution of 1982 (Art. 56(1)) states: “Everyone has the
right to live in a healthy and balanced environment.” Thus, the 1982 Constitution
indirectly refers to the right of environment as a human right entitling citizens to
live in a healthy environment (under Art. 3(e), Environmental Act, through the
2006 amendment, the right of environment is mentioned directly via the right of
participation). It is regulated under the title ‘Health services and protection of the
environment (Part 2: Fundamental Rights and Duties, Chapter 3: Social and
Economic Rights and Duties, section VIII. Health, the environment and housing)’,
and therefore comes under social rights as a human right accepted as one of the
third generation rights (Güneş, 2015: 161), (for the debate on the status of the right
of environment see Turgut, 2012: 85–87). Additionally, the same article points out
that: “It is the duty of the State and the citizens to improve the environment, to
protect the environmental health and to prevent environmental pollution” (para. 2).
It thus stipulates that it is the common duty of both the State (hence all its public
institutions and organizations) and the citizens to provide appropriate conditions for
the protection and development of the environment (see also Art. 3(a), Environment
Act).
Subsequent paragraphs also elaborate how the State can function in this task in
practice, but rather than environmental protection it stresses health protection via
these paragraphs:
The State shall regulate central planning and functioning of the health services to ensure
that everyone leads a healthy life physically and mentally, and provide cooperation by
saving and increasing productivity in human and material resources (para. 3)
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Z. Savaşan
of Public Law
Under Turkish environmental law, environmental issues are primarily regulated
under public law, through the legal provisions adopted within constitutional law,
international law, criminal law and, remarkably, administrative law.
3.3.1 Under Constitutional Law
In the Turkish legal system, the first time that protection of the environment was
directly regulated under the constitution was in the 1982 Constitution.
It was not even mentioned in the earlier Constitutions of 1924 and 1961.
Nevertheless, in a very broad interpretation, Article 49 (para. 1) of the 1961
Constitution is regarded as the basis of environmental protection and development
in Turkey. This Article states that: “It is the responsibility of the state to ensure that
everyone leads a healthy life both physically and mentally…” That is, this Article
implies that the protection and improvement of the environment need to be taken
into account as part of a healthy life.
Building on this, the Constitution of 1982 (Art. 56(1)) states: “Everyone has the
right to live in a healthy and balanced environment.” Thus, the 1982 Constitution
indirectly refers to the right of environment as a human right entitling citizens to
live in a healthy environment (under Art. 3(e), Environmental Act, through the
2006 amendment, the right of environment is mentioned directly via the right of
participation). It is regulated under the title ‘Health services and protection of the
environment (Part 2: Fundamental Rights and Duties, Chapter 3: Social and
Economic Rights and Duties, section VIII. Health, the environment and housing)’,
and therefore comes under social rights as a human right accepted as one of the
third generation rights (Güneş, 2015: 161), (for the debate on the status of the right
of environment see Turgut, 2012: 85–87). Additionally, the same article points out
that: “It is the duty of the State and the citizens to improve the environment, to
protect the environmental health and to prevent environmental pollution” (para. 2).
It thus stipulates that it is the common duty of both the State (hence all its public
institutions and organizations) and the citizens to provide appropriate conditions for
the protection and development of the environment (see also Art. 3(a), Environment
Act).
Subsequent paragraphs also elaborate how the State can function in this task in
practice, but rather than environmental protection it stresses health protection via
these paragraphs:
The State shall regulate central planning and functioning of the health services to ensure
that everyone leads a healthy life physically and mentally, and provide cooperation by
saving and increasing productivity in human and material resources (para. 3)
38
Z. Savaşan