Plastic waste threatens the environment and health! Living in a healthy environment is a constitutional right!

Plastic waste threatens both the environment and public health. In addition to existing environmental pollution, Turkey is also importing waste from abroad. Experts emphasize that this is an unacceptable practice that is detrimental to the environment and health. Istanbul Bar Association Environment, Urban and Zoning Commission members Attorney Kemal Yılmaz and Trainee Attorney Özgür Özdemir stated in their article for 12 Punto that they could pursue legal action regarding waste imports and the pollution of the environment through waste.

Plastic waste continues to be an increasingly major environmental problem in our country and around the world. Every year, millions of tons of plastic mix into the environment and the seas, causing alarming scenes that endanger the health of all living things. 

The international community has agreed on a framework for the first time to curb the world's growing plastic problem. At a meeting held in Nairobi between February 28 and March 2, 2022, under the leadership of the UN, a consensus was reached on a framework agreement to combat plastic pollution for the first time. The parties took a historic decision to end plastic pollution and to reach a legally binding international agreement by 2024. The UN resolution stated, “High and rapidly increasing levels of plastic pollution represent a serious environmental issue at a global scale. We recognize the urgent need to strengthen global coordination, cooperation and governance to take immediate long-term action to eliminate plastic pollution.” 

In our country, the use of plastic in both industrial production and individual consumption is at an immoderate, uncontrolled, and dangerous level; furthermore, the importation of plastic waste is an unacceptable practice that is detrimental to the environment and health. Research has shown that this process can poison the local environment and threaten human health by releasing dangerous air pollutants and toxins.

Citizens and non-governmental organizations can take various legal steps regarding waste. The “right to live in a healthy environment,” regulated by Article 56 of our Constitution, is a constitutional right of every citizen. This right is also a text that imposes responsibilities and duties on everyone. Rights related to the environment; responsibilities and duties in the Constitution, are clarified primarily through the Environmental Law, the Penal Code, and the Forestry Law. Actions contrary to the provisions of these laws will constitute a crime.

Legal action can be taken regarding waste imports and the pollution of the environment through waste. First of all, it is very important to determine where the polluted area is and who it directly affects. A qualified application can be made in response to questions such as, “Is the polluted area a forest land or an area close to water resources in the region, who holds the administrative responsibility in the region, and who is the polluter?”

The Turkish Penal Code contains regulations regarding environmental pollution under the heading “Crimes Against the Environment” (Articles 181-184). Here, a distinction is made between intentional and negligent pollution of the environment, and qualified forms of the relevant acts are also included. For example, if an area has been intentionally polluted by leaving waste, a penalty of 6 months to 2 years is imposed, and if the waste has been brought from abroad without permission, a penalty of 1 year to 3 years is imposed. In cases where the waste in question may cause permanent damage (for example, nuclear and chemical waste), the penalty can be increased twofold. When a polluted area is encountered, a criminal complaint can be filed against the polluter.

Paragraph F of Article 14 of the Forestry Law prohibits dumping garbage in forest areas. If the polluted area in question has the status of a forest, the provisions of the Forestry Law must also be taken into account.

The law with the broadest regulation regarding environmental protection is the Environmental Law. The basis of the law is the prohibition of pollution (Article 8) and the polluter pays principle (Article 28). Furthermore, it is emphasized that everyone is obliged to show the necessary care for the protection of the environment (Article 9). Within the scope of this law, an administrative application must first be made to whoever holds the administrative responsibility for the polluted area. Depending on the result of this application, an administrative judicial process can be carried out. When applying to the administration, one can request everything from obtaining information about the polluted area to compensation for the damage caused by the pollution. However, the application process to the administration often results in a negative outcome. The administrative judicial process begins exactly at this point, and the matter will be taken to the judiciary.

TİHEK (Human Rights and Equality Institution of Turkey), an institution that tries to reduce human rights violations in Turkey, is an institution that evaluates applications regarding the attitudes of administrative institutions and administrative officials, but it is not one of the classic judicial paths and has been less frequently applied to since it has been in existence since 2016. Individuals and groups directly affected by the polluted region may claim that they are experiencing discrimination regarding the right to live in a healthy environment due to the administration's failure to show the necessary care. Since the focal point of TİHEK's work is the prohibition of discrimination, it should be emphasized that this is discrimination stemming from the administration's failure to show the necessary care, rather than directly through the right to live in a healthy environment.

An application can be made to the UN Human Rights Committee (UNHRC) on the axis of environmental pollution. An individual, a group of people, or a non-governmental organization can make an application. It is important to note that there is no process like the one at the European Court of Human Rights (ECHR). The UNHRC acts to uncover the root cause of the problem, and its decisions are in the nature of recommendations. It is important because it acts as a pressure element on governments. 

Following Eurostat data and British journalist Kit Chellel’s report on ‘The trash going from London to Adana,’ the issue of waste imports has been discussed extensively in Turkey. It is an important and pleasing development that legal avenues for this are being discussed. Our first piece of advice to citizens and non-governmental organizations who want to make a legal application regarding this situation is to never turn back from the path they have taken.

Our second piece of advice is to carry out the process with a legal professional, as types of legal applications are follow-up processes that require a certain level of technical knowledge.

Our third piece of advice—we are addressing non-governmental organizations in particular—is to carry out expertise, time-consuming, and archiving work such as recording the polluted area and technical reporting. In this way, evidence and grounds will be established during the judicial phase.