Common use of Turkey Clause in Contracts

Turkey. In this case, an explosion occurred on a municipal rubbish tip, killing thirty-nine people who had illegally built their dwellings around it. Nine members of the applicant’s family died in the accident. Although an expert report had drawn the attention of the municipal authorities to the danger of a methane explosion at the tip two years before the accident, the authorities had taken no action. The Court found that since the authorities knew – or ought to have known – that there was a real and immediate risk to the lives of people living near the rubbish tip, they had an obligation under Article 2 to take preventive measures to protect those people. The Court also criticised the authorities for not informing those living next to the tip of the risks they were running by living there. The regulatory framework in place was also considered to be defective.”). 143 Öneryıldız v. Turkey (48939/99) [2002] ECHR 491, para.64. 144 See discussion of cases before human rights bodies, immediately above. “right of peoples to self-determination and permanent sovereignty over natural resources, (and) the right to development”.146 Internationally, toxic dumping and the movement of hazardous wastes is regulated by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal of 1989 (“The Basel Convention”). The annexes to the Basel Convention provide a list of the controlled or prohibited substances, and the convention essentially requires authorization for any movement or storage of such materials if an international frontier is involved. Under the International Law Commission’s Articles on the Prevention of Transboundary Harm from Hazardous Activities, where a dispute cannot be resolved through consultation or negotiation within 6 months, a party may engage compulsory fact-finding procedures by an impartial commission.147 Some domestic systems address toxic dumping and the consequent environmental harm on a regular basis and have developed sophisticated legal codes to curb the practice and condemn transgressors.148 While these domestic legal proceedings do not constitute a form of public international law, they provide illustrations of the widespread occurrence of environmental harm and criminal proceedings to repress that harm, and can provide indications of state practice.149 However, many domestic systems are incapable of addressing such practices, particularly in countries torn by conflict or suffering from a lack of organized governance.150 These locations are an attractive target, as toxic dumping can be a profitable enterprise for unscrupulous 145 Commission on Human Rights, Resolution 2005/15, para.4 (“Reaffirms that illicit traffic in and dumping of toxic and dangerous products and wastes constitute a serious threat to human rights, including the right to life, the enjoyment of the highest attainable standard of physical and mental health and other human rights affected by the illicit movement and dumping of toxic and dangerous products, including the rights to clean water, food, adequate housing and work”). See also Human Rights Council Resolution 9/1, 12/18, 18/11. 146 Special Rapporteur on Toxic Waste, Xxxxx-Xxxxx Xxxxxxx-Vesely, Report submitted by the Special Rapporteur on Toxic Waste on adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, E/CN.4/2001/55, para. 58. 147 International Law Commission, Articles on the Prevention of Transboundary Harm from Hazardous Activities (2001), article 19 (see also United Nations General Assembly Resolution 62/68, Annex, A/RES/62/68. 8 January 2008 (approving of the International Law Commission’s work on these articles and approving them as contained in the annex to Resolution 62/68); Xxxxxxxx (2009), p.76. 148 See, e.g., Xxxxxxxx Xxxxxxx, Charging Practices in Hazardous Waste Crime Prosecutions, Ohio State Law Journal, vol.62: 1077 (2001), p.1088 (“The prosecution summaries show that in the first ten years of the government’s efforts to establish a formal criminal enforcement program, the Justice Department prosecuted nearly 350 environmental cases referred to it by the EPA”). 149 See infra Chapter I(C)(i), setting out the sources of law section on domestic cases. 150 Rose (2014), p.19. (noting that much of the toxic dumping is carried out in the World’s poorest countries). See also Skinnider (2011), pp.27-28; UNODC Toolkit (2012), p.3. affected communities.

Turkey. In this case, an explosion occurred on a municipal rubbish tip, killing thirty-nine people who had illegally built their dwellings around it. Nine members of the applicant’s family died in the accident. Although an expert report had drawn the attention of the municipal authorities to the danger of a methane explosion at the tip two years before the accident, the authorities had taken no action. The Court found that since the authorities knew – or ought to have known – that there was a real and immediate risk to the lives of people living near the rubbish tip, they had an obligation under Article 2 to take preventive measures to protect those people. The Court also criticised the authorities for not informing those living next to the tip of the risks they were running by living there. The regulatory framework in place was also considered to be defective.”). 143 Öneryıldız v. Turkey (48939/99) [2002] ECHR 491, para.64. 144 See discussion of cases before human rights bodies, immediately above. rights to life and health.145 Other human rights that toxic dumping may implicate are the “right of peoples to self-determination and permanent sovereignty over natural resources, (and) the right to development”.146 Internationally, toxic dumping and the movement of hazardous wastes is regulated by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal of 1989 (“The Basel Convention”). The annexes to the Basel Convention provide a list of the controlled or prohibited substances, and the convention essentially requires authorization for any movement or storage of such materials if an international frontier is involved. Under the International Law Commission’s Articles on the Prevention of Transboundary Harm from Hazardous Activities, where a dispute cannot be resolved through consultation or negotiation within 6 months, a party may engage compulsory fact-finding procedures by an impartial commission.147 Some domestic systems address toxic dumping and the consequent environmental harm on a regular basis and have developed sophisticated legal codes to curb the practice and condemn transgressors.148 While these domestic legal proceedings do not constitute a form of public international law, they provide illustrations of the widespread occurrence of environmental harm and criminal proceedings to repress that harm, and can provide indications of state practice.149 However, many domestic systems are incapable of addressing such practices, particularly in countries torn by conflict or suffering from a lack of organized governance.150 These locations are an attractive target, as toxic dumping can be a profitable enterprise for unscrupulous 145 Commission on Human Rights, Resolution 2005/15, para.4 (“Reaffirms that illicit traffic in and dumping of toxic and dangerous products and wastes constitute a serious threat to human rights, including the right to life, the enjoyment of the highest attainable standard of physical and mental health and other human rights affected by the illicit movement and dumping of toxic and dangerous products, including the rights to clean water, food, adequate housing and work”). See also Human Rights Council Resolution 9/1, 12/18, 18/11. 146 Special Rapporteur on Toxic Waste, Xxxxx-Xxxxx Xxxxxxx-Vesely, Report submitted by the Special Rapporteur on Toxic Waste on adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the enjoyment of human rights, E/CN.4/2001/55, para. 58. 147 International Law Commission, Articles on the Prevention of Transboundary Harm from Hazardous Activities (2001), article 19 (see also United Nations General Assembly Resolution 62/68, Annex, A/RES/62/68. 8 January 2008 (approving of the International Law Commission’s work on these articles and approving them as contained in the annex to Resolution 62/68); Xxxxxxxx (2009), p.76. 148 See, e.g., Xxxxxxxx Xxxxxxx, Charging Practices in Hazardous Waste Crime Prosecutions, Ohio State Law Journal, vol.62: 1077 (2001), p.1088 (“The prosecution summaries show that in the first ten years of the government’s efforts to establish a formal criminal enforcement program, the Justice Department prosecuted nearly 350 environmental cases referred to it by the EPA”). 149 See infra Chapter I(C)(i), setting out the sources of law section on domestic cases. 150 Rose (2014), p.19. (noting that much of the toxic dumping is carried out in the World’s poorest countries). See also Skinnider (2011), pp.27-28; UNODC Toolkit (2012), p.3. individuals and organizations and can cause serious injury and even death to members of affected communities.