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judgment

A.S. & S.A. & E.N.B v. Presidency of Türkiye & The Ministry of Environment, Urbanization and Climate Change - judgment

Litigation

Sabin

Sabin Litigation

Filing Year For Action

On May 8, 2023, three youth climate activists initiated administrative proceedings before the Council of State (Danıştay), requesting the annulment of Türkiye’s Updated First Nationally Determined Contribution (NDC), submitted to the UNFCCC Secretariat on April 13, 2023, naming the Presidency of Türkiye and the Ministry of Environment, Urbanization and Climate Change as respondents.
The claimants argued that the Updated NDC, which pledges a 41% reduction in greenhouse gas emissions by 2030 (relative to a Business-as-Usual scenario based on 2012 emissions), is unscientific, inadequate, and inconsistent with Türkiye’s obligations under the Paris Agreement. They further alleged violations of fundamental rights, including the right to life, the right to a healthy and balanced environment, intergenerational equity, and the rights enshrined in the Turkish Constitution, the UN Convention on the Rights of the Child, and the European Convention on Human Rights.

The plaintiffs contended that the Updated NDC constitutes an administrative act producing legal effects within the domestic legal order and is therefore subject to judicial review.
 
Decision of the First Instance Court

On June 16, 2023 (E:2023/2600, K:2023/3568), the Council of State (10th Chamber) rejected the case without examination on the merits, concluding that the NDC does not constitute a justiciable administrative act. The court held that:
""The NDC, being a commitment under the Paris Agreement, does not directly affect the national legal order. It merely outlines future regulatory intentions and, as such, does not qualify as an administrative act subject to annulment proceedings.""
 
Grounds of Appeal

The claimants appealed to the Council of State Administrative Litigation Chambers Assembly. They submitted that:
1.        The NDC, although derived from international obligations, constitutes a concrete and binding roadmap affecting national policy and regulatory frameworks. It thus qualifies as an executive administrative act.
2.        Under Article 90 of the Constitution, international agreements duly put into effect have the force of law, and actions taken pursuant to such agreements must be open to judicial review.
3.        Excluding the NDC from judicial oversight would allow the executive to shield climate-related administrative decisions from legal accountability, despite their concrete impact on citizens' rights and environmental governance.
 
Opinion of the Investigating Judge

The investigating judge issued a non-binding opinion supporting the claimants' position, arguing that:
•        Administrative actions separable from the core domain of international relations—such as decisions regarding licensing decisions or tenders—may be reviewed on the merits.
•        The NDC, while rooted in international law, represents its domestic implementation. It is not an integral part of the Paris Agreement but a unilateral declaration of national policy based on treaty obligations.
•        As such, the Updated NDC should be classified as a definitive and mandatory administrative act, amenable to judicial review.
 
Final Decision of the Council of State Assembly

On June 4, 2024 (E:2024/84, K:2024/1253), the Council of State Administrative Litigation Chambers Assembly dismissed the appeal and denied the request for an oral hearing. The Assembly concluded that the first-instance decision was legally and procedurally sound and that the appeal grounds did not justify reversal.
 
Dissenting Opinion: Application of the Detachable Acts Theory

A dissenting judge issued a reasoned opinion invoking the Ayrılabilir İşlemler Kuramı, which posits that administrative acts separable from the domain of foreign affairs—but adopted in implementation of international treaties—are subject to domestic judicial review, provided they are separable from the treaty itself and produce legal effects within the domestic legal order, arguing:

•        The Paris Agreement itself is not subject to judicial review; however, acts taken to implement its obligations domestically—such as the adoption of an NDC—may be reviewed if they are detachable and have legal effect.
•        The NDC establishes a specific trajectory for national GHG emissions, defines a timeline, and serves as the basis for future legislation and administrative enforcement. It thereby alters the national legal landscape.
•        The NDC is not an annex to the Paris Agreement but a standalone executive act taken in furtherance of it. It meets the criteria of a definitive and executable administrative act separable from the treaty itself.
•        Permitting judicial review of such acts does not intrude upon the domain of international relations but safeguards constitutional principles, including legality, accountability, and the protection of fundamental rights.

The dissent concluded that the plaintiffs’ appeal should have been granted, the first-instance decision overturned, and the matter remanded for examination on the merits.
 
This case marks the first domestic legal challenge to Türkiye’s climate commitments under the Paris Agreement. While the majority upheld a narrow interpretation of justiciability, the dissent’s invocation of the Detachable Acts Theory contributed to the debate about the interface between international climate obligations and domestic administrative law.