FACILITATIONS PROVIDED IN CUSTOMS LEGISLATION DURING NATURAL DISASTERS

They say, “Geography is destiny.” The region we live in, while geopolitically significant and blessed with four seasons, is also prone to frequent natural disasters such as earthquakes, wars, and waves of migration. The 6 February 2023 earthquake, which struck 11 provinces and is considered the disaster of the century, followed by a 6.2 magnitude earthquake in Istanbul, once again highlighted this harsh reality. In this article, we present the customs legislation facilitations related to such disasters.

A disaster is an undesirable event that, when it occurs, results in loss of life and property, and causes damage and destruction. The source of the disaster may be natural or man-made. When the disaster originates from natural causes, it is referred to as a natural disaster.

Disasters disrupt the existing order and conditions of a community’s living environment to an extent that society cannot adapt. Thus, it is not the threat itself, but the realization of the threat and its negative consequences that define a disaster. Not every hazard leads to a disaster; only when the resulting negative effects are severe enough to cause significant damage can the situation be classified as a disaster.

Geological and Meteorological Disasters

Natural disasters are categorized into two main groups: “geological” and “meteorological.” Geological disasters, which originate from the earth’s crust or deeper layers, include earthquakes, landslides, volcanic eruptions, and tsunamis. Meteorological disasters, which result from atmospheric phenomena, include floods, storms, typhoons, hurricanes, droughts, avalanches, erosion, and water overflows. These can also be grouped as either slow-developing or sudden-onset disasters.

In our country, earthquakes—one of our deepest wounds—are the most recalled natural disasters, followed by floods that have been occurring increasingly in recent years.

In customs legislation, rather than addressing each natural disaster individually (such as earthquakes), the broader concepts of “force majeure and unforeseen circumstances” and “aid materials sent or received due to natural disasters” are emphasized.

Force Majeure and Unforeseen Circumstances

In customs legislation, the term “force majeure” is used interchangeably with “unforeseen circumstances.” Article 31 of the Customs Regulation outlines what constitutes force majeure or unforeseen circumstances and provides for deadline extensions in such cases.

These two terms are often used synonymously and are difficult to distinguish. Furthermore, listing them definitively is not advisable, as this could exclude events that should rightfully fall under these definitions. Therefore, each event must be evaluated individually.

Three Conditions for Acceptance of an Unforeseen Circumstance

An unforeseen circumstance refers to a situation in which the conditions for fulfilling an obligation change significantly, rendering performance impossible. Three conditions must be met for its acceptance:

• If a contract exists, the balance of mutual obligations must be substantially disrupted.
• The unforeseen circumstance must not have been predictable.
• There must be no provision in the contract stating that unforeseen circumstances would not affect the agreement.

An example of an unforeseen circumstance would be getting into a traffic accident while on the way to submit a customs declaration on the final day, thus making submission impossible.

Conditions for Force Majeure

Force majeure refers to circumstances arising from natural events that are beyond an individual’s control, could not have been foreseen, and cannot be prevented. For force majeure to apply, the following conditions must be met:

• The events must stem from natural disasters such as floods, earthquakes, storms, or fires.
• The events must occur independently of the individual’s will.
• The affected party must have no means to prevent the incident.

As seen, both concepts share common conditions such as being beyond personal control, impossible to prevent, and unforeseeable. The key difference lies in their scope: force majeure typically arises from broader natural phenomena, while unforeseen circumstances tend to be more personal (e.g., illness, death, accidents) and not necessarily caused by natural disasters.

Tax Exemption and Customs Facilitation

Customs legislation includes various provisions that offer deadline extensions and other procedural flexibilities in the presence of force majeure or unforeseen circumstances, benefiting the obligated parties.

Furthermore, Article 167 of the Customs Law states: “In the following cases, goods released for free circulation shall be exempt from customs duties: …Goods sent to victims of natural disasters, serious and widespread diseases, major fires, radiation or air pollution, and other major chemical and technological incidents or large-scale population movements.”

In parallel, Article 105 of Decision No. 2009/15481 on the Implementation of Certain Articles of Customs Law No. 4458 outlines the scope of this exemption.

When these two provisions are considered together, it becomes clear that the matter extends beyond tax exemption. On one hand, customs procedures are simplified and facilitated; on the other hand, the goods in question are not subjected to heavy foreign trade regulations.

Although these measures may not fully resolve the problems of those affected by the crisis, they undoubtedly help accelerate the delivery of much-needed aid materials.