Milieuconvenanten gehandhaafd : Een juridisch onderzoek naar handhaafbaarheid en handhaving van Nederlandse milieuconvenanten en in het bijzonder van klimaatconvenanten in het licht van de democratische rechtsstaat

Abstract

Whether a voluntary environmental agreement succeeds is partly determined by the possibility of legally enforcing the obligations which it establishes. Despite the fact that the importance of enforcing voluntary agreements is underlined by the Dutch government, enforcement of these agreements is not always (clearly) guaranteed in practice, especially from a legal viewpoint. Apparently there is uncertainty concerning the possibility to enforce. This uncertainty is not only due to the enforcement mechanisms which are to be applied, but also to aspects that affect the enforceability of voluntary environmental agreements. Aspects of enforceability concern for example the parties, the legal character and the obligations which a voluntary agreement estbalishes. In addition to discussing the enforceability and enforcement of this instrument in a general sense, four specific voluntary agreements in the field of climate policy have been analysed in detail. These are the Long-Term Agreements on Energy-Efficiency 2001-2012, the Energy-Efficiency Benchmarking Agreement, the Agreement on Glasshouse Cultivation and the Environment and the Agreement on Coal-Fired Power Stations and CO2-reduction. These voluntary agreements are used in the Netherlands to implement the Kyoto Protocol. The enforceability and enforcement of voluntary agreements and of voluntary climate agreements in particular has been tested against the requirements of the Dutch democratic rule-of-law state. These requirements are: the principle of legal certainty, the equality principle, the requirement that the authorities are bound by the law, the protection of fundamental rights, the principle of democracy, judicial control and the principle of serving the government. In general, it may be concluded that the enforceability of voluntary environmental agreements under the law currently in force to a certain degree fulfils or is able to fulfil the requirements set for enforceability by the democratic rule of law principles. This general statement is supported by the analysis of the four voluntary climate agreements. It further generally emerges that the parties to a voluntary agreement are quite free to determine to what extent they will give substance to aspects of enforceability and that for this reason it is nog guaranteed that the requirements of the democratic rule of law will be respected. This also emerges from the analysis of the four voluntary climate agreements. If the parties fail to fulfil these requirements, they do not immediately act contrary to objective law. Also because of tensions between the application of democratic rule-of-law requirements it is not always possible to completely meet all the requirements set. If possible, a balance should be found in applying these requirements then. Overviewing the various possible paths to enforcement it can generally be concluded that in theory at least sufficient possibilities exist for both actual parties and third parties to enforce obligations from voluntary environmental agreements and that it is clear which enforcement mechanisms may be applied. The enforcement mechanisms cannot, however, just be applied simultaneously or consecutively; there are issues of harmonization between the different mechanisms. Furthermore, it is too a large extent dependent upon the parties to what degree the possibilities for enforcement method can and will be used.