Publications by Marjolein Schaap
Andrzej Jakubowski, Karolina Wierczyńska (eds) Fragmentation vs. the Constitutionalisation of International Law - A Practical Inquiry , 2016
Within Europe there is an overlap between the treaty regimes of the ECHR, EU and that of Conventi... more Within Europe there is an overlap between the treaty regimes of the ECHR, EU and that of Convention on Access to Information, Public Participation and Access to Justice (‘Aarhus Convention’). The majority of the member states are party to all three conventions and the European Union is also party to the Aarhus Convention. This chapter explores the interplay of the three treaty regimes and takes as point of departure the (procedural) right of access to environmental justice for NGOs as guaranteed by the Aarhus Convention. It will be examined how this right is shaped in Europe considering the complex relationship between the three conventions, with each having their own oversight mechanism and no clear hierarchy established. Recent case law of the CJEU and the ECtHR will be taken into account when answering the question whether this interaction between the treaty regimes and overlapping mandates may lead to a constitutionalization of the access right to environmental justice for NGOs or at minimum to a further development of the right at stake
Conference: “Treinta y cinco años de funcionamiento de la Corte Interamericana de Derechos Humanos
The right to information under human rights law has various strands. This article will focus on t... more The right to information under human rights law has various strands. This article will focus on the right to state-held information and the right to personal information and the role played by the ECtHR and the IACtHR in its development. The purpose of the article is therefore twofold. Firstly, the article sets out the scope, parameters and constraints of the two strands. Secondly, possible normative interaction between the two Courts and, more generally, between various COE and OAS bodies is mapped. The article concludes with some general statements on normative interaction: the different approach taken by ECtHR and IACtHR to external sources, and the underestimated role of the reports of Special Rapporteurs in the normative development of the rights.
An international administration of a territory (ITA) can adopt decisions in individual situations... more An international administration of a territory (ITA) can adopt decisions in individual situations while a proper legal framework for regulating transparency, participation in decision-making and access to justice (i.e. inclusionary governance) is lacking. The type of public power exercised by ITAs and its impact on the local level raises serious concerns relating to inclusionary processes in the decision-making procedures of ITAs. Therefore, the principal objective of this paper is to critically analyse whether inclusionary governance can be required from ITAs. In order to do so, the paper will firstly evaluate ITA mandates for inclusionary governance provisions. The author asserts that, while power-sharing arrangements are made between ITAs and local authorities, this does not necessarily amount to inclusionary governance, as the inclusion of the individual is the key. Secondly, the paper discusses the review of international organisations on the inclusion/exclusion of individuals in decision-making by ITAs. Lastly, the paper contends that the exclusion of individuals in decision-making procedures forms a more general problem in international law; therefore, a concise comparison is made between the exercise of public power by ITAs and that by international organisations
Editorial, AJV newsletter 8/13, Aug 2013
The human right of access to justice has been conceptualized by the Aarhus Convention in light of... more The human right of access to justice has been conceptualized by the Aarhus Convention in light of international environmental law, creating a right of access to environmental justice and recognizing an important role for non-governmental organizations (NGOs) in the enforcement and protection of this right. Considering that the European Union is a member to the Aarhus Convention, the EU criteria for legal standing should be interpreted in light of the Aarhus Convention. What we see here is a convergence of various fields or ‘layers’ – international human rights law, international environmental law, European Union Law – in which access to justice is conceptualized and institutionalized. This begs the question on how a potential conflict of converging norms and possibly competing authorities will be addressed, and whether a return to general rules of the law of treaties will be able to provide guidance on this matter. Further, does this situation lead to an enhanced right to access to justice for non-state actors or impede further progress?
Conference Papers by Marjolein Schaap
Administrative law (GAL) within the envisaged research project on inclusionary governance for pos... more Administrative law (GAL) within the envisaged research project on inclusionary governance for post-conflict situations. The research project focuses on decision-making procedures in individual situations by international territorial administrations (ITAs) specifically and more general by international institution. As typified by the term 'Global Governance', a shift of the actor exercising public power has taken place; where previously the states played a dominant role, nowadays various actors exercise public power at the transnational level without a legal framework commensurate to those powers, resulting in a legitimacy deficit. Within ITAs this is particularly evident as in practice citizens are caught between a disfunctioning national legal framework and a political reality in which an international actor exercises public powers that affect their daily lives, but without a legal framework commensurate to those powers being in place.
Research presentations by Marjolein Schaap
The (human) right of access to justice has been conceptualized by the Aarhus Convention in light ... more The (human) right of access to justice has been conceptualized by the Aarhus Convention in light of international environmental law, creating a right of access to environmental justice and recognizing an important role for non-governmental organizations (NGOs) in the enforcement and protection of this right. Considering that the European Union is a member to the Aarhus Convention, the EU decision-making procedures in environmental matters need to comply with the Aarhus Convention obligations; this implies further that the EU criteria for legal standing should be interpreted in light of the Aarhus Convention providing access to environmental justice to NGOs. Both the Aarhus Compliance Committee and the ECJ have the competence to adopt conclusions of non-compliance and interpret the treaty obligations deriving from the Aarhus Convention, reviewing the same performance of the same parties (member states and EU institutions) to the Aarhus Convention with regard to similar obligations (often the same). In legal terms it results in a convergence of various fields or ‘layers’ – international human rights law, international environmental law, European Union Law – in which access to justice is conceptualized in context of the legal regime. In time, the picture will be more complex with a third layer added to the story, the rights and obligations emerging from the European Convention on Human Rights (ECHR). Once, the European Union acceded to the ECHR, the European Court of Human Rights (ECtHR) will have the competence to assess the compliance of EU institutions in light of Article 6 of the ECHR (right to fair trial) and related Article 2(3) of the ECHR (the right to an effective remedy), constituting the third mechanism of oversight.
This paper addresses the key problematic issues with regard to access to environmental justice in the EU Courts for NGOs and sketches the context in which the judicial and normative interaction is taking place concerning the concept of access to justice. For instance, how will a potential conflict of converging norms and possibly competing authorities will be addressed? Will a return to general rules of the law of treaties will be able to provide guidance on this matter? Naturally, there is a chance that this might lead to conflicting interpretation of what is required for access to justice; however it begs the question whether this is a problem. The parallel systems may come up with incompatible conclusions, or instead might result into ‘synergies in compliance control, and further rather than impede the effectiveness of the access to justice in member states’. Some argue that it might result in a positive judicial dialogue which ‘would also be in the interest of the Community.’ The system in itself has potential to contribute positively to the enforcement and further development of access to (environmental) justice.
Guest Lectures / talks by Marjolein Schaap
Other research output by Marjolein Schaap
School of Human Rights Research Newsletter vol 16(4) at 9-10, Dec 2012
Papers by Marjolein Schaap
SSRN Electronic Journal, 2015
The right to information under human rights law has various strands. This article will focus on t... more The right to information under human rights law has various strands. This article will focus on the right to state-held information and the right to personal information and the role played by the ECtHR and the IACtHR in its development. The purpose of the article is therefore twofold. Firstly, the article sets out the scope, parameters and constraints of the two strands. Secondly, possible normative interaction between the two Courts and, more generally, between various COE and OAS bodies is mapped. The article concludes with some general statements on normative interaction: the different approach taken by ECtHR and IACtHR to external sources, and the underestimated role of the reports of Special Rapporteurs in the normative development of the rights.
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Publications by Marjolein Schaap
Conference Papers by Marjolein Schaap
Research presentations by Marjolein Schaap
This paper addresses the key problematic issues with regard to access to environmental justice in the EU Courts for NGOs and sketches the context in which the judicial and normative interaction is taking place concerning the concept of access to justice. For instance, how will a potential conflict of converging norms and possibly competing authorities will be addressed? Will a return to general rules of the law of treaties will be able to provide guidance on this matter? Naturally, there is a chance that this might lead to conflicting interpretation of what is required for access to justice; however it begs the question whether this is a problem. The parallel systems may come up with incompatible conclusions, or instead might result into ‘synergies in compliance control, and further rather than impede the effectiveness of the access to justice in member states’. Some argue that it might result in a positive judicial dialogue which ‘would also be in the interest of the Community.’ The system in itself has potential to contribute positively to the enforcement and further development of access to (environmental) justice.
Guest Lectures / talks by Marjolein Schaap
Other research output by Marjolein Schaap
Papers by Marjolein Schaap
This paper addresses the key problematic issues with regard to access to environmental justice in the EU Courts for NGOs and sketches the context in which the judicial and normative interaction is taking place concerning the concept of access to justice. For instance, how will a potential conflict of converging norms and possibly competing authorities will be addressed? Will a return to general rules of the law of treaties will be able to provide guidance on this matter? Naturally, there is a chance that this might lead to conflicting interpretation of what is required for access to justice; however it begs the question whether this is a problem. The parallel systems may come up with incompatible conclusions, or instead might result into ‘synergies in compliance control, and further rather than impede the effectiveness of the access to justice in member states’. Some argue that it might result in a positive judicial dialogue which ‘would also be in the interest of the Community.’ The system in itself has potential to contribute positively to the enforcement and further development of access to (environmental) justice.