Applicability of ATT and EU Common Position
International law offers relatively limited guidance on the way states should implement and enforce the ATT. In turn, in most of the jurisdictions surveyed, the ATT’s provisions are not considered as directly applicable but are incorporated, to varying extents, into domestic law.
Domestic judges are often not granted a formal basis to review whether an arms export decision conforms with a state’s international law obligations under the ATT and claimants are unable to directly invoke a violation of the ATT before domestic courts. Instead, those attempting to challenge arms export decisions must base their claim on governing domestic legislation, which is more limited in its scope and applicability.
In addition, the EU Common Position is an instrument of the EU’s Common Foreign and Security Policy, rather than a legal instrument; though it is legally binding and demands that EU member states ensure that their domestic decisions comply with its terms. However, similarly to the ATT, in some jurisdictions, there are several legal barriers to invoking a violation of the EU Common Position in court.
Challenges faced in litigation
France: The claimant’s attempts to argue a violation of specific provisions of the ATT and EU Common Position by French authorities were unsuccessful as the court held that the ATT and EU Common Position only govern interstate relations and do not have direct effect in domestic law, and therefore could not ground the claimant’s challenge.
Even where domestic legislation is considered to fully implement the provisions of the ATT and/or EU Common Position, such as in the UK and the Netherlands, limitations in the relevant domestic legislation have limited the ability of claimants to initiate certain challenges.
UK: The presumption was that domestic law fully implements the ATT, meaning a legal challenge could in theory be based on potential ATT violations. In practice, however, the reviewability of decisions is limited to the grounds of judicial review in domestic law, which focus on whether a ‘reasonable’ person could have reached the decisions under scrutiny.
The Netherlands: Domestic legislation incorporates the states obligations under international law, and in principle can be invoked before domestic courts. Nevertheless, its definition of who can bring an admissible case has impacted the ability for NGO claimants to initiate proceedings.
Efforts to directly invoke other international legal obligations of states beyond the ATT and EU Common Position have also been unsuccessful.
Canada: The claimant’s attempt to argue a violation of Common Article 1 to the Geneva Conventions was rejected by the courts. The court refused to review the government’s compliance with the Geneva Conventions on the grounds that Canada was not a party to the armed conflict in Yemen.
On the other hand, some domestic proceedings have affirmed the applicability of these regional and international instruments to national licensing decisions.
Italy: The Court rejected the government‘s argument and confirmed that the ATT and EU Common Position are directly applicable in Italy, and must therefore be considered during risk assessments for arms transfers under Italian law.