Applicability of international and legal instruments
International law offers relatively limited guidance on the way states should implement and enforce the relevant instruments, notably the ATT. In most jurisdictions surveyed, the ATT’s provisions are not considered directly applicable but are incorporated, to varying extents, into domestic law.
Thematic Overview
For States Parties to the ATT, domestic judges are often not granted a formal basis to review whether an arms export decision conforms with a state’s international law obligations 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, for EU member states, 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.
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.
The Netherlands: Domestic legislation incorporates the states obligations under international law, and in principle can be invoked before domestic courts. In the case regarding the transfer of F-35 components to Israel, the judge in the first court ruled that licensing decisions are political acts that form a part of the government’s foreign policy. However, the appeals court overruled this decision, stating that the Minister’s decision to not intervene in the export licence was a violation of the Netherlands’s international obligations, including the EU Common Position.
