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Justiciability - whether the court can review and adjudicate a certain issue in legal proceedings - have been at issue in several cases as it is argued that certain matters of a political nature are part of the executive branch’s authority and outside of a court’s remit, and thus non-justiciable.

Several states, whose arms export decisions have been placed under scrutiny in judicial processes, have sought to dismiss the cases brought against them by claiming that arms export decisions are non-justiciable as political decisions.

France: the justiciability of licensing decisions has been closely considered by the courts, who have ruled them as political acts that form part of French foreign policy and they are not competent to scrutinise.

Even if considered justiciable, several jurisdictions have still not considered the substantive licensing decision on its merits due to other legislative and regulatory hurdles. In most countries administrative judges can only assess the reasonableness, rationality or non-arbitrariness of a decision to grant a specific licence.

In addition, most courts apply a highly deferential standard of review when examining whether the public authority used the correct process to reach its decision. If this standard is not met  the court must refer the decision back to the authority for it to reconsider its assessment

  • UK: Under UK public law, the test is whether the decision itself was ‘rational.’
  • US: The standard is whether the decision was ‘arbitrary’ or ‘capricious.’

Equally, even when substantively reviewing licensing decisions, the courts have set very high thresholds to establish illegality and wrongfulness that are onerous and in some cases have proven insurmountable.

Netherlands: the claimants bore the evidentiary burden of demonstrating that the Minister’s decision to issue an export licence was ‘manifestly unreasonable’.

Canada: the courts have required evidence of the actual use of specific Canadian-manufactured arms in the commission of violations of international law rather than following the risk-based approach of international law rules and standards.