The question of standing - who can bring a case in court - often requires an individual to be directly affected by an act in order to bring a case, and has therefore raised issues around whether NGOs have standing to bring cases in national courts or whether a case must be brought by direct victims.
While the standing of NGO claimants has been affirmed in several jurisdictions, including the UK and Belgium, this has been an obstacle and barrier in several attempts to initiate litigation in other jurisdictions, which has barred scrutiny of the merits of actual licensing decisions by judicial bodies as court proceedings have instead focused on addressing this more procedural matter.
Challenges faced in litigation
Netherlands: The court denied legal standing to NGO claimants on two occasions under administrative proceedings, ruling that they were not ‘directly’ affected by the contested licence. It is only when the claimants launched a civil procedure, for which standing is defined differently to administrative cases under domestic law, that they were granted standing and thus able to proceed to a substantive review of the contested licences.
US: The US State Department argued in response to the plaintiff’s submission that the US-based NGO claimants (NYCFPA) were not directly injured by the contested export decision and did not have standing to challenge its legality. This led to the claimants amending their complaint to additionally include several individual co-plaintiffs to the claim who were either survivors or relatives of victims of direct attacks perpetrated by members of the military coalition fighting in Yemen.