From an assessment of the cases documented by this initiative, several common barriers to initiating litigation and achieving accountability for international arms transfers can be identified, prompting reflection on the current state of ATT implementation and enforcement.
The international arms transfer controls regime, in particular the ATT, entrusts States Parties with the primary responsibility for implementation and enforcement of treaty obligations. The role of national courts has therefore assumed an increasing importance since the ATT’s entry into force, and domestic courts are the primary forum for legal challenges to arms transfers. However, domestic law relating to the licensing of arms exports, as with most domestic law that regulates the acts and conduct of public officials, subjects administrative decisions to administrative, public and constitutional law standards. These standards, and the procedures available to challenge administrative decisions, vary from country to country.
The disparity in the availability, accessibility and quality of domestic judicial review processes stands out when comparing the progress and success of cases across jurisdictions. In particular, various obstacles and barriers faced by those seeking access to justice through domestic accountability processes in supplying states clearly attest to the absence or shortage of effective means to trigger judicial oversight for decisions relating to arms transfers. Their cumulative effect results in the denial of justice to victims of serious international humanitarian law (IHL) and international human rights law (IHRL) violations, to which arms-supplying states and relevant corporate actors may contribute under certain circumstances.
Five thematic areas have been identified as particularly prominent barriers to accountability when comparing the experiences of litigants in the jurisdictions monitored by this initiative, namely issues relating to a lack of meaningful transparency around licensing decisions, the high threshold of standing, the limited scope and impact of available remedy, variations in the applicability of the ATT and EU Common Position, and the contestation of the justiciability of licensing decisions.