JUntil June 21, political leaders, business and government representatives, in suits, suits and military uniforms, will meet in the aisles of the global defense and security Eurosatory. Over coffee, mini pastries and glasses of champagne, there will be talk of ammunition of various calibers, weapons systems associated with artificial intelligence, and even satellite missile guidance technologies.
For once in the year, the small, discreet world of military equipment sales will open its doors. And French companies will try to take the lion’s share, the country having already risen, in 2023, to second place among the largest arms exporters in the world.
In France, the conclusion of any arms sales contract is fortunately subject to constraints. The principle is thus the prohibition of exports, these being authorized only by exception. It is the Prime Minister who issues arms export licenses allowing manufacturers to sign any contract, take orders or even deliver the equipment in question.
Theory of “act of government”
The decision whether or not to authorize an export must take into account whether there is a risk of a serious violation of human rights and/or international humanitarian law by means of the weapons whose export is requested. In this regard, France is bound by international texts such as the Arms Trade Treaty.
In practice, when they are maintained for the benefit of the client, export licenses are untouchable before the administrative judge, even if there is a risk that the war materials in question could contribute to serious violations of international law. The judge in fact rejects any possibility of suspending export licenses, in the name of the “act of government” theory.
Under this theory, the administrative judge considers export licenses as acts that cannot be separated from the conduct of international relations. Consequently, they benefit from jurisdictional immunity. In other words, justice declares itself incompetent to rule on both their provisional suspension and their legality. As if administrative justice had put blinders on itself to prevent itself from making a decision on these cases. However, the administrative judge’s vocation is to protect fundamental rights and freedoms and to defend the general interest.
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