https://crsreports.congress.gov
Updated April 30, 2021
U.S. Arms Sales and Human Rights: Legislative Basis and
Frequently Asked Questions
U.S. law establishes the conditions under which the U.S.
government and U.S. commercial entities may sell defense
articles to foreign countries. This In Focus provides an
overview of the main laws and policies that may limit such
sales on the basis of human rights concerns.
Background
The Arms Export Control Act (AECA; P.L. 90-629; 22
U.S.C. 2751 et seq.) and the Foreign Assistance Act of
1961 (FAA; P.L. 87-195; 22 U.S.C. 2151 et seq.) establish
provisions governing Foreign Military Sales (FMS) and
Direct Commercial Sales (DCS) to foreign consumers,
including foreign governments. FMS refers to the sale of
U.S.-origin defense articles, equipment, services, and
training (hereinafter referred to as “defense articles”) on a
government-to-government basis. DCS refers to the sale of
U.S.-government licensed defense articles and services
directly from U.S. firms to eligible foreign governments
and international organizations.
The AECA and FAA establish eligibility prerequisites for
the sale of defense articles to foreign purchasers. The acts
also require that such sales be for specific authorized
military purposes and subject to end-use monitoring
(EUM). The acts authorize the termination of future sales
and deliveries if a recipient is found to be in substantial
violation of a sale-related agreement with the United States
or to be otherwise using such defense articles for
unauthorized purposes. The FAA and executive branch
policy restrict certain sales of defense articles to foreign
recipients found to have committed human rights violations.
General Limitations on FMS and DCS
Although the AECA does not refer specifically to human
rights, the act includes general provisions and conditions
for the export of U.S.-origin defense articles that may
indirectly address human rights concerns. For example,
Section 38(a)(1) of the AECA (22 U.S.C. 2778(a)(1))
authorizes the President to control the import and export
of defense articles for broad policy goals, including
world peace and U.S. security and foreign policy.
Section 42(a) of AECA (22 U.S.C. 2791(a)) requires the
executive branch, to consider, among other factors,
whether a given defense article sale might “increase the
possibility of outbreak or escalation of conflict.” See
also Section 511 of the FAA (22 U.S.C. 2321d).
Section 3(a) of AECA (22 U.S.C. 2753(a)) requires
prospective recipients of defense articles to meet certain
prerequisites for eligibility. These include purchaser
commitments to refrain from transferring title to or
possession of any defense article to unauthorized
persons, as well as from diverting articles for
unauthorized purposes or uses. See also Section 505(a)
of the FAA (22 U.S.C. 2314(a)).
Section 4 of the AECA (22 U.S.C. 2754) states that
defense articles may be sold or leased for specific
purposes only, including internal security, legitimate
self-defense, and participation in collective measures
requested by the United Nations or comparable
organizations. See also Section 502 of the FAA (22
U.S.C. 2302).
Section 3(c)(1)(B) of the AECA (22 U.S.C.
2753(c)(1)(B)) prohibits the sale or delivery of U.S.-
origin defense articles when either the President or
Congress find that a recipient country has used such
articles in substantial violation of an agreement with the
United States governing their provision or “for a
purpose not authorized” by Section 4 of the AECA or
Section 502 of the FAA. (See also Section 505(d) of the
FAA (22 U.S.C. 2314(d)).) If found to be in violation by
presidential determination or joint resolution of
Congress, Section 3(c)(3) of the AECA (22 U.S.C.
2753(c)(3)) stipulates that, absent a presidential waiver,
such countries would be ineligible for future U.S. arms
sales until the President determines the violation has
ceased and recipients assure violations will not recur.
Such a waiver is not available if Congress has adopted a
joint resolution described above.
Human Rights-Related Prohibitions
Section 502B(a)(1) of the FAA (22 U.S.C. 2304(a)(1))
states that a “principal goal” of U.S. foreign policy “shall be
to promote the increased observance of internationally
recognized human rights by all countries.” To this end,
Section 502B(a)(2) of the FAA (22 U.S.C. 2304(a)(2))
stipulates that, absent the exercise of a presidential
certification of “extraordinary circumstances,”
no security assistance may be provided to any
country the government of which engages in a
consistent pattern of gross violations of
internationally recognized human rights.
“Security assistance” is defined by Section 502B(d)(2) of
the FAA (22 U.S.C. 2304(d)(2)) to include, for the purposes
of the section, “sales of defense articles or services,
extensions of credits (including participations in credits),
and guaranties of loans” under the AECA. This section also
defines security assistance to include
assistance provided pursuant to part II of the FAA for
military assistance (chapter 2), the economic support
fund (chapter 4), military education and training
(chapter 5), peacekeeping operations (chapter 6), or anti-
terrorism assistance (chapter 8); and
