Updated May 6, 2019
U.S. Arms Sales and Human Rights: Legislative Basis and
Frequently Asked Questions
U.S. law establishes the conditions under which the U.S.
persons, as well as from diverting articles for
government and U.S. commercial entities may sell defense
unauthorized purposes or uses. See also Section 505(a)
articles to foreign countries. This In Focus provides an
of the FAA (22 U.S.C. 2314(a)).
overview of the main laws and policies that may limit such
 Section 4 of the AECA (22 U.S.C. 2754) states that
sales on the basis of human rights concerns.
defense articles may be sold or leased for specific
Background
purposes only, including internal security, legitimate
self-defense, and participation in collective measures
The Arms Export Control Act (AECA; P.L. 90-629; 22
requested by the United Nations or comparable
U.S.C. 2751 et seq.) and the Foreign Assistance Act of
organizations. See also Section 502 of the FAA (22
1961 (FAA; P.L. 87-195; 22 U.S.C. 2151 et seq.) establish
U.S.C. 2302).
provisions governing Foreign Military Sales (FMS) and
Direct Commercial Sales (DCS) to foreign consumers,
 Section 3(c)(1)(B) of the AECA (22 U.S.C.
including foreign governments. FMS refers to the sale of
2753(c)(1)(B)) prohibits the sale or delivery of U.S.-
U.S.-origin defense articles, equipment, services, and
origin defense articles when either the President or
training (hereafter referred to as “defense articles”) on a
Congress find that a recipient country has used such
government-to-government basis. DCS refers to the sale of
articles in substantial violation of an agreement with the
U.S.-government licensed defense articles and services
United States governing their provision or “for a
directly from U.S. firms to eligible foreign governments
purpose not authorized” by Section 4 of the AECA or
and international organizations.
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
The AECA and FAA establish eligibility prerequisites for
presidential determination or joint resolution of
the sale of defense articles to foreign purchasers. The acts
Congress, Section 3(c)(3) of the AECA (22 U.S.C.
also require that such sales be for specific authorized
2753(c)(3)) stipulates that, absent a presidential waiver,
military purposes and subject to end-use monitoring
such countries would be ineligible for future U.S. arms
(EUM). The acts authorize the termination of future sales
sales until the President determines the violation has
and deliveries if a recipient is found to be in substantial
ceased and recipients assure violations will not recur.
violation of a sale-related agreement with the United States
or to be otherwise using such defense articles for
Human Rights-Related Prohibitions on
unauthorized purposes. The FAA and executive branch
Security Assistance
policy restrict certain sales of defense articles to foreign
recipients found to have committed human rights violations.
Section 502B of the FAA
Section 502B(a)(1) of the FAA (22 U.S.C. 2304(a)(1))
General Limitations on FMS and DCS
states that a “principal goal” of U.S. foreign policy “shall be
Although the AECA does not refer specifically to human
to promote the increased observance of internationally
rights, the act includes general provisions and conditions
recognized human rights by all countries.” To this end,
for the export of U.S.-origin defense articles that may
Section 502B(a)(2) of the FAA (22 U.S.C. 2304(a)(2))
indirectly address human rights concerns. For example,
stipulates that, absent the exercise of a presidential waiver,
 Section 38(a)(1) of the AECA (22 U.S.C. 2778(a)(1))
no security assistance may be provided to any
authorizes the President to control the import and export
country the government of which engages in a
of defense articles for broad policy goals, including
consistent
pattern
of
gross
violations
of
world peace and U.S. security and foreign policy.
internationally recognized human rights.
 Section 42(a) of AECA (22 U.S.C. 2791(a)) requires the
“Security assistance” is defined by Section 502B(d)(2) of
executive branch, to consider, among other factors,
the FAA (22 U.S.C. 2304(d)(2)) to include, for the purposes
whether a given defense article sale might “increase the
of the section, “sales of defense articles or services,
possibility of outbreak or escalation of conflict.” See
extensions of credits (including participations in credits),
also Section 511 of the FAA (22 U.S.C. 2321d).
and guaranties of loans” under the AECA. This section also
 Section 3(a) of AECA (22 U.S.C. 2753(a)) requires
defines security assistance to include
prospective recipients of defense articles to meet certain
 assistance provided pursuant to part II of the FAA for
prerequisites for eligibility. These include purchaser
military assistance (chapter 2), the economic support
commitments to refrain from transferring title to or
fund (chapter 4), military education and training
possession of any defense article to unauthorized
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions
(chapter 5), peacekeeping operations (chapter 6), or anti-
leadership to prepare a Country Team Assessment (CTA)
terrorism assistance (chapter 8); and
that describes and justifies support for a proposed arms sale.

Such CTAs accompany letters of request for certain
any license in effect with respect to the export to or for
significant arms sales, including those requiring
the armed forces, police, intelligence, or other internal
congressional notification pursuant to Section 36 of the
security forces of a foreign country of (i) defense
AECA. According to Table C5.T1 of the SAMM, all CTAs
articles or defense services under Section 38 of the
must include a description of the “human rights … record
AECA (22 U.S.C. 2778); or (ii) items listed under the
of the proposed recipient and the potential misuse of the
600 series of the Commerce Control List [a list that
defense articles in question.”
contains specific dual-use commodities, technologies,
and software that are controlled for export].
How does the U.S. government verify that
recipients use defense articles as authorized?
“Gross violations of internationally recognized human
rights” is defined
Pursuant to Sections 38(g)(7) and 40A(a) of the AECA (22
in Section 502B(d)(1) of the FAA (22
U.S.C. 2778(g)(7) and 2785(a)), and Section 505(a)(3) of
U.S.C. 2304(d)(1)). In determining whether a government
the FAA (22 U.S.C. 2314(a)(3)), U.S. origin defense
has engaged in such violations, Section 502B(a)(4) of the
articles sold via FMS and DCS are subject to end-use
FAA (22 U.S.C. 2304(a)(4)) requires the President to give
monitoring (EUM) to ensure that recipients use such items
particular consideration to international religious freedom.
solely for their intended purposes. DOD’s Defense Security
Section 502B(b) of the FAA (22 U.S.C. 2304(b))
Cooperation Agency manages the department’s Golden
additionally tasks the Secretary of State to prepare a report
Sentry EUM program for defense articles sold via FMS.
to Congress (the annual Country Reports on Human Rights
The State Department’s Directorate of Defense Trade
Practices) with information on prospective foreign
Controls coordinates the Blue Lantern program, which
recipients of U.S. security assistance. Specified topics for
performs an analogous function for items sold via DCS.
the report include information on war crimes, crimes
against humanity, genocide, coercion in population control,
Can arms embargoes be applied on the basis of
anti-Semitism, extrajudicial killings, trafficking in persons,
human rights concerns?
freedom of the press, and child marriage.
Human rights considerations are among the reasons the
Child Soldiers Prevention Act of 2008 (CSPA)
United States may invoke to impose an arms embargo on a
foreign government and prohibit U.S. persons from selling
Foreign governments with security forces (including police)
or transferring defense articles to such governments. The
or government-supported armed groups that recruit or use
International Traffic in Arms Regulations reflect the
child soldiers are prohibited from receiving certain types of
executive branch’s implementation of statutory provisions
security assistance, absent a presidential waiver. Pursuant to
related to the export of defense articles, including those
Section 404(a) of the CSPA (P.L. 110-457; 22 U.S.C.
related to arms embargoes. In addition, the U.N. Security
2370c-1), the prohibition applies to the extension of FMS
Council may apply an arms embargo against a country for
credits and the issuance of DCS licenses, among other
human rights purposes; Section 5 of the United Nations
identified authorities in the FAA and AECA. Each year, the
Participation Act of 1945 (22 U.S.C. 287c) authorizes the
State Department publishes a list of CSPA countries in its
President to implement such sanctions.
annual Trafficking in Persons Report.
Frequently Asked Questions
Do the Leahy Laws apply to arms sales?
The U.S. “Leahy Laws”—Section 620M of the FAA (22
How does the current Administration’s
U.S.C. 2378d) and 10 U.S.C. 362—prohibit U.S. security
conventional arms transfer policy address human
assistance to a foreign security force unit when there is
rights considerations?
credible information that such unit has committed a “gross
violation of human rights” (GVHR)—described by the
Pursuant to a national security presidential memorandum of
State Department to mean (1) torture, (2) extrajudicial
April 19, 2018, U.S. arms transfer decisions must take into
consideration several factors, including “human rights and
killing, (3) enforced disappearance, or (4) rape under color
international humanitarian law.” Specified considerations
of law (in which a perpetrator abuses their official position
to commit rape). In order to comply with the laws, the State
include the risk that an arms transfer would contribute to
Department leads a process of unit-level GVHR vetting
abuses of human rights, including acts of gender-based
before providing security assistance, including training and
violence and acts of violence against children. The
equipping. The Leahy Laws, however, do not define
memorandum prohibits transfers of conventional arms if the
U.S. government has “actual knowledge at the time o
security assistance; in practice, the executive branch
f
authorization” that such a transfer “will be used” to commit
considers the term to mean support provided with U.S.-
appropriated funds and, in its view, the restrictions are thus
genocide, crimes against humanity, or certain human rights
not applicable to FMS or DCS.
violations in breach of the Geneva Conventions.
How does U.S. policy guidance on arms sales
Paul K. Kerr, Specialist in Nonproliferation
address human rights consideration?
Liana W. Rosen, Specialist in International Crime and
The Security Assistance Management Manual (SAMM)
Narcotics
provides the U.S. Department of Defense (DOD) with
IF11197
policy guidance for executing arms sales. Among its
provisions, the SAMM requires senior U.S. Embassy
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions


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