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.
unauthorized purposes or uses. See also Section 505(a)
government and U.S. commercial entities may sell defense
of the FAA (22 U.S.C. 2314(a)).
articles to foreign countries. This In Focus provides an
 Section 4 of the AECA (22 U.S.C. 2754) states that
overview of the main laws and policies that may limit such
defense articles may be sold or leased for specific
sales on the basis of human rights concerns.
purposes only, including internal security, legitimate
Background
self-defense, and participation in collective measures
requested by the United Nations or comparable
The Arms Export Control Act (AECA; P.L. 90-629; 22
organizations. See also Section 502 of the FAA (22
U.S.C. 2751 et seq.) and the Foreign Assistance Act of
U.S.C. 2302).
1961 (FAA; P.L. 87-195; 22 U.S.C. 2151 et seq.) establish
provisions governing Foreign Military Sales (FMS) and
 Section 3(c)(1)(B) of the AECA (22 U.S.C.
Direct Commercial Sales (DCS) to foreign consumers,
2753(c)(1)(B)) prohibits the sale or delivery of U.S.-
including foreign governments. FMS refers to the sale of
origin defense articles when either the President or
U.S.-origin defense articles, equipment, services, and
Congress find that a recipient country has used such
training (hereinafter referred to as “defense articles”) on a
articles in substantial violation of an agreement with the
government-to-government basis. DCS refers to the sale of
United States governing their provision or “for a
U.S.-government licensed defense articles and services
purpose not authorized” by Section 4 of the AECA or
directly from U.S. firms to eligible foreign governments
Section 502 of the FAA. (See also Section 505(d) of the
and international organizations.
FAA (22 U.S.C. 2314(d)).) If found to be in violation by
presidential determination or joint resolution of
The AECA and FAA establish eligibility prerequisites for
Congress, Section 3(c)(3) of the AECA (22 U.S.C.
the sale of defense articles to foreign purchasers. The acts
2753(c)(3)) stipulates that, absent a presidential waiver,
also require that such sales be for specific authorized
such countries would be ineligible for future U.S. arms
military purposes and subject to end-use monitoring
sales until the President determines the violation has
(EUM). The acts authorize the termination of future sales
ceased and recipients assure violations will not recur.
and deliveries if a recipient is found to be in substantial
Such a waiver is not available if Congress has adopted a
violation of a sale-related agreement with the United States
joint resolution described above.
or to be otherwise using such defense articles for
unauthorized purposes. The FAA and executive branch
Human Rights-Related Prohibitions
policy restrict certain sales of defense articles to foreign
Section 502B(a)(1) of the FAA (22 U.S.C. 2304(a)(1))
recipients found to have committed human rights violations.
states that a “principal goal” of U.S. foreign policy “shall be
General Limitations on FMS and DCS
to promote the increased observance of internationally
recognized human rights by all countries.” To this end,
Although the AECA does not refer specifically to human
Section 502B(a)(2) of the FAA (22 U.S.C. 2304(a)(2))
rights, the act includes general provisions and conditions
stipulates that, absent the exercise of a presidential
for the export of U.S.-origin defense articles that may
certification of “extraordinary circumstances,”
indirectly address human rights concerns. For example,

no security assistance may be provided to any
Section 38(a)(1) of the AECA (22 U.S.C. 2778(a)(1))
country the government of which engages in a
authorizes the President to control the import and export
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

defines security assistance to include
Section 3(a) of AECA (22 U.S.C. 2753(a)) requires

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
(chapter 5), peacekeeping operations (chapter 6), or anti-
persons, as well as from diverting articles for
terrorism assistance (chapter 8); and
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions
 any license in effect with respect to the export to or for
provisions, the SAMM requires senior U.S. Embassy
the armed forces, police, intelligence, or other internal
leadership to prepare a Country Team Assessment (CTA)
security forces of a foreign country of (i) defense
that describes and justifies support for a proposed arms sale.
articles or defense services under Section 38 of the
Such CTAs accompany letters of request for certain
AECA (22 U.S.C. 2778); or (ii) items listed under the
significant arms sales, including those requiring
600 series of the Commerce Control List [a list that
congressional notification pursuant to Section 36 of the
contains specific dual-use commodities, technologies,
AECA. According to Table C5.T1 of the SAMM, all CTAs
and software that are controlled for export].
must include a description of the “human rights … record
“Gross violations of internationally recognized human
of the proposed recipient and the potential misuse of the

rights” is defined
defense articles in question.”
in Section 502B(d)(1) of the FAA (22
U.S.C. 2304(d)(1)). In determining whether a government
How does the U.S. government verify that
has engaged in such violations, Section 502B(a)(4) of the
recipients use defense articles as authorized?
FAA (22 U.S.C. 2304(a)(4)) requires the President to give
Pursuant to Sections 38(g)(7) and 40A(a) of the AECA (22
particular consideration to international religious freedom.
U.S.C. 2778(g)(7) and 2785(a)), and Section 505(a)(3) of
Section 502B(b) of the FAA (22 U.S.C. 2304(b))
the FAA (22 U.S.C. 2314(a)(3)), U.S. origin defense
additionally tasks the Secretary of State to prepare a report
articles sold via FMS and DCS are subject to end-use
to Congress (the annual Country Reports on Human Rights
monitoring (EUM) to ensure that recipients use such items
Practices) with information on prospective foreign
solely for their intended purposes. DOD’s Defense Security
recipients of U.S. security assistance. Specified topics for
Cooperation Agency manages the department’s Golden
the report include information on war crimes, crimes
Sentry EUM program for defense articles sold via FMS.
against humanity, genocide, coercion in population control,
The State Department’s Directorate of Defense Trade
anti-Semitism, extrajudicial killings, trafficking in persons,
Controls coordinates the Blue Lantern program, which
freedom of the press, and child marriage.
performs an analogous function for items sold via DCS.
Additionally, Section 502B(c)(1) of the FAA (22 U.S.C.
2304(c)(1)) provides several mechanisms for Congress to
Can arms embargoes be applied on the basis of
request a report, due within 30 days, from the Secretary of
human rights concerns?
State concerning human rights in a particular country.
Human rights considerations are among the reasons the
Pursuant to Section 502B(c)(4)(A) of the FAA (22 U.S.C.
United States may invoke to impose an arms embargo on a
2304(c)(4)(A), Congress may, at any time after receiving
foreign government and prohibit U.S. persons from selling
such a report, “adopt a joint resolution terminating,
or transferring defense articles to such governments. The
restricting, or continuing security assistance” to the relevant
International Traffic in Arms Regulations reflect the
country.
executive branch’s implementation of statutory provisions
Human Trafficking-Related Prohibitions
related to the export of defense articles, including those
related to arms embargoes. In addition, the U.N. Security
Certain categories of assistance, including but not limited to
Council may apply an arms embargo against a country for
arms sales, may not be provided to governments identified in
human rights purposes; Section 5 of the United Nations
the State Department’s annual Trafficking in Persons report
Participation Act of 1945 (22 U.S.C. 287c) authorizes the
that fail to combat human trafficking (Section 110 of P.L. 106-
President to implement such sanctions.
386 22 U.S.C. 7107) or support or engage in the recruitment
or use of child soldiers (Section 404(a) of P.L. 110-457; 22
Do the Leahy Laws apply to arms sales?
U.S.C. 2370c-1). Under these provisions, the President may
The U.S. “Leahy Laws”—Section 620M of the FAA (22
nevertheless continue assistance for national interest reasons.
U.S.C. 2378d) and 10 U.S.C. 362—prohibit U.S. security
assistance to a foreign security force unit when there is
Frequently Asked Questions
credible information that such unit has committed a “gross
violation of human rights” (GVHR)—described by the
How does the Administration’s conventional arms
State Department to mean (1) torture, (2) extrajudicial
transfer policy address human rights concerns?
killing, (3) enforced disappearance, or (4) rape under color
Pursuant to a national security presidential memorandum of
of law (in which a perpetrator abuses their official position
April 19, 2018, U.S. arms transfer decisions must take into
to commit rape). In order to comply with the laws, the State
consideration several factors, including “human rights and
Department leads a process of unit-level GVHR vetting
international humanitarian law.” The memorandum
before providing security assistance, including training and
prohibits transfers of conventional arms if the U.S.
equipping. The Leahy Laws, however, do not define
government has “actual knowledge at the time of
security assistance; in practice, the executive branch
authorization” that such a transfer “will be used” to commit
considers the term to mean support provided with U.S.-
genocide, crimes against humanity, or certain human rights
appropriated funds and, in its view, the restrictions are thus
violations in breach of the Geneva Conventions.
not applicable to FMS or DCS.
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
policy guidance for executing arms sales. Among its
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions


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