Updated April 7, 2023
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) (22 U.S.C. 2304(a)(2)) stipulates that
rights, the act includes general provisions and conditions
for the export of U.S.-origin defense articles that may
no security assistance may be provided to any
indirectly address human rights concerns. For example,
country the government of which engages in a
Section 38(a)(1) of the AECA (22 U.S.C. 2778(a)(1))
consistent
pattern
of
gross
violations
of
authorizes the President to control the import and export
internationally recognized human rights.
of defense articles for broad policy goals, including
Section 502B(a)(2) also restricts licenses for the export of
world peace and U.S. security and foreign policy.
“crime control and detection instruments and equipment” to
Section 42(a) of AECA (22 U.S.C. 2791(a)) requires the
such countries. Certain exceptions can apply if the
executive branch, to consider, among other factors,
President certifies to Congress that “extraordinary
whether a given defense article sale might “increase the
circumstances” warrant the provision of assistance or
possibility of outbreak or escalation of conflict.” See
licenses. “Security assistance” is defined by Section
also Section 511 of the FAA (22 U.S.C. 2321d).
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
Section 3(a) of AECA (22 U.S.C. 2753(a)) requires
services, extensions of credits (including participations in
prospective recipients of defense articles to meet certain
credits), and guaranties of loans” under the AECA. This
prerequisites for eligibility. These include purchaser
section also defines security assistance to include
commitments to refrain from transferring title to or
possession of any defense article to unauthorized
persons, as well as from diverting articles for
https://crsreports.congress.gov
U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions
assistance provided pursuant to part II of the FAA for
How does U.S. policy guidance on arms sales
military assistance (chapter 2), the economic support
address human rights consideration?
fund (chapter 4), military education and training
The Security Assistance Management Manual (SAMM)
(chapter 5), peacekeeping operations (chapter 6), or anti-
provides the U.S. Department of Defense (DOD) with
terrorism assistance (chapter 8); and
policy guidance for executing arms sales. Among its
provisions, the SAMM requires senior U.S. Embassy
any license in effect with respect to the export to or for
leadership to prepare a Country Team Assessment (CTA)
the armed forces, police, intelligence, or other internal
that describes and justifies support for a proposed arms sale.
security forces of a foreign country of (i) defense
Such CTAs accompany letters of request for certain
articles or defense services under Section 38 of the
significant arms sales, including those requiring
AECA (22 U.S.C. 2778); or (ii) items listed under the
congressional notification pursuant to Section 36 of the
600 series of the Commerce Control List [a list that
AECA. According to Table C5.T1 of the SAMM, all CTAs
contains specific dual-use commodities, technologies,
must include a description of the “human rights … record
and software that are controlled for export].
of the proposed recipient and the potential misuse of the
“Gross violations of internationally recognized human
defense articles in question.”
rights” is defined 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 violations of 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 with information on prospective foreign
monitoring (EUM) to ensure that recipients use such items
recipients of U.S. security assistance. (See CRS In Focus
solely for their intended purposes. DOD’s Defense Security
IF10795, Global Human Rights: The Department of State’s
Cooperation Agency manages the department’s Golden
Country Reports on Human Rights Practices.)
Sentry EUM program for defense articles sold via FMS.
The State Department’s Directorate of Defense Trade
Section 502B(c)(1) of the FAA (22 U.S.C. 2304(c)(1))
Controls coordinates the Blue Lantern program, which
provides mechanisms for Congress to request a report, due
performs an analogous function for items sold via DCS.
within 30 days, from the Secretary of State concerning
human rights in a particular country. Pursuant to Section
Can arms embargoes be applied on the basis of
502B(c)(4)(A) of the FAA (22 U.S.C. 2304(c)(4)(A),
human rights concerns?
Congress may, at any time after receiving such a report,
Human rights considerations are among the reasons the
“adopt a joint resolution terminating, restricting, or
United States may invoke to impose an arms embargo on a
continuing security assistance for such country.”
foreign government and prohibit U.S. persons from selling
Human Trafficking-Related Prohibitions
or transferring defense articles to such governments. The
International Traffic in Arms Regulations reflect the
Certain categories of assistance, including but not limited to
executive branch’s implementation of statutory provisions
arms sales, may not be provided to governments identified in
related to the export of defense articles, including those
the State Department’s annual Trafficking in Persons report
related to arms embargoes. In addition, the U.N. Security
that fail to combat human trafficking (Section 110 of P.L. 106-
Council may apply an arms embargo against a country for
386; 22 U.S.C. 7107) or engage in or support the recruitment
human rights purposes; Section 5 of the United Nations
or use of child soldiers (Section 404(a) of P.L. 110-457; 22
Participation Act of 1945 (22 U.S.C. 287c) authorizes the
U.S.C. 2370c-1). Under these provisions, the President may
President to implement such sanctions.
nevertheless continue assistance for national interest reasons.
Do the Leahy Laws apply to arms sales?
Frequently Asked Questions
The U.S. “Leahy Laws”—Section 620M of the FAA (22
U.S.C. 2378d) and 10 U.S.C. 362—prohibit certain
How does the Administration’s conventional arms
otherwise authorized U.S. assistance to a foreign security
transfer policy address human rights concerns?
force unit when there is credible information that such unit
Pursuant to a national security presidential memorandum of
has committed a “gross violation of human rights”
February 23, 2023, the United States will not authorize
(GVHR). The State Department interprets this term to
arms transfers if “it is more likely than not that” such arms
encompass (1) torture, (2) extrajudicial killing, (3) enforced
“will be used by the recipient to commit, facilitate the
disappearance, or (4) rape under color of law (in which a
recipients’ commission of, or to aggravate risks that the
perpetrator abuses their official position to commit rape),
recipient will commit: genocide; crimes against humanity;
although other acts can also constitute GVHRs. In order to
grave breaches of the Geneva Conventions of 1949 ... or
comply with the laws, the State Department leads a process
other serious violations of international humanitarian or
of unit-level GVHR vetting before providing security
human rights law.”
assistance, including training and equipping. The Leahy
Laws, however, do not define “assistance”; in practice, the
executive branch considers the term to mean support
provided with U.S.-appropriated funds and, in its view, the
restrictions are thus not applicable to FMS or DCS.
https://crsreports.congress.gov
U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions
Michael A. Weber, Analyst in Foreign Affairs
IF11197
Paul K. Kerr, Specialist in Nonproliferation
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.
https://crsreports.congress.gov | IF11197 · VERSION 8 · UPDATED