Updated December 18, 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 “for a purpose not authorized” by AECA
U.S.-government licensed defense articles and services
Section 4 or FAA Section 502. (See also Section 505(d)
directly from U.S. firms to eligible foreign governments
of the FAA (22 U.S.C. 2314(d)).) If found to be in
and international organizations.
violation by presidential determination or joint
resolution of Congress, Section 3(c)(3) of the AECA (22
The AECA and FAA establish eligibility prerequisites for
U.S.C. 2753(c)(3)) stipulates that, absent a presidential
the sale of defense articles to foreign purchasers. The acts
waiver, such countries would be ineligible for future
also require that such sales be for specific authorized
U.S. arms sales until the President determines the
military purposes and subject to end-use monitoring
violation has ceased and recipients assure violations will
(EUM). The acts authorize the termination of future sales
not recur. Such a waiver is not available if Congress has
and deliveries if a recipient is found to be in substantial
adopted a joint resolution described above.
violation of a sale-related agreement with the United States
or to be otherwise using such defense articles for
Human Rights-Related Prohibitions
unauthorized purposes. The FAA and executive branch
Section 502B(a)(1) of the FAA (22 U.S.C. 2304(a)(1))
policy restrict certain sales of defense articles to foreign
states that a “principal goal” of U.S. foreign policy “shall be
recipients found to have committed human rights violations.
to promote the increased observance of internationally
General Limitations on FMS and DCS
recognized human rights by all countries.” Section
502B(a)(2) (22 U.S.C. 2304(a)(2)) stipulates that
Although the AECA does not refer specifically to human
rights, the act includes general provisions and conditions
no security assistance may be provided to any
for the export of U.S.-origin defense articles that may
country the government of which engages in a
indirectly address human rights concerns. For example,
consistent
pattern
of
gross
violations
of
• Section 38(a)(1) of the AECA (22 U.S.C. 2778(a)(1))
internationally recognized human rights.
authorizes the President to control the import and export
Section 502B(a)(2) also restricts licenses for the export of
of defense articles for broad policy goals, including
“crime control and detection instruments and equipment” to
world peace and U.S. security and foreign policy.
such countries. Certain exceptions can apply if the
• Section 42(a) of AECA (22 U.S.C. 2791(a)) requires the
President certifies to Congress that “extraordinary
executive branch, to consider, among other factors,
circumstances” warrant the provision of assistance or
whether a given defense article sale might “increase the
licenses. Section 502B(d)(2) of the FAA (22 U.S.C.
possibility of outbreak or escalation of conflict.” See
2304(d)(2)) defines “security assistance” to include, for the
also Section 511 of the FAA (22 U.S.C. 2321d).
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
credits), and guaranties of loans” under the AECA. This
prospective recipients of defense articles to meet certain
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
• assistance provided pursuant to part II of the FAA for
persons, as well as from diverting articles for
military assistance (chapter 2), the economic support
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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions
fund (chapter 4), military education and training
significant arms sales, including those requiring
(chapter 5), peacekeeping operations (chapter 6), or anti-
congressional notification pursuant to Section 36 of the
terrorism assistance (chapter 8); and
AECA. According to Table C5.T1 of the SAMM, all CTAs
•
must include a description of the “human rights … record
any license in effect with respect to the export to or for
of the proposed recipient and the potential misuse of the
the armed forces, police, intelligence, or other internal
defense articles in question.” Neither the AECA nor FAA
security forces of a foreign country of (i) defense
explicitly requires that recipients of U.S.-origin defense
articles or defense services under Section 38 of the
articles follow International Humanitarian Law (IHL). FMS
AECA (22 U.S.C. 2778); or (ii) items listed under the
customers must note their “obligations under” IHL, Figure
600 series of the Commerce Control List, which
C5.F4. of the SAMM states.
contains dual-use items controlled for export.
Section 502B(d)(1) of the FAA (22 U.S.C. 2304(d)(1))
How does the U.S. government verify that
defines “Gross violations of internationally recognized
recipients use defense articles as authorized?
human rights.” In determining whether a government has
Pursuant to Sections 38(g)(7) and 40A(a) of the AECA (22
engaged in such violations, Section 502B(a)(4) of the FAA
U.S.C. 2778(g)(7) and 2785(a)), and Section 505(a)(3) of
(22 U.S.C. 2304(a)(4)) requires the President to give
the FAA (22 U.S.C. 2314(a)(3)), U.S. origin defense
particular consideration to violations of religious freedom.
articles sold via FMS and DCS are subject to end-use
Section 502B(b) of the FAA (22 U.S.C. 2304(b))
monitoring (EUM) to ensure that recipients use such items
additionally tasks the Secretary of State to prepare a report
solely for their intended purposes. DOD’s Defense Security
to Congress with information on prospective foreign
Cooperation Agency manages the department’s Golden
recipients of U.S. security assistance. (See also CRS In
Sentry EUM program for defense articles sold via FMS.
Focus IF10795, Global Human Rights: The Department of
The State Department’s Directorate of Defense Trade
State’s Country Reports on Human Rights Practices.)
Controls coordinates the Blue Lantern program, which
performs an analogous function for items sold via DCS.
Section 502B(c)(1) of the FAA (22 U.S.C. 2304(c)(1))
provides mechanisms for Congress to request a report, due
Can arms embargoes be applied on the basis of
within 30 days, from the Secretary of State concerning
human rights concerns?
human rights in a particular country. Pursuant to Section
The United States can impose an arms embargo on a
502B(c)(4)(A) of the FAA (22 U.S.C. 2304(c)(4)(A),
foreign government based on human rights considerations.
Congress may, at any time after receiving such a report,
The International Traffic in Arms Regulations reflect the
“adopt a joint resolution terminating, restricting, or
executive branch’s implementation of statutory provisions
continuing security assistance for such country.”
related to the export of defense articles, including those
related to arms embargoes. In addition, the U.N. Security
Executive branch determinations pursuant to some other
Council may apply an arms embargo against a country for
human rights-related laws, such as the Trafficking Victims
human rights reasons; Section 5 of the United Nations
Protection Act (Division A of P.L. 106-386, as amended),
Participation Act of 1945 (22 U.S.C. 287c) authorizes the
can also result in restrictions on arms sales to certain
President to implement such sanctions.
foreign governments.
Frequently Asked Questions
Do the Leahy Laws apply to arms sales?
The U.S. “Leahy Laws”—Section 620M of the FAA (22
U.S.C. 2378d) and 10 U.S.C. 362—prohibit certain U.S.
How does the Administration’s conventional arms
“assistance” to a foreign security force unit when there is
transfer policy address human rights concerns?
credible information that such unit has committed a “gross
Pursuant to a national security presidential memorandum of
violation of human rights” (GVHR). The State Department
February 23, 2023, the United States will not authorize
interprets this term to encompass (1) torture, (2)
arms transfers if “it is more likely than not that” such arms
extrajudicial killing, (3) enforced disappearance, or (4) rape
“will be used by the recipient to commit, facilitate the
under color of law (in which a perpetrator abuses their
recipients’ commission of, or to aggravate risks that the
official position to commit rape), although other acts can
recipient will commit: genocide; crimes against humanity;
also constitute GVHRs. The State Department leads a
grave breaches of the Geneva Conventions of 1949 ... or
process of unit-level GVHR vetting before providing
other serious violations of international humanitarian or
security assistance. The Leahy Laws do not define
human rights law.”
“assistance”; in practice, the executive branch considers the
term to mean support provided with U.S.-appropriated
How does U.S. policy guidance on arms sales
funds. The restrictions are thus not applicable to FMS or
address human rights considerations?
DCS. (See also CRS In Focus IF10575, Global Human
The Security Assistance Management Manual (SAMM)
Rights: Security Forces Vetting (“Leahy Laws”).)
provides the U.S. Department of Defense (DOD) with
policy guidance for executing arms sales. Among its
provisions, the SAMM requires senior U.S. Embassy
Paul K. Kerr, Specialist in Nonproliferation
leadership to prepare a Country Team Assessment (CTA)
Michael A. Weber, Analyst in Foreign Affairs
that describes and justifies support for a proposed arms sale.
IF11197
Such CTAs accompany letters of request for certain


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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions


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