Updated February 29, 2024

U.S. Arms Sales and Human Rights: Legislative Basis andFrequently 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 suchsales on the basis of human rights concerns.

Background
The Arms Export Control Act (AECA; P.L. 90-629; 22U.S.C. 2751 et seq.) and the Foreign Assistance Act of1961 (FAA; P.L. 87-195; 22 U.S.C. 2151 et seq.) establish
provisions governing Foreign Military Sales (FMS) andDirect Commercial Sales (DCS) to foreign consumers,including foreign governments. FMS refers to the sale ofU.S.-origin defense articles, equipment, services, andtraining (hereinafter, “defense articles”) on a governmentto-government basis. DCS refers to the sale of U.S.government licensed defense articles and services directlyfrom U.S. firms to eligible foreign governments andinternational organizations.
The AECA and FAA establish eligibility prerequisites forthe 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 Statesor to be otherwise using such defense articles forunauthorized purposes. The FAA and executive branchpolicy 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 humanrights, 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 exportof 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 theexecutive branch, to consider, among other factors,
whether a given defense article sale might “increase thepossibility of outbreak or escalation of conflict.” Seealso 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 forunauthorized 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 specificpurposes 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 (22U.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 orCongress find that a recipient country has used sucharticles in substantial violation of an agreement with theUnited States “for a purpose not authorized” by AECA
Section 4 or FAA Section 502. (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 (22U.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 theviolation 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 beto promote the increased observance of internationallyrecognized human rights by all countries.” Section
502B(a)(2) (22 U.S.C. 2304(a)(2)) prohibits security
assistance to “any country the government of which
engages in a consistent pattern of gross violations ofinternationally recognized human rights.” Section
502B(a)(2) also restricts licenses for the export of “crimecontrol and detection instruments and equipment” to suchcountries. Certain exceptions can apply if the President
certifies to Congress that “extraordinary circumstances”
warrant the provision of assistance or licenses.
Section 502B(d)(2) of the FAA (22 U.S.C. 2304(d)(2))
defines “security assistance” to include, for the purposes ofthe section, “sales of defense articles or services, extensionsof credits (including participations in credits), andguaranties 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

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U.S. Arms Sales and Human Rights: Legislative Basis and Frequently Asked Questions(chapter 5), peacekeeping operations (chapter 6), or antiterrorism assistance (chapter 8); and• any license in effect with respect to the export to or forthe armed forces, police, intelligence, or other internal
security forces of a foreign country of (i) defense
articles or defense services under Section 38 of theAECA (22 U.S.C. 2778); or (ii) items listed under the600 series of the Commerce Control List, whichcontains dual-use items controlled for export.
Section 502B(d)(1) of the FAA (22 U.S.C. 2304(d)(1))
defines “Gross violations of internationally recognizedhuman rights.” In determining whether a government has
engaged in such violations, Section 502B(a)(4) of the FAA(22 U.S.C. 2304(a)(4)) requires the President to give
particular consideration to violations of religious freedom.
Section 502B(b) of the FAA (22 U.S.C. 2304(b))
additionally tasks the Secretary of State to prepare a reportto Congress with information on prospective foreign
recipients of U.S. security assistance.
Section 502B(c)(1) of the FAA (22 U.S.C. 2304(c)(1))
provides mechanisms for Congress to request a report, due
within 30 days, from the Secretary of State concerning
human rights in a particular country. Pursuant to Section
502B(c)(4)(A) of the FAA (22 U.S.C. 2304(c)(4)(A),
Congress may, at any time after receiving such a report,“adopt a joint resolution terminating, restricting, orcontinuing security assistance for such country.” If the State
Department does not produce the report within 30 days, thissection prohibits delivery of security assistance to thecountry pending the report’s delivery. The executive branch
has objected to the provision on constitutional grounds;
George H.W. Bush did so in a 1989 signing statement.
Executive branch determinations pursuant to some otherhuman rights-related laws, such as the Trafficking Victims
Protection Act (Division A of P.L. 106-386, as amended),can also result in restrictions on arms sales to certain
foreign governments.

Frequently Asked Questions
How does the Administration’s conventional arms
transfer policy address human rights concerns?
Pursuant to a February 23, 2023, National Security
Memorandum (NSM), the United States will not authorize
arms transfers if “it is more likely than not that” such arms
“will be used by the recipient to commit, facilitate therecipients’ commission of, or to aggravate risks that therecipient will commit: genocide; crimes against humanity;
grave breaches of the Geneva Conventions of 1949 ... orother serious violations of international humanitarian or
human rights law.” A February 8, 2024, NSM requires“credible and reliable written assurances” that recipients ofU.S. arms funded with congressional appropriations orprovided pursuant to Presidential drawdown authority will
use such arms in accordance with applicable internationallaw.
How does Department of Defense policy guidanceon arms sales address human rights considerations?
The Security Assistance Management Manual (SAMM)
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
leadership to prepare a Country Team Assessment (CTA)
that describes and justifies support for a proposed arms sale.
Such CTAs accompany letters of request for certain
significant arms sales, including those requiring
congressional notification pursuant to Section 36 of theAECA. According to Table C5.T1 of the SAMM, all CTAs
must include a description of the “human rights … recordof the proposed recipient and the potential misuse of thedefense articles in question.” Neither the AECA nor FAA
explicitly requires that recipients of U.S.-origin defense
articles follow International Humanitarian Law (IHL). FMS
customers must note their “obligations under” IHL, Figure
C5.F4. of the SAMM states.
How does the U.S. government verify thatrecipients use defense articles as authorized?
Pursuant to Sections 38(g)(7) and 40A(a) of the AECA (22U.S.C. 2778(g)(7) and 2785(a)), and Section 505(a)(3) ofthe FAA (22 U.S.C. 2314(a)(3)), U.S. origin defense
articles sold via FMS and DCS are subject to end-usemonitoring (EUM) to ensure that recipients use such items
solely for their intended purposes. DOD’s Defense Security
Cooperation Agency manages the department’s GoldenSentry EUM program for defense articles sold via FMS.
The State Department’s Directorate of Defense TradeControls coordinates the Blue Lantern program, which
performs an analogous function for items sold via DCS.
Can arms embargoes be applied on the basis ofhuman rights concerns?
The United States can impose an arms embargo on aforeign government based on human rights considerations.
The International Traffic in Arms Regulations reflect theexecutive branch’s implementation of statutory provisions
related to the export of defense articles, including thoserelated to arms embargoes. In addition, the U.N. Security
Council may apply an arms embargo against a country forhuman rights reasons; Section 5 of the United Nations
Participation Act of 1945 (22 U.S.C. 287c) authorizes thePresident to implement such sanctions.
Do the Leahy Laws apply to arms sales?
The U.S. “Leahy Laws”—Section 620M of the FAA (22U.S.C. 2378d) and 10 U.S.C. 362—prohibit certain U.S.
“assistance” to a foreign security force unit when there iscredible information that such unit has committed a “grossviolation of human rights” (GVHR). The State Department
interprets this term to encompass (1) torture, (2)extrajudicial killing, (3) enforced disappearance, or (4) rape
under color of law (in which a perpetrator abuses theirofficial position to commit rape), although other acts canalso constitute GVHRs. The State Department leads aprocess of unit-level GVHR vetting before providing
security assistance. The Leahy Laws do not define“assistance”; in practice, the executive branch considers theterm to mean support provided with U.S.-appropriatedfunds. The restrictions are thus not applicable to FMS orDCS. (See also CRS In Focus IF10575, Global Human
Rights: Security Forces Vetting (“Leahy Laws”).)
Paul K. Kerr, Specialist in Nonproliferation
Michael A. Weber, Analyst in Foreign Affairs

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