U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

69–118 

" ! SENATE 110TH CONGRESS

1st Session 

TREATY DOC. 

2007

110–10 

TREATY WITH AUSTRALIA CONCERNING DEFENSE 

TRADE COOPERATION 

MESSAGE 

FROM

THE PRESIDENT OF THE UNITED STATES 

TRANSMITTING

TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES 

OF AMERICA AND THE GOVERNMENT OF AUSTRALIA CONCERNING DEFENSE TRADE COOPERATION, DONE AT SYDNEY, 

SEPTEMBER 5, 2007 

DECEMBER 03, 2007.—Treaty was read the first time, and together with 

the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate. 


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LETTER OF TRANSMITTAL 

THE WHITE HOUSE, December 3, 2007. 

To the Senate of the United States: 

I transmit herewith for Senate advice and consent to ratification 

the Treaty Between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation, done at Sydney, September 5, 2007. I transmit also, for 

the information of the Senate, the report of the Department of 

State that includes an overview of this Treaty. 

My Administration is prepared to provide to the Senate for its 

information other relevant documents, including proposed implementing arrangements to be concluded pursuant to the Treaty, relevant correspondence with the Government of Australia, and proposed amendments to the International Traffic in Arms Regulations. 

This Treaty will allow for greater cooperation between the 

United States and Australia, enhancing the operational capabilities 

and interoperability of the armed forces of both countries. I recommend that the Senate give early and favorable consideration to 

this Treaty. 

GEORGE W. BUSH. 


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LETTER OF SUBMITTAL 

DEPARTMENT OF STATE, Washington, October 29, 2007. 

The President, 

The White House. 

THE PRESIDENT: I have the honor to submit to you the Treaty between the Government of the United States of America and the 

Government of Australia Concerning Defense Trade Cooperation, 

done at Sydney on September 5, 2007, accompanied by an overview 

of the Treaty. I recommend that it be transmitted to the Senate for 

its advice and consent to ratification. The Treaty establishes a comprehensive framework for the export of defense articles and defense 

services from the United States to certain Australian facilities and 

entities. 

Respectfully submitted. 

CONDOLEEZZA RICE. 

Enclosures: As stated. 

TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF

AMERICA AND THE GOVERNMENT OF AUSTRALIA CONCERNING DEFENSE TRADE COOPERATION

OVERVIEW

Section I of the Arms Export Control Act (22 U.S.C. 2751 et seq.) 

(AECA) recognizes that ‘‘[t]he need for international defense cooperation among the United States and those friendly countries to 

which it is allied by mutual defense treaties is especially important 

...’’ and asserts that ‘‘it remains the policy of the United States 

to facilitate the common defense by entering into international arrangements with friendly countries which further the objective of 

applying agreed resources of each country to programs and projects 

of cooperative exchange of data, research, development, production, 

procurement, and logistics support to achieve specific national defense requirements and objectives of mutual concern’’ (22 U.S.C. 

2751). Section 38(a)(1) of the AECA authorizes the President ‘‘to 

control the import and the export of defense articles and defense 

services,’’ to ‘‘designate those items which shall be considered as 

defense articles and defense services.’’ and to ‘‘promulgate regulations for the import and export of such articles and services’’ (22 

U.S.C. 2778(a)(1)). The AECA further provides that the President 

may regulate the import and export of defense articles and services 

pursuant to licenses (22 U.S.C. 2778(b)). 

In the proposed Treaty between the Government of the United 

States of America and the Government of Australia Concerning DeVerDate Aug 31 2005 04:38 Dec 04, 2007 Jkt 069118 PO 00000 Frm 00005 Fmt 7633 Sfmt 6602 E:\HR\OC\TD010.XXX TD010

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fense Trade Cooperation. done at Sydney September 5, 2007 (the 

Treaty), the Government of Australia would be bound to a regime 

that would provide appropriate protections for U.S. defense articles 

and defense services exported under the Treaty through the application of Australian criminal law and export control law rather 

than through revisions to its export control regime. For this reason, 

the Treaty will not be entered into pursuant to the authority contained in Section 38(j) of the AECA (22 U.S.C. 2778(j)). 

The Treaty establishes a comprehensive framework for the export of certain defense articles and defense services from the 

United States to certain Australian facilities and entities. Where 

the Treaty applies, such export may occur without a license or 

other written authorization from the Department of State’s Directorate of Defense Trade Controls, which is the office responsible for 

developing and implementing the International Traffic in Arms 

Regulations (ITAR). Once exported, these Defense Articles may be 

transferred within what is referred to as an ‘‘Approved Community’’ without case-by-case review and the issuance of export licenses by the U.S. government. Transfers out of such Approved 

Community would, however. be subject to Directorate of Defense 

Trade Controls authorization requirements, and any unauthorized 

transfers would constitute violations of the AECA. 

As noted in the Treaty’s Preamble, this Treaty is self-executing 

in the United States. The purposes for which exports may occur 

pursuant to this Treaty and the defense articles that may not be 

exported pursuant to the Treaty will be identified in separate Implementing Arrangements, as well as in regulations intended to 

clarify this matter. The list of facilities and entities in Australia 

that may receive defense articles and defense services through exports pursuant to this Treaty will be identified through processes 

established in separate Implementing Arrangements. 

This Treaty establishes an exemption from the operation of the 

licensing and notification requirements contained in the AECA and 

the ITAR. As stated below, compliance with the procedures established in accordance with this Treaty shall constitute an exception 

to these requirements. Conduct outside of the procedures established in accordance with this Treaty must comply with the normal 

requirements. Although the Treaty is self-executing, it will be necessary to promulgate a number of regulatory changes to the ITAR 

to effectuate the licensing exemption. Once the Implementing Arrangements have entered into force, they will be made available to 

the public, and changes to the ITAR will be published in the Federal Register. 

Definitions 

Article 1 of the Treaty provides definitions for many of the terms 

used in the Treaty. When the capitalized form of any defined term, 

or its variants, is used in the Treaty, the intent is to employ the 

definition provided in Article 1. When a lower case form of any defined term, or its variants, is used in the Treaty, the intent is to 

refer to the ordinary meaning of the term. This procedure is also 

being followed for purposes of the discussion in this ‘‘Overview.’’

The Treaty defines ‘‘Defense Articles’’ as those articles, services, 

and related technical data, including software, in tangible or intanVerDate Aug 31 2005 04:38 Dec 04, 2007 Jkt 069118 PO 00000 Frm 00006 Fmt 7633 Sfmt 6602 E:\HR\OC\TD010.XXX TD010

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gible form, listed on the United States Munitions List (‘‘USML’’) of 

the ITAR. As origin (i.e., where the product is manufactured) is not 

an element of this definition, the term ‘‘Defense Articles’’ may extend to items of Australian origin, or to items with Australian content, that are listed or described on the USML, even if such items 

are not of U.S. origin or are without U.S. content. 

Several of the definitions (i.e., those for Government of Australia 

Facilities, Goverment of Australia Personnel, Implementing Arrangements, Australian Community, and U.S. Community) incorporate by reference the substantive provision of the Treaty that 

gives meaning to each term. Such definitions are intended to provide clarity in that the term appears in the substantive text prior 

to the relevant provision that provides its meaning. 

Four definitions apply to the movement of Defense Articles. An 

‘‘Export’’ involves the initial movement of Defense Articles from the 

U.S. Community to the Australian Community. Once a Defense Article has been Exported pursuant to the Treaty, covered movements 

of such Defense Articles include ‘‘Transfers,’’ ‘‘Re-transfers.’’ and 

‘‘Re-exports.’’ A ‘‘Transfer’’ involves the movement of previously Exported Defense Articles (1) within the Australian Commiunity, (2) 

from the Australian Community to the U.S. Community, or (3) 

from the U.S. Community back to the Australian Community. A 

‘‘Re-transfer’’ involves the movement of previously Exported Defense Articles by a member of the Australian Community from a 

location in the Approved Community to a location that is outside 

of the Approved Community but in the Territory of Australia. A 

‘‘Re-export’’ involves the movement of Defense Articles by a member of the Australian Community from a location in the Approved 

Community to a location outside the Territory of Australia. 

Purpose of the Treaty 

Article 2 contains a simple recital of the Treaty’s purpose: to provide a comprehensive framework for Exports and Transfers of Defense Articles without a license or other written authorization, to 

the extent that such Exports and Transfers support certain types 

of activities. This Article stands for the proposition that it is in the 

mutual security and defense interests of the United States and 

Australia to improve the interoperability of their armed forces by 

facilitating the movement of Defense Articles in support of certain 

mutually agreed activities, while maintaining and ensuring proper 

safeguards against unauthorized release of the defense technology 

involved. 

Scope of the Treaty 

Article 3 identifies the activities in support of which Defense Articles may be Exported or Transferred without a license or other 

written authorization. The Treaty applies to the movement of Defense Articles that are required for agreed combined military or 

counterterrorism operations; cooperative security and defense research, development, production, and support programs; security 

and defense projects where the Government of Australia is the enduser; and for U.S. government end-use. Either government may exclude certain Defense Articles from the application of the Treaty. 


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Existing processes for the acquisition of defense articles and defense services under the U.S. Foreign Military Sales (FMS) program shall continue in effect. However, defense articles and defense services that fall within the scope of the Treaty, once acquired by and delivered to the Government of Australia pursuant 

to an FMS Letter of Offer and Acceptance, may be transferred 

within the Approved Community as if they had been exported pursuant to the Treaty. 

An exporter may request a license or other authorization from 

the Directorate of Defense Trade Controls in which case the terms 

of such license or authorization will apply instead of the procedures 

that will be established to implement the Treaty. 

Approved Community 

Articles 4 and 5 identify the persons and entities that may Export or Transfer Defense Articles without a license or other written 

authorization. Specifically, Article 4 identifies the Australian persons, entities, and facilities that may send or receive such Defense 

Articles, and Article 5 identifies the persons, entities, and facilities 

of the United States that may send or receive such Defense Articles. 

The Australian entities and facilities that may send or receive 

Defense Articles pursuant to this Treaty are: (1) those facilities of 

the Government of Australia that are accredited pursuant to the 

General Security Agreement between the Government of Australia 

and the Government of the United States of America of June 25, 

2002, and its implementing arrangements that are relevant to the 

scope of the Treaty; and (2) nongovernmental Australian entities 

and facilities that meet agreed eligibility requirements, are accredited pursuant to a process agreed to by both Parties in an Implementing Arrangement, and that are agreed to by both Parties for 

inclusion on a List. Once on the List, a nongovernmental Australian entity or facility will be removed from the List if either the 

United States or Australia considers such removal to be in its national interests. 

Personnel of the Government of Australia who meet agreed criteria, which at a minimum will require appropriate Australian security accreditation and a need-to-know, may be provided access to 

Defense Articles Exported or Transferred pursuant to the Treaty. 

Employees of the agreed nongovernmental entities and facilities 

who meet agreed criteria, which at a minimum will require appropriate Australian security accreditation and a need-to-know, may 

be provided access to Defense Articles Exported or Transferred pursuant to the Treaty. 

The departments and agencies of the U.S. government may send 

and receive Defense Articles pursuant to this Treaty. In addition, 

nongovernmental U.S. entities that are registered with the State 

Department’s Directorate of Defense Trade Controls and that are 

eligible to export defense articles and defense services in accordance with U.S. law and regulation, including the AECA and the 

ITAR, may send or receive Defense Articles pursuant to this Treaty. 

U.S. government personnel with appropriate security clearance 

and a need-to-know may be provided access to Defense Articles ExVerDate Aug 31 2005 04:38 Dec 04, 2007 Jkt 069118 PO 00000 Frm 00008 Fmt 7633 Sfmt 6602 E:\HR\OC\TD010.XXX TD010

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ported or Transferred pursuant to this Treaty. Employees of the 

nongovernmental U.S. entities referred to above who have appropriate security clearance and a need-to-know may be provided access to Defense Articles Exported or Transferred pursuant to this 

Treaty. 

The facilities, entities, and personnel described in Article 4 comprise the Australian Community. The facilities, entities, and personnel described in Article 5 comprise the U.S. Community. The 

Australian and U.S. Communities comprise the Approved Community. 

Exports of Defense Articles from the United States 

Article 6(1) of the Treaty provides that departments and agencies 

of the U.S. government and eligible nongovernmental U.S. entities 

may Export Defense Articles within the scope of this Treaty to a 

member of the Australian Community without licenses or other authorization. Article 6(2) requires that the U.S. government establish procedures to ensure proper identification of Defense Articles 

Exported pursuant to the Treaty. Article 6(3) requires that the 

Government of Australia establish procedures to ensure these Defense Articles are appropriately identified once they enter the Australian Community. 

The Directorate of Defense Trade Controls and other departments and agencies of the U.S. government will promulgate regulations and policies to effectuate Article 6. In particular, it will be 

necessary to establish procedures to ensure potential exporters 

know whether a proposed recipient is a member of the Australian 

Community, and whether the proposed operation, program or 

project falls within the scope of Article 3. 

Transfers of Defense Articles 

Article 7 provides that the Transfer of previously Exported Defense Articles to members of the Australian Community, as identified in Article 4, or the U.S. Community, as identified in Article 5, 

will not require authorization by the U.S. government. Pursuant to 

Article 9, however, if a member of the Australian community were 

to retransfer previously Exported Defense Articles outside of the 

Approved Community, approval of the Government of Australia 

would be required. (Such retransfers would include ‘‘Re-transfers’’

and ‘‘Re-exports’’ as defined in the Treaty). Prior to granting approval for Re-transfers and Re-exports, the Government of Australia will require the exporter to provide supporting documentation that includes U.S. government approval. Any Re-transfer or 

Re-export without the approval of the Governments of Australia 

and the United States will be a violation of, at a minimum, the 

AECA and Australian criminal laws, and will be punishable as 

such. 

Exports of Defense Articles from a member of the U.S. Community to an entity, facility, or person outside of the Australian Community would continue to require a license or other written authorization by the Directorate of Defense Trade Controls of the Department of State. 


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Exports and Transfers from Australia 

Article 8 obligates the Government of Australia to ensure that 

Defense Articles exported from the Australian Community to the 

U.S. Community do not require additional export licenses or other 

authorizations. Specifically, Article 8(l) recognizes that the Government of Australia may satisfy this obligation through its blanket 

authorizations. 

The remainder of Article 8 deals with Defense Articles, the initial 

movement of which is from the Territory of Australia to the United 

States (identified as ‘‘Australian Defence Articles’’ in Article 8(7)). 

The Treaty provides that Australia shall ensure that these Australian Defence Articles are clearly marked or identified as such, 

and the U.S. government shall ensure that they will be treated as 

USML items upon entry to the United States. Australian Defence 

Articles exported from the United States shall be handled pursuant 

to the U.S. government’s existing export control procedures. The 

U.S. government is obligated to consult with the Government of 

Australia concerning exports to countries the Australian Government views to be of national security or foreign policy concern. 

Pursuant to Article 8(6), if the Government of Australia becomes 

concerned about the ability of a particular nongovernmental U.S. 

entity to protect Australian Defence Articles, the Government of 

Australia may provide direction to the Australian Community concerning the access of that entity to Australian Defense Articles, 

after consulting with the U.S. government. 

Proprietary rights and intellectual property 

Article 10(1) provides that nothing in the Treaty shall affect any 

rights to, or interests in, intellectual property or other proprietary 

information of the Parties or of any person or entity within the Approved Community. Article 10(2) provides that nothing in this 

Treaty shall affect any provisions for the protection of intellectual 

property and other proprietary information that may be agreed between the persons or entities Exporting or Transferring Defense 

Articles pursuant to the Treaty. Accordingly, such persons or entities may agree between themselves on procedures to provide protections to intellectual property or other proprietary information, 

additional to the protections afforded to classified information. 

Protection of Defense Articles Exported from the United States 

Article 11 provides that Defense Articles Exported or Transferred 

pursuant to the Treaty will be marked, identified, transmitted, 

stored, and handled in accordance with the General Security Agreement between the Government of Australia and the Government of 

the United States of America of June 25, 2002, and implementing 

arrangements thereto. At a minimum, the Defense Articles Exported will be treated as Australian ‘‘restricted’’ information. Such 

treatment will result in the application of Australian criminal law 

with respect to Defense Articles Exported pursuant to the Treaty. 

If the Defense Articles are classified at a higher level, they will be 

so marked and identified, and treated according to the requirements for that classification level in the aforementioned General 

Security Agreement. 


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Recordkeeping and notification 

Article 12 requires both Parties to require that entities within 

their respective Community Exporting, Transferring, or receiving 

Defense Articles pursuant to the Treaty maintain detailed records 

of such movements. Either Party may request that the other Party 

obtain, and provide it with copies of, such records. Article 12 further allows for either Party to establish procedures, which may include advance notification of certain Exports, to accomplish appropriate legislative notifications. 

Enforcement 

Article 13 provides that if persons or entities Exporting or Transferring Defense Articles pursuant to the Treaty comply with the 

procedures established pursuant to this Treaty, including its Implementing Arrangements, and any regulations promulgated to implement the Treaty’s effect on existing law, they shall be exempt from 

the generally applicable licensing requirements established pursuant to the AECA with respect to exports and transfers of Defense 

Articles. If, however, persons or entities Exporting or Transferring 

Defense Articles engage in conduct that is outside the scope of the 

Treaty, including certain of its Implementing Arrangements, and 

any regulations promulgated to implement the Treaty’s effect on 

existing law, that conduct remains subject to the applicable licensing requirements and implementing regulations of the AECA. 

Because the Treaty is self-executing, this exemption will be created through ratification of the Treaty; no additional legislation 

will be required to implement the exemption in U.S. law. Those Implementing Arrangements constituting terms of the exemption are 

authorized by this self-executing Treaty. They will not be submitted for Senate advice and consent to ratification and also require no further legislative action to become a fully effective part 

of the exemption. 

Both governments will investigate potential violations of the procedures established pursuant to the Treaty. Where appropriate, 

both governments will cooperate in the conduct of such investigations as well as in prosecutions and administrative actions resulting from such investigations. 

As with exports that are regulated pursuant to Section 38 of the 

AECA, as amended, it is important to ensure that Defense Articles 

exported or transferred pursuant to the Treaty are properly handled and controlled. In this regard, the governments will review the 

procedures utilized with respect to post-shipment verification and 

end-use or end-user monitoring for current exports to ensure that 

they are appropriate for exports or transfers pursuant to this Treaty. Such procedures will be modified as required. 

Implementing arrangement 

Article 14(1) of the Treaty provides that the Parties shall conclude, on an expedited basis, Implementing Arrangements for this 

Treaty, which may be amended or supplemented by the Parties 

from time to time. For example, the Implementing Arrangements 

will establish eligibility requirements for persons to be considered 

part of the Australian Community. 


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Article 14(2) further provides that the Parties will include in 

such Implementing Arrangements a process by which entities in 

the Approved Community may transition from the requirements of 

U.S. government defense export licenses or other authorizations 

issued under the ITAR to the regime established under the Treaty. 

The Administration does not intend to submit any of the Implementing Arrangements to the Senate for advice and consent, but 

it is prepared to provide these implementing Arrangements to the 

Senate for its information. 

Implementing agencies 

Article 15 of the Treaty requires that each Party designate an 

authorized agency to implement its obligations under the Treaty. 

The authorized agency for the Government of the United States is 

the Department of State. The authorized agency for the Government of Australia is the Department of Defence. Either Party may 

change the designation of its authorized agency by providing written notice to the other Party. 

Relationship to other international agreements 

Article 16 provides that the Treaty does not affect the rights and 

obligations of either Party under other international agreements to 

which it is a Party. 

Consultations 

Article 17 of the Treaty requires that the Parties consult at least 

annually on cooperative aspects of their export control relationship 

and to review the operation of the Treaty. It further clarifies that 

the consultations are intended to provide a mechanism to review 

and address all relevant export control issues. Such issues therefore are not limited to issues specifically arising under the Treaty. 

Dispute resolution 

Article 18 provides that any disputes between the Parties arising 

out of, or in connection with, the Treaty shall he resolved through 

consultations between the Parties and shall not be referred to any 

court, tribunal, or third party. 

Amendments 

Article 19 provides that the Treaty may be amended upon written agreement of the Parties. 

Entry into force 

In accordance with Article 20, the Treaty shall enter into force 

upon an exchange of notes confirming that each Party has completed the necessary domestic requirements to bring the Treaty 

into force. The United States will not provide such notice until the 

Senate provides its advice and consent to ratification of the Treaty 

and the President ratifies the Treaty. 

Duration and withdrawal 

Article 21(1) provides that the Treaty shall be of unlimited duration. Article 21(2) further provides that either Party may withdraw 

from the Treaty if it decides that extraordinary events related to 


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the subject matter of the Treaty have jeopardized its national interests. Should a Party decide to withdraw from the Treaty, it shall 

notify the other Party of its intent to withdraw and shall include 

a statement of the extraordinary events that it regards as having 

jeopardized its national interests. The Parties shall commence consultations within 30 days of the provision of such notification, with 

a view to allowing the continuation of the Treaty. If the notifying 

Party does not agree to the continuation of the Treaty, the withdrawal of the notifying Party will take effect six months after the 

provision of such notification. 

Article 21(3) provides that should either Party withdraw from 

the Treaty, the procedures for the protection of Defense Articles 

that were exported pursuant to the Treaty and for handling Australian Defence Articles as referred to in Article 8 shall continue 

in effect until appropriate export licenses or other authorizations 

are in place. 


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