Biden Admin Releases Revised Arms Transfer Policies
The State Department this week released its long-awaited revised arms transfer policies (see 2111040056), outlining how the Biden administration will assess arms transfer risks while also promoting U.S. defense trade. The Conventional Arms Transfer (CAT) Policy formalizes the “priorities and rationale” the administration has been using to adjudicate arms transfer decisions, which it said includes a heavy focus on human rights issues.
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In a fact sheet released Feb. 23, the State Department said it will specifically look to prevent arms transfers that risk "facilitating or otherwise contributing to violations of human rights or international humanitarian law.” The policy is also meant to strengthen “ally and partner capacity,” minimize the risk of civilian harm and ensure transfers don’t “fuel corruption or undermine good governance.”
The agency also said the policy formalized the “longstanding practice” that certain items regulated by the Commerce Department -- such as firearms and certain military items, including spare parts and components -- are subject to the CAT framework. The State Department in 2020 transferred export control authority over certain defense items to the Commerce Department, a decision that has been met with strong pushback by some Democrats, including Sens. Bob Menendez of New Jersey and Elizabeth Warren of Massachusetts. They say the Trump-era rule lessened scrutiny on certain arms export applications and have urged the Biden administration to reverse the decision (see 2207150027, 2001170030, 2109210058, 2201050023 and 2204010006).
The CAT policy applies “regardless of whether transfers are accomplished through direct commercial sales, government-to-government transfers, export or re-export approvals of certain items on the Commerce Control List” or through other means, the administration said. The policy also applies to any arms transfers that involve emerging technologies. The administration said it plans to “review and develop” more policy guidance for reviews of arms transfers involving emerging technologies controlled by Commerce under the Export Control Reform Act of 2018.
The new CAT policy emphasizes that decisions on arms transfers will be made on a case-by-case basis and will take into account a range of factors, including whether the end-use country has “strong export controls,” which can be demonstrated through its adoption of decisions made by “multilateral nonproliferation regimes.” U.S. decision-makers will also assess the purchaser’s “history of compliance” with U.S. end-use requirements.
The U.S. also will strongly factor human rights issues into its decisions, the policy said, and won’t approve any transfer “that it is more likely than not” to be used to “commit, facilitate the recipients’ commission of, or to aggravate risks that the recipient will commit” human rights violations. The administration's assessment will include the proposed recipient’s “current and past actions” and any “credible reports” that the recipient committed any human rights violations.
Some other factors the U.S. will consider when assessing arms transfers are:
- The degree to which the arms transfer supports U.S. strategic and foreign policy interests and bolsters the capabilities of its allies.
- The “overall stability” of the recipient country’s political system and whether the transfer will have “adverse political, social, or economic effects” within the country.
- Whether the transfer reduces an ally’s dependence on U.S. competitors.
- Whether the recipient is “likely to confront armed aggression” from U.S. adversaries or strategic competitors.
- The transfer’s impact on the U.S.’ technological advantage.
- The recipient’s ability to field, maintain and fund the “requested system effectively and appropriately in accordance with its intended end use.”
The policy also said the U.S. will “continue participation” in multilateral export control regimes, including the Wassenaar Arrangement, which some experts say needs to be modernized or replaced with a new forum that meets modern export control concerns (see 2211210005 and 2205240039). Wassenaar and other multilateral forums “promote common national policies of restraint against the transfer of armaments and sensitive dual-use goods and technologies, to states whose conduct is cause for serious concern,” the policy said, adding that the U.S. will work to “assist” other arms-transferring nations to develop “effective export control mechanisms.”
Although the U.S. will “exercise restraint and pursue a truly holistic approach to conventional arms transfers” under the new policy, it will also continue “advocating for U.S. defense manufacturers worldwide,” the State Department said in a statement.