USA - The legal basis for defence sales

The legal basis for US defence sales

The main primary legislation for control of conventional arms exports is the Arms Export Control Act (AECA) of 1976 (as amended).

The AECA defines the rights and responsibilities of the President as regards the export of arms, ammunition, implements of war and related technical data.

The President has delegated most of the authority for these tasks to the Secretary of State. The State Department has developed secondary regulations, the International Traffic in Arms Regulations (ITAR) under which a license is required for almost all munitions exports.

The ITAR also defines those items to which export controls apply. These are contained in the US Munitions List.

Also relevant is the Foreign Assistance Act of 1961 (as amended) which provides the legal authority for military assistance in support of US foreign policy goals.

The level of US military assistance has fallen in recent years and is mainly directed to Israel and Egypt. However, some military assistance is also offered to, for example, former state socialist countries (including the three Baltic Republics) and under some scenarios this form of military assistance may grow in future years.

Parts of the AECA and Foreign Assistance Act elaborate US arms export policy objectives.

AECA: main provisions

Under AECA the President is to determine:

1. whether there will be a sale to or financing for a country and the amount thereof
2. whether there will be a lease to a country
3. whether there will be delivery or other performance under the sale, lease, cooperative project or export.

However, AECA also sets some conditions that narrow the scope of the authority of the President. Conditions may apply to, for example, who can receive controlled items and under what conditions.

Eligibility

Recipients of defence articles and services must meet the following criteria.

• furnishing defence articles and services must strengthen the security of the United States;
• the transfer must be consistent with the foreign policy interests and foreign policy programme of the United States;
• the transfer must include end-user and end-use provisions;
• the recipient must accept restrictions on re-transfer of the articles and services provided.

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Any reproduction of text and data is authorized only by permission, SIPRI March 2004.