The Arms Sale Responsibility Act (H.R. 599), introduced by Representative Raul Grijalva (D–AZ), contains a number of flaws that call for caution on the part of Congress.
The U.S. is widely acknowledged to have the most responsible system of controls on the export of arms in the world: The State Department refers to it as the “gold standard.” The act would not improve the operation of this system. It seeks “to prohibit the transfer of defense articles and defense services to the governments of foreign countries that are engaging in gross violations of internationally recognized human rights.” But in Section 2(a) and Section 3(b)(1), the bill contains two different human rights standards that it seeks to apply, without any clarifying explanation, to the export of conventional arms. By stating in Section 3(b)(1) that the relevant standard is that of “internationally recognized human rights,” the act could also be interpreted as taking the definition of its standards out of the hands of Congress and the U.S. system and placing it into those of the so-called international community.
The act presents itself as a logical companion to the U.N. Arms Trade Treaty (ATT), which is currently under negotiation. But it defines the ATT, and similar agreements, as an “arms control agreement.” The ATT is, purportedly, an attempt to regulate the arms trade. It is not an arms control agreement, a fact that should be clear now that a draft text of the treaty is available.
By the same token, the act’s catalog of items that it urges the President to “encourage” other nations to control includes (Section 2(b)(1)) “machines, technologies and technical expertise for making, developing, and maintaining…all types” of arms and ammunition. This covers virtually all industrial processes. Including these items is not contemplated by the draft ATT, would make an ATT completely unverifiable, and runs contrary to the Administration’s own efforts to reduce the size of the U.S. munitions list. The act’s “substantial risk” standard on human rights is also different from, and more demanding than, the standard in the draft ATT.
Much of the act’s Section 2 consists of activities that the U.S. already performs in the course of operating its export control system, though they are presented without explanation as items for the President to negotiate via the treaty process. But in calling on the President to make a “concerted effort” to “require each party” to the ATT and any similar treaty “to establish a clear legal framework for lawful brokering and shipping activities relating to transfers of conventional arms,” the act demands the impossible. The U.S. cannot meaningfully “require” all signatories to any agreement to establish a legal framework if such action is not required by the treaty. A Dear Colleague letter calling for cosponsors claims that the act would “bring much of the world in line with U.S. standards.” No U.S. law has this power.
The letter implies that U.S. defense exports have fuelled conflicts in Syria, Sierra Leone, Liberia, the Democratic Republic of the Congo, and Syria. This is not true.
The bill lists in Section 3(b)(1) violations of what it describes, without warrant, as “internationally recognized human rights.” Most if not all of these violations are, taken on their own, indeed wrong. But in the context of arms exports, they are a classic example of humanitarian absolutism.
International relations—and arms exports—are often not about defending the absolutely pure from the totally evil. Regrettably, they are often about aiding the not very good against the even worse. Many U.S. arms exports go to places such as Britain, Canada, and Japan, which meet any plausible human rights standards. But some go to places that do not, such as Saudi Arabia. In practice, the President would simply avail himself of the power provided in the bill to exempt nations from its standards if required by U.S. national security interests, rendering the bill moot. But in theory, the act is incompatible with existing U.S. policy, which the Administration strongly supports.
With the serious exceptions of the ATT and its policy on certain defense sales to Taiwan, the Obama Administration’s approach to arms exports and export control has been reasonable. It has retained Presidential Decision Directive 34, which dates from the Clinton era, as the basic framework for the U.S. export control system. It has embarked on an ambitious reform of the U.S. system that, while not yet complete, aims in the right direction. After an unfortunate delay, it secured Senate ratification of the defense trade cooperation agreements with Britain and Australia. It has been a strong proponent—admittedly in service of the overblown concept of “economic statecraft”—of U.S. defense sales.
Both the act and its Dear Colleagues letter pose as an effort to support the negotiation of the ATT, but in reality they are incompatible with the ATT, with the Obama Administration’s better arms export policies, and with the export control system it inherited from the Clinton and Bush Administrations. The ATT is a bad idea that calls for considerable caution from Congress. The same is true, for different reasons, of the Arms Sale Responsibility Act.