Improving U.S. Conventional Arms Policies

January/February 2021
By Rachel Stohl

President Joe Biden is planning to tackle many foreign policy issues within the first 100 days of his administration, including the COVID-19 pandemic, the Paris climate agreement, and nuclear nonproliferation, but he should also take steps to strengthen controls surrounding the transfer of conventional arms. The international arms trade is inextricably linked to foreign policy and national security and has an outsized impact on conflict, stability, and the lives and livelihoods of people around the world. The Trump administration’s approach to U.S. arms sales has led to devastating effects during the last four years.

A U.S. F-35 aircraft flies a training mission at Nellis Air Force Base, Nev., in 2020. The Trump administration has announced plans to sell F-35s and other weapons systems to nations with concerning human rights records. (Photo: Bryan Guthrie/U.S. Air Force)The Trump administration reoriented the U.S. approach to arms sales by prioritizing perceived economic gains over foreign policy concerns and national security interests. Indeed, the administration made selling weapons a central pillar of U.S. foreign policy priorities. During the first three years of President Donald Trump’s tenure, U.S. foreign military sales agreements totaled more than $200 billion. Yet, in using arms sales as a political tool for short-sighted and mostly economic objectives, the administration’s arms transfer policies often overlooked risks to human rights, civilian protection, stability, and longer-term U.S. strategic interests. Although the value of weapons sold is telling, what is more concerning is the recipients of these weapons, with the United States actively pushing through arms sales to countries with concerning human rights records, such as Saudi Arabia, the United Arab Emirates, and the Philippines.

The Biden administration has an opportunity to reinvigorate U.S. leadership on conventional arms issues and develop an approach to reflect long-standing U.S. values and principles that reinforce respect for human rights, risk mitigation, and restraint through several policy approaches.

In 2018, the Trump administration released a new policy for conventional arms transfers, which placed economic interests ahead of foreign policy or security interests when making arms transfer decisions. Notably, the policy did not require a recipient’s past actions to be taken into account when assessing transfer decisions or its previous behavior concerning human rights, counterterrorism, and the potential for misuse. Thus, Biden must develop a new policy that considers human rights, potential violations of international humanitarian law, and the likelihood of a U.S.-origin weapon being used to commit or facilitate civilian harm. The new policy also should more delicately balance foreign policy priorities and national security objectives with economic considerations.

Based on a bill then-Senator Biden introduced in 1986, the new administration has an opportunity to support an effort to change the way that Congress asserts its oversight role on arms transfers. Specifically, Congress could flip the script and develop a system that requires affirmative congressional approval for a select set of arms sales in place of the current system, which requires a vote of disapproval in order to stop singular objectionable sales. Congress could use this system to focus on arms sales with the highest risk of abuse, either due to the type of weapon in question or the historical or potential conduct of the buyer, such as potential sales that would abet war crimes or violations of human rights or humanitarian law, fuel corruption, enable aggression, escalate regional tensions, or be retransferred to an unauthorized third party.

In addition, the Biden administration should strengthen oversight of firearms exports in part by reversing a Trump decision to shift control of certain firearms and munitions sales from the Department of State to the Department of Commerce. Biden should also revert to notifying Congress about sales valued at $1 million or more, a policy Trump dropped in 2020. This reversal would provide more scrutiny, oversight, and transparency for those weapons causing immense harm around the world.

One of the more disappointing legacies of multiple administrations has been the U.S. reticence to fully implement the Child Soldiers Prevention Act (CSPA) and prohibit military assistance and arms sales to governments using or recruiting child soldiers. The CSPA, which took effect in 2010, aims to leverage U.S. military assistance to pressure governments to stop using children in combat. The law prohibits U.S. military assistance or arms sales to governments that use children in their national security forces or government-supported armed groups, although the restrictions can be waived if the president finds it is in the national interest to do so. In the 10 years since the law took effect, the Obama and Trump administrations have waived more than $4 billion in U.S. arms and security assistance to CSPA-listed countries. The Biden administration has an opportunity to reset the U.S. approach to the CSPA and stop waiving the majority of the military assistance and arms sales prohibited under the act. This would send a strong message to governments that recruit and use child soldiers that there are consequences for their continued exploitation of children in conflict.

In 2013 the United States signed the Arms Trade Treaty (ATT), the first legally binding treaty to regulate the conventional arms trade. Although the ATT was sent to the Senate in the waning days of the Obama administration, neither President Barack Obama nor Trump put any serious effort into promoting the treaty with the Senate. Then, in April 2019, the Trump administration sent a letter to the United Nations, which serves as the treaty’s depositary, claiming the United States was “unsigning” the treaty, despite there being no legal means of doing so. The Trump administration announced it had no intention of ratifying the treaty and claimed the United States is no longer bound by the treaty’s object and purpose. In doing so, Trump further isolated the United States from its close partners and allies, who bemoaned the U.S. decision, and undercut long-standing efforts to promote greater responsibility and transparency in the global arms trade. Biden can easily reverse this short-sighted effort and reengage in the ATT process by rescinding the Trump administration’s letter and stating his intention to ratify the treaty and fulfill the obligations of signature to the treaty.

For both landmines and cluster munitions, the Biden administration should ensure that it is in step with its allies and work toward accession to the Mine Ban Treaty and the Convention on Cluster Munitions. The Biden administration should also reverse the Trump administration’s landmines policy by promising not to deploy anti-personnel landmines or cluster munitions anywhere.

In 2017 the Trump administration made significant changes to U.S. drone policy and revised the policies, principles, and procedures guiding the U.S. drone program. These changes have included expanding the targets of armed strikes by eliminating a requirement that a targeted person pose an “imminent threat,” loosening the requirement of “near certainty” that the target is present at the time of the strike, revising the process through which strike determinations are made by reducing senior policymaker involvement and oversight in such decisions and delegating more authority to operational commanders, expanding the CIA’s role and responsibilities in lethal strike operations, and removing the requirement to report on casualties resulting from U.S. strikes outside combat zones.

The Biden administration should thoroughly evaluate how drone proliferation and usage fit into larger strategic objectives and publicly release the legal and policy justifications guiding the use of drones in counterterrorism operations. In general, the administration should commit to greater transparency and examine the international precedent set by the U.S. approach, and the administration should ensure that it advocates the creation of strong international drone standards.

Moreover, the Biden administration should promote restraint when it comes to drone exports and rescind the Trump administration’s decision to unilaterally reinterpret the parameters of the multilateral Missile Technology Control Regime (MTCR) and resume the “presumption of denial” for MTCR Category I drone exports.

The Biden administration has an opportunity to reassess how the United States approaches arms sales and reassert leadership on principles of restraint, risk minimization, and harm prevention. Moreover, after four years of turning its back on multilateralism, the United States can get in step with international standards and norms guiding the global arms trade and reinforce shared commitments with partners and allies.

Rachel Stohl is vice president of the Stimson Center and a board member of the Arms Control Association.