Tuesday, September 21, 2021

U.S. Policy on the Export of Unmanned Aerial Systems

The President has approved an update to the policy governing the international sale, transfer, and subsequent use of U.S.-origin Unmanned Aerial Systems (UAS). This policy updates and replaces the previous policy announced in April 2018. With this change, the U.S. government is invoking its national discretion on the implementation of the Missile Technology Control Regime’s (MTCR) “strong presumption of denial” for transfers of Category I systems. The U.S. government will treat a carefully selected subset of MTCR Category I UAS with maximum airspeed less than 800 kilometers per hour as Category II.  All potential transfers of military UAS will continue to require case-by-case review to consider all U.S. interests.

This policy change modernizes the U.S. government’s approach to implementing MTCR commitments, makes it more reflective of technological realities, and helps U.S. allies and partners meet their national security and commercial requirements.

This policy update maintains particular restraint, including a strong presumption of denial, on transfers of those UAS that present higher risk for weapons of mass destruction (WMD) delivery – such as cruise missiles, hypersonic aerial vehicles, and advanced unmanned combat aerial vehicles. It does so without unduly impeding exports for growing commercial and conventional military applications of other UAS.

This change is undertaken within and consistent with MTCR Guidelines, which have always envisioned the possibility of overcoming the “presumption of denial” for Category I exports, and have relied upon Partner governments to exercise discretion in such determinations.

The United States remains a committed member of the MTCR and holds it as an important nonproliferation tool to curb the spread of high-end missile technologies to countries such as North Korea and Iran. Preventing the use and spread of WMD and their means of delivery remains an administration priority.

The revised policy supplements and builds upon the U.S. Conventional Arms Transfer (CAT) Policy and is consistent with the requirements of the Arms Export Control Act (AECA) and the Foreign Assistance Act which govern all U.S. military transfers. The policy will be applied to all U.S.-origin UAS transfers, whether the transfer is subject to the International Traffic in Arms Regulations or the Export Administration Regulations.

This policy’s five primary objectives with respect to UAS transfers remain unaltered:

  • To increases trade opportunities for U.S. companies: We will remove barriers to the global UAS market and avoid ceding export opportunities to competitors where such self-imposed restrictions are unwarranted.
  • To bolster partner security and counterterrorism capabilities: We will facilitate international partners’ access to U.S. UAS in situations where it will enhance those partners’ security and their ability to advance shared security or counterterrorism objectives.
  • To strengthen bilateral relationships: We will use UAS transfers as a means to strengthen U.S. security relationships when stronger bilateral ties and greater interoperability serve broader U.S. national security and foreign policy interests.
  • To preserve U.S. military advantage: We will work to prevent state or non-state actors from gaining capabilities that would undermine the safety and security of the United States and our allies and partners.
  • To prevent the proliferation of WMD delivery systems: We will protect the integrity of international nonproliferation agreements and arrangements that prevent proliferators, non-state actors, and other programs of concern from acquiring missile technology and other technologies that would substantively advance their ability to deliver WMD, or otherwise lead to a transfer to potential adversaries of capabilities that would threaten the superiority of the U.S. military or the shared security or counterterrorism objectives of our allies and partners.

All potential military UAS transfers will continue to be subject to Department of State-led assessment under the CAT Policy and Department of Defense (DoD)-led assessment regarding technology security, as applicable. All UAS transfers, including military UAS transfers, will be reviewed consistent with U.S. international nonproliferation commitments, including under the MTCR.

Transfer Conditions:

Armed UAS: Transfers of armed UAS may be made via Direct Commercial Sales (DCS) or Foreign Military Sales (FMS), unless other guidance or restrictions relevant to a particular transaction require the transfer to take place using FMS. Recipients must agree as a condition of transfer not to integrate foreign or unauthorized U.S. systems onto armed UAS without prior U.S. government authorization.

Unarmed UAS: Transfers of unarmed UAS may be made via DCS or FMS, unless other guidance or restrictions relevant to that particular case requires the transfer to take place using FMS. Recipients must agree as a condition of transfer not to arm, whether with U.S. or foreign equipment, a U.S.-origin UAS without U.S. government authorization.

Civil UAS: All Civil UAS continue to be subject to the licensing requirements and policies of the Export Administration Regulations, and export decisions will take into account the objectives outlined in this policy and the six non-proliferation factors in section 3 of the MTCR Guidelines.

Provisions to Guard Against Proliferation and Ensure Proper Use:

The U.S. government will continue to review all potential transfers of military UAS on a case-by-case basis to consider all U.S. foreign policy and national security interests, and integrate principles of proper use.  UAS vary widely in their sophistication and application, and we take seriously the responsibility that all systems authorized for transfer by the U.S. government are used responsibly and will not threaten our interests or those of our allies.

End-Use Assurances for Military UAS: Each recipient state shall agree to use U.S.-origin military UAS in accordance with applicable international law, applicable provisions of the AECA and its implementing regulation, the International Traffic in Arms Regulations, other relevant provisions of U.S. law, and for FMS cases, the transfer agreement.  According to the FMS transfer agreement, each recipient state must agree not to transfer title to or possession of any defense article or related training or other defense service associated with a U.S.-origin military UAS to anyone not an officer, employee, or agent of that country.

Recipient nations must agree not to use or permit the use of a U.S.-origin military UAS for purposes other than those for which the UAS was furnished unless the consent of the U.S. government has first been obtained. Prior to a potential transfer, the recipient country shall have agreed that it will maintain the security of the military UAS and its related components and will provide substantially the same degree of security protection afforded to such article or service by the U.S. government.  All military UAS transfers must include appropriate technology security measures.

End Use Monitoring and Other Security Conditions: All military UAS transfers may be subject to end-use monitoring, pursuant to Section 40A of the AECA.  Additionally, transfers made via FMS may also be subject to enhanced end-use monitoring and other security conditions. Specifically, recipients of transfers of U.S.-origin armed and MTCR Category I UAS shall be required to periodically consult with the U.S. government on their use of U.S.-origin UAS systems.

Principles of Proper Use:

To promote and ensure proper use of U.S.-origin military UAS, all FMS and DCS transfers must include the following principles related to use:

Recipients are to use these systems in accordance with international law, including international humanitarian law and international human rights law, as applicable.

Armed UAS are to be used in operations involving the use of force only when there is a lawful basis for resorting to the use of force under international law, such as national self-defense.

Recipients are not to use UAS to conduct unlawful surveillance or use unlawful force against their domestic populations.

As appropriate, recipients must provide UAS operators technical and doctrinal training on the use of such systems to reduce the risk of unintended injury or damage.

For further information, please contact the Bureau of Political-Military Affairs, Office of Congressional and Public Affairs at [email protected], and follow the Bureau of Political-Military Affairs on Twitter, @StateDeptPM.