U.S. Coverage on the Export of Unmanned Aerial Programs – Drones Information

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The President has approved an update to the guidelines for the international sale, transmission, and subsequent use of unmanned aerial vehicle systems (UAS) originating in the United States. This policy updates and replaces the previous policy announced in April 2018. With this change, the US government is relying on its national discretion in implementing the Missile Technology Control Regime (MTCR) “strong presumption of opposition” for broadcasting Category I systems. The US government will create a carefully selected subset of Treat Category I MTCR UAS with a maximum airspeed of less than 800 kilometers per hour as Category II. All potential military UAS transfers will continue to need to be reviewed on a case-by-case basis to accommodate all U.S. interests.

This policy change modernizes the U.S. government’s approach to implementing MTCR commitments, better reflecting technological realities, and helping U.S. allies and partners meet their national security and trade requirements.

With this update of the guidelines, the transmission of UAS that pose a higher risk for the delivery of weapons of mass destruction (WMD), such as: B. cruise missiles, hypersonic aircraft and advanced unmanned combat aircraft, are treated with particular reluctance, including a strong presumption of refusal. It does this without unduly hindering exports for growing commercial and conventional military applications of other UAS.

This change comes under the MTCR guidelines, which have always considered the possibility of overcoming the “presumption of refusal” for Category I exports, and has relied on partner governments to exercise discretion in making such determinations.

The United States remains a committed member of the MTCR, believing it to be an important non-proliferation tool to help curb the proliferation of high-end missile technologies in countries like North Korea and Iran. Preventing the use and proliferation of weapons of mass destruction and their means of delivery remains an administrative priority.

The revised directive complements and builds on the US CAT (Conventional Arms Transfer) directive and is in line with the requirements of the Arms Export Control Act (AECA) and the Foreign Assistance Act, which regulate all US military transfers. The policy applies to all UAS transfers originating in the United States, whether the transfer is subject to international arms traffic regulations or export management regulations.

The five main objectives of this policy in relation to UAS transmissions remain unchanged:

  • How to Increase Trading Opportunities for US Companies: We will remove barriers to the global UAS market and avoid ceding export opportunities to competitors when such self-imposed restrictions are not justified.
  • How to strengthen the security of your partners and the options for counter-terrorism: We will facilitate international partners’ access to U.S. UAS in situations where doing so improves the security of those partners and their ability to advance common security or counter-terrorism goals.
  • Strengthening bilateral relations: We will use UAS transfers as a means of strengthening US security ties when stronger bilateral ties and greater interoperability serve broader US national security and foreign policy interests.
  • To preserve the US military advantage: We will work to prevent state or non-state actors from acquiring skills that undermine the security of the United States and our allies and partners.
  • To prevent the spread of WMD delivery systems: We will protect the integrity of international non-proliferation treaties and understandings that prevent proliferators, non-state actors, and other programs of concern from acquiring missile and other technologies that would significantly enhance their ability to deliver weapons of mass destruction or otherwise lead to a transfer of potential to opponents of capabilities that would jeopardize the superiority of the US military or the common security or counter-terrorism goals of our allies and partners.

All potential military UAS transfers will continue to be subject to a State Department-led assessment under the CAT policy and, if applicable, a technology security assessment established by the Department of Defense (DoD). All UAS transfers, including military UAS transfers, are audited in accordance with U.S. international non-proliferation obligations, including under the MTCR.

Transfer conditions:

Armed UAS: Armed UAS transfers can be made through Direct Commercial Sales (DCS) or Foreign Military Sales (FMS), unless other guidelines or restrictions pertinent to a particular transaction require that the transfer be made through FMS. Recipients must agree, as a condition of transfer, not to incorporate foreign or unauthorized U.S. systems into armed UAS without prior approval from the U.S. government.

Unarmed UAS: Unarmed UAS transmissions can be made using DCS or FMS, unless other guidelines or restrictions relevant to that particular case require that the transmission be made using FMS. Recipients are not required to consent, whether armed with US or foreign equipment, as a condition for transferring a UAS of US origin without US government approval.

Civil UAS: All civil UAS are still subject to the licensing requirements and guidelines of the Export Administration Regulation. Export decisions take into account the objectives set out in this policy and the six non-proliferation factors in Section 3 of the MTCR Policy.

Provisions to protect against proliferation and to ensure proper use:

The US government will continue to review all potential military UAS transfers on a case-by-case basis to accommodate all US foreign and national security interests and to incorporate principles for proper use. UAS vary widely in complexity and application, and we take our responsibility seriously that all systems approved by the US government for transmission are used responsibly and do not jeopardize our interests or those of our allies.

End-use insurance for military UAS: Each recipient state undertakes to transfer military UAS originating in the United States in accordance with applicable international law, the applicable provisions of the AECA and its implementing regulations, international rules on arms traffic, other relevant provisions of US law and for FMS cases use consent. Under the FMS Transfer Agreement, each recipient state must agree not to transfer ownership or possession of any defense article or any related training or other defense service relating to a U.S.-origin military UAS to anyone who is not an officer, employee or agent thereof are land.

Recipient countries must agree not to use or permit a U.S.-origin military UAS for any purpose other than that for which the UAS was established, unless prior consent is obtained from the U.S. government. Prior to a possible transfer, the recipient country must have consented to maintain the security of the military UAS and its associated components and to provide essentially the same level of security protection that the US government provides to such an item or service. All military UAS transfers must include appropriate security measures for the technology.

End use monitoring and other safety conditions: All military UAS transmissions may be subject to end-use monitoring under Section 40A of the AECA. In addition, transmissions via FMS can also be subject to improved end-use monitoring and other security requirements. In particular, recipients of transmissions from armed UAS originating in the US and UAS Category I of the MTCR must regularly consult the US government about the use of UAS systems of US origin.

Principles of proper use:

To promote and ensure the proper use of U.S. origin military UAS, all FMS and DCS transmissions must include the following principles regarding use:

Recipients must use these systems in accordance with international law, including international humanitarian law and, where appropriate, international human rights law.

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

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

Recipients may need to provide UAS operators with technical and doctrinal training on how to use such systems to reduce the risk of accidental injury or damage.

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

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