On February 17, 2015, the State Department (Department) announced a new policy to address the export of U.S.-origin military and commercial unmanned aviation systems (UAS), also known as drones. This new policy, which will govern the international sale, transfer and subsequent use of U.S.-origin military and commercial UAS, is part of a broader UAS policy review that includes plans to work with other countries to shape international standards for the use of military UAS.
While the full results of this policy review remain classified, the Department issued guidelines for implementing the new policy. In doing so, the Department stated that the new policy is intended to provide “a disciplined and rigorous framework within which the United States will exercise restraint in sales and transfers and advance its national security and foreign policy interests, which includes enhancing the operational capabilities and capacity of trusted partner nations, increasing U.S. interoperability with these partners for coalition operations, ensuring responsible use of these systems, and easing the stress on U.S. force structure for these capabilities.”
Export Controls on Military UAS
The new export policy puts in place stringent conditions on the sale or transfer of military UAS, including potential requirements for:
- Sales and transfers of sensitive systems to be made through the government-to-government Foreign Military Sales program.
- Review of potential transfers to be made through the Department of Defense Technology Security and Foreign Disclosure processes.
- Each recipient nation to agree to end-use assurances as a condition of sale or transfer.
- End-use monitoring and potential additional security conditions.
- All sales and transfers to include an agreement on principles for proper use.
In releasing the new export policy, the Department’s Directorate of Defense Trade Controls concurrently released revised requirements for the DSP-83 form (Non-Transfer and Use Certificate). The U.S. license applicant and the foreign end user will be required to submit a signed certificate agreeing to the end user’s proper use of the UAS, which includes the following principles:
- Recipients are to use these systems in accordance with international law, including international humanitarian law and international human rights law, as applicable.
- Armed UAS and strike enabling technologies are to be used in operations involving the use of force only when there is a lawful basis for 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 shall provide UAS operators technical and doctrinal training on the use of these systems to reduce the risk of unintended injury or damage.
The effects of this new policy remain to be seen as it is rolled out and more fully implemented. However, the Department has made clear that it will continue to maintain longstanding U.S. commitments under the Missile Technology Control Regime (MTCR), which subjects transfers of military and commercial systems that cross the threshold of MTCR Category I (i.e., UAS that are capable of a range of at least 300 kilometers and capable of carrying a payload of at least 500 kilograms) to a “strong presumption of denial” for export. However, exports may be permitted on “‘rare occasions’ that are well justified in terms of the nonproliferation and export control factors specified in the MTCR Guidelines.” The Department has indicated that there currently is no list of countries that will be eligible for exports of U.S.-origin military UAS, and that proposed sales and exports would be reviewed on a case-by-case basis. It is also clear that the United States would closely monitor the use of any exports of these military UAS.
Export Controls on Commercial UAS
The Department’s announcement stated that the new policy also governs the international sale, transfer and subsequent use of U.S.-origin commercial UAS, “supplementing and building upon the Export Administration Regulations which govern all U.S. commercial transfers.” Other than a brief comment that such commercial UAS will include future commercial MTCR Category I systems, the guidelines for the sale and export of such commercial UAS remain vague.
This new export policy follows the Federal Aviation Administration’s February 15, 2015 announcement of proposed rules for commercial operations of small unmanned aircraft systems, which will eliminate the existing prohibition against commercial use of small unmanned aircraft, defined by the FAA as weighing less than 55 pounds and flown at low altitudes by a person with an FAA certificate.