More than three years after they were originally signed in 2007 during the Bush administration, the Defense Trade Cooperation Treaties negotiated by the United States with the UK and Australia have finally been ratified by the US Senate. The following recent sequence of events has led to the successful conclusion of this process –
September 21 Treaties approved by unanimous consent of the Senate Foreign Relations Committee
September 27 Implementing legislation (Security Cooperation Act of 2010, S. 3847) passed by the Senate
September 28 Security Cooperation Act of 2010 passed by the House
September 29 Treaties ratified by the full Senate
October 8 Security Cooperation Act of 2010 signed into law by President Obama
The US-UK Defense Trade Cooperation Treaty and the US-Australia Defense Trade Cooperation Treaty allow for the export of certain defense articles (hardware and technical data) and furnishing of defense services controlled pursuant to the ITAR between “approved communities” of government and private sector entities in the United States, the UK and Australia without the need for export licenses or other ITAR authorizations from the State Department’s DDTC. To qualify for membership in these communities, private entities must meet specific requirements which, for UK- and Australia-based private entities, include approval for inclusion by the USG as well as their respective governments. Under the treaties, it will be possible for most US defense articles to be exported into, and within, these communities without prior licenses or other authorizations pursuant to the ITAR as long as the exports are in support of certain combined military and counterterrorism operations, certain cooperative security and defense research programs and certain development, production and support programs, certain mutually agreed upon security and defense projects where the end-user is the government of the UK or Australia, or certain US government end-uses. Retransfer or re-exports of items originally exported pursuant to either treaty to a person outside the respective approved communities will require US government approval and UK or Australian authorization as appropriate.
The long delay in Senate ratification of the treaties stemmed from demands by the US Congress that it approve implementing legislation. Despite objections to such a requirement voiced by the UK and Australia, the Obama Administration ultimately accepted the fact that the Senate would not ratify the treaties as self-executing and agreed to passage of implementing legislation that would define the regulations necessary to give effect to the ratified treaties. Thus, President Obama’s enactment of the Security Cooperation Act of 2010 on October 8 was necessary to implement the Senate’s September 29 ratification of the treaties. The implementing legislation modifies the Arms Export Control Act to allow for the enforcement of the treaties by the executive branch and provides for congressional notification of exports under their provisions. It also allows the president to issue regulations that implement and enforce the treaties. Finally, the Security Cooperation Act of 2010 excludes certain “crown jewels” of US defense technology from being exported without licenses pursuant to the treaties. These items excepted from export under the treaties by the implementing legislation are relatively narrowly focused and include:
- Complete rocket systems (including ballistic missile systems, space launch vehicles and sounding rockets) or complete unmanned aerial vehicle systems (including cruise missile systems, target drones and reconnaissance drones) capable of delivering at least a 500 kilogram payload to a range of 300 kilometers, and associated production facilities, software or technology for these systems, as defined in the Missile Technology Control Regime Annex Category I, Item 1;
- Individual rocket stages, re-entry vehicles and equipment, solid or liquid propellant motors or engines, guidance sets, thrust vector control systems, and associated production facilities, software, and technology, as defined in the Missile Technology Control Regime Annex Category I, Item 2;
- Defense articles and defense services listed in the Missile Technology Control Regime Annex Category II that are for use in rocket systems, as that term is used in such Annex, including associated production facilities, software or technology;
- Toxicological agents, biological agents and associated equipment, as listed in the United States Munitions List (part 121.1 of Chapter I of Title 22, Code of Federal Regulations), Category XIV, Subcategories (a), (b), (f)(1), (i), (j) as it pertains to (f)(1), (l) as it pertains to (f)(1), and (m) as it pertains to all of the subcategories cited in this paragraph; and
- Defense articles and defense services specific to the design and testing of nuclear weapons which are controlled under United States Munitions List Category XVI(a) and (b), along with associated defense articles in Category XVI(d) and technology in Category XVI(e).
The treaties provide that the parties may designate items that are excepted from coverage. Two publicly available lists produced in 2008 may be found on the State Department website It has been reported that the US defense industry is dissatisfied with the lists on grounds that too many items would be excluded. Nonetheless, in a statement issued on September 30, 2010, the Aerospace Industries Association stated that it “welcomes passage of the US-UK and US-Australia Defense Trade Cooperation Treaties by the full Senate [and that] ratifying these treaties will provide important benefits to both our national security and our economy.” In a news release of the same date, A|D|S, the UK’s AeroSpace, Defence and Security trade organization “welcomed confirmation that the US-UK Defense Trade Cooperation Treaty has passed its final hurdle towards ratification on both sides of the Atlantic with approval coming from the United States Senate and House of Representatives.”
The Obama Administration is expected to continue its dialogue with the US defense industry in the process of defining the scope of excluded items and securing effective implementation of the treaties. The three nations also must jointly agree on which projects and operations qualify for exports under the treaties. When fully implemented, the treaties can be expected to boost international collaboration and competition in the defense industry and increase the efficiency of defense procurement.