[Senate Treaty Document 110-7]
[From the U.S. Government Publishing Office]
110th Congress
1st Session SENATE Treaty Doc.
110-7
_______________________________________________________________________
TREATY WITH UNITED KINGDOM CONCERNING
DEFENSE TRADE COOPERATION
__________
MESSAGE
from
THEPRESIDENTOFTHEUNITEDSTATES
transmitting
TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE
GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
CONCERNING DEFENSE TRADE COOPERATION, DONE AT WASHINGTON AND LONDON ON
JUNE 21 AND 26, 2007
September 20, 2007.--Treaty was read the first time, and together with
the accompanying papers, referred to the Committee on Foreign Relations
and ordered to be printed for the use of the Senate
LETTER OF TRANSMITTAL
----------
The White House, September 20, 2007.
To the Senate of the United States:
I transmit herewith for Senate advice and consent to
ratification the Treaty Between the Government of the United
States of America and the Government of the United Kingdom of
Great Britain and Northern Ireland Concerning Defense Trade
Cooperation, done at Washington and London on June 21 and 26,
2007. I transmit, for the information of the Senate, the report
of the Department of State concerning this Treaty.
My Administration is prepared to provide to the Senate for
its information other relevant documents, including proposed
implementing arrangements to be concluded pursuant to the
Treaty, relevant correspondence with the Government of the
United Kingdom about the Treaty, and proposed amendments to the
International Traffic in Arms Regulations.
This Treaty will allow for greater cooperation between the
United States and the United Kingdom, enhancing the operational
capabilities and interoperability of the armed forces of both
countries. I recommend that the Senate give early and favorable
consideration to this Treaty.
George W. Bush.
The White House, September 20, 2007.
LETTER OF SUBMITTAL
----------
Department of State,
Washington, September 4, 2007.
The President,
The White House.
The President: I have the honor to submit to you, with a
view to its transmittal to the Senate for advice and consent to
ratification, the Treaty between the Government of the United
States of America and the Government of the United Kingdom of
Great Britain and Northern Ireland Concerning Defense Trade
Cooperation, done at Washington and London June 21 and 26,
2007, accompanied by an overview of the Treaty. This self-
executing Treaty is intended to create an exemption to
provisions of the Arms Export Control Act regarding
authorizations and notifications associated with certain
exports and transfers, as defined in the Treaty. The Treaty
envisages the conclusion of implementing arrangements, which
may be entered into as Executive Agreements. I recommend that
this Treaty be transmitted to the Senate for its advice and
consent to ratification.
Respectfully submitted.
Condoleezza Rice.
Enclosures: As stated.
Treaty Between the Government of the United States of America and the
Government of the United Kingdom of Great Britain and Northern Ireland
Concerning Defense Trade Cooperation
OVERVIEW
For several years, the United States and the United Kingdom
have sought to negotiate a legally binding agreement that would
provide a mutually agreeable exemption for exports to the
United Kingdom of defense articles controlled pursuant to the
Arms Export Control Act (22 U.S.C. 2751 et seq.) (AECA) from
some requirements, such as the licensing requirements, of
Section 38 of the AECA and its implementing regulations, the
International Traffic in Arms Regulations (22 C.F.R. 120-130)
(ITAR).
Section 1 of the AECA recognizes that ``[t]he need for
international defense cooperation among the United States and
those friendly countries to which it is allied by mutual
defense treaties is especially important . . .'' and asserts
that ``it remains the policy of the United States to facilitate
the common defense by entering into international arrangements
with friendly countries which further the objective of applying
agreed resources of each country to programs and projects of
cooperative exchange of data, research, development,
production, procurement, and logistics support to achieve
specific national defense requirements and objectives of mutual
concern'' (22 U.S.C. 2751). Section 38(a)(1) of the AECA
authorizes the President ``to control the import and the export
of defense articles and defense services,'' to ``designate
those items which shall be considered as defense articles and
defense services,'' and to ``promulgate regulations for the
import and export of such articles and services'' (22 U.S.C.
2778(a)(1)). The AECA further provides that the President may
regulate the import and export of defense articles and services
pursuant to licenses (22 U.S.C. 2778(b)).
In the proposed Treaty between the Government of the United
States of America and the Government of the United Kingdom of
Great Britain and Northern Ireland Concerning Defense Trade
Cooperation, done at Washington and London June 21 and 26, 2007
(the Treaty), the Government of the United Kingdom would be
bound to a regime that would provide appropriate protections
for U.S. defense articles and defense services exported under
the Treaty through the application of the United Kingdom
Official Secrets Act rather than through revisions to its
export control regime. For this reason, the Treaty will not be
entered into pursuant to the authority contained in section
38(j) of the AECA (22 U.S.C. 27780)).
The Treaty establishes a comprehensive framework for the
export of certain defense articles and defense services from
the United States to certain facilities and entities of the
United Kingdom. Where the Treaty applies, such export may occur
without a license or other written authorization from the
Department of State's Directorate of Defense Trade Controls,
which is the office responsible for developing and implementing
the ITAR. Once exported, these Defense Articles may be
transferred within what is referred to as an ``Approved
Community'' without case-by-case review and approval by the
Directorate of Defense Trade Controls. Transfers out of such
Approved Community would, however, be subject to Directorate of
Defense Trade Controls authorization requirements, and any
unauthorized transfers would constitute violations of the AECA.
As noted in the Treaty's Preamble, this Treaty is self-
executing in the United States. The purposes for which exports
may occur pursuant to this Treaty and the defense articles that
may not be exported pursuant to the Treaty will be identified
in separate Implementing Arrangements, as well as in
regulations intended to clarify this matter. The list of
facilities and entities in the United Kingdom that may receive
defense articles and defense services through exports pursuant
to this Treaty will be identified through processes established
in separate Implementing Arrangements.
This Treaty establishes an exemption from the operation of
the licensing and notification requirements contained in the
AECA and the ITAR. As stated below, compliance with the
procedures established in accordance with this Treaty shall
constitute an exception to these requirements. Conduct outside
of the procedures established in accordance with this Treaty
must comply with the normal requirements. Although the Treaty
is self-executing, it will be necessary to promulgate a number
of regulatory changes to the ITAR to effectuate the licensing
exemption. Once the Implementing Arrangements have entered into
force, they will be made available to the public, and changes
to the ITAR will be published in the Federal Register.
Definitions
Article 1 of the Treaty provides definitions for many of
the terms used in the Treaty. When the capitalized form of any
defined term, or its variants, is used in the Treaty, the
intent is to employ the definition provided in Article 1. When
a lower case form of any defined term, or its variants, is used
in the Treaty, the intent is to refer to the ordinary meaning
of the term. This procedure is also being followed for purposes
of the discussion in this ``Overview.''
The Treaty defines ``Defense Articles'' as those articles,
services, and related technical data, including software, in
tangible or intangible form, listed on the United States
Munitions List (``USML'') of the ITAR, as amended. As origin
(i.e., where the product is manufactured) is not an element of
this definition, the term ``Defense Articles'' may extend to
items of United Kingdom origin, or to items with United Kingdom
content, that are listed or described on the USML, even if such
items are not of United States origin or are without United
States content.
Several of the definitions (i.e., those for Her Majesty's
Government Personnel, Her Majesty's Government Facilities,
Implementing Arrangements, United Kingdom Community, and United
States Community) incorporate by reference the substantive
provision of the Treaty that gives meaning to each term. Such
definitions are intended to provide clarity in that the term
appears in the substantive text prior to the relevant provision
that provides its meaning.
Four definitions apply to the movement of Defense Articles.
An ``Export'' involves the movement of Defense Articles from
the United States Community to the United Kingdom Community.
Once a Defense Article has been Exported pursuant to the
Treaty, covered movements of such Defense Articles include
``Transfers,'' ``Re-transfers,'' and ``Re-exports.'' A
``Transfer'' involves the movement of previously ``Exported''
Defense Articles (1) within the United Kingdom Community, (2)
from the United Kingdom Community to the United States
Community, or (3) from the United States Community back to the
United Kingdom Community. A ``Re-transfer'' involves the
movement of previously Exported Defense Articles by a member of
the United Kingdom Community from a location in the Approved
Community to a location that is outside of the Approved
Community but in the Territory of the United Kingdom. A ``Re-
export'' involves the movement of Defense Articles by a member
of the United Kingdom Community from a location in the Approved
Community to a location outside the Territory of the United
Kingdom.
Purpose of the treaty
Article 2 contains a simple recital of the Treaty's
purpose: to provide a comprehensive framework for Exports and
Transfers of Defense Articles without a license or other
written authorization, to the extent that such Exports and
Transfers support certain types of activities. This Article
stands for the proposition that it is in the mutual security
and defense interests of the United States and the United
Kingdom to improve the interoperability of their armed forces
by facilitating the movement of Defense Articles in support of
certain mutually agreed activities, while maintaining and
ensuring proper safeguards against unauthorized release of the
defense technology involved.
Scope of the treaty
Article 3 identifies the activities in support of which
Defense Articles may be Exported or Transferred without a
license or other written authorization. The Treaty applies to
the movement of Defense Articles that are required for agreed
combined military or counter-terrorism operations; cooperative
security and defense research, development, production, and
support programs; security and defense projects where the
Government of the United Kingdom is the end-user; and for
United States Government end-use. Either Government may exclude
certain Defense Articles from the application of the Treaty.
The Treaty does not apply to the provision of Defense
Articles pursuant to the Foreign Military Sales program. The
process for providing Defense Articles pursuant to that program
will remain unchanged. Once such Defense Articles are provided,
however, they may be transferred within the Approved Community
pursuant to the Treaty.
An exporter may request a license or other authorization
from the Directorate of Defense Trade Controls in which case
the terms of such license or authorization will apply instead
of the procedures that will be established to implement the
Treaty .
Approved community
Articles 4 and 5 identify the persons and entities that may
Export or Transfer Defense Articles without a license or other
written authorization. Specifically, Article 4 identifies the
persons, entities, and facilities of the United Kingdom that
may send or receive such Defense Articles; and Article 5
identifies the persons, entities, and facilities of the United
States that may send or receive such Defense Articles.
The entities and facilities of the United Kingdom that may
send or receive Defense Articles pursuant to this Treaty are
(1) those facilities of the Government of the United Kingdom
that are accredited pursuant to the General Security Agreement
between the Government of the United States of America and the
Government of the United Kingdom of Great Britain and Northern
Ireland of April 14, 1961, and its implementing arrangements
that are relevant to the scope of the Treaty; and (2)
nongovernmental United Kingdom entities and facilities that
meet agreed eligibility requirements, are accredited pursuant
to a process agreed to by both Parties in an Implementing
Arrangement, and that are agreed to by both Parties for
inclusion on a List. Once on the List, a nongovernmental United
Kingdom entity or facility will be removed from the List if
either the United States or the United Kingdom considers such
removal to be in its national interests.
Personnel of the Government of the United Kingdom who meet
agreed criteria, which at a minimum will require appropriate
United Kingdom security accreditation and a need-to-know, may
be provided access to Defense Articles Exported or Transferred
pursuant to the Treaty. Employees of the agreed nongovernmental
entities and facilities who meet agreed criteria, which at a
minimum will require appropriate United Kingdom security
accreditation and a need-to-know, may be provided access to
Defense Articles Exported or Transferred pursuant to the
Treaty.
The departments and agencies of the United States
Government may send and receive Defense Articles pursuant to
this Treaty. In addition, nongovernmental United States
entities that are registered with the State Department's
Directorate of Defense Trade Controls and that are eligible to
export defense articles and defense services in accordance with
United States law and regulation, including the AECA and the
ITAR, may send or receive Defense Articles pursuant to this
Treaty.
United States Government personnel with appropriate
security clearance and a need-to-know may be provided access to
Defense Articles exported or transferred pursuant to this
Treaty. Employees of the nongovernmental United States entities
referred to above who have appropriate security clearance and a
need-to-know may be provided access to Defense Articles
Exported or Transferred pursuant to this Treaty.
The facilities, entities, and personnel described in
Article 4 comprise the United Kingdom Community. The
facilities, entities, and personnel described in Article 5
comprise the United States Community. The United Kingdom and
United States Communities comprise the Approved Community.
Exports of defense articles from the United States
Article 6(1) of the Treaty provides that departments and
agencies of the United States Government and eligible
nongovernmental United States entities may Export Defense
Articles within the scope of this Treaty to a member of the
United Kingdom Community without licenses or other
authorization. Article 6(2) requires that the United States
Government establish procedures to ensure proper identification
of Defense Articles Exported pursuant to the Treaty. Article
6(3) requires that the Government of the United Kingdom
appropriately identify these Defense Articles once they enter
the United Kingdom Community.
The Directorate of Defense Trade Controls would promulgate
regulations to effectuate Article 6. In particular, it would be
necessary to provide procedures to ensure potential exporters
know whether a proposed recipient is a member of the United
Kingdom Community, and whether the proposed project falls
within the scope of Article 3.
Transfers of defense articles
Article 7 provides that the Transfer of previously Exported
Defense Articles to members of the United Kingdom Community, as
identified in Article 4, or the United States Community, as
identified in Article 5, will not require authorization by the
United States Government. Pursuant to Article 9, however, if a
member of the United Kingdom community were to retransfer
previously Exported Defense Articles outside of the Approved
Community, authorization of the Government of the United
Kingdom would be required. (Such retransfers would include
``Retransfers'' and ``Re-exports'' as defined in the Treaty.)
Prior to granting authorization for Re-transfers and Re-
exports, the Government of the United Kingdom will require the
exporter to provide supporting documentation that includes
United States Government approval. Any Re-transfer or Re-export
without the authorization of the Government of the United
Kingdom and United States Government approval will be a
violation of, at a minimum, the Arms Export Control Act and the
United Kingdom Official Secrets Act, and will be punishable as
such.
Exports of Defense Articles from a member of the United
States Community to an entity, facility, or person outside of
the United Kingdom Community would continue to require a
license or other written authorization by the Directorate of
Defense Trade Controls of the Department of State.
Exports and transfers from the United Kingdom
Article 8 obligates the Government of the United Kingdom to
ensure that Defense Articles exported from the United Kingdom
Community to the United States Community do not require
additional export licenses or other authorizations.
Specifically, Article 8(1) recognizes that the Government of
the United Kingdom may satisfy this obligation through its
blanket or open authorizations.
Proprietary rights and intellectual property
Article 10(1) provides that nothing in the Treaty shall
affect any rights to, or interests in, intellectual property or
other proprietary information of the Parties or of any person
or entity within the Approved Community. Article 10(2) provides
that nothing in this Treaty shall affect any provisions for the
protection of intellectual property and other proprietary
information that may be agreed between the persons or entities
Exporting or Transferring Defense Articles pursuant to the
Treaty. Accordingly, such persons or entities may agree between
themselves on procedures to provide protections to intellectual
property or other proprietary information, additional to the
protections afforded to classified information.
Protection of defense articles exported from the United States
Article 11 provides that Defense Articles Exported or
Transferred pursuant to the Treaty will be marked, identified,
transmitted, stored, and handled in accordance with the General
Security Agreement between the Government of the United Kingdom
of Great Britain and Northern Ireland and the Government of the
United States of America of April 14, 1961, as amended, and
implementing arrangements thereto. At a minimum, the Defense
Articles will be treated as United Kingdom ``restricted''
information. Such treatment will result in the application of
the United Kingdom Official Secrets Act with respect to Defense
Articles exported pursuant to the Treaty. If the Defense
Articles are classified at a higher level, they will be so
marked and identified, and treated according to the
requirements for that classification level in the
aforementioned General Security Agreement.
Recordkeeping and notification
Article 12 requires both Parties to require that entities
within their respective Community Exporting, Transferring, or
receiving Defense Articles pursuant to the Treaty maintain
detailed records of such movements. Either Party may request
that the other Party obtain, and provide it with copies of,
such records. Article 12 further allows for either Party to
establish procedures, which may include advance notification of
certain Exports, to accomplish appropriate notification to its
legislative bodies.
Enforcement
Article 13 provides that if persons or entities Exporting
or Transferring Defense Articles pursuant to the Treaty comply
with the procedures established pursuant to this Treaty,
including its Implementing Arrangements, and any regulations
promulgated to implement the Treaty's effect on existing law,
they shall be exempt from the generally applicable licensing
requirements established pursuant to the Arms Export Control
Act with respect to exports and transfers of Defense Articles.
If, however, persons or entities Exporting or Transferring
Defense Articles engage in conduct that is outside the scope of
the Treaty, including certain of its Implementing Arrangements,
and any regulations promulgated to implement the Treaty's
effect on existing law, that conduct remains subject to the
applicable licensing requirements and implementing regulations
of the AECA.
Because the Treaty is self-executing, this exemption will
be created through ratification of the Treaty; no additional
legislation will be required to implement the exemption in
United States law. Those Implementing Arrangements constituting
terms of the exemption are authorized by this self-executing
Treaty. They will not be submitted for Senate advice and
consent to ratification and also require no further legislative
action to become a fully effective part of the exemption.
Both governments will investigate potential violations of
the procedures established pursuant to the Treaty. Where
appropriate, both governments will cooperate in the conduct of
such investigations as well as in prosecutions and
administrative actions resulting from such investigations.
As with exports that are regulated pursuant to Sec. 38 of
the Arms Export Control Act, as amended, it is important to
ensure that Defense Articles exported or transferred pursuant
to the Treaty are properly handled and controlled. In this
regard, the governments will review the procedures utilized
with respect to postshipment verification and end-use or end-
user monitoring for current exports to ensure that they are
appropriate for exports or transfers pursuant to this Treaty.
Such procedures will be modified as required.
Implementing arrangements
Article 14(1) of the Treaty provides that the Parties shall
conclude, on an expedited basis, Implementing Arrangements for
this Treaty, which may be amended or supplemented by the
Parties from time to time. For example, the Implementing
Arrangements will establish eligibility requirements for
persons to be considered part of the United Kingdom Community.
Article 14(2) further provides that the Parties will
include in such Implementing Arrangements a process by which
entities in the Approved Community may transition from the
requirements of U.S. government defense export licenses or
other authorizations issued under the ITAR to the regime
established under the Treaty.
The Administration does not intend to submit any of the
Implementing Arrangements to the Senate for advice and consent,
but is prepared to provide these Implementing Arrangements to
the Senate for its information.
Implementing agencies
Article 15 of the Treaty requires that each Party designate
an authorized agency to implement its obligations under the
Treaty. The authorized agency for the Government of the United
States is the Department of State. The authorized agency for
the Government of the United Kingdom is the Ministry of
Defence. Either Party may change the designation of its
authorized agency by providing written notice to the other
Party.
Relationship to other international agreements
Article 16 provides that the Treaty does not affect the
rights and obligations of either Party under other
international agreements to which it is a Party.
Consultations
Article 17 of the Treaty requires that the Parties consult
at least annually on cooperative aspects of their export
control relationship and to review the operation of the Treaty.
It further clarifies that the consultations are intended to
provide a mechanism to review and address all relevant export
control issues. Such issues therefore are not limited to issues
specifically arising under the Treaty.
Dispute resolution
Article 18 provides that any disputes between the Parties
arising out of, or in connection with, the Treaty shall be
resolved through consultations between the Parties and shall
not be referred to any court, tribunal, or third party.
Amendments
Article 19 provides that the Treaty may be amended upon
written agreement of the Parties.
Entry into force
In accordance with Article 20, the Treaty shall enter into
force upon an exchange of notes confirming that each Party has
completed the necessary domestic requirements to bring the
Treaty into force. The United States will not provide such
notice until the Senate provides its advice and consent to
ratification of the Treaty and the President ratifies the
Treaty.
Duration and withdrawal
Article 21(1) provides that the Treaty shall be of
unlimited duration. Article 21(2) further provides that either
Party may withdraw from the Treaty if it decides that
extraordinary events related to the subject matter of the
Treaty have jeopardized its national interests. Should a Party
decide to withdraw from the Treaty, it shall notify the other
Party of its intent to withdraw and shall include a statement
of the extraordinary events that it regards as having
jeopardized its national interests. The Parties shall commence
consultations within thirty days of the provision of such
notification, with a view to allowing the continuation of the
Treaty. If the notifying Party does not agree to the
continuation of the Treaty, the withdrawal of the notifying
Party will take effect six months after the provision of such
notification.
Article 21(3) provides that should either Party withdraw
from the Treaty, the procedures for the protection of Defense
Articles that were exported pursuant to the Treaty shall
continue in effect until appropriate export licenses or other
authorizations are in place.