[Congressional Record Volume 143, Number 106 (Thursday, July 24, 1997)]
[Senate]
[Pages S8096-S8098]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. KERRY (for himself, Mr. Dorgan, Mr. Feingold, Mr. Leahy, 
        Ms. Moseley-Braun, Mr. Wellstone, Ms. Landrieu, Mr. Kennedy, 
        and Mr. Harkin):
  S. 1067. A bill to prohibit United States military assistance and 
arms transfers to foreign governments that are undemocratic, do not 
adequately protect human rights, are engaged in acts of armed 
aggression, or are not fully participating in the United Nations 
Register of Conventional Arms; to the Committee on Foreign Relations.


           THE CODE OF CONDUCT ON ARMS TRANSFERS ACT OF 1997

  Mr. KERRY. Mr. President, today I am introducing the Code of Conduct 
on Arms Transfers Act of 1997, a bill to place restrictions on military 
assistance and arms transfers to governments that are not democratic, 
do not respect human rights, are engaged in armed aggression, or are 
not participating in the U.N. Register of Conventional Arms.
  Before I discuss the specifics of the legislation, I want to take a 
moment to pay tribute to our former colleague and long-time champion of 
this effort, Senator Mark Hatfield. During his four terms in the 
Senate, Senator Hatfield developed a reputation as a man committed to 
the search for peace and a staunch advocate of nonmilitary solutions 
for international problems. It was natural for Senator Hatfield to take 
the lead in an effort to make U.S. arms sales policy more reflective of 
American values. He did not succeed in winning passage of a Code of 
Conduct, but he placed the issue in front of the Senate and the public, 
and moved the debate forward. I am sure he is gratified to see that the 
House of Representatives adopted a version of the Code as an amendment 
to the bill to authorize State Department activities for fiscal year 
1998. I am honored to follow in his footsteps and introduce derivative 
legislation, the 1997 Code of Conduct Act.
  The Code of Conduct on Arms Transfers Act embodies a fundamental 
shift in the way that the United States will deal with the transfer of 
conventional weapons to the rest of the world. Like many other aspects 
of our national security structure, arms sales and other military 
assistance must be adjusted to the realities of the post-cold-war era. 
The central theme of our foreign policy has changed from containment of 
communism to expansion of democracy. We no longer need to send massive 
amounts of weaponry to our surrogates around the world in an arms race 
against communism. Instead we must evaluate the effect that arms 
transfers have on regional stability, the promotion of democracy and 
the protection of human rights.
  Unfortunately, our arms transfer policies have not adjusted to this 
reality. The United States continues to be the primary supplier of arms 
to the world. We ranked first in arms transfer agreements with 
developing nations from 1988 to 1995. In 1995 the United States ranked 
first in deliveries to the developing world for the fourth year in row. 
The United States share of all arms transfers to developing nations 
rose from 11.1 percent in 1988 to 44.1 percent in 1995. In constant 
dollars the United States has increased deliveries to developing 
nations from $5.5 billion in 1988 to $9.5 billion in 1995. It is 
disturbing to me that an analysis done by the Project 
on Demilitarization and Democracy revealed that, of the arms transfers 
to developing nations over a 4-year period, 85 percent went to non-
Democratic governments. It is clear that other factors, including 
short-term economic benefits from sales, dominate the U.S. Government's 
decision making process concerning arms

[[Page S8097]]

sales and the nature of the recipient regimes appears to be of little 
consequence.

  The Code of Conduct seeks to elevate the consideration of democracy, 
human rights and nonaggression from their current status as policy 
afterthoughts to primary criteria for decisions on arms transfers. A 
quote from a February 17, 1995 press release from the White House 
illustrates--by what it omits--the unfortunate tendency to ignore these 
factors. The release states, in part: ``The U.S. continues to view 
transfers of conventional arms as a legitimate instrument of U.S. 
foreign policy--deserving U.S. government support--when they enable us 
to help friends and allies deter aggression, promote regional security, 
and increase interoperability of U.S. forces and allied forces. * * * 
The U.S. will exercise unilateral restraint in cases where overriding 
national security or foreign policy interests require us to do so.''
  The criteria denoted in that statement are, indeed, critical 
components of a sound U.S. policy on arms transfers and should continue 
to be considered as such. But the statement omits what should be the 
very important consideration of the effects arms transfers are likely 
to have on democratization, nonaggression, and human rights. The U.S. 
is the largest exporter of weapons to developing nations and we must 
learn to exercise unilateral restraint not just for national security 
and foreign policy interests, but also for the furtherance of democracy 
and human rights.
  By exercising restraint, we cannot only further our foreign policy 
goal of fostering democracy, but also enhance our security as well. The 
June 1996 Report of the Presidential Advisory Board on Arms 
Proliferation Policy concluded that U.S. and international security are 
threatened by the proliferation of advanced conventional weapons. 
According to the Report, ``The world struggles today with the 
implications of advanced conventional weapons. It will in the future be 
confronted with yet another generation of weapons, whose destructive 
power, size, cost, and availability can raise many more problems even 
than their predecessors today. These challenges will require a new 
culture among nations, one that accepts increased responsibility for 
control and restraint, despite short-term economic and political 
factors pulling in other directions.'' The Code of Conduct is a step 
toward that new culture.

  The bill I am introducing today differs from past versions of the 
Code of Conduct in two significant ways. Most importantly, the language 
no longer requires that Congress pass legislation to accept a 
Presidential waiver for countries that do not meet the criteria. Under 
previous versions of the legislation, the President was required to 
submit to Congress an annual list of countries determined to meet the 
criteria for human rights, democracy, and non-aggression. For countries 
that failed to meet this threshold, the President could have requested 
a national security waiver, but the Congress would have had to enact 
the waiver through legislation. In my judgment, this approach made 
granting a waiver pass a very stiff test. Consequently, this provision 
was a major impediment to passage of the Code. Under the terms of the 
bill being introduced today, the President will still submit the annual 
list of countries that meet the criteria, but a Presidential request 
for a national security waiver does not require further action by the 
Congress. Congress could, of course, disapprove the waiver through the 
normal legislative process, but that likely would require overriding a 
Presidential veto. The design of the waiver process in the bill I am 
introducing is the same as that passed by the House.
  The second difference from past versions of the Code is the inclusion 
of a section to promote an international arms transfer regime. We are 
far and away the world's biggest arms merchant and we must lead the way 
for the rest of the world in addressing this issue. But the United 
States cannot do this alone. We should not deceive ourselves regarding 
the ability or willingness of other arms-producing nations to rush in 
and fill any gap we create. Russia, France, China, and other nations 
all have the potential to provide weapons the United States and its 
manufacturers will not provide. My legislation will require the 
President to expand international efforts to curb worldwide arms sales 
and to work toward establishing a multilateral regime to govern the 
transfer of conventional arms. It requires the President to notify 
allied governments when the United States determines a nation is 
ineligible under the Code for arms transfers, and request that our 
allies join the United States in refusing to transfer arms to that 
nation. The bill also requires the President to report annually to the 
Congress on steps he is taking to gain international acceptance of the 
principles incorporated in this legislation and on the progress he is 
making toward establishing a permanent multilateral structure for 
controlling arms transfers.

  If some of my colleagues view this effort as naive in a rough and 
tumble world, I call their attention to a commentary editorial in the 
June 16, 1997, issue of Defense News which endorses the Arms Trade Code 
of Conduct as passed by the House of Representatives. The editors 
concluded that the Code ``would create a useful tool to shine light on 
some nations' darkest human rights and other unsavory secrets.'' The 
effort to establish an international Code of Conduct has won the 
support of former Costa Rican President Oscar Arias and a dozen of his 
fellow Nobel Peace laureates. Similar legislation has been introduced 
in the European Union and several of its member nations, and the new 
government in the United Kingdom has expressed support for the concept.
  The United States should lead the way and stop selling arms to 
nations that ignore the rights and needs of their citizens that use 
those arms to bully their neighbors or their own populations. We should 
lead the way to establishment of a multilateral regime that will 
effectively prevent such nations from obtaining arms with which to 
enforce and administer nefarious activities. This legislation, and the 
similar legislation already passed by the House of Representatives, can 
be the vehicle to accomplish this objective.
  I want to thank Senator Dorgan, who previously has offered a Code of 
Conduct provision as an amendment to other legislation, for joining as 
a cosponsor today, along with Senators Feingold, Leahy, Moseley-Braun, 
Wellstone, Landrieu, Kennedy, and Harkin.
  With their support, and the support of other Senators whose support I 
am confident will be forthcoming, I am hopeful that we will see the 
Congress enact and the President sign into law this year legislation 
that will ensure that the values of democratization, human rights, and 
nonaggression--which are so important to our Nation and so often lauded 
and referenced by elected officials from both parties--will be legally 
established as criteria for arms sales and transfers to other nations 
by the United States.
  I ask unanimous consent the text of the bill be printed following my 
remarks.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1067

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Code of Conduct on Arms 
     Transfers Act of 1997''.

     SEC. 2. PURPOSE.

       The purpose of this Act is to provide clear policy 
     guidelines and congressional responsibility for determining 
     the eligibility of foreign governments to be considered for 
     United States military assistance and arms transfers.

     SEC. 3. PROHIBITION OF UNITED STATES MILITARY ASSISTANCE AND 
                   ARMS TRANSFERS TO CERTAIN FOREIGN GOVERNMENTS.

       (a) Prohibition.--Except as provided in subsections (b) and 
     (c), beginning on and after October 1, 1998, United States 
     military assistance and arms transfers may not be provided to 
     a foreign government for a fiscal year unless the President 
     certifies to Congress for that fiscal year that such 
     government meets the following requirements:
       (1) Promotes democracy.--Such government--
       (A) was chosen by and permits free and fair elections;
       (B) promotes civilian control of the military and security 
     forces and has civilian institutions controlling the policy, 
     operation, and spending of all law enforcement and security 
     institutions, as well as the armed forces;
       (C) promotes the rule of law, equality before the law, and 
     respect for individual and

[[Page S8098]]

     minority rights, including freedom to speak, publish, 
     associate, and organize; and
       (D) promotes the strengthening of political, legislative, 
     and civil institutions of democracy, as well as autonomous 
     institutions to monitor the conduct of public officials and 
     to combat corruption.
       (2) Respects human rights.--Such government--
       (A) does not engage in gross violations of internationally 
     recognized human rights, including--
       (i) extrajudicial or arbitrary executions;
       (ii) disappearances;
       (iii) torture or severe mistreatment;
       (iv) prolonged arbitrary imprisonment;
       (v) systematic official discrimination on the basis of 
     race, ethnicity, religion, gender, national origin, or 
     political affiliation; and
       (vi) grave breaches of international laws of war or 
     equivalent violations of the laws of war in internal 
     conflicts;
       (B) vigorously investigates, disciplines, and prosecutes 
     those responsible for gross violations of internationally 
     recognized human rights;
       (C) permits access on a regular basis to political 
     prisoners by international humanitarian organizations such as 
     the International Committee of the Red Cross;
       (D) promotes the independence of the judiciary and other 
     official bodies that oversee the protection of human rights;
       (E) does not impede the free functioning of domestic and 
     international human rights organizations; and
       (F) provides access on a regular basis to humanitarian 
     organizations in situations of conflict or famine.
       (3) Not engaged in certain acts of armed aggression.--Such 
     government is not currently engaged in acts of armed 
     aggression in violation of international law.
       (4) Full participation in united nations register of 
     conventional arms.--Such government is fully participating in 
     the United Nations Register of Conventional Arms.
       (b) Requirement for Continuing Compliance.--Any 
     certification with respect to a foreign government for a 
     fiscal year under subsection (a) shall cease to be effective 
     for that fiscal year if the President certifies to Congress 
     that such government has not continued to comply with the 
     requirements contained in paragraphs (1) through (4) of such 
     subsection.
       (c) Exemptions.--
       (1) In general.--The prohibition contained in subsection 
     (a) shall not apply with respect to a foreign government for 
     a fiscal year if--
       (A) subject to paragraph (2), the President submits a 
     request for an exemption to Congress containing a 
     determination that it is in the national security interest of 
     the United States to provide military assistance and arms 
     transfers to such government; or
       (B) the President determines that an emergency exists under 
     which it is vital to the interest of the United States to 
     provide military assistance and arms transfers to such 
     government.
       (2) Disapproval.--A request for an exemption to provide 
     military assistance and arms transfers to a foreign 
     government shall not take effect, or shall cease to be 
     effective, if a law is enacted disapproving such request.
       (d) Notifications to Congress.--
       (1) In general.--The President shall submit to Congress 
     initial certifications under subsection (a) and requests for 
     exemptions under subsection (c)(1)(A) in conjunction with the 
     submission of the annual congressional presentation documents 
     for foreign assistance programs for a fiscal year and shall, 
     where appropriate, submit additional or amended 
     certifications and requests for exemptions at any time 
     thereafter in the fiscal year.
       (2) Determination with respect to emergency situations.--
     Whenever the President determines that it would not be 
     contrary to the national interest to do so, he shall submit 
     to Congress at the earliest possible date reports containing 
     determinations with respect to emergencies under subsection 
     (c)(1)(B). Each such report shall contain a description of--
       (A) the nature of the emergency;
       (B) the type of military assistance and arms transfers 
     provided to the foreign government; and
       (C) the cost to the United States of such assistance and 
     arms transfers.

     SEC. 4. PROMOTING AN INTERNATIONAL ARMS TRANSFERS REGIME.

       (a) International Cooperation.--Prior to the beginning of 
     each fiscal year, the President shall compile a list of 
     countries that do not meet the requirements in section 3(a) 
     and for which the President has not requested an exemption 
     under section 3(c). The President shall--
       (1) notify the governments participating in the Wassenaar 
     Arrangement on Export Controls for Conventional Arms and Dual 
     Use Goods and Technologies, done at Vienna, July 11 and 12, 
     1996 (in this section referred to as the ``Wassenaar 
     Arrangement''), and such other foreign governments as the 
     President deems appropriate, that the countries so listed are 
     ineligible to receive United States arms sales and military 
     assistance under this Act; and
       (2) request that the countries so notified also declare the 
     listed countries as ineligible for arms sales and military 
     assistance.
       (b) Multilateral Efforts.--The President shall continue and 
     expand efforts through the United Nations and other 
     international fora, such as the Wassenaar Arrangement, to 
     limit arms transfers worldwide, particularly transfers to 
     countries that do not meet the criteria established in 
     section 3, for the purpose of establishing a permanent 
     multilateral regime to govern the transfer of conventional 
     arms.
       (c) Report.--
       (1) In general.--Beginning one year after the date of 
     enactment of this Act, and annually thereafter, the President 
     shall submit a report to Congress--
       (A) describing efforts he has undertaken during the 
     preceding year to gain international acceptance of the 
     principles contained in section 3; and
       (B) evaluating the progress made toward establishing a 
     multilateral regime to control the transfer of conventional 
     arms.
       (2) Submission of the report.--This report shall be 
     submitted in conjunction with the submission of the annual 
     congressional presentation documents for foreign assistance 
     programs for a fiscal year.

     SEC. 5. UNITED STATES MILITARY ASSISTANCE AND ARMS TRANSFERS 
                   DEFINED.

       For purposes of this Act, the terms ``United States 
     military assistance and arms transfers'' and ``military 
     assistance and arms transfers'' mean--
       (1) assistance under chapter 2 of part II of the Foreign 
     Assistance Act of 1961 (relating to military assistance), 
     including the transfer of excess defense articles under 
     section 516 of that Act;
       (2) assistance under chapter 5 of part II of the Foreign 
     Assistance Act of 1961 (relating to international military 
     education and training); or
       (3) the transfer of defense articles, defense services, or 
     design and construction services under the Arms Export 
     Control Act (excluding any transfer or other assistance under 
     section 23 of such Act), including defense articles and 
     defense services licensed or approved for export under 
     section 38 of that Act.

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