Exercising Restraint? The New U.S. Rules for Drone Transfers

May 2015

By Rachel Stohl

On February 5, Representative Duncan Hunter (R-Calif.) urged the Obama administration to reverse its decision to deny a Jordanian request for unarmed Predator XP drones to fight the Islamic State.

Until the release of Hunter’s letter, the denial of the proposed sale had not been made public. The decision on the Jordanian request reflects the United States’ close hold on drone technology and the lack of transparency for decisions on drone exports. Although Hunter and others who supported the Jordan deal and other drone exports correctly reference the need of allies to acquire technology and weapons to join the U.S. fight against potential threats, the United States has placed extensive limits on drone exports.

These limits have often been imposed without transparent policy guidance. The U.S. government recently revised its policy, but the policy remains classified. On February 17, however, the Department of State released an unclassified summary of the new policy, providing some clarity on its drone transfer decisions.[1] 

The revision of the U.S. export policy for unmanned aerial systems, as drones are formally known, had been highly anticipated by the defense industry and U.S. allies. U.S. industry in particular has been increasingly concerned that the United States has fallen behind in the fast-growing global drone market as more countries step up their indigenous development of the unmanned systems. 

The global drone market is set to double in the next decade, according to Teal Group Corp., increasing from $6.4 billion to $11.5 billion as more countries gain interest in developing and acquiring military drones. U.S. industry worries that if the United States does not participate in global drone sales, it will further diminish the U.S. position in the global drone market and further hinder U.S. industry innovation. U.S. industry is unlikely to invest in research and development for new drone systems if U.S. regulations are too restrictive and burdensome.[2] 

The new drone export policy is part of a broader U.S. policy review of U.S. drone use and transfer and is the culmination of years of work. In May 2013, President Barack Obama gave a speech at the National Defense University highlighting the importance of a transparent and accountable U.S. drone policy. In a follow-up speech at the U.S. Military Academy at West Point a year later, Obama did little to expand on his vision of what an accountable and transparent policy would look like. The February release is the first codification of Obama’s promised expansion of transparency. The new policy was developed in response to Obama’s call for clarity, but also because of increasing demand for drones from close allies and nongovernmental end users around the world.

The unclassified summary describes the policy’s tenets and approach. Drone exports are governed, as are all U.S. defense exports, by a variety of laws, regulations, and policies including the Arms Export Control Act, the Foreign Assistance Act, the International Traffic in Arms Regulations, the Export Administration Regulations (for commercial drones), and the Conventional Arms Transfer Policy. 

Much of the policy guidance governing drone exports is clarified in Presidential Policy Directive 27 (PPD-27), which was issued in January 2014 and updated the Conventional Arms Transfer Policy.[3] The policy states the goals of U.S. policy on conventional arms transfers, outlines the process and criteria that guide U.S. arms transfer decisions, clarifies the ways in which U.S. policy on conventional arms transfers supports arms control and arms transfer restraint, and explains how the United States supports responsible arms transfers around the globe. The policy is consistent with long-standing U.S. law (the Arms Export Control Act and Foreign Assistance Act, among others), regulatory regimes, and internal practices. The policy reflects existing U.S. legal authorities and international obligations. 

PPD-27 outlines the U.S. rationale for arms transfers, saying that U.S. policy “supports transfers that meet legitimate security requirements of our allies and partners in support of our national security and foreign policy interests. At the same time, the policy promotes restraint—both by the United States and other suppliers—in transfers of weapons systems that may be destabilizing or dangerous to international peace and security.” The document lists 13 specific criteria that the United States “will take into account” when making arms transfer decisions. Each potential transfer is reviewed on a case-by-case basis, and one criterion does not outweigh another.

Because the Conventional Arms Transfer Policy includes the export of drones, it is somewhat surprising that the Obama administration singled out one particular conventional weapons system and released a policy specific to drones. 

Drones have a combination of persistence and precision that makes them uniquely suitable for certain challenging military and counterterrorism operations. They are able to loiter for extended periods of time and can collect information from the battlefield and elsewhere that can then be used for more-accurate targeting. They allow a military to engage in conflict beyond the boundaries of front-line combat in areas that would otherwise be unreachable or hazardous for manned operations. They can help protect ground forces and expand a military mission by allowing a military presence in areas that otherwise would be inaccessible because of topographical, political, resource, and other constraints. 

In addition, drones are stealthy. Some can easily evade discovery because they are small and quiet, while others can avoid detection by flying at high altitudes. By their very nature, drones change the calculus for actors that use them. Governments may choose to use drones to engage in continual or wider conflicts because personnel and more-expensive machinery are not at risk. These characteristics of drones allow countries to make decisions and respond to threats in ways they would otherwise not if they had to rely solely on manned aircraft. As a result, U.S. policymakers argue that drones warrant a specific policy to address their transfer.

Elements of the New Policy 

The new policy on drone transfers does not develop any new legislation or create new bureaucratic institutions, but builds on existing legal frameworks and better clarifies how the decision-making process is implemented. The State Department summary describes the new policy as one that “provides a disciplined and rigorous framework” for U.S. drone exports. The foundation of the policy is to “exercise restraint in sales and transfers” while “advanc[ing] [U.S.] national security and foreign policy interests.” As with the Conventional Arms Transfer Policy, a key role of the drone policy is to enhance “operational capabilities and capacity of trusted partner nations, increas[e] U.S. interoperability with these partners for coalition operations, ensur[e]responsible use of these systems, and eas[e] the stress on U.S. force structure for these capabilities.” The Obama administration’s continued reliance on close allies and partners drives the need for a more predictable or at least understandable U.S. export control system for drones. 

The policy also claims to ensure “appropriate participation for U.S. industry in the emerging commercial drone market, which will contribute to the health of the U.S. industrial base, and thus to U.S. national security which includes economic security.” The reference to the U.S. defense industry mirrors the Conventional Arms Transfer Policy, in which economic factors are part of arms transfer determinations.

The new policy requires that all potential sales be considered on a case-by-case basis, as was done previously, but also “puts in place stringent conditions” on potential drone sales. Specifically, the policy includes “potential requirements” that the United States can impose on its drone exports. Not all recipients will be subject to all of the requirements, but these additional conditions provide the United States with an extra level of oversight over U.S. drone transfers and confirm a recipient government’s commitment to U.S. rules and procedures governing drone use. For example, the policy requires sales and transfers of particularly sensitive drone systems to be made through the government-to-government Foreign Military Sales program, rather than through commercial sales. Moreover, the review of potential transfers can be made through the Department of Defense Technology Security and Foreign Disclosure processes, adding a higher level of scrutiny over potential exports. 

Recipient countries also will face additional obligations. Under the new policy, these countries could be required to agree to end-use assurances as a condition of sale or transfer or more specific end-use monitoring and additional security conditions as part of the export agreement. All recipient countries will be required to agree to specific “principles for proper use” as a condition of the transfer.

The policy reinforces U.S. obligations under the Missile Technology Control Regime (MTCR). The MTCR commitments require that Category I systems (those that have a range of at least 300 kilometers and the ability to carry a payload of at least 500 kilograms) are subject to a “strong presumption of denial.”[4] The presumption of denial does not prohibit all Category I exports, but instead allows such transfers on “rare occasions” that are consistent with nonproliferation and export controls.

The policy also states that U.S.-origin commercial drones, including commercial MTCR Category I systems, are subject to the policy. These sales and transfers are to be reviewed under the “requirements and licensing policies” of the Export Administration Regulations.

One of the most notable and surprising aspects of the policy is that it contains four “principles for proper use” that recipients must adopt before any drone sales are authorized: 

“Recipients are to use these systems in accordance with international law, including international humanitarian law and international human rights law, as applicable;

“Armed and other advanced UAS [unmanned aerial systems] 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 military UAS to conduct unlawful surveillance or use unlawful force against their domestic populations; and

“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 State Department summary says that the principles are necessary because “the United States has an interest in ensuring that these systems are used lawfully and responsibly.” Critics argue that the principles represent stronger criteria than the United States applies to its own drone use, but Washington claims that these principles guide U.S. use in theaters including Afghanistan, Iraq, Pakistan, Somalia, Syria, and Yemen.

Although interpretations of international law with regard to use of military drones vary widely and the U.S. interpretation of international law has been less than transparent, the elevation of international legal principles as a key component of the policy is notable. The United States has not been forthcoming in revealing its underlying legal framework for drone strikes and has been criticized for not providing a public explanation of its process and criteria. 

The policy summary includes a description of plans to work with other countries to develop international standards for the sale, transfer, and use of drones. Although no details of this cooperation have yet been made public, the potential for the development of norms and standards is important to address widespread international condemnation of U.S. use of drones. Given the growing controversies over drone use around the world, the United States cannot assume that just saying that it wants to set appropriate standards for drone transfer and use is enough. Countries are suspicious of U.S. actions, and the United States can no longer get away with saying that it is using drones responsibly and that everyone should just trust its process. A clear set of international norms can create the framework for determining when drone use and transfer are responsible and can provide a transparent process by which the United States and others can be held accountable.

Policy Impact Unclear

When the new policy was released, many media articles indicated that it would open the floodgates and allow U.S.-origin drones to be exported with ease. In reality, however, the new policy does not actually loosen export controls on drones as U.S. drone exports were not automatically prohibited in the past. Indeed, the United States already has exported sophisticated drones to key partners and allies including France, Italy, South Korea, the United Kingdom, and most recently the Netherlands. Furthermore, nothing in the new policy eliminates any previous restrictions on U.S. drone exports—the MTCR guidelines still apply, as does the Conventional Arms Transfer Policy. 

In short, it is not exactly easier to get a military drone from the United States now that the policy has been announced. Instead, there is now a more public and bureaucratically clear framework by which export decisions can be made. That framework may allow decisions to be made in a more expedited fashion, but that does not mean that the answer for all transfer requests will be yes. In the end, the United States will likely sell more drones not because of the new policy but because there is greater demand for these systems. 

The State Department summary makes explicit the policies that were already guiding U.S. export decisions for military drones and tries to provide additional clarity. Although the policy adds a welcome level of transparency to the drone export process, it remains quite opaque. For example, the summary does not make clear the distinction between commercial and military drones. 

For the most part, the distinction between military and commercial drones is not intuitive. The line between unarmed military drones and nonmilitary or commercial drones is often indistinguishable. The differences between drone technologies developed for military purposes and those developed for commercial and other civilian purposes are often nonexistent, and distinctions between the two become even more tenuous given that many drones have military and nonmilitary applications that were developed jointly. The lack of a clear articulation of what makes a drone a military system could create implementation challenges for the new policy.

The policy differentiates “sensitive systems” from other types of drones, subjecting them to more-stringent controls. Although not clearly defined in the summary, sensitive systems are those that facilitate military strikes, are armed, or fall within Category I of the MTCR. In the future, new technological advancements could place other systems on the list of sensitive systems. This differentiation is important because the lack of transparency for drone producers, drone recipients, and those researching and reporting on drone transfers creates additional challenges for a complete understanding of the policy’s potential and future impact.

The policy focuses on the range and payload, as defined by the MTCR in its description of the systems that require greater controls. Although these are important guidelines for the MTCR and were intended to serve a significant nonproliferation purpose, they do not reflect particular capabilities that might be as dangerous or lethal in unmanned platforms. Therefore, although certain systems may be more difficult to purchase because of the MTCR “presumption of denial,” other systems that do not meet the MTCR thresholds but may be more lethal or dangerous will not be routinely prohibited. For example, the policy does not reflect the U.S. view on issues such as the capability for carrying out highly lethal and evasive “swarming,” in which multiple small drones are used to overwhelm and overpower an adversary; attaining high speeds; carrying highly sophisticated technology that strongly enhances a government’s intelligence gathering capabilities; incorporating features that make drones difficult to detect; or adding armor and anti-aircraft countermeasures that protect drones from being shot down with relative ease. It would be particularly useful for the United States to outline the specific characteristics that will trigger additional scrutiny for exports and clarify how restrictions on transfers will be implemented. 

The Obama administration’s commitment to exploring possibilities for common standards and international norms on drone use and export is laudable, but the details of what this will entail are vague. Will the United States be pursuing an international code of conduct? If so, in what forum will these discussions be held? The United States would be well advised to begin those conversations with close partners and allies first in order to identify potential areas of common interest or concern and ensure that Washington has a complete understanding of the political and global implications of the transfer and use of drones as more countries acquire this technology. Before it can encourage others to adopt common international standards for transfer and use of drones, however, the United States will have to be able to publicly enunciate its own standards in detail.

Conclusion

The true impact of the new drone policy will be in its implementation over time. A key question concerns the impact that the policy will have on U.S. drone exports. Will customers turn against the United States because of a more restrictive policy, or will the clarity of the policy promote a willingness to engage in negotiations to acquire drones from the United States? 

In addition, the principles for proper use create ambiguity for the global drone market and for global use. Will recipients agree to the principles? How will the principles be enforced? How will the United States hold accountable recipients that violate the principles? Will the United States live up to its own standards and implement a comprehensive and transparent U.S. drone policy that provides for greater accountability and oversight of the U.S. drone program? 

Overall, the new policy on drone exports represents an important step forward even if it is only a limited first step. There is more work to be done, particularly in developing international standards as more countries acquire and use this technology. The Obama administration will need to provide additional policy clarifications in order to establish a more comprehensive U.S. drone policy that takes into account future use and accountability mechanisms. Ignoring the long-term implications of an undefined U.S. drone policy harms the country’s standing and its ability to influence even its closest allies and partners in the development of their own drone policies. Thus far, the Obama administration has not indicated that it will take the necessary additional steps to strengthen and elucidate the policy. 

As the world’s largest user of drones, the United States has the opportunity and the responsibility to set a clear international standard for the transfer and use of these systems, determine which countries can receive U.S. systems, and hold itself and its customers and partners accountable for their use. The new policy demonstrates an interest in restraining drone technology. The genie is out of the bottle, however, and this technology will only continue to spread around the world. Such proliferation is not inherently a problem, but the United States would be wise to ensure that U.S. policy actively and effectively promotes responsible proliferation and use.

Rachel Stohl is a senior associate with the Managing Across Boundaries Initiative at the Stimson Center and was project director of the center’s task force on U.S. drone policy. She is a member of the Arms Control Association Board of Directors.

ENDNOTES

1. Office of the Spokesperson, U.S. Department of State, “U.S. Export Policy for Military Unmanned Aerial Systems,” February 17, 2015, http://www.state.gov/r/pa/prs/ps/2015/02/237541.htm.

2. “Recommendations and Report of the Task Force on US Drone Policy,” The Stimson Center, June 2014, p. 27, http://www.stimson.org/images/uploads/task_force_report_final_web_062414.pdf. 

3. Office of the Press Secretary, The White House, “Presidential Policy Directive—United States Conventional Arms Transfer Policy,” January 15, 2014, https://www.whitehouse.gov/the-press-office/2014/01/15/presidential-policy-directive-united-states-conventional-arms-transfer-p. 

4. Missile Technology Control Regime, “Guidelines for Sensitive Missile-Relevant Transfers,” n.d., http://www.mtcr.info/english/guidetext.html.