1 See William Storck, Record Chemical Exports Boost Trade Surplus, Chemical & Engineering News, Mar. 6, 1995, at 7 ($51.6 billion); Bureau of Census, U.S. Dep’t of Commerce, Statistical Abstract of the United States 829, table No. 1332 (1994) (for 1993, chemicals had a positive trade balance of $15.5 billion, with “agricultural products” following at a $13.8 billion positive figure).

2 See 15 C.F.R. §§770–799 (1995).

3 See 22 C.F.R. §§120.1–128 (1994).

4 See 15 C.F.R. §799.1, Supp. No. 1.

5 Id., items 1C60C, 1C61B.

6 See 22 C.F.R. §121.

7 See id. §121.7.

8 Id.

9 Chemical Weapons Convention Implementation Act of 1995, transmitted to Congress May 25, 1995, U.S. Arms Control & Disarmament Agency Doc. D/EX9502101–1. As of December 1995, neither House nor Senate bill numbers had been assigned.

10 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Jan. 13, 1993, S. Treaty Doc. No. 21, 103d Cong., 1st Sess. (1993), reprinted in 32 ILM 800 (1993). See generally 88 AJIL 323 (1994). The Senate is not expected to take up the Convention until February or March 1996. For hearings on the earlier proposed Implementation Act of 1994, H.R. 4849 and S. 2221, 103d Cong., 2d Sess. (1994), see Chemical Weapons Convention (Treaty Doc. 103-21): Hearings Before the Senate Comm. on Foreign Relations, 103d Cong., 2d Sess. (1994); Implementation of the Chemical Weapons Convention: Hearings Before theHouse Comm. on Foreign Affairs, 103d Cong., 2d Sess. (1994); Military Implications of the Chemical Weapons Convention (CWC): Hearings Before the Senate Comm. on Armed Services, 103d Cong., 2d Sess. (1994).

11 See CWC, supra note 10, Annex on Chemicals, 32 ILM at 821–24.

12 Examples include Oethyl N,N-dimethyl phosphoramidocyanidate (tabun), 77-81-6; and O-ethyl S–2–diisopropylaminoethyl methyl phosphonothiolate (VX), 50782-69-9. Five substances identified in the Convention, but without CAS registry numbers, are also subject to control. Of these, only N,N-dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides appears on the CWC and not the Commerce and State lists. As an illustration of the other four, dialkyl (Me, Et, n-Pr or i-Pr) aminoethyl–2–chlorides and corresponding salts, which appear on the CWC, appear on the Commerce list as diethyl-N,N-dimethylphosphoroamidate, 2404-03-7. Some substances identified by CAS registry number in the CWC are exempt from the terms of the Convention. An example is O-ethyl S-phenyl ethylphosphonothiolothionate (fonofos), carrying number 944-22-9.

13 For chemicals, see item 1C60C, supra note 5. An illustration is the chemical carrying CAS number 1341-49-7. For toxins, see item 1C61B, supra note 5. Botulinum toxins are an example.

14 See 22 C.F.R. §121.7.

15 This is a deliberate use of the notion of “identification by name.” That a chemical substance on the Commodity Control List or the Munitions List is not identified by name in the CWC schedules is not an indication that it is not covered by those schedules. See note 16 infra.

16 The CWC’s Annex on Chemicals, supra note 11, under B, “Schedule of Chemicals,” second introductory paragraph, 32 ILM at 822, indicates that the listed chemicals are considered to include others made of a different combination of chemicals. As a consequence, fewer than 34 chemicals listed in the Commodity Control List are not covered by the CWC. For instance, the former lists ethylphosphonyl difluoride, 753-98-0, which does not appear by name in the CWC. Nonetheless, given the language of the second introductory paragraph, supra, the substance may be covered under Schedule 1, B(9), alkyl (Me, Et, n-Pr or i-Pr) phosphonyl-difluorides. Twelve other chemicals seem to qualify for the same analysis. Thus, only 21 substances on the Commerce list are not in the CWC schedules.

17 See item 1C60C, supra note 5, No. 9; CWC Annex on Chemicals, supra note 11, Schedule 2, B(11), 32 ILM at 823.

18 See CWC Annex on Chemicals, supra note 11, Schedules 1, B(11) and 3, A(1), 32 ILM at 823, 824.

19 This is a deliberate use of the notion of “explicidy named.” However, the fact that a chemical substance appears on the CWC schedules but is not named in the Commerce and State lists does not mean that it has escaped U.S. export control. Nonetheless, what can be said about chlorosarin and phosgene would seem to be of general applicability. Although the Office of Defense Trade Controls has broad control authority, it is more likely to invoke it to restrict exports of chlorosarin than of phosgene. The former is a Schedule 1 (most highly restricted) precursor, the latter only a Schedule 3 precursor.

20 Twenty chemicals mentioned in the CWC schedules are also listed in the Commodity Control List. An illustration is thiodiglycol, 111-48-8. In addition, 13 other chemicals fall within the schedules, not by explicit reference, but by virtue of the two sets of broad language appearing in the CWC Annex on Chemicals, supra note 11, under B, second introductory paragraph, and Schedule 2, B(4), 32 ILM at 822, 823, in combination with the scheduled items carrying no CAS registry number and listed in Schedule 2, B(5–6) and (10–12), 32 ILM at 823. Examples of these 13 include diethyl ethylphosphonate, 78-38-6; and diethyl methylphosphonite, 15715-41-0.

21 Only three chemicals listed in the CWC schedules are identified on the Munitions List. However, the Department of State, under the ITAR, has extensive authority to regulate the export of chemicals other than those listed. The regulations provide, in 22 C.F.R. §121.7, that a controlled “ ‘chemical agent’ includes, but is not limited to,” the chemicals appearing on the Munitions List. As indicated supra note 19, however, such authority is more likely to be exercised in regard to chemicals on Schedule 1 than those on Schedule 3. Of the 28 chemicals listed on the CWC schedules and not currentiy subject to U.S. export control, all but the five Schedule 3 chemicals (phosgene, cyanogen chloride, hydrogen cyanide, ethyldiethanolamine, and methyldiedianolamine) could therefore be subjected to export regulation. But see text infra at notes 22–30. If the State Department does not regulate the export of Schedule 2 chemicals, the five listed in Schedule 3 could be supplemented by four additional chemical substances (amiton, PFIB, BZ, and N,N-dialkyl (Me, Et, n-Pr or i-Pr) phosphoramidic dihalides).

22 See text at and note 8 supra.

23 See CWC Annex on Chemicals, supra note 11, under A, Guidelines for Schedule 1, para. 1, 32 ILM at 822.

24 See CWC, supra note 10, Annex on Implementation, pt. VI, A, paras. 1 and 2(a), 32 ILM at 824, 853–54.

25 See id., pt. VII, C, paras. 31 and 32, 32 ILM at 859–60.

26 The EAR requires, 15 C.F.R. §778.8(a)(1) & (3), with a few country exceptions, a validated license to export any of the chemicals listed under item 1C60C or 1C61B of the Commodity Control List. The specific nature of the end use of the chemical or toxin affects decisions to grant or deny requests for validated licenses. Id. §778.8(d)(2)(i); see also id. §§778.8(c) and 773.9. The EAR, however, says nothing about restrictions on end uses of chemicals listed in Schedule 1. See id. §§778.8, 772.6(a)(2), and 773.9. As for export under a general license, i.e., export to a country other than one for which a validated license is required, see id. §770.3 (requiring, in most cases, a general license), the EAR takes the same approach as with validated licenses. However, in most cases, a Shipper’s Export Declaration identifying end use must be submitted to Customs Service officials. See Andreas F. Lowenfeld, Trade Controls for Political Ends 21 (1983).

27 See note 26 supra.

28 See CWC Annex on Implementation, supra note 24, pt. VII, C, para. 31, 32 ILM at 859.

29 The EAR clearly allows chemicals of this sort to be exported to most nations only under a validated license. See item 1C60C, supra note 5. Exports to a few identified countries may be made under a general license, see supra note 26. Yet even if export is destined for a country for which a validated license is required, the most the regulation dictates is denial of a request if, “on a case-by-case basis,” it is determined the commodities involved would make a “material contribution” to development or production of chemical weapons. See 15 C.F.R. §778.8(d)(1). The nonproliferation credentials of the country of destination are considered, id., subpara. (2) (iii), but nothing indicates that mere nonparty status under the CWC precludes granting a validated license.

30 See 22 C.F.R. §126.7. As with the Commodity Control List, while a license request may be denied if the country of destination is not a party to the CWC, that result is not automatically required.

31 See CWC, supra note 10, Art. I (1) (a), 32 ILM at 804; Implementation Act, supra note 9, sees. 201 (§§227 (a), 227B(a)(3)), and 203(a).

32 See CWC, supra note 10, Art. Ill, 32 ILM at 806–07, and Annex on Implementation, supra note 24, e.g., pt. IV(A), A, 32 ILM at 836; Implementation Act, supra note 9, sees. 301–302.

33 See CWC Annex on Implementation, supra note 24, e.g., pt. II, 32 ILM at 829–34; Implementation Act, supra note 9, sees. 401–407.

34 See CWC, supra note 10, Art. 1(2–5), 32 ILM at 804; and Annex on Implementation, supra note 24, e.g., pt. IV(A), C, 32 ILM at 837–40.

35 See Implementation Act, supra note 9, sees. 201–203.

36 See id. sees. 301–303 for the reporting regime.

37 See id. sees. 401–407.

38 See Implementation Act, supra note 9, sec. 201 (amending ch. 11 of 18 U.S.C. to add, inter alia, §227(a) to ch. 11A).

39 Id. (§227D(2) defines “chemical weapons” as including toxic chemicals and precursors when for purposes other than industrial, agricultural, research, medical, pharmaceutical, protective or other peaceful use, or when inconsistent with such uses in type or quantity).

40 See supra note 38.

41 See Implementation Act, supra note 9, sec. 203(a).

42 Id. sec. 203(b)(1).

43 Id. sec. 203(b)(2).

44 Id. sec. 404.

45 Since the section 201 prohibitions are on “chemical weapons,” and extend to development, stockpiling, ownership and possession, while the section 203 prohibitions are on “chemicals,” and do not reach beyond production, acquisition, retention, transfer and use, this conclusion has merit. Additionally “whoever” engages in proscribed conduct is subject to the section 201 prohibitions, while those in 203 are defined in a way that could leave aside members of the U.S. armed forces. See text preceding note 48 infra. “[W]hoever” seems intended to bring armed forces personnel within the ambit of 201’s prohibitions. See also Secuon-by-Section Analysis of the Proposed Chemical Weapons Convention Implementation Act of 1994, 140 Cong. Rec. S7253, S7255 (daily ed. June 21, 1994).

46 The operative term in sections 201 and 203 of the Act is “transfer.” It connotes not only exports, but also domestic shipments. Cf. Walter Krutzsch & Ralf Trapp, A Commentary on the Chemical Weapons Convention 13 (1994) (Art. 1(1) of CWC). Section 203(b), in referring to Schedule 1 and 2 chemicals, mentions limitations on transfers to persons outside the United States. Nonetheless, paragraph (a) of that same section indicates a more general prohibition on transfers of Schedule 1 chemicals, unless for peaceful purposes and under other limitations. As paragraph (a) is styled “Schedule 1 Activities,” and the follow-on paragraph “Extraterritorial Acts,” arguably even domestic shipments of Schedule 1 chemicals are subject to the Act’s controls. Similarly, the section 201 addition of 18 U.S.C. §227(a) prohibits anyone from “knowingly” making a transfer of chemical weapons, including toxic chemicals, and does so without reference to transfer outside the United States. Thus, if knowledge could be shown, the United States would seem entitled to control domestic transfers of any toxic chemical, including Schedule 2 chemicals, notwithstanding section 203(b)(2). It will be interesting to see how regulatory provisions to implement the Act approach “transfer,” in regard to domestic transfers and other matters like intracompany transfers. See also infra part V.

47 See U.S. Congress, Office of Technology Assessment, The Chemical Weapons Convention: Effects on the U.S. Chemical Industry 8 (OTA–BP–ISC–106, 1993) (20,000); Notice of the Development of Regulations to Implement U.S. Industry Obligations under the Chemical Weapons Convention, 59 Fed. Reg. 66,291, 66,292 (1994) (12,000).

48 As with section 203(b)(1), “person” is defined with reference to being “located in” the United States. It will be interesting to see whether the implementing regulations define “located in” and, if so, whether the definition will include those who merely employ a U.S. agent to take possession and arrange the export from the United States of regulated chemicals. See Section-by-Section Analysis, supra note 45, at 7254 (defining person broadly to “ensure that all possible entities within the United States” are covered).

49 See “Schedules of Chemicals,” supra note 16, 32 ILM at 824.

50 The CWC, supra note 10, Art. 1(1)(a), 32 ILM at 804, establishes obligations with regard to “chemical weapons.” Weapons are defined in Article 11(1)(a), 32 ILM at 804–05, as including “toxic chemicals and their precursors,” not just those listed in the schedules. See also Annex on Implementation, supra note 24, pt. IX, 32 ILM at 862 (obligations with regard to “discrete organic compounds” containing phosphorus, sulfur, or fluorine).

51 See CWC Annex on Implementation, supra note 24, pt. VIII, C, paras. 26–27, 32 ILM at 862, on Schedule 3 chemicals. Transfer rights regarding unscheduled chemicals are much less direct. CWC Article 1(1) (a), 32 ILM at 804, prohibits transfers to anyone of “chemical weapons,” defined in Article II(1)(a), id., as toxic chemicals and precursors, except for peaceful purposes. Article VI(1), id. at 809–10, states the right to transfer toxic chemicals for peaceful purposes, “subject to the provisions of this Convention.” Nowhere in the CWC is the transfer of unscheduled chemicals regulated.

52 See also CWC Annex on Implementation, supra note 24, pt. VIII, C, para. 26, 32 ILM at 862, requiring exporter to obtain from recipient state certification that the chemical transferred will be used only for peaceful purposes and will not be retransferred, and identification of the end use and end user. No such obligations are found in the Implementation Act.

53 On prohibiting exports by foreign entities located in the United States, as well as by domestic entities, see Implementation of the Chemical Weapons Convention: Hearing Before the House Comm. on Foreign Affairs, 103d Cong., 2d Sess. 38 (1994) (Statement of Donald A. Mahley, Acting Assistant Director, Bureau of Multilateral Affairs, U.S. Arms Control and Disarmament Agency) [hereinafter Mahley].

54 Implementation Act, supra note 9, §§5(b) (3) and 227D(8) (as added by sec. 201 of the Implementation Act).

55 32 ILM at 810.

56 This conclusion is strengthened by the fact that subparagraph (a) of Article VII(1), see CWC, supra note 10, 32 ILM at 810, as well as subparagraph (c), uses language indicating to whom jurisdictional reach applies. No such indication is present in subparagraph (b), suggesting it has a scope encompassing the entities herein referenced.

57 See supra text at and note 54.

58 See supra text at and note 55. See also Thomas Bernauer, The Projected Chemical Weapons Convention: A Guide to the Negotiations in the Conference on Disarmament 67–69 (1990).

59 See Implementation Act, supra note 9, §227D(8)(A)–(C) (as added by sec. 201 of the Act) and §5 (b)(3) (A)–(C).

60 See Section-by-Section Analysis, supra note 45, at S7254. See also Krutzsch & Trapp, supra note 46, at 115–16; and Article-by-Article Analysis, in S. Treaty Doc. No. 21, 103d Cong., 2d Sess. 40 (1993) (transmittal of CWC to Senate).

61 See [1956] 2 Y.B. Int’l L. Comm’n 297, UN Doc. A/CN.4/SER.A/1956/Add.1 (indicating in Commentary, para. 2, to Article 68 of the 1956 draft provisions on the law of the sea that the authority of the coastal state in regard to its continental shelf includes “jurisdiction in connexion with the prevention and punishment of violations of the law”).

62 See generally Serge Lazareff, Status of Military Forces Under Current International Law (1971).

63 See Implementation Act, supra note 9, §227(c) (2) (as added by sec. 201) and sec. 203(c) (2); see also sec. 203(a) & (b).

64 Assuming this is beyond U.S. “jurisdiction or control.”

65 See 32 ILM at 810. This provision requires extensions of authority beyond areas over which one has jurisdiction or control, but only as to “natural persons.”

66 See Bernauer, supra note 58, at 68 (U.S. position in CWC negotiations that it would assert jurisdiction as to enterprises incorporated in the United States and operating in states not party to the Convention).

67 Implementation Act, supra note 9, §§5(b) (2) and 227D(7) refer to §101 (a) (22) of the Immigration and Nationality Act, which speaks of a national as being a “citizen” of, or a “person” owing allegiance to, the United States, therefore implying a natural person.

68 See Mahley, supra note 53, at 38 (Act extends to U.S. citizens abroad “but not its businesses”). On the CWC, see Krutzsch & Trapp, supra note 46, at 113–14 (CWC allows state party in which a parent business is located to reach beyond its territory if affiliate does not maintain a separate identity).

69 On branches, as opposed to subsidiaries, and the CWC, see Krutzsch & Trapp, supra note 46, at 114–15 (branches may have no separate identity and could be subject to jurisdiction). While the Implementation Act.does not affect exports by foreign nationals located overseas or U.S. business enterprises located overseas, the EAR, supra note 2, asserts jurisdiction over export activities of foreign affiliates of U.S. enterprises when the affiliates are “owned or controlled” by the U.S. entity, and over independent foreign business enterprises located overseas when involved in the production and export of items produced under an agreement with a U.S. entity licensing the use of industrial or intellectual property or know-how. See Dresser (France) S.A., 47 Fed. Reg. 38,170 (1982); Creusoit-Loire, S.A., id. at 38,169 (trans-Siberian pipeline controls).

70 To the extent affiliates are in the territory of, or a place subject to the jurisdiction and control of, another signatory of the CWC, that state may exercise authority. The Implementation Act does not clearly address the situation of affiliates located within the territory of a state not party to the Convention. However, the basic prohibition of the added §227(a), when read in conjunction with the jurisdictional provision of paragraph (c) of that same section, could be argued to reach activities of such affiliates in instances in which “knowledge” of an export could be shown. The reasoning would be that the 227(a) prohibition applies not to “nationals of the United States located outside the United States,” but to “who [m] ever.” (Cf. Implementation of the Chemical Weapons Convention, supra note 10, at 49 (Statement of Will Carpenter, Chemical Manufacturers Association) (suggesting that “whoever” be changed to “any person who”)). And while paragraph (c) of that section references activities outside the United States and committed by a “national of the United States,” it does so in the context of simply recognizing U.S. jurisdiction. A recognition of this sort is distinct from a statement of limitation. Because the language does not provide that “jurisdiction by the United States may be exercised only when” an activity occurs within the United States, or outside the United States if undertaken by a U.S. national, it should be read as merely approving jurisdiction in those cases. Whether jurisdiction is to be exercised in other cases turns on the phraseology of the prohibitory language of §227(a). See Krutzsch & Trapp, supra note 46, at 114 (no jurisdiction to reach overseas subsidiary located in and cooperating with a state not party to the Convention).

71 Exports from the United States, or places under U.S. jurisdiction or control, arranged by entities in foreign countries are subject to the Act’s regulatory regime through authority over the person or business in the United States that seeks to carry out the exports:

72 Obviously, the foreign country from which chemical exports are made is in a position to exercise jurisdiction. Our concern, though, is with whether the Implementation Act envisions that the United States will exercise jurisdiction over the U.S. entity that has taken legal tide to and arranged for the exports.

73 On the many facets of the term “transfer,” see supra note 46.

74 On the broad construction in the CWC, see Krutzsch & Trapp, supra note 46, at 13.

75 See 15 C.F.R. pt. 774 (1994).

76 The only conceivable argument is based on the added §227 (a) ‘s application of a prohibition on “knowing” transfers to “who[m]ever.” See supra note 70.

77 See Office of Technology Assessment, supra note 47, at 41.