Article XI consists of just two paragraphs, but represents one of the most difficult compromises reached in the Convention. This Article balances the desire to encourage free trade in chemicals, equipment and technology with the desire to prevent the proliferation of chemical weapons.
Paragraph 1 establishes the broad principle that the Convention should be implemented in a manner which avoids hampering the economic and technological development of States Parties. Specifically, this paragraph states that the provisions of the Convention shall be implemented in a manner which avoids hampering the economic or technological development of States Parties, and international cooperation in the field of chemical activities for purposes not prohibited under the Convention including the international exchange of scientific and technical information and chemicals and equipment for the production, processing or use of chemicals for purposes not prohibited under the Convention. ("Purposes not prohibited under this Convention" are defined in paragraph 9 of Article II.)
The purpose of this paragraph is to address the concerns of developing countries that, under the guise of banning chemical weapons, the Convention might be used to gain an unfair competitive advantage over their chemical industries. Note that the language is adapted from similar language in paragraph 2 of Article X of the Biological Weapons Convention. Note also that, as discussed above, paragraph 11 of Article VI of the Convention repeats this obligation specifically for chemical industry verification activities by the Technical Secretariat.
Paragraph 2 contains, in five subparagraphs, the basic rights and obligations of States Parties with regard to trade in chemicals, equipment and technology. The chapeau of this paragraph states that all of these rights and obligations are subject to the provisions of the Convention and without prejudice to the principles and applicable rules of international law. The purpose of this chapeau is to make clear that these rights and obligations do not override any other treaty obligations, such as those contained in the General Agreement on Tariffs and Trade, or any other rights and obligations under international law, such as the right to have export controls.
Subparagraphs 2 (a) and 2 (b) are corollaries to the principle enunciated in paragraph 1. Specifically, subparagraph 2 (a) states that States Parties shall have the right, individually or collectively, to conduct research with, to develop, produce, acquire, retain, transfer, and use chemicals. The purpose of this subparagraph is to make clear that States Parties retain all rights under international law with regard to chemicals, except as specifically limited by the Convention and any other applicable international law.
Subparagraph 2 (b) states that States Parties undertake to facilitate, and have the right to participate in, the fullest possible exchange of chemicals, equipment and scientific and technical information relating to the development and application of chemistry for purposes not prohibited under the Convention. Note that this language is drawn from similar obligations and rights in paragraph 1 of Article X of the Biological Weapons Convention.
Subparagraphs 2 (c) and 2 (d) represent the balance struck between the need not to unduly restrict free trade in chemicals while at the same time recognizing the legitimate need of States Parties to impose export controls for national security or other concerns and to coordinate these controls with like–minded states.
Subparagraph 2 (c) states that States Parties shall not maintain among themselves any restrictions, including those in any international agreements, incompatible with the obligations undertaken under the Convention, which would restrict or impede trade and the development and promotion of scientific and technological knowledge in the field of chemistry for industrial, agricultural, research, medical, pharmaceutical or other peaceful purposes.
Broadly speaking, subparagraph 2 (c) states that the States Parties may not, among themselves, maintain any restrictions which would restrict or impede trade and development. This seeming ban on such restrictions, however, is modified by the clause, "incompatible with the obligations undertaken under the Convention." Therefore, the restrictions on trade and development which cannot be maintained under the Convention are those which are incompatible with obligations undertaken under the Convention. An important obligation under the Convention is the prohibition on assisting, encouraging or inducing in any way, anyone to engage in, inter alia, the development, production, stockpiling or use of chemical weapons. Export controls designed to prevent the proliferation of chemical weapons, whether imposed by States Parties unilaterally or in coordination with other States Parties, are clearly compatible with, and even serve to further, this obligation. Therefore, subparagraph 2 (c) does not limit the sovereign right of the U.S. or any other State Party to impose or coordinate export controls on chemicals, equipment, or technology that are determined to be useful in the development, production, stockpiling, or use of chemical weapons.
Subparagraph 2 (c) also does not limit the right of the U.S. to coordinate these controls with other states, e.g. through the Australia Group. Only export controls imposed pursuant to an international agreement, i.e. an agreement governed by international law, that are incompatible with the obligations undertaken in the Convention are prohibited. The Australia Group, and its restrictions, are not the result of any international agreement, since the Australia group is not an international organization established by treaty, the decisions taken by its members are not legally–binding on them, and the export controls imposed are those each member imposes unilaterally. Note, however, that during the negotiations, the members of the Australia Group issued a formal statement undertaking to review, in the light of the implementation of the Convention, the measures that they take to prevent the spread of chemical substances and equipment for purposes contrary to the objectives of the Convention, with the aim of removing such measures for the benefit of States Parties to the Convention acting in full compliance with their obligations under the Convention.
This statement was issued to address the desires of several developing countries for members of the Australia Group to cease imposing non–proliferation controls once they became States Parties. It is intended to take into account States Parties compliance with the Convention in determining imposition of export controls without guaranteeing unconditional lifting of such controls.
In addition, subparagraph 2 (c) does not limit the right of the U.S. to impose embargoes unilaterally on trade with states, such as Cuba and North Korea, that are not related to the proliferation of chemical weapons, but that might involve trade in chemicals. Even if such restrictions were somehow incompatible with obligations assumed under the Convention, as discussed above, the obligations contained in, inter alia, subparagraph 2(c) are without prejudice to the principles and applicable rules of international law. The U.S. maintains that international law clearly allows for its embargoes on Cuba and North Korea, and therefore they do not violate the Convention.
Finally, note that the limitations on trade–related restrictions referred to in subparagraph 2 (c) involve only those that impact trade in chemicals for peaceful purposes. It is important to note that the term "purposes not prohibited by this Convention" was not used here because this term also includes protective purposes, military purposes not related to chemical weapons, and law enforcement purposes. It was agreed that there should be no limitations whatsoever by the Convention on restrictions by States Parties on trade in chemicals for protective purposes, military purposes not related to chemical weapons, and law enforcement purposes, e.g. a State Party can place any restrictions on trade in chemicals for rocket propellants that may be used for military purposes not related to chemical weapons.
Subparagraph 2 (d) states that States Parties shall not use the Convention as grounds for applying any measures other than those provided for, or permitted, under the Convention nor use any other international agreement for pursuing an objective inconsistent with the Convention.
Subparagraph 2 (d) is intended to address the concerns of some developing countries that the Convention could be misused by States Parties individually or collectively as grounds to impose restrictions not provided for or permitted under the Convention.
Subparagraph 2 (e) states that States Parties undertake to review their existing national regulations in the field of trade in chemicals in order to render them consistent with the object and purpose of the Convention. The purpose of this provision is to address the concerns of some developing countries that there exists some national regulations that are inconsistent with subparagraph (c). It is, however, also useful in requiring States Parties with weak or non–existent export controls to ensure that such controls contain appropriate measures regarding national obligations under the Convention with regard to exports and imports of chemicals.