Disarmament Diplomacy

Implementing Resolution 1540: What the National Reports Indicate

Lars Olberg

On April 28, 2004, the United Nations Security Council unanimously adopted resolution 1540 on non-state actors and weapons of mass destruction (WMD). UN Secretary-General Kofi Annan welcomed the decision, viewing it as a supplement to the existing non-proliferation and disarmament regimes covering nuclear, chemical and biological weapons.[1] Others regard the resolution as not just a supplement, but the most far-reaching international policy reorientation since the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) entered into force 35 years ago.[2]

Resolution 1540 calls upon member states to report on implementation measures they have taken or intend to take, setting October 28, 2004 as the date for the UN to receive these reports.[3] While only about 50 states met that deadline, by June 1, 2005 some 120 states had reported. It is therefore possible now to undertake a preliminary assessment of the reports and the measures the states took or plan to take. We begin with a brief overview of the origin and main points of the resolution.

Resolution 1540

Resolution 1540 was a US-led initiative to draw the Security Council into enacting practical measures to force governments to deal with the threat of non-state actors (terrorists, businesses, unauthorised state officials) acquiring or trafficking in WMD-related technologies or materials. One impetus for this resolution was the revelations in 2003 of the nuclear proliferation network market run by Pakistani scientist A.Q. Khan, who publicly confessed his role in February 2004.[4]

In adopting resolution 1540, the Council acted under Chapter VII of the UN Charter, thus unmistakably conferring a mandatory character on the obligations.

The main obligations for UN member states are contained in operative paragraphs (OP) 1 to 3. OP1 prohibits states to provide "any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery."

To prevent any non-state actor from engaging in these acts autonomously, without state support, OP2 requires states to adopt and enforce appropriate and effective laws to prohibit such activities under their national legislation. OP3 prescribes that states take and enforce a comprehensive system of domestic controls on WMD and related materials.

The main objective of the resolution - preventing non-state actor trafficking in and acquisition of WMD - is non-controversial and indeed universally endorsed. However, important criticisms of the resolution, regarding both process and substance, were raised in its genesis as well as afterwards.

One set of objections concerned how the resolution was negotiated. The process of negotiation stretched over several months. In the beginning the drafting was undertaken solely by four of the permanent members of the Security Council, the United States, United Kingdom, Russia, and France; the fifth permanent member, China, did not become actively engaged until the very end. The permanent members spent some six months working on the text of the draft resolution before the text was officially shared with the ten elected members of the Council on March 24 2004.

Even so, it was widely known among the elected members of the Security Council as well as non-Council members, nongovernmental organisations (NGOs) and the UN press that a text was in gestation. They pushed to have input, and eventually, consultations were held with the elected members of the Security Council, the Non-Aligned Movement (NAM), and NGOs. Some of those consultations took place before the official release of the March 24 text. On April 22 2004, an open session of the Council was held, at which over one third of all UN member states made statements.[5]

This form of practical, though relative, democracy was not the result of 'security leaks', but of awareness by the permanent members that the political sensitivity of the issues and the need to have widespread support for implementing the resolution necessitated that member states and global civil society should have some input.[6] Nonetheless, the input was carefully controlled, and its impact was limited. Major points were not taken into account; among them concerns about the emphasis on non-proliferation to the virtual exclusion of disarmament and the problematic role of the Council as a global legislator. One country commented that a great effort was necessary just to get the chance to speak, only to be ignored in the end. However, some minor accommodations were made. For instance, it was proposed that there be a preambular reference to the recognition in the presidential statement of January 31 1992 (S/23500) of the need for member states to fulfil disarmament obligations.[7] In the final text of resolution 1540, preambular paragraph 2 contains the language of this proposal. Despite its limitations, the process relating to the negotiation and adoption of resolution 1540 will serve to intensify calls for more transparency and consultation in Security Council decision-making.

A related set of objections went to whether and how the Security Council should engage in what amounts to global legislation, requiring states to adopt and enforce national laws and measures in response to a global problem. Some defend the Security Council's initiative based on the necessity and urgency of action. While acknowledging the urgency, others reply that the Council could have limited its role, for example by providing that the resolution's mandatory measures were subject to expiration and encouraging the use of the primary established process of global law-making, namely the negotiation of multilateral agreements.[8]

Even strong supporters of the resolution acknowledge its innovative character, similar to that of resolution 1373 on the suppression of terrorism: "It abrogates the Westphalian concept of state sovereignty because it forces nations to take certain actions without their consent. Thus, it is a challenge to the traditional structure of international law."[9] This question is widely discussed among international lawyers and will not be further elaborated here.[10]

Another set of objections went to the substance of the resolution. As was raised strongly both by non-nuclear weapon states and by NGOs, the thrust of the resolution, reflecting the general trend in international fora especially since the September 11 attacks, is towards preventing the proliferation of WMD, especially to non-state actors. There is little recognition of the importance of disarmament measures relating to reduction and elimination of stocks of nuclear materials and explosives or to controlling biological-weapons-relevant research. Yet it is widely recognised that such measures are highly relevant to preventing acquisition of WMD by terrorists and other non-state actors.

There was also widespread concern about the resolution's origins in the US desire to pull in support for the Proliferation Security Initiative (PSI). Robust in early drafts, it is less explicit in the final text, mostly as a result of pressure from Russia: OP10 calls upon all states "to take cooperative action to prevent illicit trafficking". China, Russia and many others made clear that this provision should not be understood as an authorisation for interdictions not otherwise permitted by international law.

A more technical objection concerned the vagueness of the resolution's language. Although it contains definitions, added in a later draft,[11] of the terms 'means of delivery', 'non-State actor' and 'related materials' the level of precision is far from that achieved in certain relevant international bodies. The appendices of the 1993 Chemical Weapons Convention (CWC), for example, are also very detailed, and contain five pages of definitions.[12] Other positive examples showing how definitions can be precisely drafted are the Guidelines for Nuclear Transfer of the Nuclear Suppliers Group;[13] or the Common Control Lists[14] of the Australia Group, which list the items on which the group's participants apply licensing measures. By contrast, various other legal instruments in this field lacked definitions; for example, the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) defines neither 'nuclear weapons' nor 'nuclear explosive devices'.

In general when States have been able to reach agreement on definitions this has been applauded because effective definitions are able to contribute to the clarity of the scope of treaty obligations and so contribute to clearer judgements about compliance. For this reason the absence of definitions in resolution 1540 can in part be seen as a step backwards from an already reached understanding. One example is the term 'related materials'. The Security Council refrained from using the term 'dual-use goods' as it raises controversial issues and would have complicated the adoption and the implementation of the resolution. However, this meant that the resolution ignores the work of the Wassenaar Arrangement[15] and the Zangger Committee;[16] in both settings experts have dealt with dual-use goods for many years. While the definitions are for the purposes of the resolution only, some diplomats fear that resolution 1540 will have the practical effect of undermining the detailed definitions and control lists created by these other bodies. The use of vague terms poses the risk of abrogating higher standards, and lays a foundation for differences in implementation.[17]

The 1540 Committee

A committee was established in accordance with OP4 of the resolution, consisting of all members of the Security Council. Soon referred to as the '1540 Committee', it is currently headed by Ambassador Peter Burian of Slovakia, who succeeded Ambassador Mihnea Motoc of Romania. The Committee has a two year mandate, ending in April 2006. However, it seems almost inevitable that the mandate will be prolonged, as the Committee has not been able to complete its tasks in the first two years.

The reports that member states submitted are reviewed by three subcommittees. When there is a need for clarifications or additions, the country is informed. In August 2005, Ambassador Motoc met with representatives of different regional groups, seeking to increase the delivery of reports. By October 2005 the Committee was supposed to have finished reviewing the first set of reports. After the reports were reviewed by the Committee the States were informed if clarifications and additions to the first reports were necessary. They were given two more months to hand in second reports to fill the gaps of the first reports. Chile was in May 2005 the first country to hand in an additional report[18]. The review of the second set of reports will take the remaining time of the first mandate of the Committee.

Quantitative Analysis

The analytical part of this paper is based on 48 reports submitted to the Committee by June 1, 2005.[19] A chart summarising the results of examination of the reports is appended to the end of this paper. In evaluating the reports, special attention was paid to the measures that the reporting states took after the adoption of resolution 1540 to ensure their compliance.

In OP4, the Security Council called upon all member states to submit reports to the Committee regarding their implementation of the resolution no later than six months after its adoption, i.e. October 28, 2004. As noted above, only 51 states met that deadline. By January 2005, 86 had been submitted; by June 1, the number had reached 119. Compared with reporting data for other UN bodies, this indicates rather a high uptake, especially in view of the short time allowed.[20]

In the 48 reports examined, states indicate that by the time of submission a total of 27 measures had been taken on 17 relevant provisions of the resolution, and 50 measures are in the planning phase. The largest number of states (seven) adopted post-resolution measures relating to OP2, which requires states to "adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them."

Ten states also indicated that planning was underway to implement OP3a, which deals with accounting and security measures.

Reporting compliance varies visibly in regard to the different provisions of the resolution. Ninety percent of the reports contain a reference to OP2 and OP3d, but OP8d - which concerns informing the public and industry of nonproliferation obligations and laws - was mentioned in just 63 percent of the reports. Also the number of post-1540 measures taken by different countries varies substantially. The five most active countries report measures taken in relation to six provisions. A number of countries reported one to four measures, but 18 states (more than one third of the sample) made no reference to any measures taken after the adoption of the resolution.

Measures Initiated in Response to Resolution 1540

A. Obligations under international treaties, OP8

With regard to OP8, concerning implementation of multilateral treaty regimes on nonproliferation of nuclear, biological, and chemical weapons: of the 48 reports examined, ten indicate that the states are in the process of ratifying the IAEA Additional Protocol, recently implemented certain obligations under the CWC, or started fulfilling their obligations under other international treaties like the Convention on the Physical Protection of Nuclear Material (CPPNM). For states that were parties to the relevant agreements, the obligations existed before the adoption of resolution 1540.

All the states which report their recent implementation of the CWC ratified this instrument between 1994 and 1997. Some eleven years after ratification, it might be considered regrettable that it took that long for some states to take implementation steps under the CWC; but this result can be seen as a positive outcome of the resolution, because it has clearly provided an incentive for the states to comply with their treaty obligations.

Some even speak of a "boost to the OPCW's efforts concerning national implementation of the CWC".[21] Indonesia, for example, is developing a plan of action under the CWC that is envisaged to be in place at the end of 2005. The work on this plan started before the adoption of resolution 1540, but was accelerated after April 2004.[22] Although not directly connected to the system of established treaties, resolution 1540 contributes in this way to promoting compliance with these treaty regimes.

States also referred to the CPPNM under OP3b, which requires them to "develop and maintain appropriate physical protection measures". The convention is the only international legally binding undertaking in the area of physical protection of nuclear material.

In July 2005 a Diplomatic Conference was called to adopt amendments to the convention designed to strengthen its existing provisions and expand its scope to cover, among other things, physical protection against theft of nuclear material used for peaceful purposes, in domestic use, storage and transport; and physical protection of nuclear material and peaceful nuclear facilities against sabotage.[23] These amendments will substantially strengthen the convention. The new rules will come into effect once they have been ratified by two-thirds of the 112 states parties of the convention, expected to take several years.

The amendment process started before the adoption of resolution 1540 and was not initiated by it. Nonetheless, during these recent CPPNM negotiations the resolution was discussed from time to time in the context of ensuring that the language in both instruments would be complementary.[24] Diplomats from various states stated that although the resolution as such had no direct impact on the amendment of the CPPNM, the changed situation and awareness of non-proliferation, which is expressed by the resolution, definitely had.

B. Measures taken or envisaged under OP2 and OP3

The resolution's principal obligations are contained in OP2 and OP3. Correspondingly, one would expect that states would take the most measures on these paragraphs. As noted above, the provisions of OP2 and OP3d were indeed most cited in the reports. However, only two out of the 48 countries reported measures already taken with regard to OP3a, and only ten reported on planned measures. OP2 is the provision on which the largest number of measures have been taken (seven) and planned (four states plan measures). Still, these figures are relatively low out of the total of 48 reports examined in this study.

This should not be viewed as a sign of noncompliance. After adoption of the resolution containing the reporting obligations, states had just six months to hand in their first reports to the 1540 Committee. For the vast majority of countries this was not enough time to negotiate, draft and adopt in their parliaments any "appropriate effective laws" as envisaged under OP2 and "effective measures to establish domestic controls" as prescribed by OP3. Furthermore, as one staff member of the 1540 Committee commented, one should not underestimate the lack of understanding of the resolution. To many states the obligations accruing from the resolution are not clear.

The second reports, filling in any gaps from the first reports, will be an important indicator of the will of states to comply with the main obligations of the resolution. After the assessment of their first reports by the 1540 Committee, states received a matrix showing what they were expected to report about and what they actually reported on. In the next set of reports a lack of understanding of the obligations will no longer be a reason for not reporting on these paragraphs.

C. Measures taken or envisaged under OP7

In OP7 of the resolution the Security Council recognised that "some States might require assistance in implementing the provisions of this resolution within their territories and invites States in a position to do so to offer assistance as appropriate in response to specific requests to the States lacking the legal and regulatory infrastructure, implementation experience and / or resources for fulfilling the above provisions."

Almost every state that reported referred to this OP and the larger states expressed their general willingness to meet requests for assistance. Some made statements about regional groups of countries to which they intend to offer assistance. Thus New Zealand reported that together with Australia it had already begun discussions with some Pacific Island states about the resolution, and will be further discussing with them what type of assistance they would find useful to help them implement it.[25] Norway reported that it is in the process of identifying states, primarily in Central Asia, for possible assistance regarding implementation of the Comprehensive Test Ban Treaty.[26]

Some states made detailed remarks about assistance. Canada announced the creation of a permanent Counter-Terrorism Capacity Building Programme, which will provide counter-terrorism related training, resources and expertise to partner states to enable them to prevent and respond to terrorist activity.[27] The assistance offered mainly lies in the field of legislative drafting and legal policy assistance related to the ratification and implementation of nonproliferation and arms control-related conventions and measures related to nuclear material and biological agents.[28]

Columbia reported that it needed "assistance in improving skills transfer and training" and "physical equipment enabling it to respond appropriately to the challenge of detecting, monitoring and prosecuting non-State actors who possess radioactive materials or weapons of mass destruction".[29]

The United States reported extensively on bilateral and multilateral cooperation with many countries in the field of WMD materials security and control.[30] However, the examples of cooperation mainly referred to projects that were initiated before the adoption of the resolution. The only new project was due to commence in Asia in 2005, assessing both the legislative and regulatory frameworks for criminalising the use of weapons of mass destruction for terrorist acts, and the ability of law enforcement institutions and specialised agencies to investigate and prosecute such acts effectively.[31] It is striking that out of all the ways of providing assistance that were listed in the US report, only one is in the framework of established international bodies: the United States will have trained 13,000 IAEA inspectors, export control officials and other nonproliferation experts by 2013. Most other measures are on a bilateral basis. This corresponds with the general attitude towards global treaty regimes shown by the US administration in recent years.

The United Kingdom started work on its report very soon after the adoption of the resolution. With the intention of providing assistance as required under OP7, the UK created a kind of model report which it distributed to a number of countries, some of whom used the UK model in drafting their own reports. For example, several followed the UK example of dividing the report on the OPs into categories of "action taken" and "planned/ongoing action."

D. Reporting by some states affected by terrorism

Some states have experienced serious terrorist attacks and are also known to have terrorist groups on their territory. It might have been expected that such states would have shown a sincere interest in complying with resolution 1540 and in reporting on their compliance. This has not always proved to be the case, raising questions about the political legitimacy of Security Council counter-terrorism efforts.

Indonesia's report, for example, was very short - just five pages - and referred only to parts of OP1, 2 and 3. It contained only information about measures taken before the adoption of the resolution, though it did refer to, without fully describing, Indonesian Law No. 15/2003 regarding the Eradication of Criminal Acts of Terrorism, adopted after the Bali attacks of 12 October 2002. This law contains several provisions that became mandatory under resolution 1540.

Similarly, the report submitted by Yemen is the shortest of all reports assessed in this study.[32] It consisted of just five lines in which Yemen stated that it does not possess any kind of WMD. This "report" was submitted only after the Chair of the 1540 Committee, Ambassador Motoc, reminded Yemen of its reporting obligations two months after the October deadline had passed. Bearing in mind such events as the October 12, 2000 attacks on the USS Cole, among other things, many consider the anti-terrorism measures taken by Yemen to be unsatisfactory. For example, in its 2003 report, "Patterns of Global Terrorism," the US State Department noted that "[t]he Republic of Yemen Government continued to cooperate with US law enforcement and to take action against al-Qaida and local extremists in 2003 .... However, there is still more work to be done to improve counterterrorism capabilities, including implementing a Maritime Security Strategy and increasing border security".[33]

Yemen did not make use of the OP7 option of requesting assistance from other states in implementing its obligations under the resolution. The same is true for Saudi Arabia, which also made no mention of OP7 in its report.[34]

E. Reporting by states of proliferation concern

The reports of some countries viewed as posing proliferation concerns are of a different nature. Some were salient in their completeness or substance; others, rather mediocre. The report of Iran belongs to the former category. It was quite comprehensive, containing information about all operative paragraphs.[35] Iran stated that it considered resolution 1540 to be a short-term step aimed at filling the gap in the nonproliferation regimes. It believes that the most effective way of preventing non-state actors from acquiring WMD is through the total elimination of such weapons. The country's report was silent about any post-1540 measures. Under OP8d Iran referred to the adoption of "The Law of National Implementation of the CWC." However, the work on this law started before the adoption of resolution.

Pakistan also delivered a comprehensive report to the 1540 Committee,[36] and was one of the first countries to make a submission. Pakistan's report referred to a new law, "Export Control on Goods, Technologies, Material and Equipment related to Nuclear and Biological Weapons and their Delivery Systems Act." The content of the Act covers measures falling in the sphere of OP2, 3b and 3d. The Act also provides the authority to administer rules and regulations framed under this legislation. This makes it easier to adjust the Act to new threats. It was emphasised that the Act's jurisdiction is broad, covering Pakistanis visiting or working abroad. A special oversight board may be established to monitor the implementation of the Act. All of these steps can be subsumed under lessons learned from the A.Q. Khan network.

Malaysia submitted a report with some omissions; in particular it made no references to OP3a and OP3c.[37] Malaysia did not report any new measures taken or planned, and included only a vague statement that "Malaysia is striving to enhance its control over WMD including by enacting appropriate specific legislations and by implementing its obligations under the relevant international conventions and legal instruments to which it is a Party."[38] In the light of the fact that one of the key businesses in the A.Q. Khan network was based in Malaysia, one could have expected a more complete report and the identification of plans for taking more concrete steps.

F. Reporting by the P-5

Of the five permanent members of the Security Council (P-5), only two, France and the United Kingdom, reported post-1540 measures to comply with the resolution. France stated that at the end of June 2004 it amended its national Order of September 22, 2001 on the manufacture, import, export, possession, transfer free of charge or in return for payment, acquisition and transport of certain biological agents which cause infectious diseases, pathogenic micro-organisms and toxins. The amendment was described in the French report as a measure to prevent non-state actors from getting access to WMD as prohibited under OP2.[39] The Order also affects end-user controls, referred to in OP3d and OP6.[40] In addition, post-1540-measures were taken in the field of OP8d, which calls upon states to inform industry and the public regarding their obligations under the international non-proliferation regime.

In October 2004, France distributed widely a brochure on dual-use, not only to companies but also to the national, regional, decentralised and external public "services" concerned, which are a vital element in the state's actions regarding small and medium-sized enterprises.

In its report, the United Kingdom highlighted that under OP2 it has adopted post-1540 regulations on the transfer of uranium enrichment technology. These regulations prohibit making unauthorised disclosures concerning uranium enrichment technology, as this technology can be used to produce weapons grade uranium, as sought by people wishing to develop nuclear weapons.[41] The United Kingdom also enacted post-1540 national legislation in the field of OP3a. In July 2005 a set of security measures[42] for dangerous goods transported by road became mandatory. In addition to this, a similar code for transport by rail was introduced.[43] These guidance documents were set up to help organisations deliver the new security measures. They are not intended to be prescriptive documents and organisations are free to consider other ways of meeting the requirements of the regulations.

Of all the evaluated reports, the most comprehensive was submitted by the Russian Federation, which commented on every operative provision of the resolution. But Russia, along with China, made no reference to any measure taken after the adoption of 1540.

The US report was by far the longest, consisting of 61 pages. It referred to projects taken before the resolution, even dating back to 1954. The report contained detailed information about interaction among departments, their competencies, and various steps taken, providing examples. However, the only reference to measures taken after the adoption of the resolution was found under OP7, regarding assistance, a non-mandatory provision of the resolution (see IV(C), above).

As major powers with global interests, Russia and the United States were well aware of the need to prevent proliferation and WMD terrorism even prior to the the September 11 attacks or adoption of resolution 1540. Accordingly, like other large countries, they already had legislation, regulations, and other measures that correspond to key provisions of the resolution. This may explain in part their failure to report measures initiated in response to the resolution. Nonetheless, due to the political sensitivity attaching to the nuclear-armed permanent five imposing rules on the rest of the world and the need for them to be seen to set an example, one might have thought they would have made every effort to take some additional steps.

G. Reporting regarding disarmament

Among disarmament leaders in recent years have been the countries of the New Agenda Coalition (NAC), Brazil, Egypt, Ireland, Mexico, New Zealand, South Africa, and Sweden. Not surprisingly, in their reports they stressed the importance of disarmament.

Mexico noted that, in an individual capacity and within the NAC it was continuing to promote the full implementation of the principles of irreversibility, transparency and verification of nuclear arms control and disarmament.[44] In the very first part of its report, even before referring to the operative paragraphs of the resolution, Sweden noted that it had a long tradition of strong support for disarmament and non-proliferation and was committed to multilateral approaches to meet the threats of proliferation of WMD.[45]

For Brazil, a consistent and sustainable long-term international strategy must necessarily be followed by concrete measures in the field of disarmament; Brazil was convinced that only the complete elimination of WMD can ensure that these weapons will never fall in the hands of non-state actors.[46] Egypt prefaced its report with the statement that the "best method to ensure that [WMD] may not be acquired by terrorist groups or non-State actors ... is for the international community to follow a path that ends in ridding the world of weapons of mass destruction."[47] However, Egypt's report did not offer very comprehensive information on its implementation of the operative paragraphs of the resolution. Reflecting domestic changes, South Africa did not stress disarmament in its report,[48] but expressed in another context its fear that resolution 1540 could have a negative impact on the disarmament agenda.

New Zealand excelled in stressing the connection between resolution 1540 and disarmament, delivering a very comprehensive report in which it referred to all paragraphs and provided detailed reporting on measures it had undertaken in relation to OP3a and OP7. In the first sentence regarding OP1, New Zealand recalled its policy that "all weapons of mass destruction should be eliminated, and that this elimination should be verified and enforced through robust legally binding multilateral disarmament instruments."[49] In relation to OP9, New Zealand stated that nonproliferation was a problem that could not be taken out of context but has rather to be addressed comprehensively: the "most effective non-proliferation moves we could make collectively would be to ensure and enhance compliance with the NPT in all its aspects including nuclear disarmament and a Fissile Material Cut-Off Treaty with strong verification provisions". In relation to OP8d, New Zealand also highlighted the role that NGOs can play in disarmament and non-proliferation education.

When it comes to disarmament, the reports of the permanent five contained fewer references than those of the New Agenda countries and others. China's 17 page report nowhere mentioned the word "disarmament." The Russian Federation referred only to two legal acts that regulate the implementation of the CWC. France stated that it favoured initiating negotiations in the Conference on Disarmament on a Fissile Material Cut-off Treaty, but made no other substantial references to disarmament or its relationship to non-proliferation. The United Kingdom stated that it "has long promoted the universal adoption and full implementation of main multilateral disarmament and non-proliferation treaties and will continue to do so."[50]

The US report lacked any reference to disarmament measures applicable to the United States and emphasised instead its efforts to ensure progress on nonproliferation and compliance with arms control agreements by other countries. Its report noted that the United States has worked to ensure that nonproliferation is a topic of discussion in various fora, including the Conference on Disarmament. The report also cited section 403 of the Arms Control and Disarmament Act, which requires an annual report to be submitted to the Department of State that identifies each and every question that exists with respect to compliance by other countries with their arms control, non-proliferation, and disarmament agreements with the United States. Nowhere did the US report acknowledge the interdependence of non-proliferation and disarmament, as emphasised by many non-nuclear states.

Conclusion

It took the 1540 Committee a long time - until the beginning of 2005 - to get established and start substantive work. At the end of its two-year mandate in April 2006, the Committee will just have assessed the second set of state reports, and its task will be far from completed.

There is a common understanding among those involved that a renewal of the mandate is necessary and inevitable. In its second term the Committee will be in a position to assess whether inadequate reporting stems from a lack of understanding or capacity, or if, more disturbingly, it reflects a lack of will to cooperate with the Committee.

Beyond reporting issues, a more difficult question needs to be asked: are states in compliance with the resolution? If not, what steps can be taken to achieve compliance? At the moment it is too early to address such a question, especially as there is no common understanding among states regarding what the resolution requires.

As we assess the levels of compliance, a bottom-line question will need to be addressed: has resolution 1540 made a significant contribution to preventing WMD terrorism? At this early point of evaluation, it can be said that there has been a high level of state participation in reporting, and that the resolution has inspired at least a modest increase in activity relevant to preventing WMD terrorism, particularly in complying with existing requirements of treaty regimes and in cooperating with other states. The second series of state reports will hopefully confirm these trends and in addition reveal far more vigorous implementation of resolution 1540 requirements.

Notes

[1] 'In Larger Freedom,' report of the UN Secretary-General, A/59/2005, para. 100.

[2] Alistair Miller and Morten Bremer Maerli, 'Nuclear Non-Proliferation and United Nations Security Council Resolution 1540,' in NUPI Policy Briefs on the Implementation of the Treaty of the Non-Proliferation of Nuclear Weapons, April 2005, p35.

[3] UNSCR 1540 (2004), Operative paragraph 4.

[4] For resources on the A.Q. Khan nuclear proliferation network, see http://www.carnegieendowment.org/static/npp/nuclear_blackmarket.cfm.

[5] S/PV.4950 Resumption 1.

[6] Merav Datan, 'Security Council Resolution 1540: WMD and non-State trafficking,' Disarmament Diplomacy 79 (April/May 2005) p. 48.

[7] John Burroughs et al, Memorandum to the Security Council and other interested States, 5 April 2004, p1, http://www.reachingcriticalwill.org/political/SC/SCresMemo.pdf.

[8] Ibid. p 4.

[9] Remarks of Professor Barry Kellman, Symposium on Resolution 1540 as it Pertains to Biological Weapons, Geneva, December 3, 2004.

[10] See, for example: Stefan Talmon, 'The Security Council as World Legislature' in American Journal of International Law, vol. 99, 2005, p175; Eric Rosand, 'The Security Council as 'Global Legislator': ultra vires or ultra innovative?' Fordham International Law Journal, vol. 28, 2005, p542; Andres Zimmermann / Björn Elberling, 'Grenzen der Legislativbefugnisse des Sicherheitsrates - Resolution 1540 und abstrakte Bedrohungen des Weltfriedens,' Vereinte Nationen, vol. 52, 2004, p71.

[11] For the development of the definitions see Datan, supra.

[12] Chemical Weapons Convention, Annex on Implementation and Verification, Part I.

[13] Guidelines for Transfers of Nuclear-related Dual-use Equipment, Materials, Software and Related Technology, 23 February 2005, INFCIRC/254/Rev.6/Part 2

[14] Australia Groups Common Control Lists, http://www.australiagroup.net/en/agcomcon.htm.

[15] http://www.wassenaar.org.

[16] http://www.zanggercommittee.org.

[17] Ben Steyn, 'Understanding the Implications of United Nations Security Council Resolution 1540,' African Security Review, vol 14(1), 2005, p. 85.

[18] S/AC.44/2004/(02)/27/Add.1

[19] Reports by the following states were examined: Algeria, Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, China, Columbia, Cuba, Egypt, Finland, France, Germany, India, Indonesia, Iran, Iraq, Israel, Italy, Japan, Kuwait, Libya, Malaysia, Marshall Islands, Mexico, Netherlands, New Zealand, Nigeria, Norway, Pakistan, Philippines, Poland, Republic of Korea, Russian Federation, Saudi Arabia, South Africa, Spain, Sweden, Switzerland, Syria, Thailand, Turkey, United Kingdom, United States, Yemen, and European Union.

[20] See, for example, the reports states submitted on the implementation of the Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects, http://www.undp.org/bcpr/smallarms/PoA.htm.

[21] Scott Spence, 'Review Conference Paper No 13, Achieving Effective Action on Universality and implementation - The CWC Experience'; April 2005, http://www.brad.ac.uk/acad/sbtwc/briefing/RCP_13.pdf.

[22] Interview with Andy Rachmianto, First Secretary of the Mission to the United Nations, 07/27/05.

[23] http://www.iaea.org/Publications/Documents/Conventions/cppn.html.

[24] Mark Gwozdecky, Chief Spokesperson and Director, Division of Public Information (MTPI), International Atomic Energy Agency.

[25] S/AC.44/2004/(02)/54, p. 8.

[26] S/AC.44/2004/(02)/31, p. 9.

[27] S/AC.44/2004/(02)/110, para 34.

[28] S/AC.44/2004/(02)/110, para 35.

[29] S/AC.44/2004/(02)/103, p. 7.

[30] S/AC.44/2004/(02)/5, pp. 44.

[31] S/AC.44/2004/(02)/5, p. 49.

[32] S/AC.44/2004/(02)/97.

[33] 'Patterns of Global Terrorism', Released by the Office of the Coordinator for Counterterrorism, April 29, 2004, p.70.

[34] S/AC.44/2004/(02)/65.

[35] S/AC.44/2004/(02)/105.

[36] S/AC.44/2004/(02)/22.

[37] S/AC.44/2004/(02)/35.

[38] S/AC.44/2004/(02)/35, p. 8.

[39] S/AC.44/2004/(02)/58, p. 12.

[40] S/AC.44/2004/(02)/58, pp. 19, 20.

[41] S/AC.44/2004/(02)/3, p. 7.

[42] Guidance for the Security of Dangerous Goods by Road, published in June 2005, http://www.dft.gov.uk/stellent/groups/dft_transsec/
documents/page/dft_transsec_038557.pdf

[43] Guidance for the Security of Dangerous Goods by Rail, published in June 2005, http://www.dft.gov.uk/stellent/groups/dft_transsec/
documents/page/dft_transsec_039466.pdf

[44] S/AC.44/2004/(02)/87, p. 6.

[45] S/AC.44/2004/(02)/41, p. 2.

[46] S/AC.44/2004/(02)/17, p. 3.

[47] S/AC.44/2004/(02)/88, p2.

[48] S/AC.44/2004/(02)/102.

[49] S/AC.44/2004/(02)/54, p2.

[50] S/AC.44/2004/(02)/3, p. 14.

Lars Olberg is currently a master's candidate in the Center for Nonproliferation Studies, Monterey Institute for International Studies. The research for this paper was carried out in July 2005 when Mr. Olberg was a research associate for the Lawyers' Committee on Nuclear Policy. In addition to assessment of reports of states, several interviews were conducted with diplomats and staff of the 1540 Committee.

Annex

See the accompanying Annex for further data on the national reports.

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