Security Council Resolution 1540: WMD and Non-state Trafficking

Author(s): Merav Datan
28 May 2004

On April 28, 2004 the United Nations Security Council (UNSC) adopted Resolution 1540 on the non-proliferation of weapons of mass destruction.[1] The text of UNSC 1540 does not use the term "weapons of mass destruction" (WMD) in any operational sense.[2] Nor does it rely on any definition of "terrorist" for the purposes of implementation. But the resolution was conceived and received as enforceable international law designed to counter the threat of terrorist acquisition of WMD. The resolution evolved from a primarily counter-proliferation initiative to a more focused code of conduct that the permanent five (P-5) members of the Security Council could agree to, and then, through a process involving other states and civil society, to a binding legal instrument that can be portrayed as reinforcing not only nonproliferation but disarmament norms in relation to nuclear, chemical and biological (NBC)[3] weapons.

With the inclusion of regime-based norms and because most states view terrorist access to NBC weapons as a salient and urgent global concern,[4] UNSC 1540 has been generally well received. Participation in the universal reporting process has been rather positive, despite its novelty and complexity. Implementation of this resolution - which includes the enacting of enforceable domestic legislation as well as national reporting - will require an interactive cooperative process between states and the committee established by the resolution (dubbed the "1540 Committee"). Early signs of qualitative progress in this direction are visible. States are actively seeking advice on implementation and reporting requirements. The level of cooperation among states and between states and the 1540 Committee has been high, and states that had not previously done so have begun to consider their own export controls and how to improve them. These developments could be the first steps towards an effective multilateral approach to preventing non-state access to NBC weapons.[5]

Reception and implementation of UNSC, however, have not been without complications. The highly political nature of the WMD and terrorism issues - separately and together - combined with the negotiating history of UNSC 1540 have sparked controversy and resulted in some suspicion of its means of enforcement even where there is agreement with its ends. Even before the open Security Council debate on April 22, 2004, states and NGOs had the opportunity for input through an officially closed but informally transparent negotiating process. Throughout the negotiations in late 2003 and early 2004 states and observers voiced concerns about such matters as whether the Security Council was taking on a legislative role, whether the resolution would legitimise selective state possession of WMD weapons, and why multilateral disarmament obligations were not mentioned.

Many of the concerns raised during this time were addressed in the final version of the resolution but some distrust remained. This distrust might in fact reflect dissatisfaction with the process rather than the outcome, suggesting that, wherever possible, transparency and confidence-building will be essential for large-scale, engaged and effective implementation of UNSC 1540.

Key elements of UNSC 1540

Security Council enforcement powers under Chapter VII[6] of the UN Charter are formally invoked and applied to all operative paragraphs of UNSC 1540. The first three operative paragraphs of UNSC 1540 use the language "all states shall", thereby creating enforceable legally binding obligations on states. The remaining elements of the resolution carry politically binding implications in that they advocate principles and establish mechanisms for cooperative implementation. The key elements of the resolution are:

  1. No state support for non-state efforts to access[7] NBC weapons
  2. National legislation to prohibit non-state access to NBC weapons
  3. Adoption and enforcement of effective domestic controls to prevent NBC weapons proliferation
  4. Establishment of an implementation committee, and first reports from states on implementation steps and plans due within six months
  5. Preservation of existing treaty obligations
  6. A call for national control lists
  7. Assistance in implementing the resolution
  8. A call for universal adoption and full implementation and strengthening of NBC related treaties
  9. Promotion of dialogue and cooperation on non-proliferation
  10. Cooperative action to prevent illicit trafficking in NBC materials and means of delivery

Genesis of the resolution

The negotiating history of UNSC 1540 is complicated not only because of the political sensitivity of the issues but also because of the formally closed but informally and intentionally porous nature of the negotiations. Even when the early drafts were formally circulating only among the P-5, other members of the Security Council, states outside the Security Council, the press and NGOs had the opportunity to follow deliberations and provide input. This form of practical (though relative) democracy was not the result of 'security leaks' but of awareness that the political sensitivity of the issues requires as much input by global civil society as a Security Council negotiating process can tolerate.

Early versions of the draft resolution called upon all states "to cooperate to prevent, and if necessary interdict, shipments that would contribute to" NBC weapons proliferation.[8] For reasons such as this the process leading to adoption of UNSC 1540 has drawn questions about the motivation behind the resolution and its relation to the Proliferation Security Initiative (PSI), a "global effort that aims to stop shipments of weapons of mass destruction, their delivery systems, and related materials worldwide."[9] PSI was first announced by US President Bush in May 2003, and followed in September 2003 by the publication by 11 countries of a "Statement of Interdiction Principles"[10] . Since that time additional countries have joined the initiative.[11]

The lack of a legal instrument, combined with concerns about the unequal 'club of the willing' approach of PSI suggest that the idea of Council action on this matter may have surfaced simultaneously in several different contexts. Since negotiations on a draft treaty on nuclear terrorism in the UN General Assembly Sixth (Legal) Committee had been stalled[12] since before the heightened awareness that followed September, 2001 and efforts to begin to address fissile materials in the Conference on Disarmament have been stalled for years, even states with concerns about the Council adopting an increasingly 'legislative' role,[13] accepted that the Council needed to take action on terrorist access to NBC.

If the negotiation and adoption of UNSC 1540 had many possible points of origin, the underlying motivation also varied by state, triggered by events in 2003-4, such as information on efforts by Al Qaeda to acquire WMD, described as a "religious duty" in comments attributed to bin Laden.[14]

In early 2003, the United Kingdom (UK) circulated a non-paper within the European Union (EU), drawing lessons from the Counter-Terrorism Committee (CTC) as a consensus building initiative. The idea of a Counter-Proliferation Committee was put forward for discussion and found general favour within the EU, being regarded as consistent with the emerging EU strategy on WMD.[15]

The United Kingdom raised the question of Security Council action on nonproliferation during the 2003 UN General Assembly general debate, saying that "We all know that proliferation is one of the greatest threats we face. Much good work is being done by UN agencies... But the Security Council itself has not addressed this issue for ten years. It is time that it did."[16]

At the same time, the statement by US President Bush to the UN General Assembly in September 2003 laid out the United States' initial approach to a Security Council resolution on non-proliferation of WMD:

"Because proliferators will use any route or channel that is open to them, we need the broadest possible cooperation to stop them. Today, I ask the U.N. Security Council to adopt a new anti-proliferation resolution. This resolution should call on all members of the U.N. to criminalize the proliferation of weapons -- weapons of mass destruction, to enact strict export controls consistent with international standards, and to secure any and all sensitive materials within their own borders. The United States stands ready to help any nation draft these new laws, and to assist in their enforcement."[17]

The larger context in which the United States views these efforts is reflected in the "New Measures to Counter the Threat of WMD" announced by Bush in February 2004. In this, he first discusses Iraq, Iran and North Korea in the context of WMD, then describes the discovery and destruction of the AQ Khan network and the interception of the German-owned BBC China shipment bound for Libya and containing centrifuge parts originating in a Malaysian facility traced through the Khan network. Relating removal of this network to PSI efforts, Bush declared:

"Breaking this network is one major success in a broad-based effort to stop the spread of terrible weapons. We're adjusting our strategies to the threats of a new era. America and the nations of Australia, France and Germany, Italy and Japan, the Netherlands, Poland, Portugal, Spain and the United Kingdom have launched the Proliferation Security Initiative to interdict lethal materials in transit. Our nations are sharing intelligence information, tracking suspect international cargo, conducting joint military exercises. We're prepared to search planes and ships, to seize weapons and missiles and equipment that raise proliferation concerns, just as we did in stopping the dangerous cargo on the BBC China before it reached Libya. Three more governments - Canada and Singapore and Norway - will be participating in this initiative. We'll continue to expand the core group of PSI countries. And as PSI grows, proliferators will find it harder than ever to trade in illicit weapons.[18]

The president then repeated an earlier call for a Security Council resolution to criminalise proliferation and outlined seven proposals to strengthen the WMD non-proliferation efforts, starting with expanding the scope and law enforcement capacities of PSI:

"First, I propose that the work of the Proliferation Security Initiative be expanded to address more than shipments and transfers. Building on the tools we've developed to fight terrorists, we can take direct action against proliferation networks. We need greater cooperation not just among intelligence and military services, but in law enforcement, as well. PSI participants and other willing nations should use the Interpol and all other means to bring to justice those who traffic in deadly weapons, to shut down their labs, to seize their materials, to freeze their assets. We must act on every lead. We will find the middlemen, the suppliers and the buyers. Our message to proliferators must be consistent and it must be clear: We will find you, and we're not going to rest until you are stopped.

Second, I call on all nations to strengthen the laws and international controls that govern proliferation. At the U.N. last fall, I proposed a new Security Council resolution requiring all states to criminalize proliferation, enact strict export controls, and secure all sensitive materials within their borders. The Security Council should pass this proposal quickly. And when they do, America stands ready to help other governments to draft and enforce the new laws that will help us deal with proliferation."[19]

The White House Fact Sheet on these US presidential policy recommendations was less descriptive but more concrete:

"Law Enforcement Cooperation

The Proliferation Security Initiative (PSI), announced by President Bush in May 2003, currently focuses on taking practical steps to interdict proliferation shipments of WMD, delivery systems, and related materials at sea, in the air, or on land.

The President proposes that participants in the PSI and other willing nations expand their focus and use Interpol and other mechanisms for law enforcement cooperation to take additional actions to pursue proliferators and end their operations...

The President calls for swift passage of the resolution he proposed in September 2003, requiring all states to criminalize proliferation, enact strict export controls, and secure sensitive materials within their borders.[20]

Textual evolution of UNSC 1540

A first draft resolution was circulated within the P-5 in October 2003. After informal discussions within and between some of the key Council members, this was followed by two successive drafts in mid-December, showing small but significant changes that indicate the resolution was receiving increased attention by this time. In fact, the text of the draft resolution was continuously changing, with talk of US, Russian, and consolidated texts, and new drafts as often as every three or four days. Some of the changes represented significant political positions, and some reflected politics and posturing. Until March 2004 negotiations were formally among the P-5, but early draft texts of the resolution had already been circulating more widely and were "out and about", according to a non-governmental observer.

Early drafts included perfunctory preambular references to multilateral NBC treaties, namely the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the Biological and Toxin Weapons Convention (BWC), and the Chemical Weapons Convention (CWC). At first these treaties were affirmed by name, but this gave way in later drafts to a more general reference to "multilateral treaties whose aim is to eliminate or prevent the proliferation [or illicit acquisition] of nuclear, chemical or biological weapons" with a reference to the importance of full implementation. The words "illicit acquisition" appeared in draft texts by January 2004, but were removed after the April 15 version and do not appear in UNSC 1540. A reference to "illicit acquisition" would suggest the possibility of "licit acquisition" of NBC weapons, a notion which conflicts with the disarmament goal stated in the NPT, CWC and BWC.

Despite this attention to preambular detail on NBC norms, there were no references to disarmament in the early drafts. Some time after the draft went beyond the P-5 in March 2004 and before the April 15 draft that served as the basis for open debate, a reference to disarmament was added, reportedly in the context of the Statement of the President at the Council's meeting at the level of Heads of State and Government on January 31, 1992.[21] This statement was given on behalf of the Security Council, recognising "new favourable international circumstances" with the end of the Cold War, for effective fulfilment of the Council's "primary responsibility" for maintaining international peace and security. The Statement underlined (as UNSC 1540 later reaffirmed) "the need for all Member States to fulfil their obligations in relation to arms control and disarmament and to prevent proliferation in all its aspects of all weapons of mass destruction."[22] Reference to the Council President's statement was another consistency throughout the evolution of the draft, although its elements were successively expanded in later drafts.

A second disarmament reference appeared after the April 15 draft and the April 22 open debate, in the addition of a new preambular paragraph: "Encouraging all Member States to implement fully the disarmament treaties and agreements to which they are party."[23] Considering that inclusion of disarmament references is fairly standard in the context of WMD nonproliferation initiatives,[24] the absence of any disarmament mention in early drafts of UNSC 1540 suggests either that the US-UK initiators considered it irrelevant or, more probably, that they anticipated the non-nuclear weapon states' demands to affirm the link between disarmament and nonproliferation and so held it back as a negotiating tactic.[25]

Through this process of multiple drafts, what originated as a counter-proliferation and PSI-type initiative aimed at non-state actors was transformed into a cooperative, iterative and interactive effort to address non-state access to NBC weapons and affirm state nonproliferation and disarmament obligations. For example, consider the original PSI reference as it appeared in operative paragraph (OP) 6 of the December drafts:

"Calls upon all States, to the extent consistent with their national legal authorities and international law and frameworks, to cooperate to prevent, and if necessary interdict, shipments that would contribute to the proliferation of nuclear, chemical or biological weapons and their means of delivery..."

By contrast, UNSC 1540 has as OP9 and OP10:

"Calls upon all States to promote dialogue and cooperation on non-proliferation so as to address the threat posed by proliferation of nuclear, chemical, or biological weapons, and their means of delivery;

Further to counter that threat, calls upon all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials..."

The basic text that became OP9 appeared only after the December drafts, and originally called on states to "counter the threat" rather than "address the threat." The change from "counter" to "address" took place only after March 2004, when the draft resolution was circulated beyond the P-5. This wording is intended to suggest the possibility of preventive and cooperative action rather than narrow counter-proliferation.

The basic text that became OP10 also underwent significant transformations. The December, January and February drafts all retained the word "interdict." A draft resolution from March 24, 2004 introduced the language "take cooperative action to prevent illicit trafficking" in its place. This is consistent with the UK and French approaches, which view international law as prescriptive: law tends to be framed in the negative because of a presumption of permissibility (i.e., what is not explicitly prohibited is permitted).[26] It should be noted that China was the last of the P-5 to agree to the evolving draft resolution, and only after the word "interdict" had been removed.

Security Council enforcement powers

As noted above, two very similar draft resolutions were circulated on December 16 and 19, 2003. The differences between these resolutions are small but significant. The speed of revisions probably reflects the sensitivity of the issues and inter-state dynamics involved. Between Tuesday December 16 and Friday December 19 a reference to Security Council enforcement powers ("Acting under Chapter VII") was added to the beginning of two operative paragraphs dealing, respectively, with national legislation to prohibit non-state access to NBC weapons and with domestic controls. By January 2004, the language "Acting under Chapter VII" shifted to cover all operative paragraphs, and during the months that followed states apparently tinkered slightly with the wording so as to reference the UN Charter enforcement powers more directly and therefore authoritatively.

At the national level, states are required to adopt and enforce effective laws prohibiting non-state access to NBC weapons, and to take and enforce effective measures to establish domestic controls.[27] These provisions appear among the legally binding obligations contained in the first three operative paragraphs of UNSC 1540.

The word "enforce" did not appear in relation to domestic controls in the December 16 draft but had been inserted by December 19. Operative paragraph 3 of the December 16 version - with the addition of the words "and enforce" - became OP3 of SC Resolution 1540. Under this provision the Security Council requires effective domestic controls. Specifically it: "Decides also that all States shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, and biological weapons and their means of delivery, including by establishing controls over related materials and to this end..."

The resolution then requires that states develop and maintain effective measures for accounting, securing, and physically protecting these items, as well as effective border controls and law enforcement efforts and effective national export and transshipment controls. Enforcement at both the international and national levels was apparently a key consideration in the formulation of this provision from the beginning.

The potential implications of international enforcement of national enforcement measures - including policing - have raised concerns, particularly in light of stated plans to expand PSI and build on UNSC 1540 in the context of counter-proliferation efforts. OP3 of UNSC 1540 does not reference "illicit trafficking" in its overall provision, but does mention it specifically in relation to border patrols.[28] This suggests that other provisions within OP3 could be read to apply to trafficking not considered "illicit." Whether such a reading is appropriate or inappropriate in a specific situation is a question of political feasibility rather than legal interpretation. It has to be acknowledged that there is a rational basis for concern over the potential for expansive interpretations of SC resolutions authorising the use of force, particularly in view of the US and UK interpretation that UNSC 1441 (November 2002) provided a sufficient basis for their use of military action in Iraq despite interpretations to the contrary by other Council members and legal scholars.[29]

Definitional issues

A number of complex and sensitive definitional issues were apparently flagged early in the negotiating process and eventually incorporated into a footnote on "Definitions for the purpose of this resolution only." These cover NBC weapons related material (including equipment and technology), means of delivery, and non-state actors.

NBC weapons related material

The complexity of defining NBC weapons related material is reflected in the change to OP3 between December 16 and 19, at which time "equipment and technology" were added. This clause was later incorporated into the final version of UNSC 1540, including "related materials". The addition of equipment and technology broadens the scope of the required domestic controls since the range of equipment and technology that relate to nuclear, chemical and biological weapons and delivery systems is vast and much of it can have a variety of applications. The dual-use considerations - weapons or civil/commercial purposes - could conceivably expand the applicability of the resolution and greatly complicate its implementation because the scope of potential uses of NBC industries-related equipment and technology is extremely broad. The implications seem to have been grasped quickly, and these potential complications were circumvented by expanding the definition of "related materials" while limiting its application to the purposes of the resolution.

Means of delivery

Reference to "means of delivery" appeared in the draft resolution by January and was expanded and adjusted within the text of subsequent drafts. However, it was then decided to provide only a footnote definition, specifically designated for purposes of the resolution: "missiles, rockets and other unmanned systems capable of delivering nuclear, chemical, or biological weapons, that are specially designed for such use."[30] The changes reflect concerns about enshrining a definition that is either too broad, with implications in other contexts, or too restrictive to be effective. Circumscribing the application of the definition to the purposes of the resolution appears to address these concerns. The authoritative status of SC resolutions, however, might mean that this definition will nevertheless be cited as guidance in other contexts.

Non-state actors

UNSC 1540 circumvents the question of state responsibility for proliferation of WMD by focusing on access by non-state actors to NBC weapons and defining non-state actor for the purpose of the resolution as: "individual or entity, not acting under the lawful authority of any State in conducting activities which come within the scope of this resolution."[31] It is thus unclear whether the provision could have been used in relation to the nuclear blackmarket of AQ Khan, which appears to have been integrally bound up with the Pakistani state, where lines of state authority were deliberately blurred to provide plausible deniability.

UNSC 1540 follow-up mechanism

A follow-up mechanism in the form of a committee of the SC (originally to be established for no more than six months) appears between the February and March drafts of the resolution. Until the draft of March 24, 2004, member states were to be required to report on implementation measures to the President of the Council or the Secretary-General. The late March draft invoked rule 28 of the Council's rules of procedure[32] to establish a committee for reporting on implementation. The committee could also call on "other expertise, as appropriate."

The proposed committee mandate was extended from six months to two years between April 15 and the final draft (April 28). The United States originally resisted the idea of a follow up mechanism, and only two weeks before the adoption of UNSC 1540 did it agree to the implementation committee as mandated in the final version of the resolution.

Debating concept and text

The March 24, 2004 draft of the resolution became the basis for organised NGO input into the negotiating process. NGOs such as the Women's International League for Peace and Freedom (WILPF) and the Lawyers' Committee on Nuclear Policy (LCNP) obtained early drafts of the resolution, and, "through the Abolition 2000 network, conducted a major grassroots mobilization, urging civil society to contact the Security Council and their Ministries of Foreign Affairs to demand an open session of the Security Council as they debated this unprecedented SC resolution."[33]

These NGO efforts included: submitting draft language to all members of the Council;[34] sending a Memorandum to the Council and other interested states;[35] a letter of appeal that was sent out by the Abolition Global Caucus, the International Steering Committee of Abolition 2000;[36] distributing a Media Advisory on March 30, 2004; [37] and delivering statements to the press on March 31, 2004. [38]

Changes to the text of the draft resolution were incorporated into the April 15 draft, which in turn became the basis for the April 22 Security Council open debate on nonproliferation of WMD.[39]

During this debate, Ireland, on behalf of the European Union, and many aligned states,[40] expressed strong support for the resolution initiative and noted that EU Heads of State and Government "have resolved to take action to address this threat, using all instruments and policies at the disposal of the Union, the objective being to prevent, deter, halt and, where possible, to eliminate proliferation programmes of concern worldwide."

Referring to the importance of multilateral disarmament and nonproliferation treaties, the EU also noted its November 2003 adoption of a Common Position on the universalisation and reinforcement of multilateral agreements in the field of non-proliferation of weapons of mass destruction and means of delivery, its work on strengthening export controls, and its plans to provide assistance to states in need of technical knowledge. A European Union Strategy Against Proliferation of Weapons of Mass Destruction had also been adopted in December 2003.

The EU statement also noted that the resolution needed "an effective follow-up mechanism, firmly anchored in the Council" to "help reassure member states that the resolution will be implemented in a transparent, cooperative and consistent manner" calling for a mandate of two years.

Implementation of UNSC 1540

The Committee established pursuant to UNSC 1540 OP4 consists of all members of the Council. Able to call "as appropriate on other expertise" it is mandated to "report to the Security Council for its examination, on the implementation of this resolution," and to this end the Council "calls upon States to present a first report no later than six months from the adoption of this resolution to the Committee on steps they have taken or intend to take to implement this resolution."

The 1540 Committee adopted its terms of reference on August 13, 2004.[41] These spell out the guidelines for the conduct of the Committee's work and indicate that the Committee may decide to establish cooperative arrangements, as necessary, with the International Atomic Energy Agency (IAEA) and the Organisation for the Prohibition of Chemical Weapons (OPCW), or, if appropriate, with other relevant international, regional and sub-regional bodies, including Security Council committees. The terms of reference also recognise that some states require assistance in implementation of UNSC 1540 and invite such assistance from states in a position to offer it. The Committee is also to "undertake its tasks with utmost transparency."

On the matter of expert input, provided for in OP4 of UNSC 1540 and reiterated in the Terms of Reference, as of the time of writing the Committee has hired four experts and is expected to hire an additional four, increasing the anticipated number of experts from six to eight assuming approval of a draft decision currently being considered. These experts will have the tasks of reading and analysing states' reports, as well as assisting states with information sharing.

International Response and Follow-up

A US-EU statement on the non-proliferation of WMD, announced two months after the adoption of UNSC 1540, noted that the "risk that terrorists might acquire such weapons adds a new dimension to this [WMD proliferation] threat". UNSC 1540 was lauded as first among the joint actions to "prevent, contain, and reverse proliferation": "We applaud the adoption of United Nations Security Council Resolution 1540 and urge all States to implement all of its provisions in full. The Resolution states that proliferation of nuclear, chemical, and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security. Terrorism and illicit trafficking add new dimensions to this threat. The Resolution identifies additional steps that States should take to counter these threats. We will meet our obligations under this Resolution and are prepared to assist States in doing the same. We will adopt, where needed, and enforce effective laws to prohibit the manufacture, acquisition, possession, development, transport, or transfer of weapons of mass destruction by non-state actors. We will adopt, where needed, and enforce domestic controls to prevent proliferation, including physical protection, border, export, and transhipment controls.[42]

Similarly, G8 leaders agreed on June 9, 2004, on an "Action Plan on Non-Proliferation"[43] which strongly supports UNSC 1540.

The United States views UNSC 1540 in the context of WMD counter-proliferation efforts, which include PSI. For example, a White House progress report on the "war on terror" characterised the adoption of UNSC 1540 as follows: "The President proposed and the United States led the effort to pass UN Security Council Resolution 1540 which requires states to criminalize proliferation of weapons of mass destruction and their means of delivery by non-state actors, enact and implement effective export controls, and secure proliferation sensitive materials.[44]

UNSC 1540 also received support in many statements to the UN General Assembly and First Committee in 2004, as well as being positively referenced in several resolutions, notably on "National legislation on transfer of arms, military equipment and dual use good and technology"[45] sponsored by the Netherlands on behalf of the EU, which was adopted without a vote. This updated version of earlier resolutions added the language "without prejudice to the provisions contained in [UNSC 1540]" in its first operative paragraph, which invites states "that are in a position to do so to enact or improve national legislation, regulations and procedures to exercise effective control over the transfer of arms, military equipment and dual-use goods and technology...."[46] In addition, a draft resolution sponsored by Afghanistan, Bhutan, Colombia, Fiji, France, India, Mauritius, Myanmar, Nepal and Sri Lanka on "Measures to prevent terrorists from acquiring weapons of mass destruction" [47] contained a preambular reference to UNSC 1540 and was also adopted without a vote.

At the same time, during both the General Debate of the General Assembly[48] and the First Committee[49] sessions, many states expressed the belief that the total elimination of nuclear, chemical and biological weapons was the only true guarantee against the threat of possible use of these weapons, including potential use by terrorists.[50] Moreover, not all references to UNSC 1540 were positive. For example, Brazil, which had argued during the Security Council open debate on April 22, 2003 for the resolution to reflect "the delicate balance existing in international instruments in this field, regarding obligations for all States Parties on nonproliferation, disarmament and international cooperation for peaceful purposes",[51] observed in the First Committee that UNSC 1540 had failed to do this.

However, general international support for UNSC 1540 can be measured by the relatively high submission of national reports on implementation steps and plans. To encourage states, the UK circulated its own comprehensive and detailed draft report among other states as a possible model for reporting.[52] The report describes UK legislative, executive, and enforcement actions, as well as regional and international efforts of which the UK is part, and specific comments on the resolutions operative paragraphs. Though many arrived after the initial October 28 2004 deadline, at time of writing, 112 national reports, as well as a report by the European Union, have been received by the 1540 Committee.

Conclusions

The genesis of UNSC 1540 and its negotiating history highlight the preexisting tensions between nonproliferation and disarmament approaches to international security. Although this resolution was intended to deal exclusively with nonproliferation of NBC weapons to non-state actors, concerns about vertical proliferation (among the nuclear weapon states) surfaced during the evolution of UNSC 1540 and demanded attention. Put forward most strongly by non-nuclear states and civil society, these concerns were addressed sufficiently for the sake of adopting the resolution. However, successful implementation blocking access to NBC weapons generally needs a continuing spotlight on state possession and responsibility with respect to NBC weapons related materials and relevant disarmament obligations.

The exposure of the AQ Khan network together with the adoption of UNSC 1540 are intended to send a clear message to the international community that non-state access to NBC weapons is not tolerable. The issue was seen as urgent and the need for the Security Council to act was generally accepted. But the reception and implementation of UNSC 1540 are not without complications and some reluctance.

One set of concerns has to do with the legal implications of the resolution. Supporters of the resolution argue that the Security Council is not exactly legislating through UNSC 1540, in the sense that it requires states to adopt appropriate measures which will, in turn, necessarily vary by state. However, concerns about the Council's "lawmaking" capability are grounded in observations about the relatively recent Security Council practice of invoking its enforcement powers to create binding obligations on all states in matters of global security.

In 2001, UNSC 1373 on "Threats to international peace and security caused by terrorist acts"[53] drew on the text of a recently concluded treaty for the suppression of the financing of terrorism in creating binding international law that required active state cooperation and established an implementation committee. The implementation of UNSC 1540 will be more demanding on states, qualitatively as well as quantitatively, yet it lacks the political legitimacy that UNSC 1373 automatically had through its reliance on a multilaterally negotiated instrument.

At the same time, it is widely recognised that the multilateral treaty negotiating process, with its dependence on consensus, is too slow to meet the urgent need for action on proliferation. Moreover, the UNSC 1540 negotiating process was more participatory than the Security Council structure and rules of procedure formally suggest, even though it took place outside the multilateral treaty negotiating process and the universal General Assembly process (whether through the First or the Sixth Committees). The informal transparency and behind-the-scenes democracy of the negotiating process, however, point to the need for reform and improved mechanisms of non-Security Council members and civil society engagement on matters of global security.

Other potentially worrying legal implications have to do with possible interpretations of Security Council enforcement powers in light of the wording of UNSC 1540. An extreme reading of potential Council powers could draw on the UNSC 1540 language that cites Chapter VII (Security Council enforcement powers) in the context of requiring state enforcement action, together with the US and UK interpretation of UNSC 1441 (claiming a delegated right to use force in Iraq on the basis of preexisting resolutions), to suggest that individual Council members might have the authority to enforce domestic level enforcement actions. Such a reading seems politically infeasible now, but the theoretical possibility of a specific situation that gives rise to such claims suggests that political realities, rather than legal arguments, provide the best guarantee against such a scenario.

Major political challenges in the implementation of UNSC 1540 over the next twelve months will likely involve establishing the element of trust necessary for effectiveness, and building a sense of consent and consensus. Such an approach is necessary to create a perception of wider ownership of the resolution, beyond the Security Council. Cooperation, interaction, assistance, education, and training are necessary to make the resolution work as envisioned, and these developments will take time. They will also have the potential effect of improving technological and verification capabilities in NBC regimes generally.

The norm-building value of UNSC 1540 relates directly to the value that states attach to NBC weapons. It may be true that terrorists do not seek NBC weapons simply because states have them, but rather for their own political motives. Thus state-level vertical vs horizontal proliferation dilemmas do not translate directly into questions of non-state WMD proliferation. The risks of non-state access to NBC weapons persuaded most states to accept UNSC 1540 as a measure designed to address those risks specifically, despite the priority they ascribe to state-level disarmament obligations. But perceptions of the political value and utility of NBC weapons will continue to exist and to challenge other political as well as moral, religious or legal considerations for as long as these weapons are accepted by some states as symbols of status or security.

Because the implementation of UNSC 1540 requires active participation and large scale cooperation within and among states, its effectiveness will depend in part on the extent to which these concerns continue to be heard and addressed both in the process of UNSC 1540 implementation and in other fora.

Notes

[1] UNSC 1540 (April 28, 2004) online at: < a href="http://www.un.org/Docs/sc/unsc_resolutions04.html"> http://www.un.org/Docs/sc/unsc_resolutions04.html, where the resolution appears with the heading 'Non-Proliferation of Weapons of Mass Destruction'

[2] A reference to WMD in the second preambular paragraph is a direct quote from the Security Council President's Statement referenced in that paragraph.

[3] This article generally uses the term 'NBC' rather than 'WMD' because the former is the more accurate description of the weapons involved and is the term used in UNSC 1540. Where the term 'WMD' appears it indicates actual usage of the term in the given context.

[4] See UN General Assembly General Debate, September 21 - September 30, 2004: Excerpts on Disarmament, Non-Proliferation & International Security, online at: http://www.acronym.org.uk/docs/0409/doc22.htm

[5] For the purposes of this article, NBC weapons are taken to include their means of delivery.

[6] UN Charter, Chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression.

[7] The term "access" is used here as shorthand for UNSC 1540 language covering the development, acquisition, manufacture, possession, transport, transfer or use of NBC weapons.

[8] Proposed Consolidated Draft UNSC Non-Proliferation Resolution, 16 December 2003, OP6.

[9] "The Proliferation Security Initiative", Bureau of Nonproliferation, Washington, DC, July 28, 2004 online at http://www.state.gov/t/np/rls/other/34726.htm

[10] The Proliferation Security Initiative: Statement of Interdiction Principles (adopted in Paris, September 4, 2003) online at: http://www.state.gov/t/np/rls/other/34726.htm#statement

[11] "President Announces New Measures to Counter the Threat of WMD" Remarks by the President on Weapons of Mass Destruction Proliferation, Fort Lesley J. McNair - National Defense University Washington, D.C. 11 February 2004 online at: http://www.whitehouse.gov/news/releases/2004/02/20040211-4.html

[12] After seven years of negotiations, the draft text of the Nuclear Terrorism Convention was eventually agreed on April 1, 2005 and adopted by consensus by the General Assembly on April 13, 2005. The convention will be open for signature on September 14, 2005.

[13] Objections to the assertion that the Council is legislating point out that measures will vary from state to state, and that a call for states to take action as appropriate, including legislative action, is not legislation by the Council.

[14] Kimberly McCloud and Matthew Osborne, "WMD Terrorism and Usama Bin Laden" CNS Reports (20 November 2001) online at http://cns.miis.edu/pubs/reports/binladen.htm

[15] See the Statement to the Security Council by Ambassador Richard Ryan, Permanent Representative of Ireland to the United Nations, on behalf of the European Union (April 22, 2004) online at: http://www.un.int/ireland/eupres42.htm

[16] Statement by Jack Straw, Secretary of State for Foreign And Commonwealth Affairs, to the United Nations General Assembly, September 25, 2003, online at: http://www.un.org/webcast/ga/58/statements/ukeng030925.htm

[17] Statement by George W. Bush, President of the United States of America, to the United Nations General Assembly, September 23, 2003, online at: http://www.un.org/webcast/ga/58/statements/usaeng030923.htm

[18] "President Announces New Measures to Counter the Threat of WMD", op. cit.

[19] "President Announces New Measures to Counter the Threat of WMD", op. cit.

[20] White House Fact Sheet: Strengthening International Efforts Against WMD Proliferation (February 11, 2004) online at: http://www.whitehouse.gov/news/releases/2004/02/20040211-5.html

[21] UN Doc S/23500 (31 January 1992).

[22] UNSC 1540, op. cit., preambular paragraph 2.

[23] UNSC 1540, op. cit., preambular paragraph 13.

[24] See, for example, the EU Strategy against the Proliferation of Weapons of Mass Destruction, http://europa.eu.int/comm/external_relations/us/sum06_04/fact/wmd.pdf

[25] See the discussion of nonproliferation and disarmament in "UN First Committee General Debate, October 4-14, 2004", online at http://www.acronym.org.uk/un/2004FC01.htm

[26] The presumption of permissibility in international law is articulated in the 1927 Lotus case of the Permanent Court of International Justice. See S.S. "Lotus" (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 18 (September 7).

[27] UNSC 1540, op. cit., OP2 and OP3.

[28] UNSC 1540, op. cit., OP3(c).

[29] See James C. Ho, "International Law and the Liberation of Iraq", Texas Review of Law & Politics Vol. 8 p. 79 (Fall 2003) arguing for continuing Security Council authorisation to use force in Iraq. For the counter-argument see Hilary Charlesworth, "Is International Law Relevant to the War in Iraq and its Aftermath", Telstra Address, National Press Club, Canberra, Australia, October 29, 2003, online at: http://www.globalpolicy.org/empire/un/2003/1029charlesworth.pdf

[30] UNSC 1540, op. cit.

[31] UNSC 1540, op. cit.

[32] Rule 28 of the Security Council's provisional rules of procedure provides that "The Security Council may appoint a commission or committee or a rapporteur for a specified question." Online at: http://www.un.org/Docs/sc/scrules.htm

[33] See Security Council Resolution 1540: Civil society mobilization, online at: http://www.reachingcriticalwill.org/political/SC/SC.html#civsoc

[34] http://www.reachingcriticalwill.org/political/SC/NGO_draft_language.pdf

[35] http://www.reachingcriticalwill.org/political/SC/SC.html#memo

[36] http://www.reachingcriticalwill.org/political/SC/Abo2000_SC_letter.pdf

[37] http://www.reachingcriticalwill.org/political/SC/SC.html#advisory

[38] Statement to the Press, Susi Snyder, Director, United Nations Office, Women's International League for Peace and Freedom, UN Correspondents' Association, New York (March 31, 2004), online at: http://www.reachingcriticalwill.org/political/SC/SC.html#susi_statement; and Statement of John Burroughs, Executive Director, Lawyers' Committee on Nuclear Policy, UN Correspondents' Association, New York (March 31, 2004), online at: http://www.reachingcriticalwill.org/political/SC/SC.html#john_statement

[39] UN Security Council 1540: Open Debate, online at: http://www.reachingcriticalwill.org/political/SC/SC.html#debate

[40] Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia, Bulgaria, Romania, Turkey, Albania, Bosnia and Herzegovina, Croatia, Former Yugoslav Republic of Macedonia, Serbia and Montenegro, and Iceland aligned themselves with this statement. Statement to the Security Council by Ambassador Richard Ryan, Permanent Representative of Ireland to the United Nations, on behalf of the European Union (April 22, 2004) online at: http://www.un.int/ireland/eupres42.htm

[41] Online at: http://www.reachingcriticalwill.org/political/SC/TOR.pdf

[42] US-EU Declaration on the Non-Proliferation of Weapons of Mass Destruction, Shannon, Ireland (June 26, 2004).

[43] Online at http://www.sipri.org/contents/expcon/seaisl2004_nonprolif.html

[44] "Three Years of Progress in the War on Terror", White House Press Release (September 11, 2004) online at: http://www.whitehouse.gov/news/releases/2004/09/20040911.html

[45] UN First Committee Draft Resolution A/C.1/59/L.51, http://www.reachingcriticalwill.org/political/1com/1com04/res/L5.doc

[46] Compare to UNGA Resolution 58/42 (2003) online at: http://ods-dds-ny.un.org/doc/UNDOC/GEN/N03/455/43/PDF/N0345543.pdf?OpenElement

[47] UN First Committee Draft Resolution A/C.1/59/L.31 http://www.reachingcriticalwill.org/political/1com/1com04/res/L31.doc

[48] UN General Assembly General Debate, September 21 - September 30, 2004: Excerpts on Disarmament, Non-Proliferation & International Security, http://www.acronym.org.uk/docs/0409/doc22.htm; see also Disarmament Index 2004, http://www.reachingcriticalwill.org/political/1com/1com04/disarmindex.html.

[49] Statements from the First Committee on Disarmament and International Security, October 4 - November 5, 2004, http://www.reachingcriticalwill.org/political/1com/1com04/statements/statements.html

[50] Seema Jalan and Michael Spies, "Proliferation", The First Committee Monitor, Week Four: October 25-29, 2004, online at: http://www.reachingcriticalwill.org/political/1com/FCM/2004wk4.html#prolif

[51] Statement by Ambassador Renaldo Mota Sardenberg to the Security Council, 22 April 2004, http://www. reachingcriticalwill.org/political/SC/Brazil_SC_WMD.pdf http://www.reachingcriticalwill.org/political/SC/Brazil_SC_WMD.pdf

[52] UK National Report on Implementation of UNSCR 1540 (29 September 2004) online at: http://www.ukun.org/articles_showasp?SarticleType=17&Article_ID=771.

[53] UNSC 1373 (2001), online at http://daccess-ods.un.org/access.nsf/Get?Open&DS=S/RES/1373%20(2001)&Lang=E&Area=UNDOC

Merav Datan is an international lawyer specialising in disarmament and security, and an adjunct professor of international law at Rutgers Law School. During the past 10 years she has worked for non-governmetal organisations affiliated with the United Nations and as a consultant to the UN Department for Disarmament Affairs.