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UN Security Council Resolution 1540
PART I: Resolution 1810: Progress since 1540

WMD Insights, August 2008 issue

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UN Security Council Resolution 1540 has emerged as a vital component of the international community’s toolkit in the fight against WMD proliferation. 1540, however, is not without its controversies and challenges. This article provides a general overview of the Resolution’s progress in light of the recent renewal of its mandate.


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On April 25, 2008, the United Nations Security Council unanimously adopted Resolution 1810, reaffirming its commitment to Resolution 1540. That resolution, passed in 2004, requires all UN member states to enact national legislation to prevent and criminalize activities of non-state actors who seek to acquire and proliferate weapons of mass destruction (WMD). UNSCR 1810 explicitly notes that not all states have complied with 1540’s reporting requirements and thus, “…calls upon all states that have not yet presented a first report on steps they have taken or intend to take to implement resolution 1540 (2004) to submit such a report to the 1540 Committee without delay.” [1] Moreover, UNSCR 1810 directs the 1540 Committee to “intensify efforts” to promote full implementation through outreach, dialogue, and assistance and cooperation.

After four years, confusion and skepticism still reign among member states regarding compliance, prioritization, and applicability of Resolution 1540. Ambassador George Nene of South Africa, for example, though voting in favor of Resolution 1810 (2008), stated that the language of the resolution is “far from ideal and does not fully reflect the view of the overwhelming majority of countries who believe that all weapons of mass destruction are illegitimate and that there is no grounds for claiming that these weapons are safe in some hands, but not in others.” [2]

Understanding both the challenges that member states confront in implementing UNSCR 1540 and the problems facing the committee created to facilitate that implementation is critical to achieving a normative and layered defense against global WMD proliferation and the potential use of WMD by non-state actors. In 2011, when the 1540 Committee submits its final report as required by UNSCR 1810, what will the report say about how well member states and the committee addressed today’s problems? What challenges will still remain?

Background
UNSCR 1540 was partly a result of efforts to legitimize the Proliferation Security Initiative (PSI), an effort aimed at stopping shipments of WMD and related materials. According to Siew Gay Ong of Singapore’s Ministry of Foreign Affairs, without the PSI, the issue of counterproliferation would never have found its way to the Security Council agenda, and thus the impetus for UNSCR 1540 would never have existed. [3] It is ironic, therefore, that China blocked specific reference to PSI during negotiations on the resolution before the Security Council ultimately approved it. [4]

As a sponsor of UNSCR 1540, the United States helped to shape the Resolution into an important contribution to a growing and complex international nonproliferation regime comprised of three broad layers: formal multilateral and bilateral agreements; international organizations and regional bodies; and national legislation, regulations, and implementation efforts.

In passing UNSCR 1540, the Security Council recognized that the primary responsibility for fighting WMD proliferation and potential terrorist use of WMD rests with UN member states themselves. Andrew Semmel, Principal Deputy Assistant Secretary of State for Nuclear Nonproliferation, noted that, “The crux of UNSCR 1540 requires states to ensure that they have the infrastructure in place to address the threat posed by non-state actor involvement in any aspect of WMD proliferation. It decides that states shall not support non-state actors involved in such activities and that states shall enact and enforce the necessary laws to prevent these activities on their territories.” [5] Thus Resolution 1540 requires all UN member states to monitor and control the security and export of sensitive technologies, materials, and equipment, with the goal of closing gaps associated with the multilateral treaty and export control regimes. In 2006, the Security Council extended the 1540 mandate by two years in Resolution 1673, which emphasized that not all states had complied with the initial reporting requirements, and called on them to do so posthaste. Additionally, UNSCR 1673 mandated that the 1540 Committee should intensify its outreach, dialogue, and assistance and cooperation efforts. [6]

Regional Implementation Experiences

Since the adoption of the 1540 mandate, progress has been slow and disjointed. Though most states are making progress in national implementation, some states are still struggling to meet the resolution’s requirements. The overwhelming majority of these states are in developing regions of the world where domestic challenges are more immediate concerns. Some states, for example, especially those facing widespread internal crises, have difficulty seeing the relevance of UNSCR 1540 to their national priorities, even indirectly. As a result, these countries are less likely to commit scarce economic and political resources to fund new initiatives related to the resolution. One analysis of 1540 implementation, for example, finds that only a third of countries that submitted reports to the Committee mentioned national measures and initiatives taken after the resolution’s adoption. [7]

Africa
Of those sixty states who have yet to submit their implementation reports, the majority is in Africa. At the 2006 United Nations Seminar on Implementing UN Security Council Resolution 1540 in Africa, Peter Burian, chair of the 1540 Committee, noted that: “… few African states have reported the adoption of control measures that encompass accountability, physical protection, border control or control of national imports, exports, transit and trans-shipment, or illicit financial and other services pertaining to WMD-related items and activities.” [8] That situation does not appear to have changed much in the intervening two years. According to one study, regions with the lowest percentage of fulfilled requirements, including Africa, tend to be in “hot-spot” zones plagued by political, economic, military, and civil unrest. [9] Other challenges – such as the proliferation of small arms and light weapons (SALW), disease, poverty, resource exploitation, and civil-war – are viewed as far more relevant and resource worthy issues than the development and implementation of a national export control strategy for WMD-related technologies and materials.

The shortcoming in Africa’s performance, however, reflects more than a competing agenda. Algeria, for example, has expressed the sentiment of other African countries in arguing that UNSCR 1540 is meant only to benefit Western nations. It has called the states that possess nuclear weapons – specifically the United States – impediments to a truly global nonproliferation regime. Specifically, Algeria cites the failure to make progress towards nuclear disarmament as inherently counter to the spirit and objectives of UNSCR 1540. For some African states struggling with 1540 implementation, why should non-nuclear weapon states, especially those with more immediate concerns, expend severely limited resources on problems largely thought only to concern Western states and those nations with nuclear weapons? [10] [11]

Not everyone agrees that the press of other issues relieves African nations of the burdens of addressing WMD proliferation and potential terrorist use. Nabuaki Tanaka, former UN Under Secretary General for Disarmament Affairs, for example, has argued that states cannot disregard UNSCR 1540 requirements to implement national laws and regulations to prevent proliferation. As evidence, Tanaka cited the extensive number of trips that A.Q. Kahn made to African nations – such as South Africa – while running his nuclear weapons proliferation ring. [12]

Some African states have made substantial progress in implementing UNSCR 1540. Ghana, for example, has strengthened its national authorities to implement legislation, improved training programs, and has sought bilateral assistance for public education and awareness programs. Kenya, too, has drafted national legislation to address issues pertaining to conflict, SALW, and terrorism. Moreover, Kenya has requested technical assistance to establish relevant laws, regulations, and export control policies that directly address proliferation. [13]

Latin America
Some Latin American and Caribbean states, such as Guatemala and Trinidad and Tobago, have made clear their intentions to pursue implementation of UNSCR 1540 to its fullest. Guatemala, for example, has raised awareness among public and private sectors, identified gaps and deficiencies in national legislation, and identified outdated laws and policies that do not support the resolution’s objectives. [14] Trinidad and Tobago passed the 2005 Anti-Terrorism Act, which aims to provide for the detection, prevention, prosecution, and conviction of terrorist activities involving WMD, under the penalty of death. [15]

Despite these positive examples, Latin America’s implementation record is mixed. Brazil’s thinking about 1540 implementation, for example, echoes many of the concerns voiced by African nations. Brazil acknowledges the resolution’s importance in preventing proliferation of dual-use technologies, materials, and equipment, but retains reservations about the clarity of its language. Moreover, Brazil believes the resolution lacks concrete steps toward disarmament—a necessary precondition toward a legitimate global nonproliferation regime. [16] Like other Latin American nations, Brazil’s sentiments on striking a balance between security and economic development also reflect the challenges developing countries face when implementing UNSCR 1540. Nonetheless, Brazil implemented the National Program on Sensitive Goods in an effort to raise awareness among relevant actors about the obligations and requirements relating to dual-use technologies, materials, and equipment.

Asia
According to a 2006 1540 implementation seminar held in Beijing, 42 out of 55 Asian states had submitted national reports. [17] Despite a higher rate of reporting than in other regions, many Asian states are experiencing challenges similar to those faced by African and Latin American states.

Jong Kwon Youn, South Korea’s First Secretary of the Disarmament and Nonproliferation Division of the Foreign Affairs and Trade Ministry, found that reporting difficulties arose in two general categories: “absence of infrastructure” and “coordination problems.” Countries like Vietnam and Laos, for example, have virtually no WMD-related activities and thus very limited infrastructure in place to accommodate 1540 legislation. Singling out the chemical dimension of the challenge, Jong Kwon Youn states that, “…a country without an industrial base or with very little foreign trade may not have the legal framework and the administrative branches to regulate the transfer of materials related to chemical weapons.” [18] South Korea also found that coordination problems exist when a state’s administrative bodies have difficulty reconciling differences in their implementation priorities, although Seoul ultimately was able to persuade its internal agencies of a sense of urgency attached to making progress on its implementation of UNSCR 1540 and the high-costs of non-implementation.[19] Additionally, South Korea sought to minimize the scope of legal changes that would be required, opting for revising existing laws in lieu of enacting new legislation.

Nuclear Weapons States
Other UN member states have also faced implementation issues. According to a 2006 study, “…a considerable number of states with advanced technology, including declared possessors and former possessors of WMD such as China, France, Russia, and the UK, have less than half of their key provisions in place.” [20]

Current Challenges to UNSCR 1540
UN member states are grappling with three primary challenges to full and effective implementation of UNSCR 1540: 1) political willingness to understand and embrace the legitimate threat WMD proliferation poses to all nations; 2) relevance to internal issues; and 3) institutional capacity and resource availability.

First, states must view the issue as legitimate. [21] In the case of UNSCR 1540, states may be reluctant to implement legislation required by the resolution for reasons of national sovereignty. For example, Matthew Fuhrmann of the University of Georgia explains that most states view export controls on sensitive technology as an inherently domestic function rather than one shaped primarily by international constraints. [22] Moreover, member states have increasingly voiced concern over the perceived tendency of the UN Security Council to impose broad “legislation” through binding resolutions. [23] These states claim that resolutions such as UNSCR 1540 are not consistent with the provisions of the UN Charter and are too broad in scope in terms of definitional requirements. [24]

The second challenge facing member states is the relevance of UNSCR 1540 to the nation’s agenda. Initial reporting setbacks were due in part to confusion over requirements of implementing the resolution’s operational provisions. Some states, for example, believed that national WMD-related activities were a prerequisite for compliance and implementation. As Peter Crail points out, establishing nuclear material control and accounting mechanisms is of little importance to Guatemala compared to Japan. [25] This ultimately creates a situation in which states that fail to identify with the global WMD-proliferation threat unravel or de-legitimize the international norms that UNSCR 1540 is working to establish.

Finally, political and economic constraints are primary determinants for the priority that developing countries give to 1540 implementation. As UNSCR 1810 seeks to intensify outreach and technical assistance, all UN member states must recognize the more immediate concerns facing developing nations. The national implementation experience of Algeria for example, typifies the tension that exists between reconciling expensive initiatives and the nation’s widespread poverty. (For more information on the national implementation experiences of the Caribbean states, see “UN Security Council Resolution 1540 - Part II: The Caribbean States: A Case Study” in this month’s issue of WMD Insights.)

Addressing and Meeting Current Challenges
In addressing the challenges to achieving full compliance and implementation, member states and the 1540 Committee must focus on understanding how Resolution 1540 lends
legitimacy to international nonproliferation frameworks, the necessity of engaging a wide-range of actors and leveraging their resources, experience, and capabilities, and expanding the capacity and authority of the Committee to identify areas upon which states should focus resources.

Normative Frameworks and Relevance

The toughest hurdle facing effective UNSCR 1540 implementation is the need to bolster a normative framework to support the legitimacy of the 1540 mandate. Member states must find ways to bridge the gap between current questions of national sovereignty, the resolution’s legitimacy and the normative nonproliferation frameworks reflected in the universal support for UNSCR 1540’s goals and objectives. A second issue is the extent to which progress towards disarmament continues. In many ways this is a political argument that member states will not solve within the framework of 1540. Even though the world’s major powers do not necessarily agree, many nations have drawn a strong link between nonproliferation and disarmament, and the implications of the ongoing debate should continue to be addressed to facilitate effective 1540 implementation.

Engaging and Leveraging Capabilities and Resources
States must continue to engage and leverage the capabilities and experiences of international organizations and regional bodies to help facilitate implementation. [26] One study argues, for example, that international organizations such as the European Union and Association of Southeast Asian Nations (ASEAN) are the most appropriate tools to compile resources and expertise to aid with implementation and compliance. Many international bodies, such as the International Atomic Energy Agency (IAEA) and the Organization for the Prohibition of Chemical Weapons (OPCW), already have extensive experience in conducting outreach and technical assistance activities with regions and sub-regions still considered “lagging” in their efforts to implement fully all provisions of the resolution. Russia has called several times for the 1540 Committee to establish constant communications with the IAEA and the Nuclear Suppliers Group. [27] OPCW has experience conducting workshops on legal drafting, public and private stakeholder awareness programs, bilateral technical assistance, and sub-regional workshops to facilitate implementation of the Chemical Weapons Convention; this expertise could potentially prove valuable to assist with 1540 implementation efforts. [28] The experience of the Organization of American States (OAS) also shows how effective regional organizations can be in coordinating legislative initiatives. The OAS was instrumental, for example, in organizing and coordinating the Inter-American Committee against Terrorism (CICTE), a committee responsible for facilitating the exchange of information between national authorities as well as the formulation of national proposals to assist states with drafting appropriate counter-terrorism legislation. [29]

Apart from leveraging regional and international bodies, member states must also begin to include all relevant actors critical to creating comprehensive national implementation plans in the implementation of national activities. This includes engagement with the private sector. [30] Private businesses must be aware of their susceptibility to terrorist attacks and the potential economic consequences of such an attack. [31]

The biotechnology and pharmaceuticals industries are a case in point. Biotechnology firms’ cooperation, expansion, and movement of resources across borders, coupled with advances in development and production, has caused explosive growth in the industry. U.S. healthcare and biotech revenues increased from $8 billion in 1992 to $50.7 billion in 2005. [32] The number of private firms also skyrocketed from just a handful in the early 1990s to currently over 1,800 publicly held companies in the United States alone. Moreover, these companies are the sole source of vaccine manufacturing, making the biotech industry an indispensable resource.

In light of the growing importance of biotechnology, the question of how to manage effectively the risks of technology diffusion without imposing negative consequences on private firms and their research and development processes is a central concern. It will only become more so as the industry continues to expand around the world. Thus member states must coordinate how best to engage the private industry without jeopardizing economic development or impeding legitimate research activities. [33]

South Korea may prove to be a model for countries looking to educate subject matter experts and small companies on the importance of adhering to the worldwide ban on the export of strategic materials that could be used to make weapons of mass destruction. In 2007 Seoul created a comprehensive on-line strategic-material screening service to prevent companies from accidentally exporting products. [34]

Identification of Gaps and Priorities
Identifying and addressing gaps in 1540 implementation is critical to the ultimate success of the Resolution. The 1540 Committee has been reluctant, however, to suggest priorities, fearing that states would view such suggestions as an encroachment on their sovereign right to legislate. [35] The only way the 1540 Committee will be a useful tool is if it identifies current gaps in UNSCR 1540 implementation and sets implementation and technical assistance priorities to fill those gaps. To do so, however, the 1540 Committee must continue pushing states who have not yet done so to submit implementation reports as required by the 1540 mandate. The 1540 Committee must also regularly update the online legislative database matrix to help regional bodies identify gaps in the international nonproliferation regime. [36]

The 1540 Committee and member states must also work to define measures of success by defining “effective” and “appropriate” legislation, regulations, and implementation measures. Without clear definitions of “effective” and “appropriate” legislation, questions will always exist as to the true value and legitimacy of 1540. Moreover, defining terms will require the 1540 Committee to take on issues that member states have traditionally viewed as within their domain as sovereign states.

Conclusion: From Resolution 1540 to the 2011 Report
In 2011, the 1540 Committee must submit a report to the Security Council regarding overall implementation and compliance with UNSCR 1540. Will it be possible to claim success?

Ultimately, the degree of success reported in 2011 will depend on three important factors. First, the United States must continue its role as leader in the global nonproliferation regime. The U.S. should make every effort to engage partners and other member states to better facilitate outreach, coordination, and technical assistance. Moreover, the U.S. must continue to work closely with regional bodies in an effort to set priorities and leverage appropriate areas for technical assistance—ultimately lending more legitimacy to the 1540 mandate. The United States should take it upon itself to continue to highlight the importance and salience of the consequences of non-state actor proliferation.

Second, success of UNSCR 1540 will require states to be willing to accept an international framework for addressing nonproliferation based on a “layered defense” concept that places ultimate responsibility directly at their doorstep. This means that member states must understand the domestic consequences associated with a weak and porous nonproliferation regime.

Finally, the importance of engaging the private sectors cannot be emphasized enough. As the world becomes increasingly globalized, private businesses will play an integral role in implementing national legislation, particularly insofar as understanding the inherent security risks associated with exporting advanced technologies, equipment, and materials.

In sum, the international community can only hope that the 2011 Committee’s report will cite evidence that all member nations fully recognize the domestic implications of global WMD proliferation.

Aaron Arnold – SAIC

ENDNOTES

[1] United Nations Security Council, “Resolution 1810,” April 25, 2008.
[2] George Nene, “RSA Official Addresses Media on Second Rotating Presidency of UNSC,” Pretoria Department of Foreign Affairs Speech, April 29, 2008.
[3] Olivia Bosh and Peter van Ham, eds., Global Non-Proliferation and Counter-Terrorism: The Impact of UNSCR 1540, Chatham House: Brookings Institution, 2007, p.162.
[4] Mary Beth Nikitin, Proliferation Security Initiative (PSI), Congressional Research Service Report for Congress, February 2008.
[5] Andrew Semmel, “UN Security Council Resolution 1540: The U.S. Perspective,” United Nations Conference on Global Nonproliferation and Counterterrorism, pp. 29-32.
[6] See, for example, “1540 Committee- Resolutions and Presidential Statements” [http://www.un.org/sc/1540/resolutionstatements.shtm].
[7] Lars Olberg, “Implementing Resolution 1540: What the National Reports Indicate,” Disarmament Diplomacy, no. 82, 2006.
[8] United Nations, “United Nations Seminar on Implementing UN Security Council Resolution 1540 in Africa,” ODA Occasional Papers, November 9, 2006, p. 101.
[9] Peter Crail, “Implementing UN Security Council Resolution 1540: A Risk Based Approach,” Nonproliferation Review, vol. 13, no. 2, 2006, pp. 355-399.
[10] According to the World Bank’s World Development Indicators, Algeria is categorized as a “low-middle income” economy. See, for example, “Data- Country Classification,” World Development Indicators Online, 2008, http://web.worldbank.org/WBSITE/EXTERNAL/DATASTATISTICS/0,,contentMDK:20420458~menuPK:64133156
~pagePK:64133150~piPK:64133175~theSitePK:239419,00.html. [View Article]
[11] The 2008 Foreign Policy “Globalization Index” ranks Algeria as one of the lowest globalized nations (70/72). See, for example, “Foreign Policy: Globalization Index Rankings,” 2008, http://www.foreignpolicy.com/story/cms.php?story_id=4030#rankings. [View Article]
[12] See source in [8].
[13] Ibid., p.145.
[14] United Nations, “United Nations Seminar on Implementing UN Security Council Resolution 1540 in Latin America and the Caribbean,” ODA Occasional Papers, November 27, 2006, p. 78.
[15] Ibid., p. 90.
[16] Ibid., p.67.
[17] United Nations, “United Nations Seminar on Implementing UN Security Council Resolution 1540 in Asia and the Pacific,” ODA Occasional Papers, July 12, 2006, p. 26.
[18] Ibid., p.28
[19] Ibid., p.29
[20] See source in [9]. Of the ten operative paragraphs (Ops) the 1540 Committee emphasizes the importance of OP2 and OP3, that States, “shall adopt and enforce appropriate laws” to prohibit non-State actors from having access to weapons of mass destruction (WMD), and “take and enforce effective measures to establish domestic controls” to prevent WMD proliferation.
[21] See source in [3].
[22] See, for example, Matthew Fuhrmann, “Making 1540 Work: Achieving Universal Compliance with Nonproliferation Export Control Standards,” World Affairs, vol. 169, 2007, pp 143-152.
[23] Stefan Talmon, “The Security Council as a World Legislature,” The American Journal of International Law, vol. 99, no.1, January 2005, pp.175-193.
[24] The Security Council’s legal authority to impose binding legislation is derived from Chapter VII of the UN Charter. Specifically, Article 40 states, “In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.”
[25] See source in [9].
[26] Provision 7 of Resolution 1540 recognizes that, “that some states may 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…”
[27] Sergey Rogov, “Problems of Control over Nuclear Arms in the 21st Century. Military Experts Propose a Concept for the Security Council of the UN and the ‘ Big Eight,” Nezavisimoye Voyennoye Obozreniye, June 9, 2006.
[28] See source in [14].
[29] Ibid.
[30] Provision 8b of 1540 explicitly states implementing states must, “…develop appropriate ways to work with and inform industry and the public regarding their obligations under such laws.”
[31] Wade Boese, “UN Extends Committee on Terrorists and Arms,” Arms Control Today, vol. 36, no. 5, 2006, pp.39-41.
[32] “About BIO,” BIO: Biotechnology Industry Organization, 2008, http://bio.org/aboutbio.
[33] See source in [3].
[34] See, for example, Lee Joon-Seung, “Gov’t to Educate SMEs on Strategic Materials Export Safety,” Yonhap, March 18, 2008.
[35] See source in [34].
[36] Paul Bernstein, “International Partnerships to Combat Weapons of Mass Destruction,” Occasional Paper, Center for the Study of Weapons of Mass Destruction, National Defense University Press, May 2008, pp. 13-14.