United Nations Security Council Resolution 1540

The Issue | Obstacles | Q & A | Legislation | Agreements | Talking Points | Recommendations

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The Issue

The AQ Khan affair illustrated the ease with which bad actors can proliferate sensitive weapons of mass destruction (WMD) knowledge and hardware. For well over a decade, Khan's black market in nuclear technologies spanned the globe, providing one-stop shopping to customers from North Korea to Iran to Libya. The rogue scientist's distribution network also revealed a wide gap in the wherewithal of existing treaties and agreements to effectively address the role individuals motivated by ideology or greed might play in undermining global nonproliferation objectives. The case stands as a warning to the world that the NPT, regardless of strengthened verification mechanisms and/or adjustments to interpretations of Article IV, will remain insufficient to address the challenges of rogue non-state actors. The same is also true of both the Biological Weapons Convention (BWC) and the Chemical Weapons Convention (CWC). Thus, the immediate and unmet challenge is to ensure that any state with the intent to prevent WMD proliferation is capable of doing so through effective controls on materials, technologies or know-how within or transiting its jurisdiction.

In order to help close the gap and strengthen the global nonproliferation regime, the United Nations (UN) Security Council unanimously passed Resolution 1540, mandating all UN Member States to implement a set of supply-side controls and criminalize proliferant activities within their territories. The April 2004 resolution was introduced with great fanfare, marking the most significant opportunity since September 11th to pragmatically pair states-at-risk with the technical and financial assistance they require to conform to global nonproliferation norms.

The resolution requires states to:

  • Refrain from helping non-state actors develop, acquire, transport, or use WMD and their means of delivery.
  • Criminalize proliferation activities, including assisting or financing them.
  • Develop and maintain "appropriate effective":
    • measures to account for and secure WMD, their means of delivery, and related materials;
    • physical protection measures;
    • border controls and law enforcement efforts against the illicit trafficking and brokering such items; and
    • export and trans-shipment controls over those items.

To facilitate implementation of the resolution, the Security Council established a Committee of Member States to monitor states' reporting efforts and conduct outreach activities. Originally given a two-year mandate, the Committee's work was extended another two years in April 2006 with the passage of Security Council Resolution 1673. The Committee's main role has been in providing oversight for the national reports states are required to submit on their current legislative frameworks and anti-trafficking capacities. The Committee posts all of the national reports it receives, as well as a database of publicly available legislation from each country relative to Resolution 1540 and offers of assistance. Current Committee work includes creating a matrix for each country that shows which laws and capacities fulfill 1540's many obligations. The Committee is composed of representatives from the fifteen Security Council states, and is supported by a small team of outside WMD experts.

Despite early attention however, 1540 has not received the sustained attention and support of the United States and the rest of the international community requisite to move the resolution from a multifaceted mandate to an effective nonproliferation and capacity building toolkit. Ultimately, Resolution 1540 will be worthless without widespread, coherent implementation of its various obligations-which will not happen until a system is put in place for states with the requisite means "to offer assistance" to states lacking "the legal and regulatory infrastructure, implementation experience and/or resources for fulfilling" 1540's requirements. Innovative mechanisms should be used to facilitate this effort. In order to ensure sustainable implementation of the Resolution many tools of "development" assistance must come into play, such as capacity-building, establishing a legal infrastructure and institutions. More specifically, this includes the codification and enforcement of export controls, border controls, materials security, etc. It is imperative that relationships are built across the nonproliferation and development communities, and that the common objectives of each are leveraged in support of each other.

Immediate action must be taken by the international community, particularly developed countries, to ensure that the range of tools in the existing nonproliferation toolkit are effectively leveraged and combined to complement each other as we address the nonproliferation agenda. Unfortunately, the 1540 Committee is not empowered to actively play matchmaker between states in need and states with capabilities. In its "Guidelines for the Conduct of Its Work" the Committee acknowledges that some states may need assistance, but is only able to "invite States in a position to do so to offer assistance as appropriate in response to specific requests." The lack of direct coordination is a major impediment to full implementation.

There are also significant weaknesses in the reporting system itself. While there is a mandate for countries to file reports regarding the "appropriate effective" measures that the state has undertaken and plans to undertake to enact the Resolution in its national legal system, the Resolution does not specify what exactly "appropriate effective" means and what such actions would look like. Consequently, there is a lack of an agreed definition as to what compliance looks like. The problem is compounded by the fact that the 1540 Committee is not given the authority to delineate a unified definition of compliance. With no means of determining a standard for what compliance entails, the review of the national reports becomes an almost meaningless exercise. Ultimately, this leads to a system, whereby, a country could (and has) submit(ed) a one sentence report claiming compliance with the Resolution. This is a significant gap which needs to be properly addressed. Without clear international standards, the member states get to determine their own definition of effective implementation and the 1540 Committee lacks a mandate to determine non-compliance.

Finally, one issue that is frequently raised in discussions of 1540, but has not been addressed, is financing of the assistance projects. The 1540 Committee does not have the ability to provide assistance in funding projects. Similarly, those countries that are most in need of assistance are the least able to finance the assistance themselves. Thus, donor states and organizations must themselves finance any assistance that they might provide. As such, the Resolution puts forward an onerous unfunded mandate in that it requires state action but provides no resources for accomplishing it. A steady source of international funding for these assistance efforts will be necessary to ensure that 1540 is able to accomplish its goal of stopping proliferation to states or non-state actors.

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OBSTACLES

  • UN Security Council Resolution 1540 puts forward a vague notion of technical assistance to implement a global mandate stipulated by the Security Council. In many cases however, states that have the means to become global proliferators lack supply side capabilities to prevent weapons diffusion. The result is that they are likely to become unwitting contributors to global terrorism.
  • Only 136 states and one organization (the European Union) have submitted national reports, leaving fifty-six not yet in compliance with the Resolution's reporting requirements.
  • Most states pledging to provide assistance for 1540 implementation have offered technical assistance, while the states that have requested assistance have asked for financing and training. Full implementation will require a stronger convergence between requests and offers.
  • Questions still remain over who will finance the assistance programs.
  • There is no unified definition of what "effective appropriate" measures would be. Consequently, there is no objective means of determining whether states are fully complying with the resolution.

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Q & A

 

Q: What is Security Council Resolution 1540?
A: Security Council Resolution 1540 was a unanimously-passed, binding resolution of the Security Council expressing a desire for uniform international action to prevent the proliferation of WMD to non-state actors. Few countries have national legal, law enforcement, and various administrative frameworks that effectively prohibit, prevent, or penalize the acquisition, possession, development, transfer, and use of WMD, their means of delivery, and related materials. To address this disconnect, the Resolution calls on member states to develop and maintain "appropriate effective" storage and accounting systems, physical protection measures, border controls, and legal export/transshipment controls. To assess implementation, the Resolution established a Committee which receives and reviews all reports filed by member states. In addition, the resolution invites those states that have the means and capabilities to do so to assist those countries who need and request assistance with complying with the Resolution.

Q: Why is Security Council Resolution 1540 significant?
A: This resolution is designed to address the threats which are not covered by the individual nuclear, chemical and biological weapons treaties, but is not intended to supersede their provisions. These include the potential threat from non-state actors and opportunities for proliferation in unstable states or territories. The resolution covers all WMD and their means of delivery, as well as related materials. It also calls for national action on law enforcement, border security, export controls and physical protection of materials. Furthermore, unlike prior arms control agreements, UNSCR 1540 does not operate on an opt-in basis; it is binding on all member states of the United Nations, including those who are not participatory members of the other agreements.

Q: Which countries compose the leadership of the 1540 Committee? What other countries are members?
A: The 1540 Committee is composed of representatives from the fifteen members of the United Nations Security Council. The Chairman of the Committee is Ambassador Peter Burian from the Slovak Republic. Representatives from Ghana, Indonesia, and the United Kingdom hold Vice-Chairman positions. The rest of the Committee includes representatives from Belgium, China, France, Italy, Panama, Peru, Qatar, the Republic of the Congo, the Russian Federation, South Africa, and the United States.

Q: What is the status of implementation of 1540?
A: As of March 2007, 136 countries as well as the European Union have submitted their reports to the 1540 Committee. The vast majority of non-reporting states come from Africa, the Caribbean, and the Pacific Island areas with the majority of those being from Africa (35 out of the 56 total non-reporting countries). Unfortunately, due to large number of countries that had not filed in the window specified by 1540, it was necessary to extend the mandate of the 1540 Committee to provide additional time for the remaining countries to come into compliance. In addition, it is hard to determine whether the measures taken by states are truly "appropriate effective" and provide any additional security.

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RECENT US LEGISLATION

  • The Foreign Relations Authorization Act for Fiscal Years 2006 and 2007 (H.R. 2601, which was not enacted) would have authorized the President to encourage full implementation of Resolution 1540 and to withhold non-humanitarian foreign assistance from states that have not fully complied with the resolution.
  • The Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006 (H.R. 5682, Public Law 109-401) called for the President to submit a report to Congress on India's steps to secure nuclear material and technology in accordance with Resolution 1540.
  • The Implementing the 9/11 Commission Recommendations Act of 2007 (HR. 1, passed in the House, referred to committee in the Senate) calls for "such funds as may be deemed necessary" to be appropriated and authorized in FY2007 for non-proliferation activities. Included in these specific programs are "efforts to increase United States ability to help states around the world place the 'effective controls' on WMD and related materials and technology mandated by United Nations Security Council Resolution 1540 (2004)."

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APPLICABLE TREATIES AND OTHER INTERNATIONAL AGREEMENTS


The 1968 Nuclear Non-Proliferation Treaty (NPT)
Prohibits states from transmitting nuclear technologies and materials necessary to build a nuclear device to non-nuclear weapons states. However, the NPT does not apply to naval fuel sales and thus does not preclude Russia from selling proliferation-sensitive HEU fuel aboard a submarine to another country. Such sales may occur without International Atomic Energy Agency safeguards.


The 1972 Biological and Toxin Weapons Convention
The parties agree to stop developing, producing, stockpiling, or attaining biological weapons, toxins, or their means of delivery. Additionally, all states who had existing stockpiles agree to destroy or redirect to peaceful research what stocks they did have.


The 1993 Chemical Weapons Convention
States agreed to not produce, use, or prepare to use chemical weapons. Further, the treaty prohibits states from inducing outside agents (e.g., terrorist groups) to participate in activities which are banned under the treaty. The treaty explicitly permits development of chemical weapons defenses. Because of the commercial implications and dual-use potential, the treaty's provisions regarding inspections and verification were developed with input from industry to be intrusive enough to be effective but not disruptive to legitimate peaceful use.[1]


The 2002 G8 Global Partnership Against the Spread of Weapons of Mass Destruction
Established at the Kananaskis Summit in June 2002, the Global Partnership is a commitment on the part of the international community to expend funds to secure weapons of mass destruction in the FSU and elsewhere.


The 2006 Global Initiative to Combat Nuclear Terrorism
Announced by the US and Russia in July 2006, the Initiative aims to secure civilian nuclear materials in order to prevent non-state actors from using the materials to assemble nuclear devices.


United Nations Security Council Resolution 1673
The resolution, which passed in 2006, extended the 1540 Committee's mandate. It also calls for closer cooperation with the committees formed by Resolutions 1267 (the Committee concerning al Qaeda and the Taliban) and 1373 (the Counter-Terrorism Committee).

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TALKING POINTS

  • The adoption of SCR 1540, with its universal jurisdiction, identifies a major gap in current nonproliferation agreements by addressing proliferation by non-state actors.
  • If fully and effectively implemented, Security Council Resolution 1540 could address nonproliferation as well as support state and regional development through capacity-building and inter-state relationships.
  • SCR 1540 requires states to develop, ensure the adequacy of, or clarify national laws governing how each handles the possession or use of chemical, biological, and nuclear weapons and materials and their means of delivery, as well as how each handles exports and transshipments of these materials.
  • Full implementation of SCR 1540 will require invigorated and collaborative effort from the international community.
  • In order to fulfill the goals of 1540, it is necessary for countries with resources and technical expertise to identify and provide assistance to those countries which both need the relevant expertise and which pose the greatest proliferation threats.
  • The UN Security Council and the 1540 Committee need to provide clearer guidance on what constitutes "appropriate effective" measures to make it easier for states to implement the domestic legislation necessary and provide a basis for international evaluation.

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RECOMMENDATIONS

  • A National Security Council designee should spearhead an interagency process to provide a detailed and timely reassessment of the global role of nonproliferation efforts in today's context, including those that have arisen in the past few years.
    [See Book Recommendation #1]
  • The US should leverage synergies with states participating in other international agreements such as the G8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction [See Issue Brief - Global Partnership]. Resolution 1540 can be used as a tool to expand the Global Partnership outside of the former Soviet Union, and achieve common nonproliferation objectives.
    [See Book Recommendation #3]
  • The Cooperative Nonproliferation toolkit, developed after fifteen years of US-Russian cooperation, provides a logical platform from which to implement UNSCR 1540 and a global supply side approach to nonproliferation. Coupling the Security Council-imposed mandate with a comprehensive international toolkit of resources both technical and financial would achieve an integrated framework for managing supply-side proliferation risks-including those from non-state actors.
    [See Book Recommendation #4]
  • Given the collaborative history in nonproliferation, the US Government should undertake a fresh assessment of US-Russia nonproliferation programs and overall relations. Recent commitments by the US and Russia toward full implementation of UNSCR 1540 provide an opportunity to find common ground and to achieve a fundamental transformation in the relationship from "patronage to partnership."
    [See Book Recommendation #5]
  • US nonproliferation work since 1990 has shown the importance of host country buy-in. The US could use Resolution 1540 to facilitate interstate connections and dialogue to promote host-country buy-in and the sustainability of nonproliferation programming.
    [See Book Recommendation #6]
  • Donor governments should find avenues to redirect former Soviet WMD expertise into employment that can aid the implementation of UNSCR 1540. New border and material security technologies could help build state capacity called for by the Resolution.
    [See Book Recommendation #8]
  • The State Department should create an "information clearinghouse" for US Government-wide cooperative nonproliferation activities. The office would provide a focal point for collection and dissemination of information pertinent to all agency officials regarding the activities of their counterparts in other parts of the US Government. This office could keep track of all US nonproliferation activities, including those related to implementing Resolution 1540.
    [See Book Recommendation #22]

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Endnotes

[1] Joseph Cirincione, Jon Wolfsthal, and Miriam Rajkumar, Deadly Arsenals: Nuclear, Biological, and Chemical Threats 2nd. Ed. (Washington: Carnegie Endowment for International Peace, 2005).

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Last Updated on May 30, 2007