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UN Security Council Resolution 1540 Part II: The Caribbean States: A Case Study

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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.

 

In February 2008, a one-day workshop on the implementation of UN Security Council Resolution (UNSCR) 1540 was convened in Santo Domingo in the Dominican Republic to address development priorities in the Caribbean as they pertain to key governance issues related to the resolution’s implementation.[1] With an agenda focused on specific regional development concerns – from public health to citizen security – this discussion confirmed priority needs that link to UNSCR 1540 in at least three areas: emergency management and disaster response; port/maritime security; and illicit trafficking. Each of these challenges presents an opportunity to create a virtuous circle by addressing specific priorities in the Caribbean while simultaneously achieving key 1540 objectives. What is true in the Caribbean could also extend to the rest of the world.

In April 2004, the UN Security Council unanimously passed Resolution 1540 to address the growing threat posed by non-state actors to global nonproliferation objectives. The resolution mandates that all UN member states implement a comprehensive set of supply-side controls and criminalize proliferation-related activities within their territories. Recent cases, especially that of the A.Q. Khan network, illustrate not only a democratization of the proliferation challenge from the state to the individual level, but also a dramatic expansion of the geographic dimension of the problem. Today, the savvy proliferator need only find the weakest link among the developed world’s export control policies, suborn compliant (read complicit) bureaucrats, or manipulate the gaps that may exist in developing country proliferation-oriented capabilities to exploit the many loopholes in the existing network of denial regimes.[2] Only by addressing holistically the underlying conditions in each state that permit bad actors to proliferate with impunity can an effective international nonproliferation strategy be achieved.

While it presents substantial challenges, states should take full advantage of UNSCR 1540 as a foundation upon which to move toward an effective international nonproliferation strategy addressing all weapons of mass destruction (WMD). This is only possible, however, if the resolution is embraced as an opportunity for North-South collaboration to address mutually desired objectives. A sustained and serious commitment from the international community will be required to translate the resolution from a multifaceted directive to a viable nonproliferation instrument. Ultimately, 1540 will have proven to be a hollow measure unless new models of engagement can be developed that address underlying governance challenges while systematically injecting badly needed capacity into weak states.

This article focuses on an approach to facilitating sustainable implementation of Resolution 1540. Examining the impediments to implementation in conjunction with lessons learned from the U.S. and the Global Partnership’s experience in the states of the former Soviet Union in particular suggests an appropriate means for overcoming capacity and legitimacy concerns surrounding the resolution. Applying lessons from the West’s experience in cooperative nonproliferation to a holistic, global approach to 1540 implementation offers an effective solution to ensuring the minimum capacities and competencies needed to deal successfully with the “nexus of WMD proliferation, terrorism and illicit trafficking.”[3] A brief look at the Caribbean as a case study underscores the potential viability of this approach.

A Global Unfunded Supply-Side Mandate

In his September 2003 address to the UN General Assembly, President Bush urged the Security Council to adopt a “new anti-proliferation resolution criminalizing the proliferation of weapons of mass destruction.” This resolution “should call on all members of the UN to criminalize the proliferation of weapons – weapons of mass destruction, to enact strict export controls…and to secure any and all sensitive materials within their borders.” In addition, he stated that the U.S. stood “ready to help any nation draft these new laws and to assist in their enforcement.”[4] The ensuing revelations about the A.Q. Khan network throughout 2003 and early 2004 offered additional impetus to move this idea forward. On April 28, 2004, UNSCR 1540 was unanimously adopted by the UN Security Council.

Resolution 1540 attempted to address the inadequacies of existing measures and the particular challenge of WMD proliferation by non-state actors in one swift all-encompassing mandate. It imposed a baseline of extensive “appropriate effective” anti-proliferation obligations and required all states to enact and enforce these measures promptly.[5] It requires states to “criminalize proliferation, enact strict export controls, and secure all sensitive materials within their borders.”[6] The resolution also includes twelve points obligating all States to: “adopt and enforce appropriate effective laws which prohibit any non-State actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery”; develop and maintain “effective physical protection measures”, “border controls and law enforcement efforts” to address illicit trafficking, and “national export and trans-shipment controls.”[7] In brief, the Security Council mandated obligations for “supply-side measures against proliferation on every other nation in the world.”[8]

Resolution 1540 enhances the existing nonproliferation regime in the following ways: 1) it imposes obligations on states that currently are not party to one or more of the existing treaties; 2) it encompasses “all kinds of WMD and, importantly, their means of delivery and related materials;” 3) it mandates enactment and enforcement of prohibitions and controls for a wider range of activities; and 4) it establishes one body to monitor the implementation of these obligations.[9]

The resolution’s emphasis on nonproliferation assistance must be underscored. As 1540 imposes a challenging suite of obligations on all states, any state, “lacking the legal and regulatory infrastructure, implementation experience and/or resources,” may request assistance from those states in a position to do so. At the December 17, 2007 meeting of the UN Security Council, Ambassador Peter Burian, Chair of the 1540 Committee, reported that 140 states have submitted reports to the Committee, and about 90 have also provided additional information to the Committee. Of those reporting states, over thirty have requested assistance. Moreover, given that most of the 52 states that have not reported are principally located in the Caribbean, Africa, and Pacific Islands, it is likely that they are also in need of assistance.[10] The G-8 states, including a strong commitment from the United States, have indicated that they are prepared to assist.[11] Because effectiveness of the resolution depends on widespread implementation, substantial assistance on a broad range of activities must be forthcoming.

The resolution also established a committee to monitor implementation. A primary role of this 1540 Committee, which consists of all fifteen members of the UN Security Council, is to ensure that states have the necessary capacity and technology to complete the objectives of the resolution.[12] Knowing that some states lack such capacity, the 1540 Committee wrote in its guidelines that it would “invite 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 provisions of the resolution.[13] The notion of the 1540 Committee serving as an assistance intermediary parallels the role played by the Counter-Terrorism Committee (CTC) established by Resolution 1373. The CTC, however, plays a much more active role in implementation by helping states determine their needs, urging states with capacity to contribute, and matching up donors with corresponding recipients.[14] In contrast, the 1540 Committee is confined to a more passive role, serving more as a clearinghouse than a matchmaker.[15]

In brief, the resolution puts forward a sweeping unfunded mandate. Achievement of its nonproliferation objectives will hinge on unprecedented coordination and cooperation among a large number of states, as well as the support of international, regional and non-governmental organizations. Not only has such cooperation not been forthcoming, but the resolution also suffers from other legal, political and attitudinal impediments.

Implementation Impediments

Four specific but interrelated hurdles to implementation often work in tandem to hinder progress toward effective, sustainable realization of the resolution’s goals.

 

The Legitimacy Deficit

First and foremost, the resolution’s genesis gives rise to a legitimacy deficit. The legitimacy question is at once legal and political, with the latter being more salient than the former. The seven months of negotiations devoted to 1540 surfaced numerous concerns. In the aftermath of the Iraq invasion, a primary concern for many UN member states was the possible imposition of economic or even military sanctions for noncompliance. Not only is there no mention of any enforcement actions for noncompliance in the resolution, but any notion of using sanctions to compel compliance is likely to meet with staunch and potent resistance.[16] Prior to its adoption, several states questioned whether it was the role of the Security Council to “prescribe legislative action by member states,” and others argued that they had become subject to laws that they had no hand in drafting – all indicative of the wide-ranging legal implications of the Security Council’s actions. Despite these reservations, however, all states have agreed under UN Charter Article 24 (1) that on issues of international peace and security, the Security Council acts on their behalf, and they also have agreed to be bound by its resolutions.[17]

The political question often impedes constructive dialogue in public forums focused on implementation. Many states, especially within the Non-Aligned Movement, see compliance with 1540 as, at best, secondary to their existing treaty obligations. In addition, the resolution is seen as a means of continuing technology denial to developing countries to the advantage of the wealthy industrialized North. The perceived lack of progress by the nuclear weapons states on their disarmament obligations under Article VI of the nuclear Nonproliferation Treaty (NPT) is immediately, albeit obliquely, referenced by some officials as a reason to question the resolution’s legitimacy. While progress on existing nuclear disarmament commitments is a longstanding obligation and necessary to cajole international cooperation to achieve many nonproliferation objectives, awaiting disarmament by the nuclear-haves prior to moving forward with global adherence to minimal standards in counterproliferation is not an option.

 

Low Priority

Second, proliferation of weapons of mass destruction is an admittedly low priority for most developing countries. Some states view 1540 itself as another exercise driven by the North’s security interests to the detriment of the South. With all of their existing problems and other critical development priorities, why should they divest resources to deal with WMD proliferation? In order to overcome this particular barrier, wealthy donor nations either need to offer better incentives or threaten laggards with consequences for failure to comply. As forcing compliance would likely only create greater animosity and resistance to realization of the resolution’s objectives, the former – carrots rather than sticks – appears to be the more effective means by which to facilitate progress.

 

Inadequate Capacity

Third, many states have inadequate technical expertise to assess their compliance with many aspects of the resolution. An additional complication is that many different agencies or actors within any single government must be involved in assessing the status of their legal mechanisms and enforcement capabilities. States that have not submitted their reports likely not only lacked the will, but the capacity to do so. Many organizations and actors have been involved in raising awareness and facilitating universal compliance with the resolution’s reporting requirements as a first step. However, fulfillment of the reporting obligation can only help spur implementation if the reports are of sufficient quality and specificity to delineate what assistance is needed.

 

Mixed Quality of Reports

The last significant impediment has been the mixed quality of the reports received from states and the potentially debilitating mismatch between requests for and offers of assistance. The preponderance of requests for assistance has been financial in nature, while the majority of offers has been for technical assistance. In those instances in which assistance other than financial has been put forward, requests often have been so general that donor states cannot act on them. The 1540 Committee has streamlined the reporting process by developing a matrix for the initial roster of requirements as well as producing a relatively simple form for assistance requests. Despite this, much more work must be done just to achieve universal compliance with the reporting requirements. Further progress, however, likely entails an approach that both recognizes good governance as a prerequisite to effective implementation and engenders ownership by the recipient state of assistance provided. These are key lessons from the West’s fifteen years of nonproliferation assistance in the states of the former Soviet Union.

 

Threat Reduction and the Global Partnership: Lessons Learned

Several of the lessons from the U.S. and G-8 initiatives in the former Soviet Union (FSU) are readily applicable to 1540 implementation. First, the nonproliferation programs of the U.S. government and within the Global Partnership offer an underappreciated and underutilized toolkit in facilitating implementation of facets of UNSCR 1540. Threat reduction activities focused on export controls, border security, and fissile material security, for example, apply to key obligations in the resolution. Second, even after 15 years of assistance designed to address the spectrum of threats arising from the Soviet Union’s demise, many states remain incapable of achieving a streamlined and efficient “whole of government” response to the array of proliferation risks.[18] In the instance of Resolution 1540, not only do some states require a sustained and comprehensive approach to address pervasive governance challenges, but donor states will need to integrate better the different tools of assistance. Unfortunately, such holistic responses are rarely realized. Third, without mutual agreement regarding the underlying threat or risk, assistance is not sufficiently valued by the recipient state to sustain the measures put in place. Host country buy-in is crucial. The development community has known this for decades, but the nonproliferation community has yet to inculcate fully the development community’s appreciation of the need for local ownership of the approach. Most importantly and inextricably linked to mutual agreement and whole of government approaches, the fourth overarching lesson is that sustainability requires folding traditional development assistance for institution and capacity-building into the nonproliferation agenda.

The impediments to implementation and the lessons learned from over a decade of nonproliferation assistance give rise to some obvious conclusions with direct relevance to 1540 assistance. If states cannot fulfill their reporting obligations, they either lack a motivation or a capacity to do so, and many of those states that have reported do not necessarily have an enduring interest in sustaining the measures facilitated by assistance. This is precisely the conundrum in which the 1540 Committee, potential donor states, and international, regional and non-governmental organizations reside in their efforts to achieve progress toward implementation.

 

Creating a Virtuous Circle?

The West’s experience in cooperative nonproliferation programs suggests the mutually reinforcing conditions necessary for progress in achieving the resolution’s objectives. As mentioned, a particular challenge is getting host country buy-in to receive assistance and then sustain the measures put in place. Addressing the recipient state’s capacity building priorities can help create the conditions for sustainable implementation of the resolution, as well as address the issues of political will, capacity needs, and ownership of assistance in a comprehensive manner. These development priorities solicited by the potential recipient state are not addressed as a quid-pro-quo, but provide the starting point for a package of assistance that makes sense in light of underlying governance challenges and their link to specific obligations in the resolution. One example is packaging general legal training and judicial reform measures with specific legislative drafting assistance to criminalize and prosecute proliferation.

 

Case Study: The Caribbean

A workshop held in the Caribbean early this year offers initial evidence of the efficacy of the approach. The Caribbean Basin is the second most natural disaster prone region in the world. Recent trends indicate that the number of disasters has grown and the nature of hazards is diversifying, necessitating multi-hazard, integrated approaches. An effective Caribbean response plan requires three essential elements: civil-military protocols for humanitarian response; a disaster mitigation response curriculum for military forces dealing with civilians; and robust communication capabilities and detailed protocols for major crises. Natural disaster response capabilities have clear overlap with WMD-related incidents. While WMD incident response is not explicitly required by the resolution, much needed technical assistance and communications infrastructure to address WMD detection and interdiction capabilities could be integrated into assistance provided to emergency management authorities and first responders in the region.

Second, Caribbean states have significant yet highly vulnerable maritime links with the world. In aggregate, they comprise the tenth largest trading partner of the United States and a key destination for both tourists and business investments. Due to inadequate oversight and lack of any regional harmonization of security requirements, shipping operations in the region are at risk of attack. With substandard port and maritime security, a cruise-liner of vacationing Americans makes for a particularly vulnerable target for terrorists. Moreover, inadequate controls over legitimate transport and the sheer volume of illicit trafficking of drugs, arms and humans would indicate these states’ vulnerability to inadvertent transport or transshipment of weapons or materials. Recently enacted national and international regulations require ships and port facilities to take appropriate measures to prevent security incidents. Failure of ports, vessels, and companies to achieve the newly mandated compliance standards will result in sanctions that could lead to denial of vessel entry into ports of call. Many states are struggling to meet these new requirements, particularly in the Eastern Caribbean, giving rise to the prospect of regional economic dislocation. A clear nexus exists with respect to facilitating compliance with new port and maritime measures and many aspects of the controls, interdiction, and border security requirements of Resolution 1540.

Lastly, illicit trafficking in the Caribbean Basin presents a daunting challenge. As the second most violent region in the world, with a homicide rate four times the global average, arms and drug trafficking affect citizen security on a daily basis. The nexus between illicit trafficking and international crime presents a substantial deterrent to foreign direct investment in the Caribbean, producing a negative impact on growth and development for these economies. The geographic proximity of many Caribbean states makes them a transit point for illegal migration, cocaine, and other contraband destined for North America. Here the overlay between addressing a significant transnational threat and 1540 implementation is evident. The same human capacity, legal framework, and enforcement capabilities are required to address illicit trafficking in all its forms – WMD, small arms, drugs, and people.

 

Shifting Priorities and Perceptions: North and South

The misperception on the part of donor states that technical assistance and technological gadgets will achieve effective implementation of Resolution 1540 must be corrected. Neither one-off training sessions nor high tech equipment will provide durable solutions to the long-term governance needs in many regions of the world. Due to the overwhelming barriers to implementation, recipient states need to experience the potential benefits of requesting and receiving valued assistance. The need exists to prove the value of the resolution in meeting enduring development priorities as the foundation upon which counterproliferation measures can be effective and sustainable. Only by witnessing the potential value of assistance rendered under the rubric of 1540 implementation can the perception of the resolution as a priority for the North to the detriment of the South be overcome.

Conclusion

In light of its sweeping obligations, Resolution 1540 necessitates orchestration of a myriad ot security and development assistance tools into an efficacious whole of government approach. To obtain such an approach donor states must overcome significant bureaucratic stovepipes, which impede effective coordination of the various tools of development and security assistance at their disposal. Recipient states should be creative in their approach to linking 1540-related assistance to their development or capacity building priorities.

While the issue of Resolution 1540’s legitimacy cannot be addressed without some progress on commitments that predate its passage, in the interim, the capacities, priorities and ownership challenges can be navigated by applying a methodology that starts with the development needs critical to effective and sustainable implementation of the measures mandated by the resolution. Because WMD proliferation is not a high priority for most states, 1540 requirements will garner the necessary political will only when assistance is seen as contributing to states’ other social and economic priorities. Recognition of this fact requires embracing Resolution 1540 as an opportunity for mutually advantageous North-South cooperation. Although this will require substantial investments and a long-term commitment, it presents one of the only viable options for effective implementation of the resolution. As Vice Chancellor of the Dominican Foreign Ministry Jose Manuel Trullols eloquently stated at the outset of the Santo Domingo workshop, successful application of this approach would make “a transcendental contribution to international peace and security.”

 

 


Endnotes:

[1] This workshop was spearheaded by the Cooperative Nonproliferation Program at The Henry L. Stimson Center, in collaboration with The Stanley Foundation and the Office of the Assistant Secretary General of the Organization of American States. Financial support for the workshop was provided by the Government of Canada’s Department of Foreign Affairs and International Trade.

[2]William Langewiesche, “The Wrath of Khan”, The Atlantic, November 2005; William Langewiesche, “The Point of No Return”, The Atlantic, January/February 2006.

[3]Peter van Ham and Olivia Bosch, “Global Non-Proliferation and Counter-Terrorism: The Role of Resolution 1540 and Its Implications,” Royal Institute of International Affairs, 2007.

[4]“Statement by George W. Bush, President of the United States of America, Address to the United Nations General Assembly,” September 23, 2003.

[5]“Appropriate effective” is not defined by the resolution and continues to be a point of debate in technical, expert circles related to specific WMD threats, nuclear in particular. Achievement of consensus on a standard definition of what this means for different aspects of the resolution likely will not be possible in the immediate future due to differing circumstances and priorities.

[6]White House, “President Announces New Measures to Counter the Threat of WMD,” February 11, 2004, http://www.whitehouse.gov/news/releases/2004/02/20040211-4.html.

[7]UN Security Council Resolution 1540, Adopted by the Security Council at its 4956th meeting, S/RES/1540, April 28, 2004, http://www.un.org/Docs/sc/unsc-resolutions04.html.

[8]A resolution was used in lieu of a negotiated treaty or an agreed reinterpretation of Article 3 to address nuclear proliferation concerns, see Chaim Braun and Christopher F. Chyba, “Proliferation Rings: New Challenges to the Nuclear Nonproliferation Regime,” International Security, Fall 2004.

[9]Although it is not a traditional treaty-based approach and its veracity remains unproven, there is merit to the argument that the international community did not have “the luxury…for negotiation crossing many months or years to arrive at a solution” to these threats. Andy Semmel, Principal Deputy Assistant Secretary for Nuclear Nonproliferation, “UN Security Council Resolution 1540: The U.S. Perspective” Chatham House, October 12, 2004.

[10]5806th meeting of the United Nations Security Council, Monday, S/PV.5806, December 17, 2007, http://www.un.org/depts/dhl/resguide/scact2007.htm.

[11]Gabriel H. Oosthuizen and Elizabeth Wilmshurst, “Terrorism and Weapons of Mass Destruction: United Nations Security Council Resolution 1540,” Briefing Paper 04/01, Chatham House, London, September 2004.

[12]The 1540 Committee was given an initial mandate of two years; this mandate was subsequently extended by two years via Resolution 1673 in 2006 and another three years by Resolution 1810 in 2008.

[13]United Nations 1540 Committee. “Guidelines for the Conduct of Its Work,” http://disarmament2.un.org/Committee1540/work.html.

[14]United Nations Counter-Terrorism Committee. “Operational Conclusions for Policy Guidance Regarding Technical Assistance,” http://www.un.org/sc/ctc/documents/tech_assistance%20guidance.pdf.

[15]United Nations 1540 Committee. “Note Verbale, 20 May 2005,” http://disarmament2.un.org/Committee1540/note%20verbale%20assistance%20all%20states.doc.

[16]During the negotiations, China insisted that the word interdiction be deleted from now operative paragraph 10 calling for international cooperation to curb “illicit trafficking.” In addition, “States Parties” was inserted in operative paragraph 5 to allow for retention of the national security prerogative on the part of states not yet parties to a nonproliferation treaty. See source in [3].

[17] Ibid.

[18]A “whole of government” approach means applying the entire suite of foreign policy tools to effectively address the conditions in weak or failed states in order to promote development, generally defined as “institutions capable of delivering economic growth, human security and good governance.” See Stewart Patrick , “U.S. Policy toward Fragile States: Taking an Integrated Approach to Security and Development,” in The White House and the World: A Development Agenda for the Next U.S. President , Center for Global Development, 2008.

 

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