UN Security Council Resolution 1540: WMD Terrorism and Regional Implementation

Introduction: The WMD Terrorism Threat and Resolution 1540

The proliferation of chemical, biological, and nuclear weapons to terrorist organizations is inarguably one of the greatest menaces threatening international peace and security today. Since the turn of the century, this sentiment has grown in strength across the world. As a countermeasure to this threat, in 2004 the United Nations Security Council passed Resolution 1540 to combat the dangerous nexus between the spread of weapons of mass destruction (WMD) and terrorism. Adopted under Chapter VII of the UN Charter, the Resolution mandates that all member states criminalize and put into place a national enforcement system to deter and punish proliferation activities. Additionally, provisions under Resolution 1540 entail physical safety and security measures, as well as the adoption of border and export controls to detect, deter, prevent, and combat illicit trafficking.

Implementing Resolution 1540 is a long-term goal that poses significant challenges to all states because of the time and resources necessary to fully comply with the Resolution. In seeking to increase the level of 1540 implementation, a concept that has gained traction in recent years is the role played by regional organizations in assisting states to implement Resolution 1540. Regional organizations are important pieces of the 1540 implementation puzzle, and this research paper explores how regional organizations can be used to assist their memberships with that task.

Structure and Responsibilities of the UN Security Council

The United Nations Security Council has the basic function and responsibility, as described in the Charter, of maintaining international peace and security. The institution is structured in a way that enables it to function continuously. By rule, representatives of all its members must be present full time at United Nations Headquarters. The first summit meeting was held on January 31, 1992, at Headquarters, with 13 heads of state out of its 15 members and 2 foreign ministers in attendance. The Council can also meet at locations other than Headquarters.

When states bring a complaint regarding a threat to peace before the Council, it advises and suggests that the parties seek agreement through peaceful means. If necessary, the Council itself carries out inquiry and arbitration. It may employ special bodies or ask the Secretary-General to appoint a representative or use his good offices. It can also propose principles for a peaceful resolution.

In cases where a dispute is not resolved through peaceful means and leads to armed conflict, the Council's first concern is to bring fighting to an end as soon as possible. On several occasions, the Council has issued cease-fire directives to prevent wider warfare. It also deploys United Nations peacekeeping forces to help reduce tensions. The Council may decide on enforcement measures, economic sanctions (such as trade embargoes), or collective military action.

A member state against which the Security Council takes preventive or enforcement action may be suspended from the exercise of membership privileges and rights by the General Assembly on the recommendation of the Security Council. Furthermore, a member state that persistently violates the principles of the Charter may be expelled from the United Nations by the Assembly on the Council's recommendation.

Non-members may participate in Council discussions without a vote. The Presidency of the Council rotates on a monthly basis, with the president selected according to the English alphabetical listing of member states.

Overview of UN Security Council Resolution 1540

Resolution 1540 aims to prevent non-state actors, such as terrorist organizations, from gaining access to chemical, biological, and nuclear weapons, as well as the means of their delivery, such as missiles. The measure was adopted under Article VII of the UN Charter, which means that its implementation is legally binding on all UN member states. Specifically, Resolution 1540 requires all countries to "refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery."⁴ It also calls on countries to establish a domestic judicial and law enforcement system appropriate to criminalize and punish those who "manufacture, acquire, possess, develop, transport, transfer or use" WMD, missiles to deliver these weapons, and related materials.⁵ Additionally, under the terms of Resolution 1540, UN member states shall account for and maintain security over all WMD, delivery systems, and related materials within their territories, as well as put into place border and export controls to prevent them from being transferred through or stored on national territory.⁶ In short, Resolution 1540 has become an important component of the international nonproliferation regime, and its intent is to prevent the spread and use of WMD by terrorist organizations.

Recognizing that complying with all of Resolution 1540's provisions requires a major time and resource commitment from developing states, the measure calls on able states to support others' implementation efforts through financial, technical, or human capacity assistance. With regard to states failing to implement the resolution, since 1540 was adopted as a Chapter VII measure, the UN Security Council can take punitive action against non-complying states. However, because of the general nature of Resolution 1540's language — for example, it notes that states should take "appropriate" and "effective" measures to implement 1540's provisions, but does not specify what that means — full compliance or noncompliance are terms open to interpretation. Much of the work under Resolution 1540 is also an ongoing process; updates to a state's judicial system, for instance, are never truly complete. One can therefore argue that no state will ever be in full compliance with 1540 and, as such, it is unlikely that the UN Security Council will ever single out a state or group of states for punishment solely on the basis of non-implementation. One 1540 expert has also noted that the UN measure should not be considered a burden, but a "vision" for how to strategically plan and take steps toward implementation.

Trigger Events and Precedents for Resolution 1540

The terrorist attacks against the United States in September 2001 brought the perils of non-state actors to the forefront of the international security debate. The events of September 11 were catalysts for the unanimous adoption of UN Security Council Resolution 1373 (2001), which obligates the international community to take measures to halt or disrupt funding to terrorist groups worldwide. Subsequently, the terrorist attacks also intensified focus on the threat that non-state actors were actively seeking chemical, biological, and nuclear weapons — or radiological materials for a so-called "dirty bomb" — and highlighted the dangerous nexus between WMD and terrorism. Resolutions 1373 and 1540 both passed unanimously and set the precedent of being the only UN Security Council resolutions that were not made in response to a specific event and do not target a specific country; instead, both resolutions address the general threat posed by terrorism and the acquisition of WMD by non-state actors, respectively.

Revelations that A.Q. Khan, former head of Pakistan's nuclear weapons program, had successfully operated a nuclear black market by exploiting weak links in the global security chain also provided an incentive to seek additional measures to combat the WMD terrorism threat. Peter Crail, a nuclear analyst with the Arms Control Association, noted in 2007 that the illicit network confirmed that non-state groups "may be the recipients as well as the suppliers of [WMD] and technologies [and that the] traditional international WMD nonproliferation regime was not formed to address these types of proliferation considerations." This was dangerously coupled with the absence of measures to combat WMD proliferation to non-state actors.

Simultaneously, in the years leading up to the adoption of Resolution 1540, the United States was eager to put on the books a measure that obligated the entire international community to take steps to shut down or disrupt terrorist networks seeking WMD. More specifically, the George W. Bush Administration did not believe that the time-consuming process of negotiating a multilateral treaty was an appropriate path, given the urgency of generating a WMD terrorism nonproliferation tool. In fact, the United States modeled Resolution 1540 after the Proliferation Security Initiative, an all-voluntary measure guarding against the high seas being used as WMD trafficking routes. In sum, many events triggered the passage of Resolution 1540: the 9/11 terrorist attacks and the ensuing heightened awareness of the WMD terrorism threat, revelations about the A.Q. Khan network and the need for effective WMD security measures, and the Bush Administration's rejection of the multilateral treaty route.

Early Implementation Challenges and Current Compliance Rates

During the consultation process prior to 1540's adoption and immediately following its passage, numerous states questioned the legitimacy of the measure. The Non-Aligned Movement, along with countries such as New Zealand, Switzerland, and the Republic of Korea, objected to their limited opportunity to influence 1540 negotiations and to the fact that the Resolution was passed pursuant to Chapter VII of the UN Charter, making implementation an obligatory exercise under international law. Egypt, Pakistan, and South Africa were among over a dozen states that believed the Security Council, in adopting Resolution 1540, had effectively usurped the legislative powers of the General Assembly and other multilateral negotiating bodies. The heavily weighted emphasis on nonproliferation compared to disarmament also frustrated many non-nuclear weapons states, among them Germany, Canada, and Norway.

Another, less political, early obstacle to implementation was the resolution's ambiguous language, which made it difficult for states to understand precisely what was expected of them. As noted above, the Resolution in several places calls on countries to take "effective and appropriate measures" — with regard to border and export controls, for example — but provides no further explanation.

Today, however, several indicators suggest that early legitimacy concerns have been assuaged. First and foremost, in December 2009, then-1540 Committee Chairman Ambassador Jorge Urbina stated "that the questions that were initially posed regarding the legitimacy of the resolution seem to have disappeared, as have the initial doubts on the need for the Committee. This represents a concrete achievement by the Committee and the Group of Experts that supports it." Consistent with that assessment, one no longer hears countries challenging the legal mandate of Resolution 1540 or complaining about an imbalance between nonproliferation and disarmament. The UN Security Council, with successive sets of member states, has twice extended the 1540 Committee. Its mandate at the time of this writing runs through April 2011, at which point it is expected to be extended for an unspecified number of years, perhaps even indefinitely. States and regional organizations have also publicly endorsed implementation of the Resolution; in the latter case, regional bodies have called upon member states to take all steps necessary to implement 1540.

Turning to current levels of implementation: when passing Resolution 1540 in 2004, the UN Security Council also established the 1540 Committee, consisting of all Security Council states and a Group of Experts charged with monitoring 1540 compliance among UN member states. As a first implementation measure, countries were obligated to submit a report to the 1540 Committee within six months of the Resolution's passage on "steps [countries] have taken or intend to take to implement [1540]." To date, over 160 states — approximately 80% of UN member states — have submitted that report. Non-reporting countries are all located in the Global South. While all Middle Eastern states have fulfilled this aspect of the implementation process, most reports are inadequate in terms of length and depth. One state, for example, simply submitted a one-page statement to the 1540 Committee asserting that the country "does not possess nuclear, biological or chemical weapons." By contrast, countries with more resources to devote to Resolution 1540 implementation, such as the United States and Germany, submitted elaborate reports that provided detailed descriptions of interagency coordination efforts, future plans of action, and next steps for compliance.

To a large extent, poor reporting by developing countries indicates, more than anything, how difficult and expensive complying with Resolution 1540 can be. This is particularly true for governments with other legitimate priorities that more directly threaten the quality of life of their populations — extreme poverty, public health challenges such as widespread HIV/AIDS epidemics, domestic instability, and drug, human, and small arms trafficking are often more pressing security issues in the developing world. As noted by Brian Finlay in a 2010 report on implementing Resolution 1540 in Central America:

"Yet while few can question the disastrous consequences of a WMD terrorist incident, in the face of the daily threats to citizen safety and security — both economic and physical — in Central America and much of the Global South, such pronouncements are not only inaccurate, they are prima facie unreasonable. Requiring resource-strapped governments to divert attention from more immediate challenges to the seemingly distant threat of WMD terrorism is a proliferation prevention strategy that is destined to fail — if not from a lack of political will then from a sheer lack of implementation capacity in these countries."

As a result of competing priorities and finite time and resources, implementing Resolution 1540 is in many cases an afterthought in the Global South.

There is no exact science in assessing the degree to which states have implemented Resolution 1540. The 1540 Committee experts are charged with analyzing and determining the level of compliance and use a 1540 matrix to log states' self-reported achievements. A general overview of the reports and some matrices not made available to the general public indicates that some states have addressed numerous Resolution 1540 measures, while most countries are in compliance with only a limited number of the steps called for. However, one committee expert has noted that the 1540 Committee has seen a significant increase in implementation efforts in recent years, indicating that Resolution 1540 implementation is gaining traction. Greater attention to Resolution 1540 is also the result of extensive worldwide awareness-raising programs and outreach events held and sponsored by developed-country governments, regional organizations, and international organizations. Requests for assistance to implement the Resolution have also reached the 1540 Committee. It should be noted that, even though many of the early implementation challenges have been addressed, lack of capacity and resources remains a crucial obstacle to compliance.

Conclusion

In addition to emphasizing the role of bilateral assistance and implementation support from international organizations, Resolution 1540 and its follow-on resolutions 1673 and 1810 stress the importance of regional implementation efforts. The current and previous 1540 Committee Chairmen have continuously reiterated this mode of 1540 implementation, and there is a record of support among UN member states and secretariat leadership as well. For instance, in 2006, then-Secretary-General Kofi Annan emphasized that implementation of Resolution 1540 was part of the burden-sharing concept between the UN and regional organizations. In turn, the UN, independently and in cooperation with other states and organizations, has organized several regional workshops in Africa, Asia, the Middle East, and Latin America.

Implementing Resolution 1540 through a regional approach is logical because the transnational nature of several of the resolution's provisions unavoidably entails cooperation between neighboring countries. The regional perspective can help ensure consistency so that efforts are not duplicated, already scarce resources do not go to waste, and one country's advances are not immediately undercut by a gap in its neighbor's implementation. The regional context provides an opportunity for states to, among other things, discuss and establish cost-sharing plans, exchange model legislation, and collaborate on enforcement mechanisms.

The preceding analysis demonstrates that Resolution 1540 is an important internationally recognized measure that will, if implemented effectively, play an important part in combating the threat posed by WMD terrorism. Regional organizations have previously, and are currently, making important contributions to the implementation of Resolution 1540 — which is but one example illustrating their post-Cold War role as partners in maintaining international peace and security alongside the United Nations and other actors.

However, there is no one-size-fits-all template detailing how a region can make the best use of its regional organizations, and legitimate challenges remain — particularly in the Middle East. Yet, implementing Resolution 1540 has been demonstrated to serve dual applications, providing not only a stronger national and regional nonproliferation framework, but also addressing regional security and development challenges important to actors across the globe.