A brief history of United Nations Security Council Resolution 1540 in light of the 2016 Comprehensive Review
By Hanne Veel
On 28 April 2004, the UN Security Council (UNSC) unanimously adopted Resolution 1540,[i] the purpose of which is to prevent the proliferation of weapons of mass destruction (WMD) to non-state actors, in particular for terrorist purposes. The resolution obliges all UN member states to adopt and enforce appropriate legislation to this end, and to put in place domestic controls to prevent such proliferation. The resolution further establishes a committee to oversee its implementation. In accordance with a subsequent resolution from 2011 (UNSC Res 1977), the 1540 resolution will undergo a comprehensive review in 2016, with a view to improving implementation of the resolution. This article briefly outlines the history and implementation of the resolution to date, with the aim of providing a backdrop to the on-going review process.
|Background Paper No 18/2016||Published: June 2016|
On 28 April 2004, the UN Security Council (UNSC) unanimously adopted Resolution 1540, the purpose of which is to prevent the proliferation of weapons of mass destruction (WMD) to non-state actors, in particular for terrorist purposes. The resolution obliges all UN member states to adopt and enforce appropriate legislation to this end, and to put in place domestic controls to prevent such proliferation. The resolution further establishes a committee to oversee its implementation. In accordance with a subsequent resolution from 2011 (UNSC Res 1977), the 1540 resolution will undergo a comprehensive review in 2016, with a view to improving implementation of the resolution. This article briefly outlines the history and implementation of the resolution to date, with the aim of providing a backdrop to the on-going review process.
The adoption of Resolution 1540 was prompted by growing concerns about the potential acquisition of WMD by terrorist groups. It belongs to a wider family of anti-terrorism resolutions, including UNSCR 1267 (1999), concerning Al-Qaeda and the Taliban, and UNSCR 1373 (2001) on terror financing, passed in the immediate aftermath of 9/11. Like UNSCR 1540, both resolutions were passed under Chapter VII of the UN Charter, making them legally binding on all UN member states. UNSCR 1373 decided that all states must adopt and implement legislation supressing and preventing financing of international terrorism. It moreover called on all states to find ways of intensifying exchange of information on threats posed by terrorist possession of WMD and trafficking in related materials,[i] thus pointing towards UNSCR 1540.
The adoption of Resolution 1540 was prompted by growing concerns about the potential acquisition of WMD by terrorist groups.
The exact political point of origin of UNSCR 1540 is somewhat uncertain. Moreover, underlying motivations likely varied among states.[ii] In early 2003, the UK circulated a non-paper among EU countries, proposing a “counter-proliferation committee”.[iii] The UK also expressed concerns at the Security Council’s lack of action on proliferation during the UN General Assembly (UNGA) in September of the same year. US President George W. Bush was more explicit in his address to the UNGA, urging the Security Council to adopt a resolution obligating all UN members to criminalize WMD proliferation and enact effective control measures.[iv] This was notably just a few months after the invasion of Iraq by the US led ‘coalition of the willing’.
The Security Council’s negotiations that followed gained considerable momentum, as the so-called ‘A.Q. Khan network’ was uncovered in early 2004. Abdul Qadeer Kahn, a Pakistani nuclear physicist, had been involved in spreading nuclear weapons-related technologies to several countries, including Iran, Libya, and North Korea. The extent and scope of the Kahn network’s activities was seen by many to demonstrate the inadequacies of the existing non-proliferation regime. Negotiations were initially conducted among the five permanent members (P5) of the Security Council, although early drafts were reportedly circulating more widely.[v] The final draft resolution was co-sponsored by France, Romania, Russia, Spain, the UK, and the US.[vi] In a rather unusual procedure, certain issues were debated in an open meeting in the Security Council, indicating the political significance of the proposed resolution, and consequent need for broad political anchoring among UN member states. There was much apprehension concerning the resolution, and fifty-one states made statements during the open meeting. Some states feared that the resolution could be the basis of economic or military sanctions, and regional groupings contested whether it was really necessary to adopt the resolution under Chapter VII. Others questioned the Council’s role in prescribing legislative action and pointed out that they had become subject to laws they had not been involved in drafting.[vii] Pakistan, a UNSC member at the time, was particularly adamant that UNSCR 1540, in its view, “looked like ‘abstract legislation’, disconnected from the Council’s crisis management role”[viii] because the resolution was not a response to a manifest threat like Security Council resolutions often are. Both UNSCR 1373 and 1540 were seen as Security Council “legislation”, because these two resolutions specified that all states must adopt and enforce national legislation.
In the end, however, those with doubts about the propriety of the resolution, among them Pakistan, could claim it filled a legislative gap in anti-terrorism legislation, pending potential negotiations of a multilateral treaty.[ix] Many states also appreciated the explicit assurance in UNSCR 1540 that it does not conflict with or alter the rights or obligations of states parties to existing WMD treaties and conventions, including the 1968 Nuclear Non-Proliferation Treaty (NPT), the 1972 Biological Weapons Convention (BTWC), and the 1993 Chemical Weapons Convention (CWC).[x] UNSCR 1540 is said to respect the sovereignty of non-signatory states and their prerogative not to sign specific treaties, which was an important addition for some.[xi]
Adopted under Chapter VII of the UN Charter, UNSCR 1540 is legally binding for all states. It imposes binding obligations on all states 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 (see OP 1).
- Adopt and enforce appropriate and effective laws that prohibit any non-state actor from engaging in or attempting to engage in any of the aforementioned activities, including as an accomplice, or otherwise assisting or financing them (see OP 2).
- Establish and enforce domestic controls to prevent proliferation of WMD and their means of delivery, including by establishing controls over and preventing illicit trafficking of related materials through effective measures in the areas of physical protection, border controls and law enforcement, export, trade, and trans-shipment controls (see OP 3).
It should be noted that UNSCR 1540 only outlines obligations for what states have to do, but is unspecific in regard to how the resolution’s obligations should be met. This was seen as necessary because of states’ varying capacities and states’ need to take appropriate actions in accordance with their national capabilities and legislative frameworks.[xii]
An issue deemed by many to have been insufficiently addressed by UNSCR 1540 is radioactive material. The International Convention on the Suppression of Acts of Nuclear Terrorism, adopted on 13 April 2005 by the UN General Assembly, seeks to address this gap by criminalising the possession, use of, or threatened use of radioactive material/devices by non-state actors.
UNSCR 1540 requires all states to adopt and enforce laws that will ensure implementation of the obligations laid down in the WMD treaties, especially with a view to prevent proliferation to non-state actors. It does not create very specific legal obligations for those states that are not party to existing WMD treaties, because it only requires them to take ‘measures’ against proliferation of WMDs and their means of delivery.
UNSCR 1540 also aims to fill voids in the international non-proliferation architecture in a number of areas. Firstly, the focus is on what measures states should take versus non-state actors. This is not unusual (human rights is another example), but the resolution’s definition of a non-state actor implies a non-state actor that would use WMD for hostile or terrorist purposes. Secondly, the resolution explicitly includes ‘means of delivery’ for WMDs, defined in the resolution as missiles, rockets, and other unmanned systems capable of delivering WMDs.[xiii] Furthermore, states are required to establish controls to prevent proliferation of WMDs and related materials. The definition of ‘related materials’ encompasses all materials, equipment and technology that could be used for production of WMDs and their means of delivery, thus leaving the definition somewhat circular.[xiv] The resolution also requires effective domestic enforcement, which is not subject to detailed obligations in the pre-existing legal architecture. Also, UNSCR 1540 sets forth additional effective measures, primarily concerning countering illicit trafficking of WMD, adding this as a new dimension of proliferation. Especially noteworthy is the inclusion of financial controls and border controls, which are not on the traditional non-proliferation agenda.[xv]
The 1540 Committee
UNSCR 1540 also established the 1540 Committee to monitor and report on states’ fulfilment of their obligations, initially with a 2-year mandate, but the mandate has since been extended (see Box 1). The Committee is comprised of representatives of all the 15 Security Council members. The Committee can call on outside technical assistance and expertise from a Group of Experts (GoE) in order to facilitate the efficient execution of its mandate. The GoE initially consisted of 4 members, but was later expanded to 8, and then 9 with UNSCR 2055 (2012). The UN Department of Political Affairs serves as Secretariat for the Committee while the UN Office for Disarmament Affairs provides support to the Committee’s activities.
Following a comprehensive review of implementation and the Committee’s work in 2009, the Committee established a structure of four working groups to improve the quality of its work, focusing on four key areas:
- Implementation: The Committee monitors implementation measures.
- Assistance: The Committee itself does not provide assistance with implementation, but has a clearinghouse role to match offers of assistance with requests for assistance.
- Cooperation: The Commitee facilitates cooperation with international, regional, and sub-regional organisations, and relevant UN Bodies and Entities (especially Committees established pursuant to UNSCR 1267 and UNSCR 1373).
- Transparency and outreach: The Commitee attends and facilitates events to share experiences and lessons learned, capacity building, and technical assistance.
UNSCR 1977 (2011) extended the mandate of the Committee for 10 years, until 2021. Reportedly this was a compromise between states favouring short-term renewal and those wanting an indefinite timeframe. With the extended mandate, the Committee has now evolved into a more permanent body, and UNSCR 1977 arguably sets forth more politicised tasks than previous resolutions (such as “identify effective practices” for implementation).[xvi] It has been pointed out that engaging in debate over renewal of the mandate every two to three years has been a way to raise the Committee’s visibility and engagement with the resolution. The effect of this will be reduced with the longer mandate, but it is thought that this can be partly mitigated by undertaking comprehensive reviews with regular intervals.[xvii]
Monitoring and reporting
Implementation is monitored through a system of state reporting on actions they have taken or plan to take in order to comply with UNSCR 1540. Submission of a first report was required within 6 months of the resolution’s adoption. By the initial deadline on 28 October 2004, 59 states had submitted reports. The subsequent Resolutions 1673, 1810, and 1977 call upon states that have not yet submitted reports to do so, as well as calling for additional voluntary reports and national action plans from those states that have. As of April 2016, 180 states have submitted initial reports,[xviii] and although the quality of reports tends to vary, the relatively high submission of such reports has been interpreted as a sign of general support for—or at least acceptance of—the resolution.[xix] The Committee also tasks the GoE with creating and maintaining matrices on implementation measures in each country. The matrices were revised in 2015 and indicate a generally positive trend in implementation, although more so in relation to adopting national laws (OP 2) than to taking measures to establish domestic controls (OP 3).[xx]
With over 300 potential measures at the national level, implementation can only be described as resource-intensive. It is not surprising then that many developing countries with limited resources prioritise more pressing concerns; a lack of resources is often cited as a reason for lagging implementation.[xxi] If Equatorial Guinea is kept aside,[xxii] the average GDP per capita of the states that have yet to submit a 1540 report is almost exactly 1,000 USD (compared to an average of aproximately 30,000 USD for European countries).[xxiii] Moreover, among the same countries the average number of registered delegates for all meetings of states parties to the NPT since 2010 stands at only 0,65. Three of them have not registered for any of the 5 meetings in question.[xxiv], [xxv]
The 2016 Comprehensive Review
Security Council Resolution 1977 calls for the Committee to conduct two comprehensive reviews on the status of implementation of Resolution 1540, one after five years (before December 2016), and one before the end of the Committee’s mandate in 2021. A comprehensive review was last held in 2009 and has been described as “a significant attempt at legitimation through inclusive deliberation”[xxvi] because it gave all states the opportunity to weigh in on the resolution and its implementation.
The 2016 review looks at the implementation record of the past five years and aims to improve implementation by recommending practical actions and analysing the operation of the Committee with a view to recommending adjustments to its mandate if necessary.
The 2016 review looks at the implementation record of the past five years and aims to improve implementation by recommending practical actions
The Committee formally approved the scope, methodology, and work plan of the review on 28 April 2015, marking the beginning of the review process. The review should be both “retrospective” and “forward-looking”, and takes a consultative approach.[xxvii]
The Committee will use available data (like the country matrices prepared by the GoE) and seeks input from member states and relevant organisations. The review will use the existing Committee structure to cover four themes in correspondence with the four working groups. Focus areas will be:[xxviii]
- Analysing implementation and identifying trends and gaps (and reasons for these gaps) in implementation based on available information; identifying shortcomings in data collection, storage, retrieval, presentation (including in reporting by states and sharing of effective practices), and recommending improvements; identifying ways to intensify and promote direct interactions with states.
- Analysing the Committee’s role in matching requests and offers for assistance and identifying improvements. Barriers to implementation are often capacity-related; however, very few requests for assistance are fulfilled, and according to the Committee Chair, the system needs to be made more responsive and prompt.[xxix] Poor coordination and a limited mandate for coordinating international organisations and multinational efforts in particular have been highlighted as problematic.[xxx]
- Identifying ways for enhancing collaboration with directly related international organisations, regional organisations and relevant UN bodies; identifying improved methods for building networks of 1540 Points of Contact by working with regional organisations.
- Examining outreach activities towards states and civil society (including academia, industry, professional associations, and parliamentarians) with a view to building a wider 1540 network including appropriate civil society actors; identifying ways to improve outreach activities, including through the use of publications, electronic means and social media; identifying ways to improve feedback to the Committee from these actors, including on effective practices for public–private partnerships.
A final report will be submitted by the Committee to the UNSC before the end of 2016, and will be the basis for further work to implement the resolution. While the resolution has no doubt had an impact on reducing the risk of WMD-terrorism by strengthening domestic controls preventing proliferation of WMD-related materials to non-state actors, significant work still remains to be done. A number of states—all of them developing countries—have yet to submit their initial reports, and there is still a way to go in terms of streamlining and improving the quality of both the reports and the implementation procedures. UNSCR 1540 is therefore likely to remain a key element of the legal architecture regulating WMDs in the foreseeable future.
[i] Website of the 1540 Committee: http://www.un.org/en/sc/1540/
[i] UNSCR 1373 Operative Para 3 (a). See also O. Bosch and P. van Ham, “Global Non-Proliferation and Counter-Terrorism: The Role of Resolution 1540 and Its Implications”, in O. Bosch and P. van Ham (eds.), Global Non-Proliferation and Counter Terrorism: The Impact of UNSCR 1540, London, Chatham House, 2007, p. 8.
[ii] M. Datan, “Security Council Resolution 1540: WMD and Non-State Trafficking”, Disarmament Diplomacy, vol. 79, 2005, pp. 48-60.
[iii] I. Johnstone, The Power of Deliberation: International Law, Politics and Organizations, New York, Oxford University Press, 2011, p. 100.
[iv] O. Bosch and P. van Ham, op.cit. p. 6.
[v] M. Datan, op.cit.
[vi] O. Bosch and P. van Ham, op.cit. p. 7.
[viii] I. Johnstone, p. 101.
[ix] Ibid, pp. 101–102.
[x] Ibid. See also UNSCR 1540 Operative Para 5.
[xi] O. Bosch and P. van Ham, op.cit. p. 15.
[xii] O. Bosch and P. van Ham, op.cit. p. 21.
[xiii] Full definition of means of delivery in UNSCR 1540: ”missiles, rockets and other unmanned systems capable of delivering nuclear, chemical, or biological weapons, that are specifically designed for such use”
[xiv][xiv] Full definition of related materials in UNSCR 1540: ”materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery”. See T. Whiteside, Ted, “UNSCR 1540 and ”Means of Delivery”, Global Non-Proliferation and Counter-Terrorism”, in O. Bosch and P. van Ham (eds.), Global Non-Proliferation and Counter Terrorism: The Impact of UNSCR 1540, London, Chatham House, 2007, p. 116.
[xv] O. Bosch and P. van Ham, op.cit. p. 10.
[xvi] C. J. Harvey, “Two Steps Forward, One Step Back: Slow, But Steady Progress Implementing UNSCR 1540”, The Nuclear Threat Initiative [website], 20 July 2011, http://www.nti.org/analysis/articles/unscr-1540/ (accessed 18/04/2016)
[xvii] C. J. Harvey, ibid.
[xviii] United Nations 1540 Committee, National reports [website], 2016, http://www.un.org/en/sc/1540/national-implementation/national-reports.shtml (accessed 20/04/2016)
[xix] M. Datan, op.cit.
[xx] See Letter dated 29 December 2015 from the Chair of the Security Council Committee established pursuant to resolution 1540 (2004) addressed to the President of the Security Council (S/2015/1052), available here: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/2015/1052
[xxi] M. Beck, ”Implementation challenges for small and developing countries”, 1540 Compass, vol. 4, 2013, pp. 11–15.
[xxii] Nominal GDP per capita in Equatorial Guinea is close to 20,000 USD.
[xxiii] ILPI, Counting to Zero: An overview of United Nations member states’ positions on nuclear disarmament and the humanitarian impact of nuclear weapons, 8th Edition, available at wmd.ilpi.org. The average is calculated with equal weight for each country, not adjusted to relative size. The European average does not include the special cases of Liechtenstein, Monaco, Andorra, or San Marino. With these four, the average would be aprx. 57,000 USD.
[xxiv] North Korea is not included among these three, since it has withdrawn from the NPT.
[xxv] ILPI, op.cit.
[xxvi] I. Johnstone, op.cit. pp. 104–105.
[xxvii] See the modalities paper here: http://www.un.org/en/sc/1540/comprehensive-review/2016.shtml
[xxviii] As outlined in the modalities paper (ibid) and statements by the 1540 Committee Chair in Statement to the Security Council by Ambassador Román Oyarzun Marchesi, Chair of the Security Council Committee Established Pursuant to Resolution 1540 (2004), New York, 16 June 2015, available here: http://www.un.org/en/sc/1540/reports-and-briefings/pdf/statement.chair.sc.16jun15.pdf
[xxix] R. O. Marchesi, Chair 1540 Committee, Briefing of the Security Council, 22 December 2015. Available here: http://www.un.org/en/sc/1540/reports-and-briefings/pdf/statement.chair.sc.22dec15.pdf
[xxx] M. Beck, op.cit. p. 12.