Non-State Actors and WMD
UN Security Council Resolution 1540: Monitoring Implementation
Angela Woodward
UN Security Council Resolution 1540 (2004),[1] adopted on 28 April 2004, is the latest in a string of Security Council initiatives aimed at stemming the global threat of terrorism. The resolution prohibits states supporting efforts by non-state actors, primarily terrorist groups, to acquire and use weapons of mass destruction (WMD) along with related equipment and delivery systems. It also requires states to establish and enforce a comprehensive system of domestic controls on WMD and related materials. States must adopt national measures, including legislation, to facilitate their compliance with the resolution and they must report on their implementation efforts to a Security Council committee established by the resolution.
This article assesses what Resolution 1540 (2004) contributes to WMD non-proliferation efforts and how its framework provisions for monitoring states’ implementation should be implemented. It also addresses some of the criticisms of an earlier draft of the resolution, both of which can be found in the April 2004 issue of INESAP Information Bulletin.[2]
Context
Resolution 1540 is intended to deal with the threat to international peace and security posed by non-state actors acquiring WMD, yet it cunningly lays down a framework for WMD non-proliferation that should also stymie prospective illicit development by states. It follows a series of resolutions condemning specific terrorist atrocities involving conventional weapons in the US,[3] Indonesia,[4] Russia,[5] Kenya,[6] Colombia,[7] Turkey[8] and Spain,[9] although it is more closely related to two other Security Council Chapter VII terrorism resolutions that also establish monitoring committees: Resolution 1267 (1999), which creates sanctions against named individuals and groups suspected of terrorism and the 1267 committee, recently assisted by a Monitoring Group; and Resolution 1373 (2001), which prescribes comprehensive obligations in support of counter-terrorism and creates the UN Counter-Terrorism Committee. More broadly, the resolution encapsulates and universalizes non-proliferation initiatives originating in multilateral fora, in particular the G8.
Some commentators have criticised the resolution as sidestepping the WMD ‘disarmament bargain’ of the negotiated, multilateral agreements prohibiting biological, chemical and nuclear weapons. This argument is likely supported by precisely those states that employ this ‘bargain’ as a leverage for obtaining technical cooperation or other treaty assistance without demonstrating much else in the way of support for, or compliance with, these agreements.
In any event, compliance with WMD disarmament treaty obligations is no panacea for non-proliferation, especially when materials may be either dug out of the ground (anthrax) or bought off the internet (pre-cursor or dual-use chemical agents).
Resolution 1540 does not ignore that the proliferation of WMD to terrorist groups will likely involve diversion from illicit or permitted, defensive state-sponsored programmes. Rather, it specifically affirms the importance of the major multilateral WMD treaties – which apply to statesponsored and non-state actor alike in the states parties’ territory – and calls for states to universalise and comply with these treaties.
Obligations
The resolution requires states to “refrain from providing any form of support” to non-state actors’ efforts to engage in any activity involving nuclear, chemical or biological weapons and their delivery systems. It is notable that in this case, “refrain” requires states currently providing such support to desist, rather than simply prohibiting any such assistance in future. States must also adopt and enforce national laws to prohibit non-state actor involvement in WMD activities. This requirement to establish criminal legal sanctions for violations is important, as not all member states are pro-active in complying with their UN Charter obligations to enforce Security Council resolutions.
Even WMD prohibitions arising from treaties have been poorly incorporated into states parties’ national laws due to inadequate direction as to what standards are expected. For example, the wider remit for “national implementation measures” in the 1972 Biological and Toxin Weapons Convention (BTWC) has had to be extended by politicallybinding agreements to require criminal sanction through legislation. Unlike in the draft of resolution 1540, this requirement to adopt national implementation legislation now contains the proviso of “in accordance with their national procedures,” which may go some way to countering criticism that the draft resolution was overly prescriptive in detailing legislative requirements for states.
While the resolution is frequently touted as targeting WMD proliferation to non-states actors, the resolution makes substantial inroads to preventing proliferation between states. Paragraph 3 requires states to “take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical and biological weapons,” including their delivery systems and related materials. Not only does this provision lay down a comprehensive WMD control system – comprising materials accounting, security and physical protection of materials, border control, law enforcement and national export controls including national control lists and controls on trans-shipment and end-users – but it must also be established through legislation, including appropriate criminal or civil penalties. Unlike the requirement for criminalization of non-state actors’ WMD activities, this control system for non-proliferation applies across the board, to other states and nonstate actors alike.
Monitoring
The resolution establishes a committee of the Security Council, comprising all its members, which is tasked with reviewing states’ reports on their implementation efforts. The first report is due on 28 October, six months after the resolution’s adoption, with further reporting anticipated. The committee may call on experts to assist its review before reporting to the Security Council. The committee’s mandate has been extended from a paltry six months in the draft resolution, to two years. The Ambassador of Romania to the UN, Mihnea Motoc, has been appointed as its Chair.
The committee has agreed basic guidelines for the conduct of its work,[10] but substantive arrangements – such as what technical expertise it may need to call on, how such experts would be paid and the format of its reports to the Security Council – are yet to be finalised. Its relationship with the committees established to monitor related resolutions, 1267 and 1373, is also to be determined.
As with any set of binding obligations, states’ implementation of this resolution will need to be effectively monitored and verified in order for it to achieve its rather ambitious goals. The Security Council has clearly learned some lessons from previous committees, notably those established to monitor mandatory arms embargoes,[11] by specifically providing for outside technical assistance during the review process. But the committee Chair must also look to the practice of the related committees, the 1267 Committee and the 1373 Counter-Terrorism Committee, as they have both been substantially restructured to improve their monitoring capacity.[12] The 1540 committee will likely need to coordinate its work closely with these committees: the Security Council had earlier specifically instructed those committees to more closely coordinate their activities.[13]
The committee would also benefit by liaising with international organisations with specific expertise in responding to terrorism, such as Interpol and the World Customs Organisation,[14] in addition to the WMD multilateral frameworks noted in the resolution: the International Atomic Energy Agency (IAEA), the Organization for the Prohibition of Chemical Weapons (OPCW) and the Biological and Toxin Weapons Convention (BTWC). The extent to which BTWC states parties can be called a “framework” for these purposes, especially when compared with the IAEA and OPCW, is debateable making the continued absence of a verification organisation for that treaty all the more deplorable.
Recognizing that it can take many months for states to review their existing national measures and determine whether amendments or new measures are required, the resolution requires states merely to report on the “steps they have taken or intend to take” to achieve compliance. The committee can assist states by adopting the practice of the Counter-Terrorism Committee in providing substantive and procedural guidance on reporting. The first report will provide a baseline assessment of implementation, against which the committee will be better able to assess assistance requirements and to develop or revise guidelines on implementation and reporting. The committee will also need to develop a timetable of reporting deadlines after the initial reports are due on 24 October.
The committee’s guidelines provide that it will report regularly to the Security Council on states’ implementation of the resolution, including recommendations, but it is unclear whether the committee will proactively seek to verify and report on states’ compliance. If its role is to verify, rather than simply monitor, states’ implementation, then it will need to be able to gather information from outside sources to assist its analysis. In addition to the envisaged cooperative arrangements with relevant international, regional and subregional bodies and Security Council committees, it might easily gather open-source information or contract specific collations of such information, as other UN monitoring and verification bodies have done. Depending on how serious the Security Council is about pursuing improved WMD controls through such an imposed measure, it might further request states to provide the committee with information from national technical means, although that is unlikely, at least initially.
The resolution’s acknowledgement that some states lack the legal and regulatory infrastructure, implementation experience and/or resources necessary for them to comply prompted its pragmatic request for other states to offer such expertise to others. States could use their reports to the 1540 Committee to indicate what, if any, assistance they require to comply with the resolution, as states parties to the 1997 Landmine Convention[15] are encouraged to do in their Article 7 transparency reports.
The committee should also actively identify those states that are prepared to offer technical or other assistance and establish systems to match such offers with any requests for assistance. The Counter-Terrorism Committee’s Database of Counter-Terrorism Information and Sources of Assistance[16] is an excellent model in this respect. Whether the 1540 committee might be requested to share or contribute to such a resource or perhaps establish one of its own is yet to be seen.
It is encouraging that the committee’s guidelines provide for transparency of its work, such as through regular briefings for states, international bodies and the media, and of states’ implementation reports, which are to be circulated as documents of the Security Council. It would be helpful if the committee established a dedicated website, following the practice of the Counter-Terrorism Committee and the 1267 Committee,[17] where all relevant documentation could be easily located.
Conclusion
While Resolution 1540 does not explicitly ban state-sponsored WMD activities – as some civil society groups had called for it to do – it is an important instrument in preventing access by non-state actors to WMD. It also effectively extends WMD prohibitions and controls to those states that have not joined the 1972 Biological and Toxin Weapons Convention (27), the 1980 Convention on the Physical Protection of Nuclear Material (44) and the 1993 Chemical Weapons Convention (12).
Whether or not those states ever join these treaties, they are at least obliged to adopt national measures to halt any sub-state level WMD activities in their territory and to prevent proliferation to other states. Depending on the ultimate success of its monitoring provisions, Resolution 1540 might result in a substantial improvement in states’ domestic controls for WMD non-proliferation.
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