United Nations Security Council Resolution 1540
United Nations Security Council resolution 1540 was adopted unanimously on 28 April 2004 regarding the non-proliferation of weapons of mass destruction.[1] The resolution establishes the obligations under Chapter VII of the United Nations Charter for all member states to develop and enforce appropriate legal and regulatory measures against the proliferation of chemical, biological, radiological, and nuclear weapons and their means of delivery, in particular, to prevent the spread of weapons of mass destruction to non-state actors.
UN Security Council
Resolution 1540
It is notable in that it recognizes non-state proliferation as a threat to the peace under the terms of Chapter VII of the United Nations Charter, and creates an obligation for states to modify their internal legislation.
Furthermore, the resolution requires every state to criminalize various forms of non-state actor involvement in weapons of mass destruction and its related activities in its domestic legislation and, once in place, to enforce such legislation. By virtue of its universal scope and mandatory nature, resolution 1540 marks a departure from previous nonproliferation arrangements and adds a novel layer to the nonproliferation regime. Before the resolution was adopted, the non-proliferation regime was based on many partly overlapping arrangements, none of which established universal mandatory obligations.[2]
Negotiations and vote[edit]
Resolution 1540 was adopted by the UN Security Council in response to the unmasking of the Abdul Qadeer Khan proliferation network but also with the aim of preventing the acquisition of chemical, biological, radiological, and nuclear weapons by terrorist groups.
Resolution 1540 is a notable development both in that it explicitly recognises non-state proliferation of weapons of mass destruction as a threat to peace and security in and of itself and in that it obliges member states to make internal legislative changes. Previous non-proliferation agreements all took the form of multilateral accords such as the Nuclear Non-proliferation Treaty or cooperation mechanisms such as the Proliferation Security Initiative, based on the consent of the parties. Resolution 1540, on the other hand, is obligatory for all UN members, whether or not they support its aims.
The resolution was sponsored by the United States, with the Philippines, Spain and France (which joined at the last minute[8]) as co-sponsors. Negotiations leading up to the vote of resolution 1540 were officially open only to UN Security Council members, but information on the early drafts circulated with relative freedom and input from other states and NGOs was solicited due to the political sensitivity of the issues involved. Special attention was paid to the principal non-aligned states in order to put pressure on Pakistan, at the time a member of the Security Council, to fall in line with the majority opinion. The G8 was also included in the process, this being a means of including Japan in the negotiations.[8] The drafting process was notable for the level of participation by NGOs that it involved. A grassroots mobilisation was organised by, among others, the Women’s International League for Peace and Freedom, Abolition 2000 and the Lawyers' Committee on Nuclear Policy, demanding that the draft resolution be debated in an open session of the Security Council.[9]
The resolution was voted unanimously by the permanent members of the Security Council, plus the 10 non-permanent members at the time: Algeria, Benin, Angola, the Philippines, Pakistan, Brazil, Chile, Germany, Spain and Romania. The entire process, from the beginning of negotiations among the co-sponsors to the final vote took around 8 months.[10]
Despite the unanimity of the vote several Security Council members expressed reserves in their accompanying statements. Representing Pakistan, Munir Akram insisted that, "Pakistan shared the view expressed in the Council’s open debate that the Council could not legislate for the world, he said. The Council could not assume the stewardship of global non-proliferation and disarmament issues. Composed of 15 States, it was not a representative body. It could not enforce the obligations assumed by five of its members which retained nuclear weapons since they also possessed the right of veto." He added that "Pakistan had been obliged to develop nuclear weapons and related delivery systems to maintain credible minimum deterrence against external aggression, especially once similar capabilities had been developed and demonstrated by its eastern neighbour. The nuclear non-proliferation regime needed to accommodate the reality of the existence of nuclear weapons in South Asia. Given that reality, Pakistan would not accept any demand for access, much less inspections, of its nuclear and strategic assets, materials and facilities, he said. It would not share technical, military or political information that would negatively affect its national security programmes or its national interests. Pakistan would continue to develop its nuclear, missiles and related strategic capability to maintain the minimum credible deterrence vis-à-vis its eastern neighbour, which was embarked on major programmes for nuclear weapons, missiles, anti-missiles and conventional arms acquisition and development."[11]
India also stated its concern over the apparent interference in internal legislation by the Security Council: "We are concerned that the exercise of legislative functions by the Council, combined with recourse to Chapter VII mandates, could disrupt the balance of power between the General Assembly and the Security Council, as enshrined in the Charter."[12]
Speaking for Brasil, Ronaldo Mota Sardenberg brought up the question of disarmament, which had been a concern of many non-aligned movement countries throughout the negotiation process and before, given the inegalitarian regime created by instruments such as the Nuclear Non-Proliferation Treaty.
Equally, the early drafts of the resolution contained explicit references to the Proliferation Security Initiative which were removed at the request of China, which remains opposed to the scheme, alleging that it violates the UN Convention on the Law of the Sea.[13]
Application[edit]
South America[edit]
Latin America was the first region to be covered by a treaty banning the development of nuclear weapons (the Treaty of Tlatelolco), despite the longstanding opposition of two of the principal powers of the region, Brazil and Argentina, to the Nuclear Non-proliferation Treaty, due to its perceived discriminatory nature.[21]
While Colombia is the only state in the region to have fully accepted the United States vision of the war on terror, most states in the region already have anti-terrorism measures in place, usually in conjunction with policies designed to fight organised crime, which is the main local threat (for example, the 3+1 Group,[22] the Inter-American Convention Against Terrorism, the Declaration of San Carlos[23]).
All of the states in the region have already presented their compliance reports to the 1540 Committee. Many of them have, however, fulfilled only a minor part of their obligations under the resolution; Chile, Panama, Peru and Venezuela being among those with the worst records.[24] Colombia has also requested detection equipment and assistance in training its law enforcement personnel in the detection and prosecution of proliferation offenses,[5] while Argentina and Brazil have provided offers of assistance.[25]
Asia and Oceania[edit]
While ASEAN has been largely supportive of the resolution, it has also been criticised firstly as a US-inspired attempt to interfere in matters belonging to the domain of national sovereignty,[26] as a "one size fits all" approach to the question[27] and for being far too demanding in terms of resources for small countries to implement correctly.
Among the states of the region, Taiwan (which is not a UN member), the Cook Islands and Niue (which are treated as permanent observers rather than members of the UN due to their links with New Zealand), North Korea, Burma, East Timor and the Solomon Islands have yet to present reports to the 1540 Committee. Many of the states in Oceania have had difficulties fulfilling their obligations under the resolution due to their small size and lack of resources. For example, Kiribati has asked for assistance in adapting its legislative framework[28] and Vanuatu has asked for additional police training.[29]
Armenia, Cambodia, Iraq, Lebanon, the Marshall Islands, Mongolia, the Philippines, Qatar, Syria, Thailand and Uzbekistan all currently have requests for assistance pending,[5] while Australia, China, India, Israel, Japan, Malaysia, New Zealand, Pakistan, South Korea, and Singapore have all presented offers of assistance to the committee.[25]
Many states in the region are also involved in other local non-proliferation and counter-terrorism initiatives, such as the Bali Counter-Terrorism Process[30] and the BTWC Regional Workshops.[31]
Asia has been the source of most recent proliferation activities, notably in India and Pakistan,[32] Israel,[33] Iran[34] and North Korea,[35] and those involving the A. Q. Khan network.[36]
Africa[edit]
While most African states lack the technology to be serious proliferation threats, the numerous zones of lawlessness on the continent make it a useful hub for various clandestine activities, notably drug and people trafficking. However, certain countries, notably Libya[37] and Egypt[38] (nuclear) and the Democratic Republic of the Congo[39] (chemical/biological) have been or are suspected of being involved in proliferation.
Africa also has the highest proportion of states not yet having presented their compliance reports to the 1540 committee.
This has largely been attributed to a lack of resources, and the existence of more pressing problems such as AIDS, small arms proliferation and conflict, but certain members of the non-aligned movement have also raised concerns over the possible impact of the resolution on national sovereignty.[40]
Angola, Benin, Côte d'Ivoire, Madagascar and Morocco have all presented requests for assistance in fulfilling their 1540 obligations to the committee,[5] with South Africa providing an offer of help.[25]
Europe[edit]
Since 2003 the European Union has integrated a non-proliferation clause into its common foreign and security policy, requiring that its trading partners take steps to "sign, ratify or accede to, as appropriate, and fully implement all (…) relevant international instruments" relating to nuclear, chemical and biological weapons".[41] This clause has, however, been a stumbling block in negotiations with India and Syria.[42]
The only European countries yet to present their reports to the 1540 committee are Macedonia, Moldova and the Vatican City (which remains merely an observer state at the UN), although many ex-Soviet states lack the effective border controls needed to prevent proliferation while still possessing nuclear, chemical or biological materials.[43] Albania, Lithuania, Montenegro and Serbia have requested assistance in fulfilling their obligations under the resolution,[5] whereas a majority of European states have provided offers of help: Austria, Belarus, Bulgaria, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Romania, the Russian Federation, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.[25]
North America[edit]
The United States has been one of the strongest supporters of resolution 1540 and of United Nations Security Council Resolution 1887,[44] which strengthened its provisions.[45]
All North American states except Haiti and St Lucia have presented their reports on 1540 compliance to the UN. The Bahamas, Belize, CARICOM and Guatemala have requested assistance in implementing the resolution[5] while Canada, Cuba and the United States have offered help.[25]
Controversy[edit]
Many states in the non-aligned movement have criticised resolution 1540 for being cumbersome and ill-adapted to their situations,[26] an attempt by the US to co-opt others into its war on terror, interference by the UN in states' national sovereignty[40] and a drain on resources that could better be used on problems that are of more direct local relevance.[46]
Supporters of the resolution have underlined the function of the 1540 committee as a clearing house for offers of and requests for assistance in implementing the resolution,[44] and pointed out that improved border controls and legislative framework will be of a more general benefit to all countries that implement them.[47]