Two Steps Forward, One Step Back: Slow, But Steady Progress Implementing UNSCR 1540

Introduction

In April 2004, the United Nations Security Council unanimously passed Resolution 1540, intended to reduce the threat of terrorist groups gaining access to weapons of mass destruction. The resolution mandates that all states 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," as well as attempts to engage in such activities, assist, or finance them. The resolution requires states to establish export controls for such weapons and the means of their delivery, and "related materials." It also requires states to implement effective export controls and physical protection measures, in order to prevent the diversion of sensitive materials and technologies.[1]

The scope of the resolution, encompassing not only weapons of mass destruction but also the means of their delivery and related materials, makes it one of the broadest legal instruments in the nonproliferation field. It is also legally binding on all UN member states, owing to its passage under Chapter VII of the UN charter. These two characteristics of the resolution led to considerable skepticism among numerous states in the run-up to and immediate aftermath of the resolution's passage. Some states expressed concern that the 15 members of the Security Council had overstepped the Council's role by acting as a world legislature, and argued that the proper forum for the issues that Resolution 1540 addresses would be a multilateral treaty framework.[2]

However, in the years since its adoption, Resolution 1540 has been more widely seen as an appropriate multilateral tool to help prevent the acquisition of weapons of mass destruction by non-state actors, and to facilitate the exchange of information and assistance among states.[3] The challenges that states face as they seek to promote implementation of Resolution 1540 moving forward are less concerns about legitimacy than the difficulty of regularizing and institutionalizing the processes by which states interact with one another under the resolution. Resolution 1977, which reauthorized the 1540 Committee in 2011, seeks to address these new challenges.

Background on the 1540 Committee and Its Role

In the text of Resolution 1540, the Security Council established a committee of its 15 members, with a mandate of only two years, to report to the Council on the implementation of the resolution. The resolution called upon all states to submit a report on implementation to the 1540 Committee within six months.[4] Four permanent working groups, composed of representatives of Security Council states, coordinate the committee's efforts. The four groups cover national implementation, assistance, cooperation with international organizations, and transparency and outreach. The working groups have helped to regularize the committee's work and to raise the committee's profile within the United Nations, according to diplomats engaged on these issues.[5]

Originally designed as a temporary committee to collect states' implementation reports and provide a summary report to the Council, the 1540 Committee has evolved into a more permanent body charged with collecting information on best practices, sharing information and outreach, and matching states' needs with offers of assistance.

When the Security Council renewed the mandate of the 1540 Committee in 2006 for a further two years, it expanded its purview to include "outreach, dialogue, assistance and cooperation," as well as the continued compilation of information on states' implementation efforts.[6] Both Resolution 1540 and the 2006 renewal permitted the committee to call on outside expertise in its efforts. The 2006 resolution also invited the committee to explore lessons learned in the areas covered by Resolution 1540, in conjunction with states, regional organizations, and international organizations.

In 2008, the Council again agreed to extend the mandate of the 1540 Committee, this time for three years. The 2008 resolution largely reaffirmed the committee's role in outreach, and information gathering, but placed more emphasis on its role in assistance-matching. The resolution encouraged states to take advantage of the committee's role and resources, and urged the committee to actively engage in matching offers of and requests for assistance.[7]

Most recently, the Security Council adopted Resolution 1977 in April 2011, which reauthorized the 1540 Committee for ten years, and provided for a few modifications to the Committee's mandate.

Since its original inception, the 1540 Committee has steadily developed its work, and its role has slowly expanded through successive Security Council resolutions. The committee has developed standard reporting forms, in particular the 1540 matrix, which states use to report their implementation progress in a clear and uniform way. The committee has collected implementation reports from more than 160 countries—although many date to 2004, and some are lacking in detail.[8] In addition, the committee collects and publishes states' requests for and offers of assistance.[9] The committee and its associated experts also frequently participate in international conferences and other events, in an effort to raise awareness about the resolution and its requirements.[10]

Implementation Challenges

As Resolution 1540 enters its eighth year, it is in some ways finally coming of age. In the early years of the resolution, the primary implementation challenges were a lack of perceived legitimacy among many states, a lack of awareness of the requirements of the resolution among others, and a lack of capacity among some developing states to implement the resolution.[11] These challenges still exist to varying degrees, but outreach efforts and assistance-matching by the 1540 Committee and interested states have considerably mitigated them.

In considering how the legitimacy gap has narrowed since 2004, the attitude of South Africa—a prominent member of the Non-Aligned Movement—is illustrative. During debate over a draft version of Resolution 1540, the South African representative to the United Nations objected that the resolution "imposes obligations on UN Member States and attempts to legislate on behalf of States by prescribing the nature and type of measures that will have to be implemented by States."[12] In a 2007 debate on the implementation of Resolution 1540, South Africa stated that it "will not accept externally imposed norms or standards, whatever their source, on matters within the jurisdiction of the South African Parliament, including national legislation, regulations or arrangements…"[13] Nevertheless, South Africa (an elected member of the Security Council as of 1 January 2011) voted in favor of Resolution 1977, extending the 1540 Committee's mandate, and somewhat expanding the scope of its responsibilities.[14] Indeed, the South African representative serves as the chairman of the 1540 Committee as of this writing.[15]

Raising awareness and convincing states that compliance with the resolution was worth the costs also proved to be one of the committee's early challenges. Only 59 states met the deadline to submit national implementation reports six months following the passage of Resolution 1540. In response, the committee sent five rounds of correspondence to the UN missions of non-reporting countries.[16] In addition to continued correspondence with UN missions,[17] the committee has convened or participated in dozens of 1540-related workshops aimed at enhancing regional awareness and implementation.[18]

In the early phases of 1540 implementation, the committee faced a set of immediate challenges: raising awareness of the resolution and its requirements; facilitating the collection of national reports; and matching assistance requests with offers. As the salience of this first generation of challenges to 1540 implementation diminishes, a new set of challenges is emerging. Principally, these challenges are institutional: regularizing the flow of information to the committee; providing feedback to interested states; collecting and publicizing best implementation practices; coordinating the efforts of the 1540 Committee and the group of experts; and building relationships with relevant organizations and partners. These goals must be accomplished without overstepping the committee's mandate, and with the understanding that the committee is a subsidiary body of the Security Council, and not the secretariat of an international treaty organization. Resolution 1977 goes a considerable distance in bridging this gap.

Resolution 1977 and Paths Forward

Resolution 1977, passed in April 2011, reauthorized the 1540 Committee and contains several important provisions. Most notably, it extends the mandate of the committee for ten years, until 25 April 2021. However, it also allows for a restructuring and diversification of the group of experts that supports the committee, and asks the committee to identify effective practices for implementation and to continue and intensify its assistance-matching efforts. Additionally, the resolution calls on relevant international and regional organizations to establish coordinators for 1540-related activities and to notify the committee of these designations. Lastly, the resolution officially endorses UN Secretariat support for the committee through the Office of Disarmament Affairs. All of this suggests that the 1540 Committee is becoming increasingly embedded in the broader nonproliferation architecture, which in turn marks progress for the acceptance and implementation of Resolution 1540 itself.

Most importantly, Resolution 1977 provides for a ten-year mandate, instead of the two- or three-year renewals present in earlier resolutions. Reportedly, the ten-year period was a compromise between states favoring a traditional, short-term renewal, and those that hoped to extend the committee's mandate indefinitely.[19] A ten-year mandate will, among other things, help facilitate the development of more formal relationships between the committee and relevant organizations.[20] A regional organization of developing states, for example, when considering whether or not to devote time and resources to the creation of a 1540 coordinator, might be more willing to do so if the regional organization were confident that the committee will continue to exist beyond a two or three year window. With a ten-year mandate, the Security Council has taken a step toward an effectively permanent, institutionalized 1540 Committee.

Conclusions

Since its adoption in 2004, international perceptions of Resolution 1540 have shifted from controversy over its legitimacy to general acceptance of its role in preventing the spread of weapons of mass destruction to non-state actors. As a result, the 1540 Committee's mandate has been extended in both duration and scope with each successive renewal. Due to the committee's work on awareness-raising and assistance-matching, the first generation of 1540-related challenges is diminishing in importance. A second generation of challenges, defined by the need to regularize and institutionalize the committee's work in order to maintain and accelerate 1540 implementation, is emerging. To meet these challenges, the Security Council extended the mandate of the committee for ten years, authorized it to publicize effective implementation practices, and requested that relevant international organizations establish coordinators for 1540-related activities.

The extended mandate will allow the 1540 Committee to become a more established feature of the international nonproliferation architecture. Resolution 1977 will allow the committee to better provide feedback to states and regional organizations, correcting what has generally been a one-way dialogue, notwithstanding the committee's considerable outreach efforts. While considerable implementation challenges remain, the version of the 1540 Committee authorized in the most recent resolution is a step forward.

One drawback of the longer mandate, when compared to the traditional short-term renewal, is the reduced opportunity for non-permanent members of the Security Council to become engaged in the committee's renewal process. Engaging in a debate over renewal every two or three years helps raise the visibility of the committee, and can help induce elected members of the Council to invest some political resources in the 1540 project (the example of South Africa is again relevant). Resolution 1977 seeks to ameliorate this challenge by requiring the 1540 Committee to submit a comprehensive review of its activities and 1540 implementation in the fifth and tenth years of the committee's mandate.[21]

The resolution also reauthorizes the committee's relationship with outside experts, by requesting the UN Secretary-General to establish a group of no more than eight experts to assist the committee. The resolution leaves room for the committee to make recommendations on the composition of the group in terms of expertise.[22] The experts making up the current group are exclusively technical. As the task of the 1540 Committee shifts from raising awareness of the requirements of resolution 1540 to implementation, technical knowledge in the group should be balanced with regional and good-governance expertise.[23] Resolution 1977 also paves the way for the Committee to appoint one of the experts as a coordinator for the group. The coordinator would serve as a formal link between the committee and the experts, helping to direct the experts' work, avoid overlap, and generate consensus.

The 2011 resolution goes beyond earlier renewals in requesting the 1540 Committee to "identify effective practices, templates and guidance " in the areas covered by Resolution 1540, and to consider preparing a technical guide on implementation.[24] This is a significant departure from earlier resolutions, which strenuously avoided any tasks for the committee that might be considered political in nature (for example, what constitutes an effective practice, and who decides?). The shift to allowing the committee to engage in such questions is an indication that states are looking for information to flow from the committee as well as to it. After investing the time and bureaucratic resources to prepare a 1540 report and submit it to the committee, some states expect feedback from the committee on whether their compliance efforts are appropriate, effective, and efficient. The committee is well placed to disseminate such information, because it receives national implementation reports and regularly participates in or convenes implementation workshops and meetings.

Lastly, the resolution calls upon international and regional organizations to designate a point of contact for implementation of Resolution 1540, to help the committee gather information from and coordinate with those organizations' members.[25] Regional organizations have an important role to play in helping to coordinate the implementation of 1540 among their member states.[26] Such organizations can benefit from greater cultural and institutional knowledge of the regions they represent, and often possess a perception of legitimacy that outside experts might lack. Appointing a facilitator for 1540 implementation can raise the visibility of the resolution among member states and help drive implementation efforts. The Caribbean Community (CARICOM), an association of Caribbean states, was a leading regional organization in this regard. CARICOM appointed a 1540 coordinator in 2008, whose responsibilities include coordination with the CARICOM member states on 1540 matters. This approach has become a model for other developing regions.[27]

Sources:
[1] "Security Council Decides All States Shall Act to Prevent Proliferation of Mass Destruction Weapons," United Nations, 28 April 2004, www.un.org.
[2] For an example of this view, see "Statement by Ambassador D. S. Kumalo of South Africa to the Security Council on Non-Proliferation of Weapons of Mass Destruction," Permanent Mission of South Africa to the United Nations, 22 April 2004, www.southafrica-newyork.net.
[3] "Perceptions, Resources Challenge Implementation of UN Security Council Resolution 1540 Ahead of April Renewal," Stanley Foundation, 1 March 2011, www.stanleyfoundation.org.
[4] "Security Council Decides All States Shall Act to Prevent Proliferation of Mass Destruction Weapons," United Nations, 28 April 2004, www.un.org. See operative paragraph 4.
[5] "UNSCR 1540: Identity, Extension and Implementation," Stanley Foundation, April 2011, p. 2, www.stanleyfoundation.org.
[6] "Resolution 1673 (2006)," UN Security Council, 27 April 2006, www.un.org.
[7] "Resolution 1810 (2008)," UN Security Council, 25 April 2008, www.un.org.
[8] For example, the report from Yemen simply states that,"The Permanent Mission of the Republic of Yemen to the United Nations…has the honour to inform the Committee that the Republic of Yemen does not possess nuclear, biological, or chemical weapons." See S/AC.44/2004/(02)/97, 6 January 2005, https://daccess-dds-ny.un.org.
[9] See 1540 Committee Website, "Offers of Assistance," www.un.org.
[10] See 1540 Committee Website, "Chairperson's Statements at Outreach Activities," www.un.org.
[11] For an early study on 1540-related challenges, see: Larry Scheinman, ed.,"Implementing Resolution 1540: The Role of Regional Organizations," James Martin Center for Nonproliferation Studies and the United Nations Institute for Disarmament Research, 2008, www.unidir.org.
[12] "Statement by Ambassador D. S. Kumalo of South Africa to the Security Council on Non-Proliferation of Weapons of Mass Destruction," Permanent Mission of South Africa to the United Nations, 22 April 2004, www.southafrica-newyork.net.
[13] "Statement by Ambassador Dumisani S. Kumalo, Permanent Representative of the Republic of South Africa," 23 February 2007, p. 2, www.reachingcriticalwill.org.
[14] Record of the 6518th meeting of the UN Security Council, 20 April 2011, https://daccess-dds-ny.un.org.
[15] See 1540 Committee Website, "Composition," www.un.org.
[16] "Report of the Committee Established Pursuant to Security Council Resolution 1540 (2004)," United Nations, 25 April 2006, p. 7, www.un.org.
[17] "Report of the Committee Established Pursuant to Security Council Resolution 1540 (2004)," United Nations, 30 July 2008, p. 5, www.un.org.
[18] See 1540 Committee Website, "Outreach Events," www.un.org.
[19] Peter Crail,"UN Bolsters WMD Nonproliferation Body," Arms Control Today, May 2011, www.armscontrol.org.
[20] "UNSCR 1540: Identity, Extension and Implementation," Stanley Foundation, April 2011, p. 5, www.stanleyfoundation.org.
[21] "Resolution 1977 (2011)," UN Security Council, 20 April 2011, www.un.org.
[22] "Resolution 1977 (2011)," UN Security Council, 20 April 2011, www.un.org.
[23] "UNSCR 1540: Identity, Extension and Implementation," Stanley Foundation, April 2011, p. 5, www.stanleyfoundation.org.
[24] "Resolution 1977 (2011)," UN Security Council, 20 April 2011, www.un.org.
[25] "Resolution 1977 (2011)," UN Security Council, 20 April 2011, www.un.org.
[26] Note: The James Martin Center for Nonproliferation Studies is conducting a study (directed by Dr. Lawrence Scheinman) on the role of regional organizations in implementing Resolution 1540, focusing in particular on the Middle East and Southeast Asia.
[27] "The Beyond Boundaries Initiative," Stimson Center, accessed 1 June 2011, www.stimson.org.