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Introduction
Following the terrorist attacks of September
11, 2001, the international community has grown increasingly concerned about
barring non-state actors from obtaining weapons of mass destruction (WMD).
Information gathered in the aftermath of the attacks about the ambitions of
terrorists and terrorist organizations to acquire and use WMD has increased this
concern. More recently, revelations about the proliferation of nuclear weapons
technology by a global
network headed by Pakistan's Dr. A.Q. Khan pointed to the shortcomings
of existing nonproliferation treaties. Since 9/11, the United States and other
countries have sought ways to address these growing concerns about non-state
actors' acquiring and distributing WMD. Against this backdrop, the United Nations Security Council adopted an anti-proliferation
resolution requiring states to criminalize the proliferation of WMD and all
related materials; to enact and enforce strict export controls; and to secure
sensitive materials within their borders. This resolution promotes more
effective laws and enforcement measures.
Background
To strengthen nonproliferation measures,
President George W. Bush first announced the Proliferation Security
Initiative (PSI), in Krakow, Poland on May 31, 2003. The PSI is an
initiative to coordinate efforts to impede sea, air, and land shipments of WMD,
delivery systems and related materials to and from states and non-state actors.
The PSI is an unofficial and informal partnership of countries; the core group
numbers about 16 states. With no legal grounding, the initiative is an
"activity not an organization"; there are no plans to evolve PSI
into a formal international organization with a headquarters, an international
secretariat, formal rules of procedure, or its own budget.
Primarily to counter non-state actor proliferation and
secondarily to provide support for the PSI, Britain, the
United States, and other countries urged the UN Security Council to adopt Resolution 1540. The PSI
and Resolution 1540 are complementary in that they both bring together countries
in partnership to fight against WMD trafficking. Both also have gone into effect
without a formally negotiated treaty signed by all parties. On the eve of the nuclear
Non-Proliferation Treaty (NPT) Review Conference in May 2005, the United
States and several other countries acknowledged that while the nonproliferation
regime has succeeded in establishing strong global norms, it has not prevented
WMD proliferation. One of the weaknesses of the existing regime is that it does
not sufficiently cover the means of delivery of WMD and related materials nor
does it adequately address activities by private entities. The goal of
Resolution 1540 is to contribute to the international control of WMD and related
goods. However, given the many uncertainties about the definitions of terms in
the resolution and about its implementation, it is questionable how
effective the resolution will be. Process of Adoption
The UN Security Council
adopted Resolution 1540 on April 28, 2004 under Chapter VII of the United
Nations Charter. By taking the extraordinary step of adopting the resolution
under Chapter VII, the UN Security Council highlighted the growing threat to
international security posed by WMD proliferation. The Charter of the United
Nations provides that one of the purposes of the United Nations is to maintain
international peace and security; the Security Council has primary
responsibility for this function. Chapter VII addresses "threats to the
peace, breaches of the peace, and acts of aggression." Recent Chapter VII
resolutions have dealt specifically with Iraq, Afghanistan, other conflict
zones, and the attacks of September 11; Resolution 1540 builds on Security
Council Resolution 1373 that was passed in the immediate aftermath of the 9/11
attacks. Article 39 of Chapter VII gives the Security Council the authority to
determine when a threat to international peace and security exists and to decide
what counteractive measures shall be taken, to maintain or restore international
peace and security. Decisions adopted under Chapter VII are binding upon all
member states and override other international obligations. The UN Security
Council underscored the importance of preventing non-state actors from acquiring
WMD by adopting Resolution 1540 pursuant to Chapter VII.
The resolution took many months to pass through the different stages of negotiation before its
adoption in April 2004. There were early versions of the draft that were
discussed among permanent
member nations of the Security Council. Council members and more than 20
non-members were allowed to comment on this draft at the open Council meeting
held on April 22. However, none of the proposals put forth by non- Security
Council members were taken into consideration when the final text was drafted.
After the comments made during this open session, a few changes were made to the
draft before the Council voted on it, during a closed-door session of Security
Council members on April 28.
The unanimous adoption of the resolution has
prompted varying reactions from member states. Many reacted to the
"legislative" nature of the resolution: it binds all member states
but was adopted by a Council that consists of only 15 members. For example,
India's representative stated: "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." However Spain's
representative noted that the resolution is a "part of the fight against
terrorism and a continuation of what began with resolution 1373 (2001), which
was adopted with the framework of Chapter VII. It would therefore be hard to
understand why one would not apply Chapter VII on this occasion." These
divergent comments reflect the fact that this is only the second time since 1945
that the Council has taken a sweeping, general decision by invoking Chapter VII
powers. The first resolution of this kind, Resolution 1373 addressing threats to
international peace and security caused by terrorist acts, was adopted in
response to the September 11 attacks and contains similar provisions placing
general obligations on states.
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Further Reading:
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Barry Kellman, "Criminalization
and Control of WMD Proliferation, The Security Council
Acts"
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Alyn Ware,
"International
Ju-Jitsu: Using United Nations Security Council Resolution 1540 to Advance
Nuclear Disarmament" |
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Elizabeth Rindskopf Parker and Bryan
Pate,
"A
New UN Approach to International Security of Weapons of Mass
Destruction" |
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Gabriel H. Oosthuizen and Elizabeth
Wilmshurst, "Terrorism and Weapons of
Mass Destruction: United Nations Security Council Resolution
1540" |
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Disarmament Diplomacy,
Mervan Datan,
"Security Council Resolution 1540: WMD and Non-State Trafficking" |
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Cassady Craft, "Challenges
of UNSCR 1540: Questions about International Export
Controls" |
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U.S. Department of State, "U.N.
Measure Called New Tool Against Proliferators" |
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Andrew C. Winner, "The
PSI As Strategy" |
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