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The adoption of Resolution 1540 raises several issues and poses
ongoing challenges for the international community. The first and foremost
question involves the Security Council's authority. The Council, in
unanimously adopting the resolution has imposed obligations on states that
neither negotiated nor ratified the process and now have no choice but to
comply. There is also the question of whether a UN resolution should address an
issue that has traditionally been covered by the three main treaties of the
nonproliferation regime. However, these treaties do not directly regulate
non-state actor behavior and the requirements outlined in the nuclear
Non-Proliferation Treaty (NPT), the Chemical Weapons
Convention (CWC), and the Biological and
Toxins Weapons Convention (BWC) leave substantial gaps, especially given the
less than universal adherence to these WMD-related treaties. There are signs
that the resolution will complement rather than conflict with the existing
treaties. For example, the Director-General of the Organization for the
Prohibition of Chemical Weapons (OPCW), Ambassador Rogelio Pfirter, provided a
briefing to the 1540 Committee in which he emphasized that improvements in
measures to implement the CWC are occurring in parallel with the complementary
requirements laid down in Resolution 1540, which are binding on all UN member
states, including states that are not members of the OPCW.
Another issue that has been raised is whether the Security Council will back up the resolution
with enforcement measures to hold states accountable for their compliance, and
whether states fully appreciate the implications of the obligations that have
been placed upon them. Furthermore, states must meet the resolution's
legally binding requirement to institute "appropriate" and
"effective" measures to deny non-state actors WMD. However, the
resolution does not define what is "appropriate" or
"effective," leaving this task to the Committee to interpret these
standards. Another issue that has come to light is that many states, for example
Burkina Faso, Peru, the Republic of Namibia, Oman and others contend that the
resolution does not apply to them because they lack the weapons or materials
targeted by the resolution. Additionally, others maintain that they do not have
the capacity or the resources to execute the mandate of the resolution. The
burden of responsibility then falls on the richer nations of the OECD
and the Australia Group
to develop and implement the necessary legal structures and enforcement
measures. This brings to light concerns about lack of enforcement and what
becomes of non-compliant states when "non-compliance" has not been
clearly defined. There is also significant uncertainty about the future of
Resolution 1540 and how it will be implemented once the mandatory two-year
meeting period expires. A final issue is the effective implementation of
Resolution 1540 and the responsibility of international organizations and states
with the capacity to satisfy the terms of the resolution to help those 150
nations without the adequate legal infrastructure to successfully do the same.
While Resolution 1540 shows the resolve of some states to stop the
proliferation of WMD to non-state actors, its provisions will require much
cooperation by states in order to be effective.
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