Non-Proliferation (1540 Committee)
Expected Council Action
The Council is expected to renew the mandate of the 1540 Committee, which expires on 28 April.
Resolution 1540
Under Chapter VII of the Charter, the Council on 28 April 2004 unanimously adopted resolution 1540, which is aimed primarily at keeping weapons of mass destruction (WMDs) out of the hands of non-state actors. Among its provisions were the following requirements that all states shall:
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Refrain from providing any form of support to non-state actors in their attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery.
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Adopt and enforce appropriate effective laws which prohibit any non-state actor from engaging in any of the foregoing activities. States were required to make these activities by non-state actors and any assistance to them criminal offences in their domestic laws.
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Take and enforce effective measures to establish domestic controls to prevent the proliferation of WMDs and their means of delivery, and appropriate controls over related materials. The resolution detailed the actions required of states to achieve this end.
The resolution left it up to states to determine how they would implement the provisions of the resolution, whether by legislative or administrative measures or both. The resolution also called on states, consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons and their means of delivery.
1540 Committee
The resolution established a Committee consisting of all members of the Security Council to report to the Council on the implementation of the resolution. The committee is currently chaired by Ambassador Peter Burian of Slovakia. The Committee was established only for an initial period of two years.
Background to Resolution 1540
Resolution 1373 (2001) of 28 September 2001, adopted in the immediate aftermath of the September 11 attacks in the US, did not deal in detail with the issue of the relationship between terrorism and WMDs. It subsequently became increasingly evident, from a wide range of reports that terrorist groups, particularly Al-Qaida and affiliated groups, had been attempting to obtain WMDs along with the means of delivery and related materials. The proliferation of WMDs and the resulting potential terrorist threat were underscored by the revelations of the illegal transfer of nuclear technology through a network allegedly controlled by Dr. Abdul Qadeer Khan, who directed Pakistan’s nuclear weapons programme.
Furthermore, there were gaps in existing international legal instruments on non-proliferation and disarmament, particularly in their omission of non-state actors. The Council saw the possibility of WMDs in the hands of terrorists as a serious threat to international peace and security. In this context, some members of the Council perceived the threat as imminent, prompting the need for Council action.
The Council held an open debate 22 April 2004 on the draft resolution during which a number of issues were raised primarily with regard to the mandatory nature of the provisions of the resolution and the legislative authority of the Council. Thirty-four countries participated in the debate with Malaysia speaking on behalf of the Non-Aligned Movement and Ireland on behalf of the European Union.
A number of states objected to the Council’s attempt to again use this approach to mandate adoption of specific legislation by national parliaments. They drew attention to the precedent-setting resolution 1373, adopted under Chapter VII of the Charter, mandating certain legislative requirements of all UN member states. Some states questioned the legitimacy of the Council’s use of its Chapter VII powers for this purpose and whether failure to implement the resolution could automatically result in coercive or other enforcement action by the Council.
Some states argued that the draft resolution, by focusing only on non-proliferation of WMDs, failed to address the related problem of disarmament, an integral component of an effective non-proliferation strategy, and was therefore deficient in that regard.
Many states were of the view that the period of the applicability of the resolution and the mandate of the monitoring committee should be temporary with a consensus for a period not exceeding two years. And a number of states stressed the importance of provisions for technical assistance to those states having the political will to implement the resolution but lacking the expertise and the resources to do so.
Supporters of the resolution, particularly among the P5, argued that by acting under Chapter VII, the Council was sending a strong political message of its resolve to prevent terrorists from obtaining WMDs and their means of delivery. However, while bearing in mind the Council’s prerogative to enforce its Chapter VII decisions through coercive measures or force if necessary, the resolution did not address possible enforcement action, if any, to be taken by the Council against states failing to implement the mandatory provisions of the resolution. Sponsors of the resolution sought to allay the fears of states by emphasising that any enforcement action would require separate further action by the Council.
Some supporters also argued that the resolution would help to close existing gaps in the international non-proliferation regimes while affording the broader UN community time to achieve consensus on related issues under review.
The resolution addressed the issue of potential conflict with existing international regimes (the Nuclear Non-Proliferation Treaty, the Chemical Weapons Convention and the Biological and Toxin Weapons Convention) and the Committee’s possible duplication of the mandates of related international organisations (the International Atomic Energy Agency and the Organization for the Prohibition of Chemical Weapons). The resolution stated specifically that none of the obligations it created shall be interpreted so as to be in conflict with or alter the rights of state parties to these international regimes. The resolution also called on all states to promote the universal adoption and full implementation of these international regimes and to renew and fulfil their commitment to international cooperation on these issues.
Reporting to the 1540 Committee
States were asked to provide a first report to the Committee within six months of the adoption of the resolution on the actions that they had taken or contemplated taking to implement the measures set out in the resolution. While there has been substantial reporting by states, there still remain a number of states that have not submitted a first report to the Committee.
Many of the non-reporting states fall into a category of states lacking capacity and resources and are experiencing reporting fatigue as a result of the proliferation of required reports to the other subsidiary bodies of the Security Council. Most of the states falling into this category need technical assistance to meet their reporting obligations as well as to effectively implement the requirements of the resolution.
Expert Advice
The Council will have the benefit of a comprehensive report prepared by the experts and submitted to the Committee. It is expected that the report will be published in late April in advance of Council action on the expiring mandate of the Committee. The role of the experts is to assist the Committee in evaluating the reports received from states and in following up on those reports with the submitting states. The Council will therefore be able to determine, inter alia:
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the extent to which the resolution has been implemented;
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what more needs to be done by states to achieve full implementation;
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what action is needed to encourage non-reporting states to fulfil their reporting obligations;
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the general rather than specific level of assistance needs of states with limited capacities and resources;
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ways to address the reporting fatigue of some states;
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ways to increase the level of assistance and to enhance its delivery; and
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ways to enhance the level of cooperation with the relevant international organisations.
Key Issues
The importance attached to full implementation of resolution 1540 by most UN members and the fact that the Committee’s work is not yet completed suggest that the term of the Committee will be extended.
Despite the issues raised at the time of the adoption of resolution 1540, and the initial scepticism about the nature and scope of the resolution and the role of the monitoring committee, there now appears to be broader acceptance of the resolution. This is partly due to the fact the Committee has diligently carried out its work using a cooperative rather than a coercive approach in its engagement with states and in evaluating their level of compliance. The Committee has also made available information on technical assistance offers to those states needing assistance to comply with the measures of the resolution.
A further factor is that at this time, under the various mandates, no other existing mechanism reporting to the Security Council has the capacity to easily assume the responsibilities of resolution 1540.
Extension of the Committee’s mandate is likely to result in the Committee becoming more proactive in seeking states’ compliance with the provisions of the resolution, including their reporting requirements. This may include more resolve to assist those states that need help to implement the resolution. An important issue therefore, at least in the minds of many outside the Council, will be whether the Council, in renewing the mandate, will recognise or emphasise this aspect and be ready to provide the donor community with specific priorities for each state needing technical assistance and resources to implement the resolution and to encourage assistance providers to respond to those specific requests.
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Useful Additional Sources
1540 Committee website
Previous Reports on UN Security Council Subsidiary Bodies
Counter-Terrorism Committee (April 2006 Forecast)
Sanctions Committees (March 2006 Forecast)
Council Working Group on Sanctions (January 2006 Forecast)
Counter-Terrorism Committee Issues (December 2005 Forecast)
Update on Council Subsidiary Bodies (November 2005 Forecast)
