A Work in Progress: UN Security Resolution 1540 After 10 Years

The first decade of the 21st century saw the international community take new legal measures to prevent weapons of mass destruction (WMD) from falling into the hands of nonstate actors. Together with the discovery of the Abdul Qadeer Khan nuclear proliferation network in 2004, the September 11 attacks in 2001 represented a wake-up call. These events triggered a search for viable options to expeditiously remedy the most glaring gaps in existing international practices, which were not originally intended to meet the terrorist threat.

This search culminated on April 28, 2004, when the UN Security Council unanimously enacted Resolution 1540, a binding legal instrument to deal with new threats that traditional WMD policies could not adequately address. The rationale behind the resolution was to complement and reinforce existing treaties rather than replace them. Indeed, its text explicitly states that none of its obligations alter or conflict with the rights and obligations of parties under the nuclear Nonproliferation Treaty, the Chemical Weapons Convention, or the Biological Weapons Convention or alter the responsibilities of the International Atomic Energy Agency and the Organisation for the Prohibition of Chemical Weapons.[1] Seen in the context of previously established regimes, Resolution 1540 was meant to spur states to carry out their responsibilities under these accords, enlist nongovernmental stakeholders in the fight against WMD proliferation, and widen that fight to include nonstate groups.

In remarks last year, UN Secretary-General Ban Ki-moon “welcome[d] stronger international measures to prevent terrorist groups” and other nonstate actors “from gaining access to the most lethal weapons and materials” and said that “[b]olstering [the] rule of law in this field is essential.”[2]

Expectations and Reality

From the vantage point of 2014, Resolution 1540’s main accomplishment was to create a universal, legally binding standard out of a patchwork of diverse and potentially conflicting international commitments. In addition, the resolution reinforced nonbinding arrangements such as export control regimes while facilitating the advancement of these arrangements toward the status of customary international law.

In the decade since the adoption of the resolution, the global community has endorsed a range of common practices with regard to international WMD law. Many were introduced with a view toward complying with Resolution 1540 and thus contributed to the development of customary law. Because it was adopted under Chapter VII of the UN Charter, the resolution is mandatory for all UN member states. This compulsory measure began laying the groundwork for the United Nations to enforce laws and accords pertaining to WMD proliferation.

Like any innovation, however, Resolution 1540 elicited a mixed reaction. One main reason for skepticism was that not all UN member states considered the threat of WMD terrorism and illicit trafficking in related materials to be their top priority. Some countries initially questioned the UN Security Council’s role in addressing this threat, particularly the council’s decision to impose binding nonproliferation obligations outside the traditional process of negotiations.

UN member states cannot openly disregard their obligations under Chapter VII. In the absence of clearly defined compliance criteria, however, they could lower the bar for implementation by addressing some of the resolution’s provisions, especially those requiring changes to domestic law, at their own discretion. Some governments did just that shortly after the resolution’s adoption.

Resolution 1540 demanded the following actions from UN member states:

Refraining from providing any form of support to nonstate actors that attempt to develop, acquire, manufacture, possess, transport, transfer, or use nonconventional weapons and their means of delivery.
Adopting and enforcing laws prohibiting any nonstate actor from undertaking, assisting, or financing such activities.
Establishing domestic controls to prevent the proliferation of unconventional weapons and related materials, including measures pertaining to accounting, security, physical protection, border and law enforcement, and export- and trade-related controls.

In other words, Resolution 1540 instructed states on what to do but not how to do it. It left methods to the discretion of individual countries.

Despite this latitude for national discretion, many political and resource challenges have impeded compliance. For instance, rank-and-file citizens often doubt the scale of domestic and global terrorist threats. Such doubts are compounded when little concrete evidence exists showing that such groups operate in some regions.

Another obstacle is competing national priorities, which often limit governments’ ability to channel sufficient resources into compliance with Resolution 1540. Inadequate expertise and numbers of personnel keep some governments from producing the comprehensive reports required by the resolution to document steps taken to meet their obligations.

Some member states are more vulnerable to proliferation than others, particularly those with nuclear power, chemical, and biological infrastructure susceptible to malicious acts. Others are only minor participants in world trade, either as producers or transshippers, and have limited ability to control their borders. Lastly, civil society and the business community may not be aware of Resolution 1540 and thus may not be doing their part to manage the WMD problem.

Critical support for efforts to meet these challenges has come from the 1540 Committee and the committee’s group of experts. The committee, a subsidiary body of the UN Security Council, monitors compliance by reviewing country reports and connecting states in need of assistance with available sources of assistance. Its four working groups represent its four areas of work: monitoring and national implementation, assistance, cooperation with international organizations, and transparency and media outreach.

As the name implies, the group of experts is a compact body of subject-matter experts that renders advice on technical matters associated with the resolution. This group of nine experts was established under Resolution 1977, passed in 2011, and Resolution 2055, passed in 2012, to help the committee carry out its mandate. The experts undertake country visits, peer reviews, analysis of states’ national reports and updates, communication with national points of contact, assistance in developing voluntary national action plans, and other operational activity.

Among their most significant contributions was a matrix for evaluating national legislation and other measures to implement Resolution 1540 and for identifying and plugging gaps in these measures. The group of experts prepared a matrix for each state. Each matrix includes 389 fields covering activities related to the operative part of the resolution. To ensure that the matrices remain “living documents,” the committee and experts continuously examine incoming state reports while conducting research on websites of governments and international, regional, and subregional organizations.

The UN Office for Disarmament Affairs (UNODA) lends support to the committee and its group of experts in several areas. It coordinates implementation efforts on a regional basis with help from its regional centers, and it fosters partnership among international organizations and key stakeholders, including civil society. Since 2006, the office has organized or supported more than 30 regional or thematic workshops to raise awareness of WMD-related problems and solutions, help governments build the capacity to make and enforce the necessary laws and regulations, and facilitate assistance to governments that need it.

A Way Forward

From the outset, three principles have underlain Resolution 1540: national discretion, cooperation, and assistance.

National discretion. Neither the 1540 Committee nor its experts are attempting to impose standard or model laws on states. This is a task for national authorities and relevant international organizations qualified to provide advice in this area. Nevertheless, the resolution’s across-the-board mandate helps nurture best practices among UN member states for preventing WMD proliferation and terrorism and harmonize laws and practices dealing with that issue.

Cooperation. The 1540 Committee’s mandate is to work with states to help them implement the resolution and cooperate with one another in doing so. The committee does not constitute a sanctions regime in the UN system. States, however, are free to impose sanctions on nonstate actors should they deem such measures necessary for effective compliance with the resolution.

Assistance. Some states require assistance to build up their capacity to implement the resolution in an efficient and affordable way. The 1540 Committee itself does not provide assistance, but it does play a matchmaking role, connecting available donors with prospective recipients of assistance.

Once a state exercises its prerogative to request assistance, the committee can seek potential partners and donors among other states or relevant international, regional, or subregional organizations. Assistance raises the average level of capacity among UN member states so that they can cooperate among themselves and with international bodies as fully competent partners.

In 2011, UN Security Council Resolution 1977 extended the mandate of the 1540 Committee for another decade, to 2021. Resolution 1977 was a landmark event in the evolution of the nonproliferation system created by Resolution 1540, in part because it represented a major step in institutionalizing that system.

One practical effect of the extension was to expand the tool kit for putting the three principles into practice. New tools include country-specific visits and dialogue among the committee, governments, and assorted stakeholders within countries. Closer contact with national stakeholders helps the committee obtain first-hand information about legislative and enforcement measures.

The first 1540 Committee visit to a state took place in September 2011, just a few months after Resolution 1977 was enacted. The U.S. government invited the committee to pay a visit. Since then, several more countries have invited the committee to make use of this new tool.

Generally, these visits include three segments: high-level meetings, working sessions, and on-site visits. The details of the programs for these visits are worked out by the host country in cooperation with the 1540 Committee experts. The three segments complement one another and provide the 1540 Committee delegation a very broad and complete perspective of progress toward implementation of Resolution 1540 and challenges that remain to be overcome. Country visits have become a well-established practice, but the first visit in Asia occurred only recently, in November 2013, when South Korea invited the 1540 Committee to discuss the country’s third national implementation report and hold consultations with several government agencies, including the Ministry of Foreign Affairs, the Nuclear Security and Safety Commission, and the Ministry of Trade, Industry and Energy.

As noted above, cooperation with international, regional, and subregional organizations is crucial to sharing experiences, lessons learned, and effective practices. The 1540 Committee is developing ways of operating with those organizations on a case-by-case basis, reflecting the variation in each organization’s capacity and mandate. Among available options is the development of formal and informal working relationships with UN bodies and nonproliferation arrangements such as nuclear-weapon-free zones and initiatives launched by the nuclear security summits. The preamble of Resolution 1977 recognized the contribution of the 2010 nuclear security summit to the effective implementation of Resolution 1540.

Voluntary national implementation action plans are prepared with assistance from the 1540 Committee to map out national priorities and plans for implementing the key provisions of the resolution. The resulting plans are then submitted to the committee. Drafting an action plan involves conducting a gap analysis—unearthing defects in laws, institutions, or enforcement capacity; ascertaining whether these gaps are serious problems; and establishing priorities for closing the gaps. Following this preliminary analysis, planners identify opportunities or courses of action to help close the gaps. Governments then execute these actions, and, at the request of the government, the committee evaluates them.

Action plans have been submitted to the 1540 Committee by the United States in 2007, Argentina in 2009, Canada in 2010, France in 2011, Serbia and Belarus in 2012, and Kyrgyzstan in 2013. Governments are not required to submit plans, but one hopes more countries will emulate these early examples to make the implementation process more transparent and predictable. An important rationale for developing such plans is to encourage the establishment of an interagency process, where it is missing, as an indispensable decision-making instrument to address WMD risks.

Efforts are under way to include in the implementation process a wide range of stakeholders, including the business community and civil society. To this end, Germany launched in April 2012 the so-called Wiesbaden process by convening in that city the first conference of international, regional, and subregional industry associations. Its objective was to raise awareness of the resolution’s objectives and promote the effective sharing of best practices among industry actors involved in the implementation of Resolution 1540.

The conference was followed by other sector-specific and subregional events. In recognition of civil society’s growing role in supporting states’ implementation of Resolution 1540, the UNODA in January 2013 held the first Civil Society Forum, which was designed to incorporate civil society more fully into international and national efforts to achieve the objectives of the resolution.

Additional tools that can contribute to effective implementation of the resolution may emerge as the 1540 Committee conducts two comprehensive reviews to determine how fully the resolution has been implemented. Under the terms of Resolution 1977, one review must take place before December 2016 and the other before April 2021, which is before its mandate is due to be renewed. After receiving these reports from the committee, the UN Security Council may adjust the committee’s mandate or authorize other initiatives to combat the danger of nonconventional weapons. Charting the way forward, in short, means constructing arrangements that are as nimble and adaptive as possible.

A Source of Sustainability

Making implementation of Resolution 1540 sustainable is still a long-term challenge. As the regularly extended resolution becomes an institution, there clearly is a need to identify a common foundation for threat perception and compliance motivation among those who are, in the long-term perspective, supposed to organize, promote, and implement this process in an environment of changing threats.

One way to achieve this goal is to promote a comprehensive concept of security culture that would be applicable to the broad mission of Resolution 1540. This comprehensive approach would focus on the human performance in several key functional areas, including security of relevant materials and associated facilities, strategic trade and trafficking controls, cybersecurity, and knowledge management.

These areas have common culture elements across all three WMD domains—nuclear, chemical, and biological weapons[3]—but also unique features specific to each of them. In this sense, such culture can be defined as an assembly of beliefs, attitudes, and patterns of behavior that can reinforce or complement operational procedures, rules, and practices, as well as professional standards and ethics designed to achieve WMD nonproliferation goals and prevent WMD terrorism.[4] This approach, which is based on the “human factor,” is vital to the creation of a comprehensive security culture.

There are at least four reasons a common model of comprehensive security culture is becoming a necessity for sustainable implementation of the resolution.

First, if the extension of Resolution 1540 represents a step toward institutionalizing the resolution, then organizations active in this area must instill common beliefs, assumptions, and values among national stakeholders. In short, they need to adjust their cultures to the new norms codified by the resolution. Without a robust, comprehensive culture reinforcing the counter-WMD mandate, the emerging institution built on Resolution 1540 risks falling short of expectations. The goal of sustainability will remain out of reach, and the new institution will fail to accomplish its mission without an integrating culture.

Second, although the strength of Resolution 1540 unquestionably lies in its mandatory legal status for all UN member states and in states’ recognition that it helps fill gaps in the international legal nonproliferation framework, the challenge is how to enlist nongovernmental stakeholders whom the resolution is not likely to bind. Such stakeholders include the business community, academia, nongovernmental organizations, and the public. Culture is crucial in motivating adherence to norms where the force of law is weak or lacking.

Third, breakthroughs in science and technology tend to blur the traditional dividing lines among the chemical, biological, and nuclear domains, affecting more than one domain at the same time. Moreover, modern technologies and their products tend to evolve more quickly than the regulatory process. Control of them, at least in the initial stages, depends increasingly on the vigilance and discretion of human decision-makers and their perception of security. A strong security culture will help create a workforce that is strongly motivated to carry out an in-depth analysis before making any decisions that are potentially proliferation sensitive.

Fourth, developing a comprehensive model for a sustainable WMD culture would help countries that lack relevant experience and expertise understand the role of the human factor and enhance their standards for implementation of Resolution 1540. A universal methodology and common foundation would help them build national human capacity. On the other hand, if WMD specialists continue to pursue their own separate agendas and lack lines of communication or compete with one another for attention and funding, the nation’s defenses will remain porous and unsustainable.

WMD security culture is intrinsic to high standards of professionalism as applied to key elements of the regime created by Resolution 1540. It enables a person to respond to familiar and unfamiliar security threats out of carefully nurtured habit rather than improvisation. In strategic trade and trafficking control, the culture can enhance due diligence in the process of issuing export licenses, verifying end users, and preventing illegal transfers. Cybersecurity benefits from enhanced vigilance, attention to details, and questioning attitudes. In research on advanced dual-use technologies, professional standards in knowledge management require a mindset focused on WMD proliferation prevention and discretion in sharing sensitive information.

Conclusion

No institution tasked with addressing an item atop the global agenda can reach maturity after 10 years. The record of Resolution 1540 and the 1540 Committee is mixed and clearly demonstrates recurring problems. Much-needed assistance has yet to be targeted effectively to meet the specific needs of recipient countries. Security-focused priorities have to be balanced by multipurpose assistance projects visibly addressing, where possible, not only WMD risks but also countries’ economic and development needs. Doubtless part of the problem is the rigid and bureaucratic decision-making characteristic of multilateral programs locked in a narrow definition of security objectives.

On the positive side, innovative methods have been applied, and there have been notable achievements. More than 90 percent of UN member states have submitted national reports detailing measures that they have taken or plan to take to implement the resolution’s requirements. Some 170 states and 50 international and regional organizations have participated in regional events designed to raise awareness of WMD-related problems and solutions, exchange best practices, and invigorate networking among the resolution’s stakeholders. A voluntary fund with a mandate of bolstering implementation and cooperation has been established, drawing on grants from donor countries and the European Union.

Realistically, a world free of WMD terrorism is unlikely to be achieved soon, but the world community is doing its best to prevent such acts from happening. In this sense, the 1540 Committee needs to focus on two fundamental issues: making implementation of Resolution 1540 sustainable and keeping the system flexible enough to continue addressing both current threats and new threats that are bound to emerge from scientific and technological progress. Prospects for accomplishing these goals depend on whether all UN member states take seriously their individual responsibility under the resolution to protect the world from catastrophic acts of WMD terrorism. This is a matter of vision, commitment, and leadership.

Igor Khripunov is a distinguished fellow and adjunct professor at the Center for International Trade and Security at the University of Georgia. He is also editor in chief of the 1540 Compass, a journal published by the center in cooperation with the UN Office for Disarmament Affairs.

ENDNOTES

1. UN Security Council, S/RES/1540, April 28, 2004.

2. UN Department of Public Information, “‘There Are No Right Hands That Can Handle These Wrong Weapons,’ Secretary-General Says of Mass Destruction Weapons, at 1540 Event, Urging Their Total Elimination,” SG/SM/14968, DC/3432, April 22, 2013.

3. Although there initially was a consensus among drafters of Resolution 1540 that radiological weapons are not covered by the resolution, there is now a growing recognition among experts that “nuclear” in the footnote definition can be interpreted as including “radiological.” Terence Taylor, “Is ‘R’ Covered by 1540?” 1540 Compass, No. 5 (Winter 2014), p. 6.

4. See International Atomic Energy Agency, “Nuclear Security Culture: Implementing Guide,” IAEA Nuclear Security Series, No. 7 (2008), p. 3.