Capstone and mortar: Notes on the creation of UNSCR 1540

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When the UN Security Council unanimously adopted resolution 1540 (UNSCR 1540) on April 28, 2004, it created both a capstone and the mortar to unite several disparate international regimes aimed at preventing the proliferation of weapons of mass destruction (WMD) and their means of delivery. As a resolution taken under Chapter VII of the UN Charter, it sits atop all other forms of international law. As a means of closing gaps within and between the international nonproliferation regimes covering nuclear, chemical, biological weapons and their means of delivery, UNSCR 1540 creates a more formidable obstacle to those seeking such weapons.

With UNSCR 1540, the Security Council took a very innovative action. UNSCR 1540 created new, legally binding obligations within many of the old nonproliferation regimes, such as requiring prohibitions against proliferation activities by nonstate actors, obliging states to secure sensitive materials, and requiring states to adopt export controls on such items. As such, it became only the second UNSCR adopted under Chapter VII not to address narrowly defined security challenges or conduct2. It also established wholly new fields, such as combating the financing of proliferation and illicit brokering, and, to this day, it remains the only legally binding international instrument covering the proliferation of means of delivery of WMD and their related materials.

Ten years on, we have many examples of the considerable impact UNSCR 1540 has had. Dozens of states, as well as the European Union, have changed their laws, regulations, policies, and programs to mesh with the more than two hundred individual obligations the resolution establishes. Many international, regional, and subregional organizations have incorporated elements of the resolution into their mandates and work programs. A number of civil-society organizations have projects to help further implementation of the resolution (including publishing this very journal). UNSCR 1540 has become a foundation for the practical business of nonproliferation.

Most observers rightly point to President Bush’s address to the UN General Assembly in September 2003 as a catalyst for action on nonproliferation by the Security Council.3 However, French president Chirac and Russian president Putin, as well as U.K. foreign minister Straw, also called on the Security Council to take action against proliferation in their speeches to the same Assembly.4 As we shall see, a far broader recognition of the threat posed by proliferation of WMD and their means of delivery to nonstate actors existed in the international community before these speeches.

No definitive work on the origins of UNSCR 1540 exists, yet understanding how and why this uniquely powerful and comprehensive tool to combat proliferation came to exist holds more than just historical interest. The Security Council clearly understood that compliance with the resolution would pose many long-term challenges, a point it recognizes repeatedly in subsequent UNSCRs extending the mandate of the 1540 Committee, the body it established to monitor and foster implementation of the resolution. A better sense of the history of the resolution can help identify where key legal, technical, and political boundaries exist and where changes in the current environment might create opportunities to strengthen international efforts to combat proliferation.

A complete answer to how and why UNSCR 1540 came to be goes well beyond the scope of this article. Tackling those questions requires interviewing the many participants in this creation story and seeing the documents they saw, many of which remain classified. Instead, using open-source material, this article attempts to establish a pattern of creation, a timeline that students of UNSCR 1540 might find useful as a benchmark.

Precursors to UNSCR 1540

Beginning with UNSCR 8 (1946), the Security Council sporadically dealt with WMD, ranging from proposals to investigate the alleged use of biological weapons. to the work of the Disarmament Commission, to sanctions against the South African nuclear program, to nuclear security assurances tied to the Nuclear Non-Proliferation Treaty. The Council began to quicken its focus on WMD proliferation with the onset of the first Gulf War and its adoption of UNSCR 687 (1991), which linked the lifting of sanctions on Iraq to the removal of WMD programs.

The acme of this period took place on April 3, 1992, with the first-ever Council meeting at the level of heads of state and government. The unprecedented meeting explored questions regarding the responsibility of the Security Council for the maintenance of international peace and security, reflecting renewed optimism that the Security Council could shrug off of its Cold War shackles. The resulting presidential statement (PRST) covered several security matters, including declaring, for the first time, that “[t]he proliferation of all weapons of mass destruction constitutes a threat to international peace and security.”5 While the PRST paved the way for further action by the Council, its work on WMD in the 1990s continued to emphasize national WMD programs, particularly those of Iraq, North Korea, India, and Pakistan.

The events of September 11, 2001, firmly established that at least some terrorists would readily cause mass civilian casualties. Soon after these attacks, several international bodies outside of the Security Council issued new calls for the international community to address the nexus of WMD proliferation and terrorism. In its sessions in 2002, for example, the UN Advisory Board on Disarmament Matters began addressing the WMD terrorist threat, concluding that the threat posed a real and serious danger to the international community, and proposing that the newly created UN Security Council Counter-Terrorism Committee “coordinate all international efforts to prevent possible terrorist acquisition or development of weapons of mass destruction.”6 It also urged states to use the review process in existing nonproliferation mechanisms “to take all necessary measures to prevent unauthorized persons from obtaining” WMD and materials and technologies used to manufacture them.

The first UN General Assembly resolution on this topic was introduced by India and  specifically acknowledged the considerations by the Advisory Board.7 The resolution, subsequently adopted by the General Assembly in January 2003, urged all UN member states to implement and strengthen both international and national measures to prevent terrorists from acquiring WMD and related materials. The Advisory Board also requested the UN secretary-general to compile a report to present at the 58th session of the General Assembly on measures to address this threat. This represented a step toward monitoring that would become an important element of UNSCR 1540.

Arguably, the G-8 issued the document with the greatest impact on the development of UNSCR 1540, namely the “Principles to prevent terrorists, or those that harbour them, from gaining access to weapons or materials of mass destruction.” The principles, more commonly known as the Kananaskis Principles, appeared in June 2002.8 UNSCR 1540 repeats text, in whole or in part, from the first five of these six principles. Table 1 compares elements of the five principles with relevant paragraphs in the resolution, and clearly demonstrates their close connection. Additionally, Principles 2-5 each call for the provision to states of assistance necessary for their implementation. UNSCR 1540 consolidates these calls for assistance in its Operative Paragraph (OP) 7, but further clarifies who should provide assistance (states in a position to offer assistance) to whom (states lacking the legal and regulatory infrastructure, implementation experience, or resources) and under what circumstances (in response to specific requests).

Diplomats often see previously agreed language as a safe harbor. As a text on which France, Russia, the United Kingdom, and the United States had agreed already, the Kananaskis Principles created a pool of language and concepts on which those four permanent members of the Security Council could draw in drafting the resolution. There is considerable overlap between the two texts. Yet UNSCR 1540 strips away some of the concepts entirely (e.g., catch-all controls, minimizing or eliminating stocks of dangerous materials), makes others into recommendations rather than core obligations (e.g., developing and maintaining national control lists), or relegates them to footnotes (e.g., multilateral control lists, missiles, and related materials, equipment and technology), hinting at some of the more divisive issues in negotiating the resolution.

But what of the concepts in UNSCR 1540 not found in the Kananaskis Principles, namely nonstate actors (OPs 1 and 2), financing (OPs 2 and 3d), outreach to industry and the public (OP 8d), the call not to reinterpret treaties or alter rights (OP 5), collaborative action to prevent illicit trafficking (OP 10), and the creation of a subsidiary body of the Security Council to monitor implementation (OP 4)? In some cases, the genesis seems clear. In its efforts to combat terrorism, for example, the Security Council had already identified financial measures as an important tool in UNSCR 1373. UNSCR 1540 certainly reflects that development. UNSCR 1373 created a Security Council subsidiary body, i.e., the Counter Terrorism Committee (CTC), to monitor implementation of the resolution. Several states referred to it in later Security Council sessions on the resolution. However, the Council circumscribed the powers of the subsidiary body for UNSCR 1540 compared to the CTC, particularly on reporting requirements and on assessing national implementation efforts. This suggests some division among Security Council members. Similarly, OP 10 of UNSCR 1540 has its roots in the Proliferation Security Initiative, but, as we shall see, adapted to the divergent views among Council members regarding the initiative.

Although one may not point directly to a specific UNSCR or nonproliferation initiative, outreach to the public and industry nonetheless comprised an important part of national and international efforts to implement domestic nonproliferation measures. From accounting for materials in the Chemical Weapons Convention (CWC) and Nuclear Non-Proliferation Treaty (NPT) regimes to controlling exports of proliferation-sensitive materials, many states clearly saw such outreach as an important prerequisite for effective implementation of many nonproliferation measures.

More than a year before the speeches of September 2003, therefore, key Security Council members had expressed and supported several basic concepts that would eventually appear in UNSCR 1540. Notably, these basic concepts, including those on preventing illicit transactions, also emerged many months before the public unravelling of the A. Q. Khan network in late 2003 and early 2004.9 It seems likely that those revelations, and the deadly Madrid bombings in March 2004, did have an impact, but more in gathering a broad base of support for the adoption of the resolution than in forming its roots.

Developing the Resolution

Despite its highly unusual nature, the evidence does not suggest that the initial process for developing UNSCR 1540 veered from that of more typical resolutions adopted under Chapter VII of the UN Charter. In October 2003, the United Kingdom reportedly shared an informal paper and Russia an informal draft resolution, while the United States continued to work on its draft.10 Allegedly, the permanent five members exchanged drafts as often as every few days during these early discussions.11

By mid-November, members had achieved enough progress on the resolution that it began circulating among other Council members. Differences among the permanent members, however, took more months to resolve and then build a consensus among the other members of the Council.12 Datan, for example, speculates on the reasons for changes in drafts circulated on December 16 and 19, 2003, and then again in January 2004, on the application of Chapter VII to parts or all of the resolution, and to the definition of items related to WMD and means of delivery. Oosthuizen and Wilmshurst note that these definitions caused difficulty in the negotiations, with regard to both their content and how to include them in the resolution. In its statement in support of the resolution, China also noted that through these negotiations, the drafters had deleted a reference to interdiction at China’s request.13

Meanwhile, outside pressures on the Security Council members to take action on WMD nonproliferation continued to mount. As early as August, the United States apparently began giving information to Pakistan regarding the activities of A. Q. Khan, which it continued to supply as autumn turned to winter. In October, with Libya, the United States, and the United Kingdom in the midst of discussions aimed at ending Libyan WMD programs, German and Italian authorities intercepted the BBC China, bound for Libya with containers holding pieces for sophisticated centrifuges disingenuously labeled as machine parts.14 Confronted with this and other evidence, President Gadhafi agreed to renounce the Libyan nuclear- and chemical-weapons programs, and the evidence of the links to the Khan network became more widely known. In December and January, Pakistan brought in 26 individuals for questioning regarding alleged proliferation activities, including three Khan Research Laboratory directors. Eventually Pakistan placed A. Q. Khan under house arrest on January 31, 2004, and he made a public confession on February 4, 2004. These revelations likely added public pressure on negotiators to reach an agreement and produce a resolution.

By early spring, the last major unresolved issue seemingly involved the mechanism to monitor the implementation of the resolution. According to Datan, the establishment of a subsidiary committee of the Security Council does not appear until a March 28 draft, whereas prior drafts had required states to report on implementation to the president of the Council or the UN secretary-general. The new body could call on other expertise as appropriate.

As a decision taken under Chapter VII, the draft resolution meant that all states would need to take many significant domestic measures to implement their obligations. This unprecedented, expansive expression of Security Council authority, although within its mandate under the UN Charter, generated a realization that the Council might face a “legitimacy” gap among the whole of the UN membership. This prompted the drafters to address these more general concerns by engaging the international community more broadly than usual. Consequently, when the permanent members officially shared a draft resolution with the ten elected members of the Council on March 24, it appears that these other members of the Security Council, non-Council members, NGOs, and the press already knew something of the negotiations and sought a voice.15

Accordingly, the permanent members held consultations not just with the elected members of the Security Council, but with the Non-Aligned Movement (NAM). Malaysia, representing the NAM members, noted its appreciation of the very useful informal consultations with the sponsors that took on April 6.16 In response to such consultations, Brazil, an elected Council member at the time, circulated a non-paper on April 8 offering some alternative views, and on April 20 circulated a few amendments expressing its concerns with the near-final version of the resolution.17

According to Datan, several NGOs had acquired early drafts of the resolution and began organizing a campaign by civil-society organizations to demand an open debate by the Security Council through contact with national ministries of foreign affairs and the Security Council. Eventually this included submitting draft language to the Council members, distributing a media advisory, and issuing press statements during March 2004. Datan claims that these consultations produced some changes that went into an April 15 draft text.

This unusual outreach effort by the permanent members indeed culminated in an open session of the Council on April 22, where more than 30 UN member states made statements. Three overriding themes emerged from the debate arguing for adoption of the draft resolution. First, the speakers almost universally pointed to the nexus of proliferation of WMD and illicit activities by nonstate actors as a serious threat to international peace and security. Second, most speakers agreed that gaps existed in the existing international instruments for nonproliferation regarding such threats. Third, many participants expressed a sense of urgency behind the calls for action by the Security Council. The statement by Jordan captures this impact of this last theme on many:

In spite of our belief that the best approach we can adopt to address this matter is to exert efforts to engage in an intensive multilateral negotiation process aimed at developing an international instrument that regulates and addresses this problem, we still feel that, owing to the urgency of the threat that the current gap poses, a measured intervention by the Security Council would be both necessary and appropriate.

Most speakers focused on one or more concerns, most notably: the Security Council acting as a legislature and the use of Chapter VII of the UN Charter; disarmament; the relationship with other international nonproliferation instruments and bodies; the mandate of the proposed Committee; enforcement and coercion; and inadequate definitions. In the absence of earlier drafts of the resolution, it remains difficult to determine exactly what the sponsors did in response to concerns raised from late March through the open session on April 22. Nonetheless, in its final form the resolution speaks directly to most of these concerns expressed in the open session.

Perhaps the most frequently mentioned recommendation involved the need to limit the invocation of Chapter VII. For example, Algeria, Brazil, and Chile—all then elected members of the Security Council—suggested narrowing its application to part but not all of the resolution, such as the first three OPs.18 India took another approach and argued against including any sanctions or authorizing any specific enforcement action if the Council adopted the resolution under Chapter VII. To these ends, the Council does not use the word “decides” in several OPs. Many states interpret this omission as circumscribing the obligatory nature of those paragraphs. Notably, in line with the Brazilian statement, the Council does use “decides” in OPs 1-3, which outline the core prohibitions and domestic controls that states need to undertake. In addition, several sponsoring and supporting states made assurances that the resolution would not precipitate coercive action to ensure its implementation.19

Similarly, the language of OP 5 certainly reflects the deep-seated concerns expressed in the open session that action by the Security Council should not undo actions taken by the larger international community in the realm of nonproliferation and disarmament. This included concerns about interfering with “the right to possess nuclear materials and facilities for peaceful purposes” under the NPT. Most notably, the Council again uses the word “decides” in OP 5 to articulate the obligation of all states not to reinterpret existing rights and responsibilities in existing nonproliferation and disarmament instruments and bodies. The Council further underscores this point in its call to cooperate within the framework of the IAEA and OPCW in OP 8(c). Concomitantly, in OP 8(a) the Council only “calls upon” all states to promote universal adoption and national implementation of nonproliferation treaties, and, according to Boese, specifically modified the text to apply to current treaty parties to reflect an issue raised by Pakistan.

In OP 4, the resolution addresses several of the concerns raised by speakers in the open session regarding the proposed Committee. In particular it extends the mandate of the Committee to two years from the six-month period that appears in earlier drafts, reflecting the concern that six months did not allow adequate time for reporting. It also responds to the perceived “[e]xcessive and exhaustive reporting obligations” under the CTC and al Qaeda/Taliban monitoring regimes, as expressed by India, by merely calling for but not requiring states to submit an initial report in six months.

Regarding disarmament, France specifically mentioned supporting the incorporation of a reference to disarmament obligations in the preamble in its remarks during the open session. The reference appears as Preambular Paragraph (PP) 13, which reflects the compromise. As German UN ambassador Gunther Pleuger, whose country then held the presidency of the Security Council, stated after the adoption of the resolution, “We would have preferred, however, to see it highlighted in the operative section as well.” Another compromise appears regarding the issue of using the resolution to hamper international cooperation for use of materials, equipment, and technology for peaceful purposes. This point was raised during the open session, including by India and Iran. In the end, the resolution specifically affirms this norm, but couples it with an admonition that the “goals of peaceful utilization should not be used as a cover for proliferation.”

The Council did not address every concern that emerged in the open session. As a non-permanent member of the Council, Algeria (in line with the official NAM statement) called for the resolution to affirm the value of efforts to create WMD-free zones. This does not appear in the final text. Peru, also an elected Council member, complained about the lack of specificity in the definitions (e.g., the lists of control items, means of delivery), a point others raised as well, to no avail. This may reflect a reluctance to change text that had proven difficult to resolve among the drafters months earlier.20

Perhaps the most important result of these consultations was the notable shift in views expressed by Pakistan. During the open session on April 22, Pakistan issued a statement asserting, along with other concerns, that “there is no justification for adopting this resolution under Chapter VII of the Charter.” Yet on April 28, in its position as a non-permanent member of the Security Council, Pakistan voted in favor of the resolution. In the remarks at the April 28 meeting of the Security Council, Pakistan’s Ambassador Munir Akram, after referring to the statement of its concerns at the open session, said:

We appreciate the serious efforts made by the sponsors of the draft resolution to accommodate our major concerns and those of other States. The draft resolution was revised three times. That enabled Pakistan to support the resolution.21

He then referred to assurances to the Council by the sponsors that the resolution addressed a gap in international law and does not seek to prescribe specific legislation. OP 2 of the resolution specifically leaves this question to national discretion. Ambassador Akram also noted that the “legally binding obligations under Chapter VII arise only in respect of paragraphs 1, 2, 3, 4 and 5, which start with the word “decides” and which, at our request, have been grouped together for presentational purposes.”

He also mentioned changes by the sponsors to “clarify that there is no intention to oblige States to join treaties or arrangements to which they are not parties.” These changes appeared in PPs 5 and 11 and OP 8 (c), and through the insertion of the word “henceforth” in PP 15 to make it explicit that the resolution did not apply retroactively.

Conclusion

UNSCR 1540 has had a profound impact on the nonproliferation of weapons of mass destruction and their means of delivery since its adoption in 2004, as the 1540 Committee reports amply demonstrate. Although far from fully implemented by all states, many states have modified or adopted laws and policies to conform with the obligations of the resolution, while dozens of international and regional organizations have incorporated the objectives of the resolution into their mandates and programs. Given its impact, a better understanding of the origins of the resolution may help us see why it has proven so effective.

The evidence shows that despite its unique character for a Security Council resolution, UNSCR 1540 stems directly from several earlier efforts to address emerging nonproliferation threats, particularly the Kananaskis Principles. Security Council members also purposefully set the resolution and the 1540 Committee within the existing nonproliferation instruments and bodies, rather than seeking to modify them. While Chapter VII resolutions rest above all other forms of international law, the Council both circumscribed the impact of the resolution on these nonproliferation instruments and sought to fill gaps in their mandates. That only served to bolster their effectiveness.

The timeline also points toward the importance of several heads of government reaching the same conclusion independently and nearly simultaneously—in this case that the Security Council needed to take action against proliferation of WMD—before the international community could take such bold steps. While often seen as a surprising embrace of multilateralism by the Bush administration, arguably several other national leaders can also claim credit in calling for Security Council action in the very same General Assembly session. This confluence of interest from the highest levels—not only at the Assembly but through the G-8 summit process—gave those negotiating the initial draft of the resolution considerable leeway for boldness.

Having agreed language on core elements of a resolution clearly permits drafters to focus on resolving a relatively narrow range of issues, both technical and political. When coupled with expressions of the need for urgent action from the very highest reaches of those governments that exercise the most control over the institution tasked with taking action (i.e., the permanent members of the Security Council), perhaps this makes a bold outcome likely rather than merely possible.

A bold approach, however, required the sponsors to take unusual measures to build a consensus among the remaining members of the Council and, as importantly, among the larger community of states that would need to implement the resolution. The extensive consultations with non-Council members, including in an open session, and with nongovernmental organizations, went far toward allaying concerns that the Council had overstepped its bounds. Although the Council and the 1540 Committee would take additional action to address perceptions of a gap in the legitimacy of the resolution after 2004, the consultations—and the responsiveness of the drafters—during the months prior to the adoption of the resolution created a strong foundation for acceptance of the obligations of the resolution by all states.

Hopefully, this brief attempt to establish a timeline for the formation of the resolution and link the resolution to other international nonproliferation documents developed in the early years of this millennium will increase our understanding of the resolution. The timeline, for example, suggests that while the revelations of the A. Q. Khan network could have sparked greater support for the resolution from the wider UN body, they occurred after the initial movement toward crafting the resolution. Disentangling the web of circumstances and actions, I hope, will give rise to research that will more fully address how and why this remarkable resolution came into being, and discern the implications that understanding holds for our continued efforts to reduce the vulnerabilities we face in combating the proliferation of WMD and their means of delivery.

Endnotes

  1. The author served as an Expert for the 1540 Committee from February 2005 through March 2012, including its Coordinator from August 2010 through March 2012.
  2. The first resolution was UNSCR 1373 (2001) on counter terrorism and establishment of the Counter Terrorism Committee.
  3. United Nations General Assembly (UNGA), 2003, A/58/P.7, “Address by Mr. George W. Bush, President of the United States of America,” pp. 8-12.
  4. UNGA, 2003, A/58/P.7, “Address by Mr. Jacques Chirac, President of the French Republic,” pp. 14-17; UNGA, 2003, “Address by His Excellency Mr. Vladimir V. Putin, President of the Russian Federation,” A/58/PV.11, pp. 4-6; and, UNGA, 2003, Remarks by Jack Straw, Secretary of State for Foreign and Commonwealth Affairs, A/58/PV.11, pp. 30-32.
  5. UNSC, “Note by the President of the Security Council,” S/23500, 31 January 1992.
  6. UNGA, “Work of the Advisory Board on Disarmament Matters:  Report of the Secretary-General,” A/57/335, 22 August 2002, pp 4-5.
  7. UNGA, 57/83, “Measures to prevent terrorists from acquiring weapons of mass destruction,” Resolution adopted by the General Assembly on the report of the First Committee (A/57/510), 9 January 2003.
  8. Group of 8, “Statement by G8 Leaders: The G8 Global Partnership Against the Spread of Weapons and Materials of Mass Destruction,” Kananaskis, Canada, June 27, 2002.
  9. International Institute for Strategic Studies (IISS), “Nuclear Black Markets:  Pakistan, A.Q. Khan and the rise of proliferation networks, a net assessment,” London:  IISS, 2007, p. 97.
  10. Gabriel H. Oosthuizen and Elizabeth Wilmshurst, “Terrorism and Weapons of Mass Destruction:  United Nations Security Council Resolution 1540,” Briefing Paper, BP 04/01, International Law Programme, Chatham House, September 2004, p. 3.
  11. Merav Datan, “Security Council Resolution 1540: WMD and non-State trafficking,” Disarmament Diplomacy (April / May 2005, no. 79), http://www.acronym.org.uk/dd/dd79/79md.htm.
  12. Wade Boese, “Security Council Unanimously Adopts Resolution on Denying Terrorists WMD,” Arms Control Today, 34 (May 2004), https://www.armscontrol.org/act/2004_5/UN.
  13. UNSC, “Non-proliferation of weapons of mass destruction,” S/PV.4956, 28 April 2004, p 6.
  14. Administration of George W. Bush, 2004, “Remarks at the National Defense University, February 11, 2004,” Washington, DC: USGPO, pp. 200-205.
  15. Lars Olberg, “Reporting to the 1540 Committee – A Snapshot,” Lawyers’ Committee on Nuclear Policy, New York, November 2005, http://lcnp.org/disarmament/1540-olberg.htm.
  16. UNSC, S/PV.4950 (Resumption 1), 22 April 2004, p 3.
  17. UNSC, S/PV.4950, 22 April 2004, p 4.
  18. UNSC, S/PV.4950, pp. 4-5 and 11.
  19. See, for example, the open session remarks by France, Spain, and the United Kingdom during the open session, UNSC, S/PV.4950, op cit, pp. 7-9 and 12 and the remarks by the Philippines in voting for the resolution on April 28, UNSC, S/PV.4956, 28 April 2004, p. 9.
  20. See, for example the remarks by Peru, South Africa, and Malaysia on behalf of the NAM in UNSC, S/PV.4950, pp. 20 and 22-23 and UNSC, S/PV.4950 (Resumption 1), p. 4, respectively.
  21. UNSC, S/PV.4956, op cit, p 3.
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