The way forward for UNSCR 1540

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Beyond an assessment of resolution 1540 and its contribution to the global nonproliferation regime, it is also important to try to look forward. This will provide not just a better understanding of what has been achieved but also of what remains to be done, taking into account existing and future challenges and emerging threats.

Resolution 1540 was unanimously adopted in 2004 by the UN Security Council, acting under Chapter VII of the UN Charter. It seeks to reinforce the nonproliferation commitments taken on by states, imposing explicit obligations to prevent non-state actors from engaging in illegal activities related to weapons of mass destruction (WMD), their delivery means, and associated materials. Its adoption was a clear response to the tragic events of September 11, 2001, and to the activation of terrorist groups in many parts of the world, followed by non-state actors’ evident attempts to acquire WMD and related materials. Revelations regarding the A. Q. Khan network’s smuggling efforts bore witness to these efforts.

The process that led the Security Council to adopt UNSCR 1540 unanimously was not an easy one. As a person directly involved in drafting the resolution at the working level, I recall tough and lengthy discussions about the nature of the resolution in general and about its concrete details—where, of course, the devil lies. To put it bluntly, two main approaches collided during the debates in January-April 2004. The first was not only about making the resolution strong but about making it obligatory. This brought it closer in character to a sanctions resolution.

The second approach contained a good deal of flexibility, allowing states to decide for themselves how to implement the resolution’s provisions without breaking its fundamental obligations. In the end a compromise was found, making the resolution mandatory but without prescribing how states were to implement it. This was a remarkable achievement, bearing in mind that countries vary greatly in their legal frameworks and technical capabilities in the nonproliferation area. It is noteworthy that not a single state opposed the adoption of the resolution.

In efforts to curtail the proliferation of WMD and related materials undertaken after adoption of UNSCR 1540, the international community has achieved impressive results. It has reduced the chances of non-state actors  acquiring such weapons and thereby diminishing the threat that they will be used in terrorist acts.

Nevertheless, the danger is still there. Recent developments only confirm this observation. The use of chemical weapons in Syria, the anthrax attacks and ricin letters in the United States in 2011 and 2013, and 160 incidents related to nuclear and radiological materials in 2012 alone, according to the International Atomic Energy Agency (IAEA) Incident and Trafficking Database, remind us that much remains to be done.

Looking at present and future threats associated with the possible use of WMD, their means of delivery, and related materials, one can identify two types of risks. The first can be described as “external,” including emerging international conflicts, possible further spread of WMD to new states, more sophisticated terrorist tactics, and increased applications of and trade in dual-use nuclear, chemical, and biological materials for legitimate purposes. All these factors increase the danger that WMD and related materials will be diverted for malicious purposes, or at least create the conditions for this kind of activity to be carried out.

Another type of risk relates to the gaps  in states’ and the international community’s implementation of the resolution itself. Analyses of future developments in the international arena from the 1540 perspective, and of further scientific and technological progress in WMD-related areas, require special study. Hence I will focus on the second type of risks and challenges.   

First Reports

I will begin with initial reporting. Progress in implementing the resolution since its adoption has been remarkably good, bearing in mind that reporting is voluntary. At the time of writing, however, 21 states had yet to make their first report. Why is it so important to achieve universal reporting when nearly all non-reporting states possess neither WMD nor related materials?

The first answer is easy to find. Those states that have no nuclear, chemical, or biological weapons, delivery means, or related materials can still serve as transshipment points—and thus be directly or indirectly involved in the processes of smuggling and proliferation financing. Terrorists and perpetrators of different kinds can exploit their geographical positions, porous borders, and lax export and other cross-border controls for malicious purposes.

The second answer is that terrorists are looking for weak points. This was mentioned in the 2009 Comprehensive Review of UNSCR 1540 implementation. A single gap could lead to a disaster, because even one breach can sink the ship of proliferation controls. Of course, reporting is not equivalent to implementation. But the absence of firsthand information from a state makes it difficult to assess risks and identify gaps and challenges. So, weakness in implementation poses an objective threat to the international nonproliferation regime and to global security.

In this regard, the task of achieving universal reporting is very important. The 1540 Committee has intensified its work with such states on a bilateral level. In 2013 a series of meetings took place between members of the Committee and the experts on the one side, and representatives of missions from these states in New York on the other. This work yielded preliminary results, as two states submitted their initial reports and more are in the pipeline. The 1540 Committee’s 2013 Annual Review calls for additional efforts to achieve substantial progress toward the goal of universal reporting.

Bilateral contacts between the members of the Committee, the experts, and national missions and capitals look like a promising direction to take. Success nonetheless depends on the Committee’s ability to find the right approach in its interactions with countries in the coming years, including visits to non-reporting states.

Additional Reports

The submission of additional information is as important as universal reporting. Reporting needs to be a continuous process. The resolution is about international cooperation and is preventive in nature. Thus, the more information the 1540 Committee has about steps that are being taken and challenges that states face, the better it can perform its tasks. Regular reporting helps it understand the trends in implementation of the resolution, including gaps, new developments, and assistance needs.

It is noteworthy that non-state actors and perpetrators are trying to develop new methods and techniques for acquiring nuclear, chemical, and biological weapons and related materials. Without regular reporting, it is difficult to understand what national legislation is being developed that conforms to UNSCR 1540 and can help capacity-building efforts where needed.

At the moment, work is ongoing on states’ updated matrices in accordance with the new format approved by the 1540 Committee. The Committee seeks additional information on what is being done in the capacity-building sphere. Regular, supplementary reporting is important for keeping the international community informed of states’ efforts to meet the requirements of the resolution.

Though the 1540 Committee has gathered a lot of data, it remains unclear, without additional feedback, how existing laws and regulations work. Do such measures work mainly to provide environmental protection and public health, for example in the biological area, or are they nonproliferation-oriented? It would be welcome if states made their own assessments of the effectiveness of the measures taken and more actively shared their practices and experiences. Some steps in this direction have been made, through national implementation action plans (NAPs), but the main work lies ahead.

National Implementation Action Plans

With regard to NAPs, the 1540 Committee is encouraging states to develop NAPs on a voluntary basis, “mapping out their priorities and their plans for implementing the key provisions of resolution 1540 (2004) and to submit these plans to the 1540 Committee” (Operative Paragraph 8 of resolution 1977 (2011)). So far ten states have submitted NAPs to the Committee, and a number are in the pipeline. Legislative action is an important element in a NAP. This may not mean starting from scratch, but rather making sure that gaps in existing legislation are covered and that national law is up to date.

As our experience demonstrates, the development of a NAP is kind of a roadmap that helps a state fully meet the requirements of UNSCR 1540. In its NAP, each state can establish its own priorities, timelines, and spheres of action. By submitting NAPs, countries give the Committee their vision of achievements, gaps, and challenges, providing important insight that helps the Committee understand the status of implementation of the resolution and what measures remain to be taken. NAPs are also essential for identifying assistance needs. They are an avenue for furthering implementation of the resolution, and for enhancing interaction between the Committee and states in the coming years.

New forms of cooperation among states are being developed. For example, a 1540 peer-review mechanism initiated by Croatia and Poland and a number of successful regional workshops confirm states’ interest in identifying effective practices and exchanging experiences. The implementation process is also a matter of trust. States should be on the same page on implementing the resolution, and their efforts should complement one another.

Assistance

With regard to assistance, the implementation of resolution 1540 is a global endeavor that requires sustained cooperation from all stakeholders. After all, the global effectiveness of resolution 1540 depends on the efforts of all. The 1540 Committee has a mandate to facilitate the delivery of assistance to states that need support to fulfil their obligations under resolution 1540.

The Committee plays a matchmaking role, connecting requests with offers of assistance. This assistance can vary from help with developing legislation and regulatory requirements, to the supply of appropriate equipment, to help strengthen border controls or training personnel such as police and customs officials.

Looking forward, it is important that concrete and detailed applications for assistance be sent to the Committee in accordance with established procedures to maximize the chances of success. In this regard, it is important that the register of assistance requests and offers be kept updated. The improved and updated consolidated list of assistance requests prepared by the Group of Experts is a good example of recent activities. This detailed and comprehensive list helps turn requests into action by providers such as the Global Partnership and international organizations such as the IAEA or Organization for the Prevention of Chemical Weapons (OPCW).

The area of assistance is not only very important – it is also sensitive. This is because in some cases it is about physical protection of nuclear sites or storage facilities for WMD-related materials. In this regard, work on a bilateral basis seems a preferable way of doing business, thus helping respect states’ legitimate security concerns. It is well known that the IAEA sticks to the principle of confidentiality when providing assistance to states.

Visits to States

There are also other very direct and practical ways that states can avail themselves of support to achieve full 1540 implementation. Governments have begun more actively inviting 1540 Committee experts to visit their countries, going over in detail their regulatory and practical arrangements to implement the resolution.
In the past year, the Committee has visited Bangladesh, Burkina Faso, Grenada, Niger, the Republic of Korea, and Trinidad and Tobago at the invitation of these governments . More invitations are forthcoming. The important features of these visits are that they usually involve ministerial-level participation, and that they cover the full scope of the resolution, engaging the whole range of government departments and agencies.

Some visits are carried out on a smaller scale, helping government officials and legislators develop NAPs or identify their assistance needs. We call these country-specific activities. For example, members of the Group of Experts have recently visited states to help develop voluntary NAPs. They also went to Vienna to meet officials from Bosnia-Herzegovina, Montenegro, and the Former Yugoslav Republic of Macedonia to help them elaborate measures for more effective implementation of resolution 1540.

Parliamentarians

A new element of activity that should be made permanent is 1540 Committee work with parliamentarians. When it comes to control of WMD-related materials, it is obvious that in many cases such materials are not fully covered by national legislation, especially in the biological and chemical areas. As mentioned already, many states submitted their reports and additional information six to eight years ago and have not updated their reports since then. Some countries have not criminalized non-state actors’ efforts to get unauthorized access to WMD-related materials. Coordination of international organizations’ efforts to implement the resolution also needs improvement.

Needless to say, lawmakers can facilitate the adoption and enactment of the necessary legislation and, where relevant, can monitor its implementation. In the Committee’s current program of work, as approved by the UN Security Council, engagement with parliamentarians is an essential part of plans for outreach in 2014 and beyond. In early October last year, the Chair of the 1540 Committee participated for the first time in the annual Assembly of the Inter-Parliamentary Union (IPU) in Geneva. This session was a success. One hopes it will lead to further engagement with IPU members in many parts of the world.

Points of Contact

Another important task for the future is the issue of points of contacts (POCs). POCs may look technical, but communication among the right people across governments and international organizations is essential for resolving problems and sharing necessary information. In this regard, the Chair of the Committee has once again contacted states and relevant international organizations (IROs) calling on them to notify their POCs if they have not already done so. Thus far, 68 states and 12 IROs have designated POCs.

The rapidly changing global, political, scientific, and technological environment requires the exploitation of all available opportunities for international cooperation. The dynamic global environment imposes new challenges on the international community in the area of nonproliferation. In this regard, the 1540 Committee’s relationship with relevant international organizations and bodies has always been of great importance. This includes participation in events with the OPCW, the IAEA and the Biological Weapons Convention Implementation Support Unit. For example, the 1540 Committee was invited to the first ministerial-level IAEA nuclear-security meeting, in July 2013.

The 1540 Committee is also trying to expand the scope of its activities in this area. One can note the events undertaken in collaboration with the European Union Joint Action project on the Biological Weapons Convention and Chemical, Biological, Radiological, and Nuclear Centers of Excellence. In February of this year, the World Customs Organisation addressed an open briefing for UN member states hosted by the 1540 Committee. We are looking forward to expanding our contacts with the Financial Action Task Force, since most states face challenges from activities such as money laundering, illegal financing of arms, and drug smuggling. Strengthening connections with these organizations will lead to more effective implementation of UNSCR 1540.

The tenth anniversary of resolution 1540 is a good time to think constructively about new ways to implement the resolution effectively.

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