United Nations Security Council Resolution 1540

Introduction
Following the terrorist attacks of September 11, 2001, the international community has grown increasingly concerned about barring non-state actors from obtaining weapons of mass destruction (WMD). Information gathered in the aftermath of the attacks about the ambitions of terrorists and terrorist organizations to acquire and use WMD has increased this concern. More recently, revelations about the proliferation of nuclear weapons technology by a global network headed by Pakistan's Dr. A.Q. Khan pointed to the shortcomings of existing nonproliferation treaties. Since 9/11, the United States and other countries have sought ways to address these growing concerns about non-state actors' acquiring and distributing WMD. Against this backdrop, the United Nations Security Council adopted an anti-proliferation resolution requiring states to criminalize the proliferation of WMD and all related materials; to enact and enforce strict export controls; and to secure sensitive materials within their borders. This resolution promotes more effective laws and enforcement measures.

Background
To strengthen nonproliferation measures, President George W. Bush first announced the Proliferation Security Initiative (PSI), in Krakow, Poland on May 31, 2003. The PSI is an initiative to coordinate efforts to impede sea, air, and land shipments of WMD, delivery systems and related materials to and from states and non-state actors. The PSI is an unofficial and informal partnership of countries; the core group numbers about 16 states. With no legal grounding, the initiative is an "activity not an organization"; there are no plans to evolve PSI into a formal international organization with a headquarters, an international secretariat, formal rules of procedure, or its own budget.

Primarily to counter non-state actor proliferation and secondarily to provide support for the PSI, Britain, the United States, and other countries urged the UN Security Council to adopt Resolution 1540. The PSI and Resolution 1540 are complementary in that they both bring together countries in partnership to fight against WMD trafficking. Both also have gone into effect without a formally negotiated treaty signed by all parties. On the eve of the nuclear Non-Proliferation Treaty (NPT) Review Conference in May 2005, the United States and several other countries acknowledged that while the nonproliferation regime has succeeded in establishing strong global norms, it has not prevented WMD proliferation. One of the weaknesses of the existing regime is that it does not sufficiently cover the means of delivery of WMD and related materials nor does it adequately address activities by private entities. The goal of Resolution 1540 is to contribute to the international control of WMD and related goods. However, given the many uncertainties about the definitions of terms in the resolution and about its implementation, it is questionable how effective the resolution will be.

Process of Adoption
The UN Security Council adopted Resolution 1540 on April 28, 2004 under Chapter VII of the United Nations Charter. By taking the extraordinary step of adopting the resolution under Chapter VII, the UN Security Council highlighted the growing threat to international security posed by WMD proliferation. The Charter of the United Nations provides that one of the purposes of the United Nations is to maintain international peace and security; the Security Council has primary responsibility for this function. Chapter VII addresses "threats to the peace, breaches of the peace, and acts of aggression." Other Chapter VII resolutions have dealt specifically with Iraq, Afghanistan, other conflict zones, and the attacks of September 11; Resolution 1540 builds on Security Council Resolution 1373 that was passed in the immediate aftermath of the 9/11 attacks. Article 39 of Chapter VII gives the Security Council the authority to determine when a threat to international peace and security exists and to decide what counteractive measures shall be taken, to maintain or restore international peace and security. Decisions adopted under Chapter VII are binding upon all member states and override other international obligations. The UN Security Council underscored the importance of preventing non-state actors from acquiring WMD by adopting Resolution 1540 pursuant to Chapter VII.

The resolution took many months to pass through the different stages of negotiation before its adoption in April 2004. There were early versions of the draft that were discussed among permanent member nations of the Security Council. Council members and more than 20 non-members were allowed to comment on this draft at the open Council meeting held on April 22. However, none of the proposals put forth by non-Security Council members was taken into consideration when the final text was drafted. After the comments made during this open session, a few changes were made to the draft before the Council voted on it, during a closed-door session of Security Council members on April 28.

The unanimous adoption of the resolution prompted varying reactions from member states. Many reacted to the "legislative" nature of the resolution: it binds all member states but was adopted by a Council that consists of only 15 members. For example, India's representative stated: "We are concerned that the exercise of legislative functions by the Council, combined with recourse to Chapter VII mandates, could disrupt the balance of power between the General Assembly and the Security Council, as enshrined in the Charter." However Spain's representative noted that the resolution is a "part of the fight against terrorism and a continuation of what began with resolution 1373 (2001), which was adopted with the framework of Chapter VII. It would therefore be hard to understand why one would not apply Chapter VII on this occasion." These divergent comments reflect the fact that this is only the second time since 1945 that the Council has taken a sweeping, general decision by invoking Chapter VII powers. The first resolution of this kind, Resolution 1373 addressing threats to international peace and security caused by terrorist acts, was adopted in response to the September 11 attacks and contains similar provisions placing general obligations on states.

 

Further Reading:

	Arms Control Today, "Keeping WMD From Terrorists: An Interview with 1540 Committee Chairman Ambassador Peter Burian"
	Alyn Ware, "International Ju-Jitsu: Using United Nations Security Council Resolution 1540 to Advance Nuclear Disarmament"
	CRS. Mary Beth Nikitin, "Proliferation Security Initiative"
	Arms Control Today, Mark Valencia, "The Proliferation Security Initiative: A Glass Half-Full"
	Disarmament Diplomacy, Mervan Datan, "Security Council Resolution 1540: WMD and Non-State Trafficking"
	Cassady Craft, "Challenges of UNSCR 1540: Questions about International Export Controls"
	U.S. Department of State, "UN Security Council Resolution 1540"
	Andrew C. Winner, "The PSI As Strategy"