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Security Council Resolution
1540
on Non-Proliferation of WMD
Background
On 28 April 2004, the Security Council passed resolution
1540 on the non-proliferation of weapons of mass
destruction.
The beginnings of the resolution first appeared in
an address to the General Assembly in 2003 by U.S. President
George W. Bush, who declared that the United States would
be seeking a resolution from the Security Council to criminalize
the proliferation of WMD by non-state actors. In December,
a draft resolution from the US circulated amongst the Permanent
Five for months, as the five veto-wielding members of the
Council debated amongst themselves before opening the debate
up to the Elected Ten members (E10) or the public.
The resolution was intended to address the gaps in the current
legal WMD regime, more specifically, to address the potential
of WMD acquisition by non-state actors. The resolution calls
upon all Member States to enact national legislation criminalizing
the development, acquisition, manufacturing, possession, transport
or transfer of nuclear, chemical and biological weapons and
their means of delivery by a non-state actor.
All Member States of the United Nations are obliged under
this resolution to report to the Security Council subcommittee
on 1540 ("the 1540 Committee") on their
progress implementing this resolution.
On 17 April 2006, the Security Council passed resolution
1673, which extends the mandate of the 1540 Committee
for two years and calls for the intensification of efforts
to promote the full implementation of resolution 1540.
Open Debates
in the Security Council
While action on nuclear weapons by the 15 member council
is a welcomed move by some, the resolution was not easily
adopted.
On 22
April 2004 the Council held an open debate on the resolution.
Over a third of all UN Member States made statements* during
the open debate, including:
Albania, Algeria, Angola, Argentina,
Australia, Austria,
Belarus, Benin, Brazil,
Canada, Chile, China,
Cuba, France,
Germany,
India, Indonesia,
Iran, Israel,
Japan, Jordan,
Kazakhstan, Kuwait, Lebanon,
Lichtenstein, Malaysia,
Mexico,
Namibia, Nepal, New Zealand,
Nigeria,
Norway, Pakistan, Peru,
Phillipines, Republic of Korea,
Romania,
Russian Federation, Singapore,
Spain,
South Africa,
Sweden,
Switzerland,
Syria, Tajikistan,
Thailand, United
Kingdom, United
States.
(*not all statements are available in
English)
On 23
February 2007, a second open debate was held in the
Security Council on Cooperation Between the UN Security Council
and International Organizations in the Implementation of Resolutions
1540 (2004) and 1673 (2006).
Speakers
Under-Secretary-General for Disarmament Affairs, Mr. Nobukai
Tanaka
Director-General of the Organization for the Prohibition of
Chemical Weapons, Mr. Rogelio Pfirter
Representative of the Director-General of the IAEA to the
UN, Mr. Gusavo R. Zlauvinen
Director of Compliance and Facilitation of the World Customs
Organisation, Mr. Michael T. Schmitz
Russian Federation
Qatar
China
United Kingdom
United States, Ambassador Jackie
Sanders
Republic of Congo, Mr. Luc Joseph
Okio (French only)
South Africa, Ambassador
Dumisani S. Kumalo
France
Peru, Ambassador Jorge Voto-Bernales
(Spanish only)
Belgium
Ghana
Indonesia, H.E. Mr. Rezlan
Ishar Jenie
Panama
Italy, Ambasador Aldo Mantovani
Slovakia (President), H.E.
Mr. Ján Kubiš
Germany (on behalf of the European
Union), H.E. Mr. Thomas Matussek
Cuba, Ambassador Rodrigo Malmierca
Diaz
Belarus (on behalf of the Collective
Security Treaty Organization), Mr. Andrei Dapkiunas
Norway, Ambassador Johan L.
Løvald
Israel
Australia, H.E. The Hon Robert
Hill
El Salvador
Pakistan, Ambassador Munir
Akram
Argentina, Ambassador César
Mayoral (Spanish and English)
Republic of Korea, H.E. Ambassador
Joon Oh
Japan, H.E. Mr. Takahiro Shinyo
Guatemala
Uruguay, Ambassador Elbio Rosselli
(Spanish only)
Bangladesh
Brazil, Ambassador Piragibe
Tarragô
Viet Nam
New Zealand, Ambassador
Rosemary Banks
Iran
Report
On 23 February 2007, the Security Council held an open debate
on the "Cooperation Between the UN Security Council and International
Organizations in the Implementation of Resolutions 1540 (2004)
and 1673 (2006)." Resolution 1540 calls upon all member states
to enact national legislation criminalizing the development,
acquisition, manufacturing, possession, transport, or transfer
of weapons of mass destruction (WMD) and their means of delivery
by non-state actors. It also established the 1540 Committee,
to which all member states are obligated to submit national
progress reports on their measures to implement 1540. Resolution
1673 extends the mandate of the 1540 Committee for two years
and encourages it to cooperate with other organizations and
increase its assistance to national governments.
In his presidential statement, Ambassador Ján Kubis
of Slovakia described 1540 as a "landmark contribution" to
strengthening WMD non-proliferation efforts. He accredited
1540 with complimenting rights and obligations under existing
international non-proliferation treaties, and with translating
commitments to these treaties into national norms and laws.
He also called for governments to prioritize 1540 and to seek
or donate assistance and expertise where needed.
Many participating states called for increased national reporting,
though South Africa, Indonesia, El Salvador, Pakistan, and
Peru argued that reporting can be difficult for small states.
On behalf of the Pacific Island Forum, New Zealand pointed
out that small states require assistance in overcoming capacity
and resource challenges. Some states also expressed concern
over the level of assistance the 1540 Committee has provided
during the last three years. Japan and Pakistan believe the
Committee has reached its capacity for assistance and expertise.
Representatives from the Organization for the Prohibition
of Chemical Weapons, the International Atomic Energy Agency,
and the World Customs Organization offered technical assistance
to states. They have experience promoting the implementation
of resolutions and treaties, which is applicable to ensuring
the universalization of 1540. France, Italy, Japan, Slovakia,
the United Kingdom, and Viet Nam advocated cooperation between
states, the 1540 Committee, and relevant international organizations.
Argentina, the Collective Security Treaty Organization, the
European Union, Guatemala, South Korea, Uruguay, and Viet
Nam proposed enhancing regional cooperation through workshops
and seminars. South Korea believes "regional and sub-regional
initiatives for implementation would not only spur national
governments to action, but also provide positive examples
for nations in other regions."
However, some states voiced concerns about the legitimacy
and mandate of 1540. Indonesia expressed trepidation over
the legislative role the Security Council assumed during the
adoption of 1540, while Cuba is worried about the "deliberately
ambiguous provisions" of 1540 that potentially allow for actions
that undermine the UN Charter and existing multilateral agreements.
A crucial concern of some states, including Cuba, Indonesia,
Iran, and South Africa, is that in pursuing non-proliferation
initiatives such as 1540, the international community is forgetting
about disarmament. They argued that the only guarantee against
the proliferation of WMD is their complete elimination, for,
as South Africa said, "as long as these weapons exist, the
world will always exist under a threat of a nuclear catastrophe."
-Ray Acheson, Reaching Critical Will
Civil Society Mobilization
NGOs such as WILPF and the Lawyers' Committee on Nuclear
Policy obtained early drafts of the resolution, and, through
the Abolition
2000 network, conducted a major grassroots mobilization,
urging civil society to contact the Security Council and their
Ministries of Foreign Affairs to demand an open session of
the Security Council as they debated this unprecedented SC
resolution.
These efforts included:
- submitting draft language
to all members of the Council,
- sending a Memorandum
to the Council and other interested states.
- sending a letter
of appeal that was sent out by the Abolition Global Caucus,
the International Steering Committee of Abolition 2000.
- distributing a Media Advisory
on March 30, 2004.
- delivering statements to the press on behalf of LCNP
and WILPF on March 31, 2004.
Many of the concerns of NGOs were shared amongst
Member States. See for instance the
Non-paper and alternate language submitted by Brazil on April
8th.
- Article
from the UN Wire
- See also Alyn Ware, Parliamentary Network for Nuclear Disarmament,
on using resolution 1540 to advance nuclear disarmament
at: http://www.disarmsecure.org/publications/papers/Ju-Jitsu.html
1540
Committee
The resolution established a sub-committee of the Council
to function as the repository of the national reports on the
implementation of the resolution. The Committee is also be
charged with assistance with compiling the reports, bringing
in experts and holding workshops and seminars to assist with
other matters relating to the principles and goals of the
resolution.
The
Committee's website is part of the efforts to make the
work of the Committee more transparent, and to encourage full
implementation of the resolution by all Member States. On
that site you can read all reports
that have been submitted, as well as press
releases and information on the Committee's open
meetings.
For further information, contact Mr. Ionut
Suseanu, Permanent Mission of Romania, or the Secretariat
focal point, Mr. Jeremy Farrall:
(212) 963-2475.
- Terms of reference, adopted by the Committee
on 13 August
- Guidelines for the work of the
Committee, adopted by the Committee on 13 August
-
Guidelines for the preparation of national reports
************************************************
(Click here
for PDF version)
April 5, 2004
MEMORANDUM
To: Members of the Security Council and other interested states
From: Lawyers’ Committee on Nuclear Policy; Reaching
Critical Will, UN Office, Women’s International League
for Peace and Freedom
Re: Proposed Security Council resolution on “non-proliferation”
The following comments are directed to the "Draft Resolution
on Non-Proliferation" dated March 24, 2004, and expand upon
points made in our March 25 letter on behalf of the Abolition
2000 Global Network to Eliminate Nuclear Weapons. Enclosed
with this memorandum is a document containing suggested alterations
to the draft, offered with the intention of illustrating the
very serious issues raised by the resolution and suggesting
possible improvements. All paragraph references below are
to paragraphs as numbered in the enclosure, not the March
24 draft. Our recommendations are in bold type. At the outset,
we emphasize the need for full consultation with all interested
states, and with civil society, including through an open
session and an informal (“Arria formula”) civil
society briefing. We would be interested in meeting with you
if desired.
Disarmament: Operative paragraph (OP) 6(a) calls for states
to promote the "full implementation" of multilateral treaties
on nuclear, biological and chemical (NBC) weapons. See also
OP 6(b) and preambular paragraph (PP) 5. The draft is otherwise
silent, operationally or rhetorically, on disarmament, which
is the aim of the treaties. Indeed, the word “disarmament”
appears nowhere in the document. The draft thus ignores that
the problem of the spread of NBC weapons, and their potential
acquisition by terrorists, will never be effectively addressed
absent effective compliance with disarmament obligations.
This is true above all regarding the obligation of complete
nuclear disarmament, but is also pertinent regarding biological
and chemical disarmament. For example, vast “biodefense”
research programs are now underway which raise profound issues
of compliance with the Biological and Toxin Weapons Convention
(BWC).
Disarmament obligations should be built into the resolution,
as the enclosure illustrates. For example, there can be a
preambular reference to the recognition in S/23500, the Presidential
statement of 31 January 1992, of the need for member states
to fulfil disarmament obligations (see PP 2). In existing
operative provisions of the draft, it is also appropriate
to refer to disarmament. Thus the requirement that states
take effective measures, e.g. of accounting (see OP 4(a)),
implements disarmament as well as non-proliferation obligations.
The resolution should also call upon states to adopt effective
measures regarding state compliance with disarmament obligations
(see OP 3).
Security Council “lawmaking”: The proposed resolution
purports to require states to prohibit non-state actors from
acquiring NBC weapons and their means of delivery and to take
measures to account for, secure, and prevent unlawful trafficking
in the weapons, related materials, and means of delivery.
If adopted, it would represent a far-reaching assumption of
authority by the Security Council to enact global legislation
requiring each state to modify its national legal system and
policies. Such legislation is usually the subject of painstakingly
negotiated multilateral treaties, like the Nuclear Non-Proliferation
Treaty (NPT), Chemical Weapons Convention (CWC), and BWC.
For reasons developed below, we urge instead adoption of a
resolution which sets forth guidelines, requests, and recommendations,
including recommendation of negotiation of multilateral agreements.
First, issues raised by the March 24 draft demand careful
scrutiny and deliberation of the kind inherent in multilateral
negotiations. For example, OP 4 requires states “to
establish domestic controls to prevent the proliferation”
of NBC weapons and their means of delivery. Although the sponsors
have insisted that the resolution is aimed at proliferation
involving non-state actors, by its terms OP 4 appears to require
states not party to the NPT, BWC, or CWC to refrain from transfer
of NBC weapons, means of delivery, and related materials to
other non-party states, or to party states, whether or not
the transfer involves non-state actors. The resolution generally
would impose obligations upon states with regard to NBC-weapon
"related materials", missiles and other “unmanned systems”
of delivery, and “non-state actors,” yet provides
no full and precise definition of those terms. In these and
other respects, a rational and legitimate lawmaking process
would require in-depth negotiation with the participation
of affected states.
Second, there is nothing in the UN Charter that confers authority
to enact such global legislation on the Security Council.
The Charter contains no references to a Security Council role
in the development of international law. When the framers
of the Charter saw a role for a UN body in such development,
it was spelled out. Article 13 states that the General Assembly
shall “make recommendations for the purpose of …
encouraging the progressive development of international law
and its codification.” With regard to privileges and
immunities of the UN Organization, its officials, and state
representatives, Article 105 states that the General Assembly
“may make recommendations with a view to determining
the details … or may propose conventions to the Members
of the United Nations.” Article 62(3) says that the
Economic and Social Council “may prepare draft conventions
for submission to the General Assembly, with respect to matters
falling within its competence.” No such provisions appear
in support of a Security Council role in lawmaking. Article
24 states that the Security Council has “primary responsibility
for the maintenance of international peace and security,”
and provides that in meeting this responsibility the “specific
powers granted to the Security Council” are found in
Chapters VI, VII, VIII, and XII. Of these, Chapter VII is
the only one relevant to a decision requiring all states to
adopt certain measures. But the measures not involving the
use of force identified (without excluding others) in Article
41 are “complete or partial interruption of economic
relations [and] means of communication, and the severance
of diplomatic relations.” There is not even a trace
of intent that the Security Council would engage in detailed
regulation of conduct of all states of the kind envisaged
by the proposed resolution. Further, Chapter VII seeks to
deal with disputes involving particular states. Article 40
refers to the “parties concerned” in a situation.
The practice of the Security Council has been to address particular
situations of conflict. The incongruity of the Security Council
attempting to act as a global legislature is reinforced by
the fact that enforcement of its own resolution against the
permanent five members would be subject to the veto. It is
plain that the Charter contemplated multilateral agreements
entered into by sovereign states, encouraged by the General
Assembly, as the primary mode of global lawmaking. The Statute
of the International Court of Justice, adopted at the same
time as the Charter, in Article 38, identified “international
conventions” as the first source of law to be applied
by the Court, and nowhere mentions Security Council resolutions
as a source.
Third, a resolution requires political acceptance if it is
to be effectively implemented. The highly unrepresentative
Security Council, dominated by the nuclear-armed permanent
five, is not the best institution to elicit such acceptance,
especially with respect to NBC-weapon measures as to which
hypocrisy and double standards will rightly be charged. In
a recent lecture, the then Under-Secretary-General for Legal
Affairs, Hans Corell, noted that “the core body of today’s
international law was progressively developed and codified
under the auspices of the United Nations. The United Nations
was and remains in the centre of this process, not so much
because of Article 13 of its Charter that addresses this issue,
but due to the authority that the World Organization enjoys
as a universal and democratic institution.” It hardly
needs saying that the Security Council has no such claim to
universality and democracy.
It is true that Security Council resolution 1373 requires
all states to take measures to suppress terrorism. But it
was adopted in the special circumstance of responding to the
September 11 attacks, and deals with simpler and less controversial
topics than the present resolution, which strongly impinges
upon state to state relations and issues of security.
There are good reasons (as well as bad reasons, particularly
the present U.S. hostility to multilateral treaty regimes)
why a Security Council resolution is nonetheless being proposed.
Important states remain outside the NBC-weapon treaty regimes.
The recent public revelations regarding the Pakistan-based
nuclear proliferation network involving businesses in several
countries and a scientist, A.Q. Khan, allegedly acting without
governmental authority have highlighted new pathways for the
spread of NBC-weapon items and raise the specter of terrorist
acquisition. Extra impetus should therefore be given to efforts
to a) strengthen compliance mechanisms within current disarmament
and non-proliferation regimes, b) bring all relevant states
into the regimes, and c) negotiate supplemental or new agreements
to address issues related to terrorist and other non-state
trafficking in and acquisition of NBC weapon-related items.
These include application of strengthened IAEA safeguards
to all states with nuclear facilities, the proposal for an
emergency mechanism within the NPT to deal with a state's
intention to withdraw, resumption of negotiations to create
a verification regime for the existing ban on biological weapons,
and negotiations on the draft convention on nuclear terrorism.
However, such efforts can be difficult, cumbersome, and time-consuming,
and more immediate action may be required with respect to
particular acts or practices involving particular states.
Article 24 gives the Security Council primary responsibility
for maintenance of international peace and security in "order
to ensure prompt and effective action by the United Nations"
(emphasis supplied), and thus authority to take such action.
A desirable compromise approach would be for the Security
Council to adopt a resolution that sets forth guidelines,
requests, and recommendations. That would lay the foundation
for mandatory Security Council action with respect to particular
acts or practices or patterns involving particular states.
It also could spur the negotiation of such additional multilateral
agreements as are needed, which the resolution should recommend.
It further, importantly, would remove the basis for any claim
of “enforcement” not explicitly approved by the
Security Council of the kind made by the United States and
Britain with respect to the invasion of Iraq. If the resolution
remains mandatory in form, a sunset clause setting a date
for expiration of the resolution should be included.
Prevention of “trafficking”: The proposed resolution
calls upon states, “consistent with international law,”
to “take cooperative action to prevent illicit trafficking”
in NBC weapons, means of delivery, and related materials (OP
8). In earlier drafts, the provision had referred to “interdiction”
and action in accordance with international “frameworks.”
The removal of these terms has lessened the imprimatur of
Security Council approval of the U.S.-led Proliferation Security
Initiative (PSI). Nonetheless, as remarked by Undersecretary
of State for International Security and Arms Control John
Bolton, the present draft still lends support to PSI. To the
extent PSI contemplates interdiction of suspected NBC weapon-related
shipments upon the high seas or in international airspace,
the Law of the Sea Convention and other existing international
law generally provide no basis for such interdiction and indeed,
absent a supervening authoritative act like a Security Council
decision, shield against it. Any strengthening of the right
to intercept shipments, which affects both sovereignty and
use of force issues, should proceed through legitimate multilateral
lawmaking, and not by means of an ambiguous Security Council
resolution. Especially given the extremely elastic understanding
of international law displayed by the United States and Britain
with respect to the invasion of Iraq, as well as the national
“intelligence failures”/deceptions regarding NBC-weapon
programs in Iraq, the mere invocation of international law
is not enough. Clarity and international consensus needs to
be developed on the types of shipments prohibited and the
nature of interdictions permissible under international law.
There should be provision for Security Council or other multilateral,
treaty-based decision-making and dispute resolution (as by
the International Law of the Sea Tribunal) as to interdiction
of specific shipments that otherwise would appear to be protected
by the customary freedom of navigation on the high seas, the
right of innocent passage, and other existing international
law. Alternatively, the provision should be dropped.
Implementation and enforcement: The March 24 draft makes a
mockery of follow-up. It establishes a Security Council committee
on implementation to last only six months, while requiring
states to adopt complex national legislation and measures
that will clearly take longer than six months fully to put
in place. It is crucial to avoid leaving follow-up on the
resolution to individual states, above all the United States.
However, that is the course President Bush signaled the United
States intends, stating in his February 11, 2004 speech that
after the resolution is adopted, the United States "stands
ready to help other governments to draft and enforce the new
laws that will help us deal with proliferation." Nor should
implementation of the resolution be placed exclusively under
the supervision of the Security Council. It is not the Council’s
role to develop a new quasi-agency, and it is important to
coordinate with existing regimes and institutions.
Accordingly, we recommend (see OP 9 of the enclosure) that
the resolution request the Secretary-General to establish
an implementation body, for a period of no more than two years,
calling upon, inter alia, the expertise of the Department
for Disarmament Affairs, IAEA, OPCW, UNMOVIC, the governing
bodies of the NPT, CWC, and BWC, and civil society, to monitor
implementation of this resolution, to elaborate definitions
of its terms and to ensure consistency in its application,
and to offer assistance to states in implementation. OP 5
inviting states to offer assistance to other states in implementation
of the resolution should be struck. OP 9 plus the deletion
of OP 5 will make clear that it is for the implementation
body to provide assistance and monitor implementation, not
the United States or other individual states.
Regarding enforcement, in the wake of the invasion of Iraq,
an evident concern about this resolution is that individual
states may take it upon themselves to “enforce”
its provisions by means even including military action absent
explicit, situation-specific approval by the Security Council
or other authoritative, treaty-based international organizations
or bodies. Making the resolution recommendatory rather than
mandatory would address this problem. Especially if it remains
mandatory, as noted above states should make clear, as they
did in the case of Iraq-related resolutions, that the resolution
provides no basis for such “enforcement”. It is
also possible to imagine a provision that would serve to bar
such “enforcement” (see OP 13).
John Burroughs, Alyn Ware, and Peter Weiss
Lawyers’ Committee on Nuclear Policy
211 E. 43d St., Suite 1204
New York, NY 10017
tel 212 818 1861; www.lcnp.org
Rhianna Tyson and Susi Snyder
Reaching Critical Will
Women’s International League for Peace and Freedom
777 UN Plaza, 6th floor
New York, NY 10017
tel 212 682 1265;
www.reachingcriticalwill.org
* * *
* * * MEDIA ADVISORY * * *
WHAT: RESCHEDULED News Conference: “NGOs Fault Draft
Resolution on Non-Proliferation for Ignoring Disarmament and
Making the Security Council a Global Legislature”
WHEN: Wednesday, March 31, 2004, at 11:00 a.m.
WHERE: UNCA Club, Third Floor, UN Headquarters, New York
WHO: John Burroughs, J.D., Ph.D., executive director, Lawyers’
Committee on Nuclear Policy, New York; co-editor, Rule of
Power or Rule of Law? An Assessment of U.S. Policies and Actions
Regarding Security-Related Treaties, 2003
Susi Snyder, director, UN office, Women’s International
League for Peace and Freedom
WHY: On March 24, the United States released to the Security
Council’s elected members a draft resolution on non-proliferation
(www.reachingcriticalwill.org/political/WMD_SCRes.pdf). The
draft requires all states to enact criminal and other laws
and measures to prevent terrorists and other non-state actors
from trafficking in and acquiring nuclear, biological, and
chemical (NBC) weapons, related materials, and missiles and
other unmanned systems of delivery.
According to the Lawyers’ Committee on Nuclear Policy,
the UN Office of the Women's International League for Peace
and Freedom, and many other NGOs around the world joined in
the Abolition 2000 Global Network to Eliminate Nuclear Weapons,
the resolution is flawed because it fails to acknowledge the
disarmament obligation under the Nuclear Non-Proliferation
Treaty and to support measures to reduce and eliminate nuclear
arsenals. Proliferation of NBC weapons, and their potential
acquisition by terrorists, will never be effectively addressed
so long as nuclear weapons are highly valued by major powers.
The NGOs also contend that in seeking to have the Security
Council act as a global legislature imposing law on all states,
the nuclear-armed permanent five are going beyond the bounds
of the UN Charter as well as legitimacy and therefore effectiveness.
The NGOs believe that there is an urgent need to prevent proliferation
involving non-state actors, as dramatically illustrated by
the recent revelations about the Pakistan-based network involving
businesses in several countries as well as a scientist, A.Q.
Khan, allegedly acting without governmental authority. However,
the Security Council must act in a way that inspires states’
cooperation rather than indifference or even defiance. The
NGOs urge that the resolution not be fast tracked and that
open sessions at which all states may speak and informal briefings
by NGOs be held so that the world’s views are heard.
The NGOs’ concerns are set forth in a March 25 letter
to members of the Security Council (www.reachingcriticalwill.org/political/AGClet.doc).
For further information, contact:
John Burroughs: 212 818 1861; cell 917 439 4585
Susi Snyder: 212 282 1265; cell 917 940 5882
* * * * * * * * * * * * * * *
March 31, 2004, UNCA Club
News conference: “NGOs Fault Draft Resolution on Non-Proliferation
for Ignoring Disarmament and Making the Security Council a
Global Legislature”
STATEMENT OF JOHN BURROUGHS, EXECUTIVE DIRECTOR,
LAWYERS’ COMMITTEE ON NUCLEAR POLICY, NEW YORK (WWW.LCNP.ORG)
There is clearly an urgent need to prevent nuclear proliferation
involving non-state actors, as dramatically illustrated by
the recent revelations about the Pakistan-based network involving
businesses in several countries as well as a scientist, A.Q.
Khan, allegedly acting without governmental authority. Given
the rapid expansion of biological research around the world,
similar concerns seem pressing with regard to biological weapons
as well.
However, the Lawyers’ Committee on Nuclear Policy, the
UN Office of the Women’s International League for Peace
and Freedom, and many other NGOs joined in the Abolition 2000
Global Network to Eliminate Nuclear Weapons oppose the present
form of the draft resolution on non-proliferation given to
the elected members of the Security Council on March 24 by
the United States and Britain. The draft requires all states
to enact criminal and other laws and measures to prevent terrorists
and other non-state actors from trafficking in and acquiring
nuclear, biological, and chemical (NBC) weapons, related materials,
and missiles and other unmanned systems of delivery. Our concerns
are set out in a March 25 letter to members of the Security
Council and other interested states.
Disarmament: While the proposed resolution affirms support
for multilateral treaties on NBC weapons, it refers only to
prevention of proliferation, and is silent, rhetorically or
substantively, on the imperative of disarmament - the aim
of the NPT, Chemical Weapons Convention (CWC), and the Biological
and Toxin Weapons Convention (BWC). Past Security Council
resolutions and presidential statements on non-proliferation
have not displayed this one-sidedness. The resolution thus
ignores that the problem of the spread of NBC weapons, and
their potential acquisition by terrorists, will never be effectively
addressed absent effective compliance with disarmament obligations.
So long as nuclear weapons are highly valued by major powers,
there will be a demonstration effect promoting proliferation.
The message sent is that nuclear arms are essential to security
and prestige. Some countries may also believe that NBC weapons
can provide a shield against major powers’ nuclear capabilities.
Security Council "lawmaking": The proposed resolution purports
to require states to prohibit non-state actors from acquiring
NBC weapons and their means of delivery and to take measures
to account for, secure, and prevent unlawful trafficking in
the weapons, related materials, and means of delivery. If
adopted, this would represent a far-reaching assumption of
authority by the Security Council to enact global legislation
requiring each state to modify its national legal system and
policies. Such legislation is usually the subject of painstakingly
negotiated multilateral treaties, like the NPT, CWC, and BWC.
There is nothing in the UN Charter that confers such authority
on the Security Council. Rather the Charter contemplates multilateral
agreements entered into by states as the primary mode of global
lawmaking, with the General Assembly promoting this process
by making recommendations (Art. 13).
It is true that Security Council resolution 1373 requires
all states to take measures to suppress terrorism. But it
was adopted in the special circumstance of responding to the
September 11 attacks, and deals with simpler and less controversial
topics than the present resolution, which strongly impinges
upon state to state relations and issues of security. For
example, the resolution would impose obligations upon states
with regard to NBC-weapon "related materials", missiles and
other “unmanned systems” of delivery, and “non-state
actors,” yet provides no full and precise definition
of those terms. Indeed, the resolution seems to require universalization
of export control regimes without specifying the items to
be controlled or a mechanism for their identification. In
these and other respects, a rational and legitimate lawmaking
process would require in-depth negotiation with the participation
of affected states.
A resolution also requires political acceptance if it is to
be effectively implemented. The highly unrepresentative Security
Council, dominated by the nuclear-armed P5, is not the best
institution to elicit such acceptance, especially with respect
to NBC-weapon measures as to which hypocrisy and double standards
will rightly be charged.
The proposed resolution does address real dangers. Moreover,
negotiation of multilateral agreements is inevitably difficult
and time-consuming and does not reach (in the near term) non-participating
states. Rather than a Chapter VII mandatory resolution, the
best approach would be for the Security Council to adopt a
resolution that sets forth guidelines and requests. That would
lay the foundation for later Security Council mandatory action
as needed with respect to particular acts or practices involving
particular states. It could also spur the negotiation of needed
additional multilateral agreements, which the resolution should
recommend. It further, importantly, would remove the basis
for any claim of “enforcement” not explicitly
approved by the Security Council of the kind made by the United
States and Britain with respect to the invasion of Iraq. In
general, the Security Council should act in a way to inspire
states' cooperation, rather than indifference or even defiance.
Prevention of “trafficking”: The proposed resolution
calls upon states, “consistent with international law,”
to cooperate in the prevention of “illicit trafficking”
in NBC weapons, means of delivery, and related materials (para.
8). While the language has been softened from earlier drafts
which explicitly referred to "interdiction," this provision
would still give some support to the U.S. led Proliferation
Security Initiative. Especially given the extremely elastic
understanding of international law displayed by the United
States and Britain with respect to the invasion of Iraq, as
well as the national “intelligence failures”/deceptions
regarding NBC-weapon programs in Iraq, the mere invocation
of international law is not enough. There should be provision
for Security Council or other multilateral, treaty-based decision-making
and dispute resolution (as by the International Law of the
Sea Tribunal) as to interdiction of specific shipments that
otherwise would appear to be protected by the customary freedom
of navigation on the high seas, the right of innocent passage,
and other existing international law.
Statement to the Press
Susi Snyder
Director, United Nations Office
Women's International League for Peace and Freedom
March 31, 2004
The Women’s International League for Peace and Freedom
has been working since 1915 to eliminate war and the causes
of war. Through the Reaching Critical Will project, the United
Nations office of WILPF works to increase the quantity and
quality of NGO participation in all disarmament fora. We have
drawn attention to our numerous concerns with this draft resolution
through a series of meetings with Security Council members
as well as the March 25 letter John mentioned. WILPF has considerable
experience interacting with the Security Council regarding
women in peacebuilding in the buildup to the passage of Resolution
1325 (October 2000) on Women, Peace and Security. I'd like
to speak to how we think the Council should proceed in considering
the draft.
Open Session:
There is widespread recognition of the potential problem of
non-state actors acquiring weapons of mass destruction and
their means of delivery; however a resolution of this magnitude,
which does not involve all nations during the deliberations,
will only inspire distrust and resentment. The permanent five
members of the UN Security Council have been holding closed
door negotiations since at least December. With input from
only the 5 recognized nuclear weapons states, this resolution
fails to uphold the long-standing principles of international
cooperation and democracy as laid out in the UN Charter. The
P5 seem to have an expectation that the rest of the Security
Council and all UN member states will fall in line with their
will without any opportunity to shape the resolution or participate
in negotiations. It is for this reason that we are calling
on the President of the Security Council to hold an open session
in order to hear from all states who may have concerns.
Arria Formula
There have been many questions raised on the issue of whether
or not the Security Council has the right to call upon states
to create or modify their national laws. While Resolution
1373 made demands on national legislatures, this should not
set a precedent. There should be an Arria formula meeting
set up for the benefit of the council to examine both the
potential impacts of this type of resolution on the international
law regime and the overlaps and gaps with existing disarmament
and nonproliferation treaties (like the Non-Proliferation
Treaty, the Biological Weapons Convention and the Chemical
Weapons Convention). We recommend that the Security Council
hold informal consultations with international law experts
before taking a decision of this magnitude, and that this
resolution not be tabled for a vote without time set aside
for adequate participation and reflection on its potential
impacts.
Sunset Clause
Given the numerous strenuous concerns about this resolution
and questions of its potential long-term impact, language
should be included which would be in effect a sunset clause.
This is true especially if the resolution if framed in mandatory
terms under Chapter VII, as the draft now provides. There
needs to be an examination of the impacts of this resolution,
in less than a year's time, and another decision taken then
as to whether or not to extend this resolution or to drop
it from the course of international law altogether and instead
bring international attention back to multilateral treaty
negotiations.
Other, multilateral mechanisms for nonproliferation and disarmament-
The question begs asking- would there even be a need for this
resolution if there were a Fissile Materials Cutoff Treaty
in place, applying to Pakistan among other countries? An FMCT
would prohibit the production of fissile materials needed
for nuclear weapons and would involve monitoring of production
of all fissile materials. It thus could prevent their transfer
into the hands of non-state actors by strengthening the international
monitoring and control regime, and be a tool in the prevention
of proliferation of nuclear weapons- both horizontally as
this resolution begins to address, and vertically which this
resolution fails to mention at all.
I want to note that this draft resolution comes in a context
of U.S. refusal across the board to meet its commitments under
the NPT- from the CTBT, to negotiations on a Fissile Materials
Cutoff Treaty, to verified and irreversible reductions (the
Moscow Treaty is premised on a rejection of the principles
of verification and irreversibility). The United States has
also disrupted negotiations on a verification regime for biological
weapons. It is safe to say that the world would be much more
receptive to collective action on preventing proliferation
involving non-state actors if there was progress instead of
backsliding on the arms control/disarmament front.
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