UNITED NATIONS — Nongovernmental experts on arms control and international law yesterday criticized a draft resolution before the Security Council designed to deny terrorists and other “nonstate actors” access to weapons of
mass destruction (see GSN, March 25).

John Burroughs of the Lawyers Committee on Nuclear Policy said that while “there is clearly an urgent need to prevent nuclear proliferation involving nonstate actors,” this resolution is the wrong vehicle.

The NGOs’ made two major criticisms: the draft ignores the role of disarmament in promoting nonproliferation and it would turn the Security Council into a kind of global legislature.

The text “refers only to the prevention of proliferation, and is silent, rhetorically or substantively, on the imperative of disarmament,” said Burroughs. “It’s absolutely hypocritical because there’s nothing in it about the disarmament obligations of the five nuclear states under the NPT [Nuclear Nonproliferation Treaty]” (see GSN, March 30). Those five states — the United States, United Kingdom, Russia, France and China — are also the five permanent members of the council.

Susi Snyder, director of the U.N. office of the Women’s International League for Peace and Freedom, said, “It is safe to say that the world would be much more receptive to collective action on preventing proliferation involving nonstate actors if there was progress instead of backsliding on the arms control/disarmament front.”

The draft, if approved, would require states to “adopt and enforce appropriate effective laws” to deny nuclear, biological and chemical weapons, their components and “means of delivery” (such as missiles and drones) to any “nonstate actors.” The text invokes Chapter 7 of the U.N. Charter, meaning the requirements of the resolution would be legally
binding. The United States and United Kingdom had been negotiating with the other permanent members of the council since December. The text distributed to the 10 elected members last week was approved by all five permanent
members.

In releasing the draft, British Ambassador Emyr Jones Parry said the draft “fills a gap in the nonproliferation regimes” because governments are subject to international controls, but “what there aren’t are obligations targeted at the terrorists.” He added, “What we have to do is stop the ultimate nightmare: the bringing together of weapons of mass destruction and the terrorist.”

Burroughs said the draft “imposes no obligations on the P5” — the permanent five council members — because those five also have veto power over any council action, but “it certainly affects countries outside the NPT because
it’s going to place obligations, for example, on Pakistan to ensure that nuclear materials do not find their way via nonstate actor networks to other countries.” In February it was revealed that the father of Pakistan’s nuclear weapons program, Abdul Qadeer Khan, sold nuclear technology to Iran, Libya and North Korea.

The NGOs also called for a public meeting of the council before any action is taken. “A resolution of this magnitude, which does not involve all nations during the deliberations, will only inspire distrust and resentment,” Snyder said.

Snyder said she and Burroughs had met so far with four of the elected members of the council. “In general, they have been supportive of the idea of an open debate, especially in noting that because this resolution affects so many that by passing it without an open debate it would not allow for their voices to be heard,” she added.

Snyder said the delegates they talked to were “concerned with the lack of transparency over the initial negotiations on this resolution and have been concerned with the definitions — or lack of definitions — and some of the terms.”

Burroughs said that at first, he “was more sympathetic to the idea of a Security Council mandatory resolutions, but as I studied the issue, I began to see what the consequences would be for international law if suddenly the Security Council becomes an ongoing global legislature.”The precedent for the council imposing mandatory obligations on countries
without any treaty negotiations is Resolution 1373, the counterterrorism resolution adopted in the wake of the terrorist attacks on the United States on Sep. 11, 2001. The resolution requires states to enact national legislation that would make it harder for terrorists to operate or hide resources in all countries (see GSN, March 29).

Like Resolution 1373, Burroughs said this draft “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.” He added, “There is nothing in the U.N. 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.”

The authors of the draft were aware of this concern when they publicized the draft last week. Jones Parry said the draft “does not represent the Security Council trying to impose its will to replace the role of properly negotiated
multilateral regimes, it is a responsible reaction by the Security Council to a real threat.”

The NGOs proposed instead that any resolution on the subject not be mandatory requirements but rather “guidelines and requests” for states to address the problem. In addition, implementation should be in the hands of the secretary general, not the president of the council. This way it “would remove the basis for any claim of ‘enforcement,’“ said Burroughs, and “would be an excellent opportunity to involve the concerned international bodies in this matter” if the work was done by the secretary general rather than the council.

German Ambassador Gunter Pleuger, who assumes the rotating presidency of the council today, said the sponsors have not yet asked for consultations over the draft. If asked, “we would certainly do that,” he said. “We are completely open.”

Pleuger said Germany supports the draft “because there is a gap in international law pertaining to nonstate actors. We cannot wait for normal procedure of international law of negotiating a convention or a treaty. We have to act, the urgency is there, so the resolution in principle is a good move.”

On the other hand, he said, “There is certainly room for improvement.” Germany has proposals “that relate the resolution to disarmament and disarmament obligations that are already existing under international law because there is a connection, of course. Weapons that are disarmed cannot be proliferated, it’s as easy as that.”

Copyright 2004 by National Journal Group, Inc.

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