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Default Arms Control And Non-proliferation: The Role Of International Organizations

ARMS CONTROL AND NON-PROLIFERATION: THE ROLE OF INTERNATIONAL ORGANIZATIONS
I. Introduction
A stable and peaceful international order requires controls on nuclear, biological and chemical (NBC) and other types of weapons and dangerous sensitive materials as well as regulation of the behavior of both state and non-state actors. For almost a decade, however, there has been little progress in multilateral arms control in general and some processes have suffered severe setbacks. A number of cases have come to light in which states violated their obligations under arms control treaties, which undermined confidence in the value of global arms control agreements as instruments for security building. Given these trends, states have tended not to consider global measures first when contemplating how to make progress in solving particular problems. Instead, efforts to achieve the objectives of arms control have been carried forward mainly through informal political cooperation among small groups of states or through regional processes. However, a number of developments in suggest that there is a steadily growing momentum behind international efforts to explore how global processes might be strengthened in order to achieve their potential as part of an emerging mosaic of arms control measures.
In April 2004 the United Nations (UN) Security Council unanimously adopted Resolution 1540 on the proliferation of NBC weapons and their means of delivery.1 Unlike most Security Council resolutions—which respond to developments in a particular location—Resolution 1540 has a preventive character. It was adopted primarily in response to the growing concern that non-state actors would succeed in acquiring NBC weapons. The evidence of an extensive grey market in nuclear and nuclear-related goods and technologies revealed in information released by the Government of Libya2 and in investigations carried out by the International Atomic Energy Agency (IAEA) was a catalyst for the decision.
In December 2004 UN Secretary-General Kofi Annan released the report of the UN High-level Panel on Threats, Challenges and Change. The report, approximately one-third of which was devoted to arms control issues, pointed to the urgent need to establish effective controls over nuclear weapons and nuclear materials that can be used to make them. The High-level Panel expressed concern over the lack of progress in two areas of

persistent difficulty for multilateral arms control as well as the pressing need for effective measures to reduce the threat of nuclear terrorism. The two areas of concern were: (a) how to ensure universal adherence to multilateral agreements intended to establish global norms and rules of behavior; and (b) how to ensure that those states which do adhere to the agreements comply fully with the commitments that they have made. Section II surveys some of the key developments in arms control and nonproliferation in 2004, which are analyzed in detail in other chapters in this Yearbook. Section III addresses the issue of the role of global arms control processes—in particular, the role of the United Nations.
II. Developments in arms control and non-proliferation in 2004
It has increasingly been recognized that the application of a wide range of measures including, but not confined to, multilateral agreements is needed to implement the existing controls on NBC weapons and establish new controls on other types of weapon and on dangerous and sensitive materials and the behavior of both state and non-state actors.
Nuclear arms control
Since the early 1990s states have been discussing, both formally and informally, the need for an agreement to prohibit the production of fissile materials for use in nuclear weapons. This prohibition is one required element of an effective global nuclear disarmament framework. In 1995 consultations among the members of the UN Conference on Disarmament (CD) led to an agreement that an Ad Hoc Committee on Fissile Material Cut-Off should be established to discuss how such an objective might be achieved. The committee was not formed at that time because of disagreement over the scope of application of measures related to fissile material, in particular whether past production and existing stockpiles should be covered by a treaty or whether measures should focus exclusively on future production. Subsequent efforts to initiate negotiations on a treaty prohibiting the production of fissile material for military purposes have not been fruitful.
In 2003 the Government of China stated its willingness to begin negotiations on a fissile material treaty without requiring a parallel process to negotiate an agreement on the prevention of an arms race in outer space (PAROS), which would limit the military use of space. In 2004 the United States, which had consistently rejected this linkage, restated its commitment to negotiate a treaty banning the future production of fissile material but expressed its opposition to creating a joint system to verify such a ban. At the meeting of the Preparatory Committee for the 2005 Review Conference of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty, NPT) the question was raised of how to reconcile the non-proliferation obligations of states with the legitimate requirements of the nuclear power industry, among other users, for items that could be applied in a military programme. A number of states pointed to the need for a new cooperative framework between supplier states and customer states to ensure a reliable supply of items at a reasonable price without undermining nonproliferation objectives.
In 2004, following up a proposal made by its Director General in October 2003, the International Atomic Energy Agency (IAEA) initiated a study of multilateral approaches to the nuclear fuel cycle. The study focused in particular on the parts of the nuclear fuel cycle that are particularly sensitive from a nuclear weapon proliferation perspective, namely, those parts that produce the weapon-usable materials separated plutonium and highly enriched uranium (HEU). The preliminary discussions of the expert group conducting the study took place in September 2004. The 2004 meeting of the Preparatory Committee did not produce a consensus document and national presentations covered a wide and diverse range of subjects. However, two themes in particular were common to many of the national perspectives.
First, there was widespread support among participants for the strengthened safeguards system developed by the IAEA. The strengthened safeguards combine safeguards applied to all source and special fissionable material in current and future peaceful nuclear activities of a state (so-called full-scope safeguards) with additional measures contained in an Additional Protocol to the bilateral safeguards agreement between a state and the IAEA. There is a growing feeling that these integrated safeguards should be regarded as an international standard as well as a condition for new arrangements for nuclear supply to non-nuclear weapon states. Second, many national presentations showed the concern that the termination of the 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems (ABM Treaty) along with the development of missile defense systems could trigger the development of new advanced missile systems and lead to increases in the number of nuclear weapons held by some states.
Against the background of concerns about states violating obligations contained in the NPT or in IAEA safeguards agreements, a number of states emphasized the need to develop additional measures to create confidence about compliance. The appropriate role of export controls in raising confidence about the effectiveness of the non-proliferation regime was prominent among the measures discussed. The view that effective export controls are a prerequisite for cooperation on the use of nuclear energy for peaceful purposes has become increasingly widespread, and there is also a demand in some quarters for greater transparency in the development and implementation of export controls. Proposals have also been made to define minimum standards for export controls through an open and inclusive process, perhaps under the auspices of the IAEA, including the identification of international standards for implementation.
The states that participate in two informal cooperation arrangements, the Zangger Committee and the Nuclear Suppliers Group (NSG), have developed export control guidelines that each state implements nationally. The potential role of these arrangements in assisting other participating states to establish effective national export control systems and the extent to which the existing guidelines might be more widely adopted were both discussed following the unanimous adoption of UN Security Council Resolution 1540. Nuclear export controls focus on controlling those items that are relevant to the development and construction of nuclear explosive devices. However, after the terrorist attacks on the USA in September 2001 concern has grown about the possible use of a radiological dispersal device (RDD), for example in a ‘dirty bomb’, in a terrorist act. There are international standards and national controls in place to ensure that radiological materials are transported in a safe manner. However, transfers of such materials are not currently assessed to judge the risk of inappropriate or malicious end-use. As an element of the discussion of nuclear security the Group of Eight (G8) industrialized nations has proposed the development of export controls that would require the end-users of listed radiological materials to be assessed prior to any cross border shipment.
In May 2004 the US Secretary of Energy announced the Global Threat Reduction Initiative (GTRI) in remarks made at the IAEA. The objective of the GTRI is to secure, remove, relocate or dispose of nuclear and radiological materials and equipment considered to be at risk of falling into the hands of users who are planning or contemplating terrorist acts. The GTRI is a US programme that brings together under one roof a number of nuclear security initiatives that the USA had been pursuing for more than a decade. However, in announcing the initiative, the Secretary of Energy was seeking international cooperation and support for the programme as well as highlighting the nuclear security-related activities already undertaken by the IAEA.
While the IAEA was engaged in nuclear security-related programmes during the 1990s, this work accelerated after September 2001. In early 2004 a Code of Conduct on the Safety and Security of Radioactive Sources was published by the IAEA. In 2004 the newly established IAEA International Nuclear Security Advisory Service (INSServ) worked to help states assess their protection of radiological materials and produce recommendations to strengthen nuclear security at the national level. In September 2004 the IAEA, Russia and the USA organized an international conference in Vienna with four objectives. The objectives were: to build consensus among the widest possible group of states that vulnerable, high-risk nuclear and radiological materials ‘pose a threat to our collective security and that all states share the common objective to help reduce this threat’; to stimulate national programmes to identify, secure, recover and facilitate the disposal of such materials; to create international support for practical measures to mitigate the common threat; and to secure the widest possible active participation in implementing these practical measures.
Developments in chemical- and biological weapon-related arms control
The 1993 Chemical Weapons Convention (CWC) is the most critical part of the international framework for chemical weapon disarmament and states parties carry the primary responsibility for meeting their obligations under the convention. In 2003 the parties to the CWC endorsed a collective Action Plan which is intended to ensure that the national implementation measures specified in Article VII of the Convention are in place by late 2005. The Organization for the Prohibition of Chemical Weapons (OPCW) was created in 1997 as the implementing body of the CWC, and in recent years assisting states with their responsibilities in the field of national implementation has emerged as a critical task for it. Following the endorsement of the Action Plan, one report noted that the OPCW has moved from ‘benign lack of interest in CWC national implementing legislation to being fully engaged with the issue’.17 In the same report the authors note that the development and discussion of the Action Plan has led to ‘greater dialogue, organizational change, more intensive reporting and some other concrete outcomes’. The development of the OPCW Action Plan is an example of how states can work with and through an international organization to accelerate the implementation of their treaty obligations and make the implementation more effective. No comparable framework for effective cooperation exists for biological weapon (BW)-related arms control. In the absence of a dedicated international organization, it is more difficult to determine who is responsible for setting common implementation standards, monitoring adherence to them and assisting states when difficulties arise in reaching those standards. In the BW field, these tasks are the subject of discussion in different forums, including global and regional organizations, and in ad hoc processes where clusters of states participate.
Developments in conventional arms control
While no global framework governs the size and structure of the armed forces of states, in Europe there is a well-developed arms control regime covering heavy conventional weapons. Nonetheless, the 1990 Treaty on Conventional Armed Forces in Europe (CFE Treaty) remains entrapped in a prolonged crisis. The 1999 Adaptation Agreement to the CFE Treaty, which is intended to make the treaty better attuned to the security environment in Europe after the enlargement of the North Atlantic Treaty Organization (NATO), has not been implemented.18 This failure has occurred although all parties agree that implementing the Adaptation Agreement is in their interests. For a number of parties to the CFE Treaty the implementation of the agreement is linked to the status of the ‘Istanbul commitments’ on Georgia and Moldova, which, in essence, require Russia to end its military presence in Georgia and Moldova by withdrawing forces, equipment and stores from facilities in those countries within a short period. In spite of what has become an entrenched political disagreement between NATO and Russia, however, all parties have continued to comply with their existing commitments under the CFE Treaty. Moreover, the failure to bring the adapted treaty into force did not ‘spill over’ to undermine the wider NATO–Russia political relations during a second round of NATO enlargement.
Implementation of the EU Strategy against the Proliferation of Weapons of Mass Destruction
In December 2003 the heads of state and government of the European Union (EU) adopted the European Security Strategy (ESS), which identified the proliferation of weapons of mass destruction (WMD) as a key threat confronting the EU. In December 2003 the EU also adopted a Strategy against the Proliferation of Weapons of Mass Destruction (WMD Strategy) setting out measures to be used, ideally, to prevent proliferation from taking place. These documents were intended to place all of the wide-ranging activities being carried out by the various parts of the EU—the European Commission, the Council of the European Union and the member states—in a single framework and thereby increase their coherence and effectiveness.
The WMD Strategy was not adopted in the form of a Common Position, a Joint Action or a Common Strategy—the legal instruments available under the EU Common Foreign and Security Policy (CFSP). The concern that the informal character of the document, in effect a political declaration, would undermine its implementation was offset by the commitment to review implementation regularly and at a high level. In order to satisfy the commitment to conduct regular, high-level scrutiny of implementation, the General Affairs and External Relations Council (GAERC), which is composed of the foreign ministers of the EU member states, will be informed about the actions taken to implement the strategy on a six-monthly basis and is expected to debate the progress of implementation. During 2004 information about implementation was presented to the EU Political and Security Committee (PSC) and to the Permanent Representatives Committee (COREPER) prior to each of the discussions in the GAERC. The measures taken by the EU to implement its WMD Strategy can be grouped under four headings.
1. The first measure is to ensure that the EU itself is a ‘model citizen’ that does not undermine non-proliferation objectives. A number of companies located in EU member states were active participants in the ‘Khan network’ and provided items that contributed to nuclear weapon programmes. From February to July 2004 the national export control systems of member states were scrutinized by teams of officials drawn from other EU states. On the basis of this ‘peer review’ the EU has recommended concrete actions to improve the efficiency of national systems. Immediately prior to the enlargement of the EU the then 15 member states completed the ratification of their collective agreements with the IAEA to bring into force an Additional Protocol to their safeguards agreements. The first declarations under the Additional Protocols from these states were submitted to the IAEA in October 2004. As of December 2004, 3 of the 10 states which joined the EU in 2004 (Estonia, Malta and Slovakia) had not completed the process of ratifying an Additional Protocol. In June 2004, after the adoption of Security Council Resolution 1540, the EU Council invited relevant subsidiary bodies to review the appropriate political and legal instruments, including possible actions in the framework of Justice and Home Affairs, that would further the adoption of concrete steps towards the objective of adopting common policies related to criminal sanctions for the illegal export, brokering and smuggling of WMD-related material. The EU Council Working Group on Non-Proliferation (CONOP) has begun such a review.
2. The second measure was to strengthen global arms control processes in order to stimulate what has been termed ‘effective multilateralism’. The EU has continued to provide financial support to conferences and meetings intended to promote the universal ratification of, and adherence to, the NPT, the IAEA safeguards agreements, the 1972 Biological and Toxin Weapons Convention (BTWC) and the Chemical Weapons Convention as well as to bring into force the 1996 Comprehensive Nuclear Test-Ban Treaty (CTBT). The country holding the EU presidency continued to make statements on behalf of the EU at the relevant international meetings and in international organizations. The EU pledged €1.8 million to finance a number of measures to promote universal participation in the CWC and to assist states parties to the CWC with effective implementation. This financial assistance will support projects carried out by the OPCW.29 The EU developed an Action Plan on Challenge Inspections in an effort to strengthen the verification of the CWC. In contrast to the level of engagement in nuclear- and chemical weapon related arms control processes, the EU has not thus far been particularly active in supporting the strengthening of the BTWC. In June 2004 the EU member states committed themselves to contribute to the Proliferation Security Initiative (PSI). The EU pledged to ‘take the necessary steps in support of interdiction efforts to the extent their national and Community legal authorities permit and consistent with their obligations under international law and frameworks’.
3. The third measure consists of financial support for practical measures to secure weapons and materials of concern. This financial assistance has included contributions by member states as well as contributions from the EU common budget (which can include both Joint Actions under the Council and projects and programmes administered directly by the European Commission). Historically, the EU has made relatively minor contributions to international non-proliferation and disarmament assistance in comparison with the contribution of the USA. The EU WMD Strategy gives a prominent place to the reinforcement of programmes targeted at disarmament, control and security of sensitive materials, facilities and expertise. However, the new achievements in 2004 in this regard were modest. In addition to the support for the OPCW noted above (only some of which was to be used for practical assistance measures) the EU agreed a Joint Action to support the IAEA in May 2004. Under this Joint Action the EU will provide €3.3 million to support nuclear security projects over a 15-month period. In November 2004 a Joint Action was agreed to support a project for the implementation of physical protection measures at the Bochvar All-Russian Scientific Research Institute of Inorganic Materials of the Russian Federal Agency for Atomic Energy. Under this Joint Action the EU will contribute roughly €8 million to the cost of the project. Nevertheless, overall EU spending is still far short of what is required to meet the financial pledges made in the context of the G8 Global Partnership against Weapons and Materials of Mass Destruction.
4. The fourth measure consists of the so-called ‘mainstreaming’ of nonproliferation policies into the wider relations between the EU and its partners, including states and international organizations. Annalisa Giannella, Personal Representative on Weapons of Mass Destruction in the cabinet of the EU High Representative for the CFSP, Javier Solana, has argued that as a result of actions taken in 2004 this process of mainstreaming has given the EU ‘real leverage’ in negotiations with partners. According to Giannella, ‘nonproliferation has now been placed on a similar level to human rights and the fight against terrorism. If you don’t meet certain standards it affects your relations with the EU’.
On 19 October 2004 a non-proliferation clause was agreed as part of the Association Agreement between the EU and Syria. The clause has also been included in agreements with Albania and Tajikistan. EU negotiators were discussing how to include the text in inter-regional agreements with the Southern Common Market (MERCOSUR, Mercado Común del Sur), the Gulf Cooperation Council (GCC) and as part of the 2000 Cotonou Agreement. As part of the European Neighborhood Policy the Commission, together with partner countries located around the periphery of the enlarged EU, has developed political documents to guide the further development of relations. The Action Plans define a set of agreed priorities in bilateral relations between the EU and the country in question. The Action Plans agreed with Israel, Moldova and Ukraine in 2004 include specific WMD-related objectives. However, the highest-profile case of ‘mainstreaming’ has been the EU discussion of Iran’s nuclear programme.
At the end of 2004 the EU resumed its negotiations with Iran on a Trade and Cooperation Agreement after the adoption by the IAEA Board of Governors of a resolution welcoming ‘the fact that Iran has decided to continue and extend its suspension of all enrichment related and reprocessing activities’. In addition, in December 2004 three EU members (France, Germany and the United Kingdom) and Iran established a steering committee to launch negotiations on a long-term agreement intended to ‘provide objective guarantees that Iran’s nuclear programme is exclusively for peaceful purposes. It will equally provide firm guarantees on nuclear, technological and economic cooperation and firm commitments on security issues’. The office of the High Representative for the CFSP plays a supporting role in the steering committee, which has separate working groups on nuclear, economic and technology cooperation, and political and security issues.
III. The United Nations and multilateral arms control
When outlining the context in which Kofi Annan had established the High-level Panel on Threats, Challenges and Change, his advisers explained the challenge to be: can the UN reassert its legitimacy and make itself effective enough to convince nations that it is actually capable of making the world a safer place? Reversing the progressive marginalization of the UN in the sphere of arms control can be regarded as one of the main requirements for meeting this challenge. In bringing about this revitalization of the UN a number of obstacles need to be overcome both within the UN organization and in the way in which the member states use the UN. Within the UN itself, the past body of decisions, conferences, papers and statements has established a normative basis from which it is difficult for UN staff to depart. This includes the commitment to universal, non-discriminatory measures that emphasize disarmament. However, in current conditions obedience to this canon is not always advantageous. Recently, many of the most important security-related activities have taken place outside institutions—in coalitions of willing, ad hoc processes and regimes, and contact groups. It has been impossible to find practical solutions to security problems within the UN in conditions where the organization is not prepared to recognize the special role of the United States and will not give the USA a special status with enhanced privileges or accommodate the US security policy agenda. While the capacity of the USA to set the security agenda is strong, UN capacities for strategic planning are weak in this area, as in others, and there is little political support for investment to build this capacity. Moreover, UN arms control decision making is hampered by the lack of clarity about the respective roles of different parts of the disarmament machinery, by a lack of coherence in the cooperation between different bodies and perhaps by bureaucratic competition between them.
In December 2004 the report of the High-level Panel provided an analysis of future challenges to peace and security. The report had been requested by UN Secretary-General Annan in his address to the UN General Assembly in September 2003. At a time when the question of how the UN should respond to Iraq’s non-compliance with Security Council resolutions was beginning to evolve into what became a deep crisis, Annan suggested that the UN had reached what he called ‘a fork in the road’. In his speech he suggested that the UN ‘must not shy away from questions about the adequacy and effectiveness of the rules and instruments at our disposal’. Annan asserted the necessity to examine whether radical changes are needed to the rules governing international behavior and the network of institutions set up to help develop and implement those rules—with the United Nations at its centre. One useful role of the High-level Panel was that of a catalyst for a discussion and analysis of past practice. Implementation of the recommendations might introduce a more realistic view of how to balance commitments and resources. The report could help to establish the cases where the UN can add value and where it can never act but might be able to facilitate actions by others. The report identified six kinds of global threat and asserted that the relationship between these kinds of threat is not hierarchical and that the UN needed to deal with all of them.
The UN must identify its own core competence—what can it offer and how this can be delivered—and, given the limits of that competence, accept nonhierarchical arrangements with other organizations and states, cooperate with them and participate in them. The High-level Panel offers a useful yardstick by pointing out that for the UN the litmus test for any action is the extent to which it helps meet the challenge posed by a virulent threat. Only if the UN acts on the principle of making a useful contribution in a broader overall framework is it likely to be able to market its effectiveness and to shrink the credibility gap that has opened up with some states, notably the USA. The Secretary-General has pointed to the need to forge a new consensus around the main threats facing the global community. The High-level Panel was asked to identify and focus on threats that could be addressed only through effective collective action and to appraise the role that the UN, including all its principal organs, could play in taking the action considered necessary. The USA, which devotes far more national resources to military security issues than any other state, also allocates far greater financial and human resources to arms control than the rest of the UN members. However, many participants in many multilateral processes have not come to terms with implications of these realities. The report of the High-level Panel is useful in that it identifies the need to pay special attention to US concerns and priorities since this is a precondition for effective multilateralism.
One of the types of threat identified was the proliferation of WMD and arms proliferation generally. However, the panel lists paid particular attention to the problems associated with nuclear weapons and concluded that the point was now approaching ‘at which the erosion of the nuclear regime could become irreversible, and result in a cascade of proliferation’.47 In the report a prominent place is also given to radiological, chemical and biological weapons. While UN member states are exhorted ‘to expedite and conclude negotiations on legally binding agreements on the marking and tracing, as well as the brokering and transfer, of small arms and light weapons’, the report does not devote much attention to other types of weapon. In its report the High-level Panel describes states as ‘front-line responders’ to threats, and the way in which the member states use the UN is clearly critical to its overall effectiveness. However, the approach to arms control adopted by states in UN processes (based on global norms) is not always easy to reconcile with the approach taken in regional or bilateral discussions, which are often more pragmatic, political and based on a different calculation of national interest. This lack of coherence can be illustrated with examples. Many states have stressed the need for universal participation in arms control treaties. At present a number of Arab countries do not participate in the CWC and four UN members (India, Israel, North Korea and Pakistan) are not parties to the NPT. The CWC requires the abandonment of all chemical weapons as a condition for participation. It is generally assumed by parties to the NPT that the states joining or rejoining the treaty would do so as non nuclear weapon states.
At the same time regional and bilateral discussions have not always stressed disarmament but have emphasized the need to create regional stability. In the ongoing dialogue between India and Pakistan, stability is increasingly coming to mean nuclear deterrence combined with elements of conflict prevention and crisis management. Enhanced nuclear security and stable deterrence in South Asia are both desirable objectives but also inconsistent with current global arms control norms. The growing recognition of a need to correct inconsistencies between global, regional and sub-regional (including bilateral) processes is mirrored by the attempt to address some of the perceived inconsistencies between the approaches followed in global arms control processes and in the closed groupings that cooperate to regulate technology supply. A broad agreement on the basis for a security-related technology assessment has proved elusive. However, there is an emerging consensus that states have a responsibility to safeguard against NBC weapon proliferation by a number of means, including the introduction of effective physical protection, material accountancy and export controls.


United Nations Security Council Resolution 1540
In September 2003 US President George W. Bush urged the UN Security Council to adopt an anti-proliferation resolution calling on all members of the UN ‘to criminalize the proliferation of weapons of mass destruction, to enact strict export controls consistent with international standards, and to secure any and all sensitive materials within their own borders’. One of the central arguments for developing an anti-proliferation resolution was the difficulty of adapting traditional approaches to non-proliferation in conditions where non-state actors seek access to technologies in order to misuse them. While, as noted above, the more traditional non-proliferation agenda related to states remains relevant, states have found it difficult to accommodate changes in the strategic context by adapting existing instruments. A number of states (including the USA) have perceived an urgent need to find effective remedies given the growing concern that non-state actors might have the wherewithal to cause mass destruction or mass disruption. In this context, the discovery of the extent of the activities carried out by the Khan network acted as an additional, powerful catalyst for the discussion and adoption of Resolution 1540.
In short, while existing instruments should be preserved and strengthened to help manage security problems arising out of state behavior, new types of instrument are needed to address the potential threats from non-state actors. As Barry Kellman has expressed this, ‘the thesis is a simple one. International non-proliferation needs the assistance of international criminal law—including its capabilities of individual deterrence and incapacitation’. In Resolution 1540 the UN Security Council, acting under Chapter VII of the UN Charter, mandated a number of steps that states should take to establish and enforce legal barriers to the acquisition of NBC, radiological weapons or nuclear explosive devices, whether by terrorists or by states. Several of the provisions in the resolution took the form of decisions, of which three require member states to take certain actions. States ‘shall refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery’; ‘shall adopt and enforce appropriate effective laws which prohibit any non-state actor to manufacture, acquire, possess, develop, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them’; and ‘shall take and enforce effective measures to establish domestic controls to prevent the proliferation of nuclear, chemical, or biological weapons and their means of delivery, including by establishing appropriate controls over related materials’. With regard to the third of these decisions, the resolution further instructs states to put in place specific measures necessary to implement the resolution. Accordingly, states are obliged to ‘develop and maintain appropriate effective measures to account for and secure’ relevant items ‘in production, use, storage or transport’; to ‘develop and maintain appropriate effective physical protection measures’; to ‘develop and maintain appropriate effective border controls and law enforcement efforts to detect, deter, prevent and combat, including through international cooperation when necessary, the illicit trafficking and brokering in such items in accordance with their national legal authorities and legislation and consistent with international law’; and to ‘establish, develop, review and maintain appropriate effective national export and trans-shipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and re-export and controls on providing funds and services related to such export and trans-shipment such as financing, and transporting that would contribute to proliferation, as well as establishing endures controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations’.
Prior to the adoption of Resolution 1540 the Security Council invited all UN member states to an open debate on the draft text of the resolution. The invitation, which was extended after a number of states had communicated their wish to be engaged in the process, was widely taken up and more than one third of the member states made statements during the debate. In their statements governments generally underlined that they shared the concern of the Security Council members about the potential threat that non-state actors would acquire WMD. However, a number of states expressed their unease about the process by which the resolution was drafted and the implications of a resolution of this kind for the future effectiveness of the Security Council and the overall multilateral arms control process. In proposing the use of a binding Security Council resolution the co-sponsoring states sidestepped the difficulty of securing universal adherence to multilateral agreements. This approach also meant that a measure could be put in place quickly. The resolution was drafted, discussed and adopted only seven months after President Bush proposed it. However, this procedure had certain controversial aspects.
While accepting the urgent need to address the issue of weapon acquisition by non-state actors, a number of the government representatives questioned whether the Security Council could ‘both define the non-proliferation regime and monitor its implementation’. Lack of consultation in establishing the agenda ran the risk of complicating the task of generating the active support and willing cooperation of states where implementing the resolution would require the allocation of new resources. This concern is in essence related to the legitimacy of the Security Council’s passing a binding resolution requiring domestic legislation from UN member states without widespread consultation. However, in December 2004 the General Assembly adopted by consensus Resolution 59/80 entitled ‘Measures to prevent terrorists from acquiring weapons of mass destruction’ that took note of Security Council Resolution 1540 and called on member states to ‘support international efforts to prevent terrorists from acquiring weapons of mass destruction and their delivery means’. While similar resolutions had been passed in the two previous years, the 2004 resolution was obviously the first to include reference to Resolution 1540. In introducing Resolution 59/80 the Indian co-sponsor described it as ‘an unambiguous statement from a body that is universal and democratic. The representative character of the General Assembly validates and reinforces the commitments we assume as Member States in this regard’.
Several statements questioned the authority of the Security Council to issue the kinds of instructions contained in Resolution 1540 and whether this approach could secure the cooperation that would be needed from states for effective implementation. In this regard, the presentation by Mexico at the debate suggested that the approach proposed by the Security Council ‘does not necessarily create the conditions to reach the desired objective’. A number of concerns exist with regard to the implementation of the resolution. It is not clear how the Security Council will judge compliance with Resolution 1540. The language of the resolution takes the form of an instruction, but there are no criteria for what constitutes compliance and the process for evaluation is not described. The resolution established a reporting mechanism in the form of a Committee of the Security Council consisting of all members of the Security Council. The committee may also recruit up to six experts to facilitate consideration of national reports submitted by member states. This committee is to report to the Security Council on the implementation of Resolution 1540. In order to facilitate reporting the resolution called on states to inform the so-called 1540 Committee ‘no later than six months from the adoption of this resolution’ about implementation steps they have taken or intend to take. An additional concern was what would happen if few states submitted a report within the six-month period. The basis on which the 1540 Committee would report on compliance in such circumstances was unclear, as was the manner in which the Security Council could respond to the compliance record of non-reporting states. In the event, 58 states and one international organization (the EU) submitted reports on or by 28 October 2004 while three other states (Belize, Moldova and South Africa) requested an extension of the deadline. By the beginning of December 2004, the 1540 Committee had received reports from 87 states and the EU.
At the Security Council discussion of the first information presented by the 1540 Committee several of these issues were taken up again. The difficulty of establishing what ‘compliance’ with the resolution meant in conditions where there was no clear and uniform understanding of what its language was referring to was noted. In this context it was also pointed out that the existing multilateral agreements referred to in Resolution 1540 (the BTWC, the CWC and the NPT) do not have uniform levels of participation and do not provide guidance about a number of matters. In certain areas (such as nuclear security, the physical security of fissile materials and chemical weapon precursors) recognized international standards have been established in the IAEA and the OPCW. In other areas, such as evaluation of what represents an effective export control system, no such standards are recognized outside cooperation arrangements established by groups of states on an informal basis. Resolution 1540 anticipates that states in a position to do so would offer assistance if requested to do so by states which lack the necessary legal and regulatory infrastructure, implementation experience or resources to meet their obligations.
However, the resolution provides little guidance about how this would be managed. The guidelines for the conduct of its work permit the 1540 Committee to establish arrangements to cooperate with the IAEA and the OPCW and, if deemed appropriate, ‘other relevant international, regional, sub-regional bodies and relevant committees established under the Security Council’. In addition, the 1540 Committee is free to invite offers of assistance in response to specific requests received from states that need help with implementation. The UN Counter-Terrorism Committee (CTC) established in 2001 subsequent to Security Council Resolution 1373 to monitor its implementation by all states and to increase the capability of states to fight terrorism is a potentially important partner of the 1540 Committee.59 As part of their work the Expert Advisers to the CTC concentrate on the issue of facilitating assistance to states. The CTC maintains a Matrix of Assistance Requests: ‘a centralized, comprehensive overview of States’ assistance needs, as well as information on any assistance programmes being delivered of which the CTC has been made aware’. The 1540 Committee is following a similar approach. The 1540 Committee has received specific offers of technical assistance from the IAEA, the NSG, the OPCW and the Zangger Committee. It has also been suggested that the 1540 Committee should schedule regular meetings with representatives of regional organizations and other international organizations.
At the open debate on the draft of Resolution 1540 the idea of increasing the number of Security Council subsidiary bodies in an ad hoc manner was questioned and alternative approaches to strengthening UN capacity were suggested. Japan proposed implementing the resolution under the supervision of the Secretary-General and drawing on existing expertise in, for example, the UN Department of Disarmament Affairs. This proposal would have created an implementation agency that could also have sustained the expertise gained by the UN during its inspection activities in Iraq. A large number of statements underlined the need for the UN to build on the work already undertaken in specialized agencies such as the IAEA and the OPCW in order to avoid duplicating or complicating their efforts by establishing new bodies. The 1540 Committee lacks the capacity to diagnose the implementation problems faced by states and has no detailed information about the assistance that potential donors can offer. The 1540 Committee will not be able to make an assistance programme operational, but national ‘1540 reports’ can be a resource for those states and organizations which are interested in being proactive in offering assistance.
IV. Conclusions
Developments in arms control and non-proliferation in 2004 suggest that it has now become the mainstream view that no single approach, institution or process can establish and enforce rules related to arms and military capabilities. An effective multilateralism must find ways for states, international organizations and informal arrangements to cooperate in pursuit of common objectives. In 2004 activities outside international organizations continued to have the primary role in setting the international agenda for arms control and nonproliferation. The activities of the G8, the launch of the Global Threat Reduction Initiative and the rapid progress made in the Proliferation Security Initiative can all be highlighted in this respect. This view, that finding solutions to real world problems should shape the activities of organizations, has implications for those organizations that are or are perceived to be solving yesterday’s problems. In the arms control field, as in others, it would appear that the distribution of human and financial resources is no longer well harmonized with the problems of greatest concern. However, mobilizing—and, even more, sustaining—the resources that are needed to address complex problems over a long period of time is very difficult in informal processes since these are likely to reflect political priorities that may change frequently and in unpredictable ways. There is evidence that in 2004 a number of international organizations, most notably the EU and the UN, began to come to grips with the need for change and renewal. In the United Nations the need for change was reflected in the rapid adoption of Resolution 1540 by the Security Council as well as in the positive response to the report of the High-level Panel on Threats, Challenges and Change. In the European Union the practical need to release resources (intellectual as well as financial) to tackle new security tasks, most of which are outside Europe, was reflected in the implementation of the EU WMD Strategy.
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