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Non-Proliferation Under Security Council Resolution  1540

Duncan Currie
5 May, 2004

Introduction

On 28 April 2004 the Security Council unanimously passed Resolution 1540/2004 on the non-proliferation of weapons of mass destruction. [1] The United States clearly sees this resolution as requiring the criminalization of the proliferation of weapons of mass destruction, including nuclear weapons, [2] particularly in the hands of non-State actors.  However a careful reading of the resolution and its context shows that it in fact goes wider and raises the wider questions of disarmament and proliferation by all states. As such it encompasses both vertical and horizontal proliferation.  Horizontal proliferation refers to nuclear weapons states transferring nuclear weapons, technology or materials to nuclear or non-nuclear entities, whereas vertical proliferation refers to nuclear weapons states researching and developing new types of nuclear weapons, technology, materials and means of warhead delivery.

Member States in their implementation of the Resolution in their legislation and otherwise, and in their reports to the Security Council, should accordingly not limit their efforts to non-state actors or horizontal proliferation and should address all aspects of proliferation, arms control and disarmament.

Provisions of the Resolution

The Resolution refers to arms control as well as disarmament:

Reaffirming, in this context, the Statement of its President adopted at the Council’s meeting at the level of Heads of State and Government on 31 January 1992 (S 23500), including the need for all Member States to fulfil their obligations in relation to arms control and disarmament and to prevent proliferation in all its aspects of all weapons of mass destruction,

and

Encouraging all Member States to implement fully the disarmament treaties and agreements to which they are party,

In the body of the resolution, the Security Council, stating it is acting under Chapter VII of the Charter,

1. Decides that all 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;

2. Decides also that all States, in accordance with their national procedures, 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.

The Security Council also decided [3] also that all States 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, and lists a number of methods, including accounting for and securing such items, physical protection measures and effective border controls and export controls.

The resolution establishes [4] a monitoring committee of the Security Council for two years, and Stats are to report on the implementation of the resolution, the first report on steps states have taken or intend to take being due in six months, being October 28 2004.

Operative paragraph 8 of the Resolution calls upon all States:

(a) To promote the universal adoption and full implementation, and, where necessary, strengthening of multilateral treaties to which they are parties, whose aim is to prevent the proliferation of nuclear, biological or chemical weapons;

(b) To adopt national rules and regulations, where it has not yet been done, to ensure compliance with their commitments under the key multilateral non­proliferation treaties;

(c) To renew and fulfil their commitment to multilateral cooperation, in particular within the framework of the International Atomic Energy Agency, the Organization for the Prohibition of Chemical Weapons and the Biological and Toxin Weapons Convention, as important means of pursuing and achieving their common objectives in the area of non-proliferation and of promoting international cooperation for peaceful purposes;

Operative Paragraph 8(b) means it clearly is within the mandate of the resolution for States, in their implementing legislation, to promote full implementation and strengthening of multilateral treaties relevant to nuclear proliferation and to ensure compliance with key nonproliferation treaties, as well as to renew and fulfil commitment to multilateral cooperation.

The Security Council [5] calls upon all States to promote dialogue and cooperation on non­proliferation so as to address the threat posed by proliferation of nuclear, chemical, or biological weapons, and their means of delivery. It calls upon all States, in accordance with their national legal authorities and legislation and consistent with international law, to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials. [6]

Control of Plutonium and Other Weapons Usable Material

In Paragraph 3 the Security Council decides that all States 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 and to this end shall take a number of specified measures, including:

(b)   Develop and maintain appropriate effective physical protection measures; and

(d) 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 end-user controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations;

‘Related materials’ is defined to mean, for the purposes of the resolution, ‘materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery.”

This is a binding obligation to develop effective physical protection measures, as well as the controls specified in paragraph (d). The syntax of the paragraph is confused, but does specifically require controls on transporting that would contribute to proliferation.

The Context and Implications of the resolution for NonProliferation

The reference in the resolution to the Presidential Statement and the specific quotation places the resolution firmly in context of obligations on all States in relation to arms control, disarmament and proliferation. [7]  Presidential Statements are the product of informal consultations between the Council President and its Members and do not enjoy the status of resolutions. They have never been formalized in any rule of procedure of the Security Council or anywhere else [8] and have no formal status. However, having been cited in Resolution 1540, the Statement carries considerable weight. That Statement reads under the heading of ‘Disarmament, arms control and weapons of mass destruction’:

The members of the Council, while fully conscious of the responsibilities of other organs of the United Nations in the fields of disarmament, arms control and non-proliferation, reaffirm the crucial contribution which progress in these areas can make to the maintenance of international peace and security. They express their commitment to take concrete steps to enhance the effectiveness of the United Nations in these areas. 

The members of the Council underline the need for all Member States to fulfill their obligations in relation to arms control and disarmament, to prevent the proliferation in all its aspects of all weapons of mass destruction; to avoid excessive and destabilizing accumulations and transfer of arms; and to resolve peacefully in accordance with the Charter any problems concerning these matters threatening or disrupting the maintenance of regional and global stability. They emphasize the importance of regional and global arms control arrangements, especially the START and CFE Treaties.

The proliferation of all weapons of mass destruction constitutes a threat to international peace and security. The members of the Council commit themselves to working to prevent the spread of technology related to the research for or production of such weapons and to take appropriate action to that end.

On nuclear proliferation, they note the importance of the decision of many countries to adhere to the Non-Proliferation Treaty and emphasize the integral role in the implementation of that Treaty of fully effective IAEA safeguards, as well as the importance of effective export controls. The members of the Council will take appropriate measures in the case of any violations notified to them by the IAEA. [9]

There can be no doubt that the Presidential Statement encompassed all weapons of mass destruction: not only those of rogue states, or non-state actors, or non-nuclear States. By the breadth of the language, by the reference to accumulation of arms, and by specifically emphasizing the importance of arms control arrangements, the Statement clearly addresses proliferation of weapons of mass destruction by and in all States and includes vertical as well as horizontal proliferation.

Obligations referred to in the Preamble of resolution 1540 would include the obligation under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons. [10] . Article VI of the NPT provides that “each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” This is an ongoing obligation that was further described at the 2000 NPT Review Conference as ‘an unequivocal undertaking by the nuclear-weapons States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament’, [11] and one that the United States has specifically linked to its conclusion of the Comprehensive Test Ban Treaty (CTBT). [12]

The 13 Practical Steps agreed by all Parties to the NPT in 2000, [13] including nuclear weapons states, included the early entry into force of the Comprehensive Nuclear Test Ban Treaty and a moratorium on nuclear-weapon-test explosions in the meantime, an unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament to which all States parties are committed under Article VI”, steps by all the nuclear-weapon States leading to nuclear disarmament in a way that promotes international stability, and based on the principle of undiminished security for all), negotiations on a fissile material treaty, and placement of  fissile material no longer required for military purposes under international verification.

Conclusion

The resolution recognizes the need to prevent proliferation in all its aspects and the need for all member States to fulfil their obligations in relation to arms control and disarmament. This is clear from the references to arms control and disarmament in the preamble to the Treaty and references to “all aspects” of proliferation, and the reference to and breadth of the 1992 Presidential Statement, which itself refers to ‘all aspects’ of nonproliferation and refers to the need for all Member States to fulfill their obligations in relation to arms control and disarmament. The Statement specifically stated that the proliferation of all weapons of mass destruction constitutes a threat to international peace and security and emphasized the importance of regional and global arms control arrangements.

Therefore Member States in their implementation of the Resolution in their legislation and otherwise, and in their reports to the Security Council, should accordingly not limit their efforts to non-state actors or horizontal proliferation and should address all aspects of proliferation, arms control and disarmament.

 


 

[2] This resolution followed an address by President Bush to the General Assembly in September 2003.  He asked the U.N. Security Council to adopt a new anti-proliferation resolution. “This resolution should call on all members of the U.N. to criminalize the proliferation of weapons – weapons of mass destruction, to enact strict export controls consistent with the international standards, and to secure any and all sensitive materials within their own borders. The United Stands ready to help any nation draft these new laws, and to assist in their enforcement.” President Addresses UN General Assembly, September 23, 2004, at http://www.state.gov/p/io/rls/rm/2003/24321.htm. Following the adoption of the resolution seven months later, President Bush said in a statement that “Member states should enact strict export controls, criminalize the proliferation of weapons of mass destruction, and secure all related materials within their borders.” Clearly President Bush considers that the resolution achieved the aims. In neither speech did the President distinguish between proliferation between different countries, or between horizontal and vertical proliferation. White House Press Release of April 28 2004 at http://www.whitehouse.gov/news/releases/2004/04/20040428-7.html

[3] Operative paragraph 3

[4] Operative paragraph 4

[5] Operative paragraph 9

[6] Operative paragraph 10

[7] The United States has relied on the Presidential Statement in other related contexts. The United States has quoted the Presidential Statement in support of its Proliferation Security Initiative, stating that “the PSI is consistent with and a step in the implementation of the UN Security Council Presidential Statement of January 1992.” US State Department Fact Sheet September 4, 2003, Proliferation Security Initiative Meeting, Paris, September 3-42003.

[8] Sydney D Bailey and Sam Davis, The Procedure of the UN Security Council (3rd 3d., 1998), 547, cited in Sue Soo-ha Yang, Brooklyn Law School, October 1, 2003, “Legal Basis for State Interception of Shipments on High Seas: Legality of the Naval Interdiction under the “Proliferation Security Initiative”.  At http://www.lcnp.org/disarmament/MEMO_NK_interdiction.PDF.

[9] Note by the President of the Security Council, S/23500, 31 January 1992, at http://projects.sipri.se/cbw/docs/cbw-unsc23500.html.

[10] Treaty on the Non-Proliferation of Nuclear Weapons (NPT), opened for signature 1 July 1968 at London, Moscow and Washington, and signed by the United States on that date, entered into force 5 March 1970 and ratified by the US on that day. 729 UNTS 161, UKTS 88 (1970), 7 ILM 809, 21 UST 483, at http://www.nuclearfiles.org/docs/1968/680701-npt.html (accessed 2 June, 2001). There were some 187 States Party in January  2000.

[11] 2000 NPT Review Conference final Document, at http://usinfo.state.gov/topical/pol/arms/stories/finaldoc.htm (accessed 5 June, 2001).

[12]   “The United States of America  Meeting Its Commitment to Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons”, April 2000,  at http://usinfo.state.gov/topical/pol/arms/stories/0425art6.htm (accessed 4 June, 2001).

[13] Text: Final Document Issued by 2000 NPT Review Conference

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