Special articles and reports on timely nonproliferation issues by CNS staff.

Updated: Sep 9, 2008

Strengthening a Weak Link in the Global Security Chain: Regional Implementation of UN Security Council Resolution 1540

Professor Lawrence Scheinman and Johan Bergenäs[1]

September 9, 2008

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Introduction

United Nations Security Council Resolution 1540 (2004) is one in a series of measures taken to address threats to the political and social order deriving from access to, or use of, weapons of mass destruction (WMD), related materials, and means of delivery. The resolution is distinct from existing treaty-based nonproliferation and arms control regime components, such as the Nonproliferation Treaty (NPT), the Chemical Weapons Convention (CWC), and the Biological and Toxin Weapons Convention (BTWC) that govern the behavior of states. In contrast to these treaties, resolution 1540 in one instrument, covers all three types of weapon and reaches beyond the state to focus explicitly on the risk that non-state actors, in particular terrorist organizations bent on undermining, and in some cases supplanting, civil society might "acquire, develop, traffic in or use nuclear, chemical and biological weapons and their means of delivery." 1540 also goes beyond existing anti-terrorism conventions that collectively impose similar though less comprehensive obligations on convention parties in that, being adopted under Chapter VII of the UN Charter, the resolution is binding on all member states of the United Nations.

Specifically, 1540 requires that all states "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"; and, consistent with national procedures, to "adopt and enforce appropriate effective laws" to foreclose the possibility of any non-state actor taking any of the above mentioned steps. Coverage extends, among other things, to accounting and security of items listed in the resolution, export and transshipment controls, border controls, including illicit trafficking, and physical protection.

The obligatory nature of the resolution raises the question of implementation. This is, for many states, a daunting task. As noted in an early analysis of the Resolution, "This is especially true for many of the world's developing states, some of which, even if they have the will to do so, lack the necessary resources. States particularly affected are those which are not already parties to the relevant WMD treaties (NPT, CWC, BTWC) and do not therefore already have the appropriate measures in place — and those which, although parties, have not fully implemented their obligations."[2] Beyond political will — which is lacking in many cases either because the challenges addressed in 1540 are seen as remote from a given country's concerns and as an effort by the United States and its allies to force the entire international system to partake in the "War on Terrorism" — there is the question of human, structural, and institutional capacity. Sources of support in meeting the objectives of 1540, beyond self-help, include: direct bilateral assistance; assistance from specialized international organizations, such as the International Atomic Energy Agency (IAEA) and the Organisation for the Prohibition of Chemical Weapons (OPCW); multilateral organizations, for example Organization for Security and Cooperation in Europe; non-governmental entities, such as the Stockholm International Peace Research Institute and the Verification Research, Training and Information Center; and regional and sub-regional organizations, which are the focus of this paper, as well as a major joint United Nations Institute for Disarmament Research (UNIDIR) and Monterey Institute of International Studies (MIIS) study, Implementing Resolution 1540: the Role of Regional Organizations.

Why focus on regional and sub-regional organizations?

There are several reasons why it makes sense to explore the role of regional organizations in implementing resolution 1540. First, Chapter VIII of the UN Charter encourages regional organizations to take appropriate actions to maintain international peace and security. Second, in the case of 1540, there is a record of support — including the former UN Secretary General, Kofi Annan, the two most recent 1540 Committee Chairmen, as well as a number of UN member states — of regional and sub-regional organizations playing an important role in the implementation process.[3] Third, UN Security Council Resolution 1673, which extended the 1540 Committee for two years in 2006, reaffirmed that sentiment, and this past April, the Security Council was even more explicit when passing UN Security Council Resolution 1810. That resolution extended the 1540 Committee for three more years and encouraged that body "to engage actively with States and relevant international, regional and sub-regional organizations to promote the sharing of experience and lessons learned in the areas covered by resolution 1540 (2004), and to liaise on the availability of programmes which might facilitate the implementation of resolution 1540" (paragraph 11.d) and requested "the 1540 Committee to provide opportunities for interaction with interested States and relevant international, regional and sub-regional organizations to promote implementation of resolution 1540 (paragraph 11.e).

Fourth, regional and sub-regional organizations tend to have a high degree of political legitimacy and enjoy a high level of confidence among their members. These organizations consist of states that voluntarily joined together on the basis of shared values, interests, history, experience and objectives, thus offering a greater prospect of achieving agreement and consistency regarding how to address, implement, and sustain a mandate that is binding on them all. While the UN also enjoys legitimacy and confidence among its members, a number of states raised serious questions about the legislative nature of 1540 and appropriation by the Security Council of authority and power normally associated with sovereign states. This concern is dissipating — or at least not brought up in the public domain as frequently as in the years after 1540 passed — and can be further ameliorated by greater involvement of regional and sub-regional organizations taking steps, consistent with relevant traditions and practices, to seek harmonization of national laws and practices for the region as a whole.

A fifth, related consideration is that regional organizations can play an important role in achieving a common understanding and interpretation of steps to take to ensure that their members work together to close gaps in 1540 implementation and to remedy inconsistencies which, if left unchecked, could undermine the common good of the member states and the broader international community. This would include focusing on legislative measures, relevant appropriate administrative structures, and training of personnel. In particular, regional and sub-regional organizations can assist members in identifying needs, capacity-building, resource assistance, cost sharing and the like, and in assuring that actions taken by their members are mutually reinforcing so as to avoid there being a weak link in the chain of measures taken by the region as a whole that could undermine the security of one's neighbors while nevertheless respecting cultural, legal, and conventional attributes of its members.

In short, authority, legitimacy, and confidence are all issues in play and regional organizations are one means — an important one — by which to address them. They enjoy legitimacy among their members and they have authority deriving from mandates granted by their member states. Because of these attributes, regional organizations are in a position to direct and assist member states in a variety of ways that might be seen as intrusive if coming from a global organization or powerful out-of-region states whose direct involvement might be interpreted in neo-colonial terms. They enjoy a high degree of confidence among their members, notwithstanding differences that may arise on specific issues.

Case studies

No country is in full compliance with all provisions of resolution 1540, but implementation challenges appear more prevalent in South-East Asia and the Pacific, Latin America, and Africa. As a result, those were the regions focused on in the UNIDIR-MIIS study.

1. Latin America

Monica Herz writes in her chapter of the aforementioned study that in Latin America "a regional effort is needed in order to deal with the perceived legitimacy gap of [resolution 1540] and the lack of capacity of some states to implement 1540 and to face the dangers of access to weapons or agents used for the production of weapons by non-state actors" and "the [Organization of American States (OAS)] has developed institutional mechanisms that can be geared towards a supporting role for the implementation of 1540 in terms of the objective dimension, that being the development of capabilities lacking in certain parts of the region, and in terms of the subjective dimension, that being generating regional debate on the normative framework the resolution puts forward and increasing its legitimacy."

Recognizing that there are regional differences within Latin America, this region is the most advanced of the three regions being examined insofar as levels of 1540 implementation and the potential of the major regional organization, the OAS, to play an important role. The OAS has in recent decades increased its engagement in security-related matters and created infrastructures to reflect that intensification. Since the end of the Cold War, such new OAS agencies include the Committee on Hemispheric Security and the Inter-American Committee Against Terrorism (CICTE).

CICTE provides OAS member states with a forum in which they can discuss and share information about developing activities for training and crisis management, border cooperation, and travel documentation security measures in connection to the terrorism threat. CICTE also has programs in airport security, customs and border protection, cyber security, legislation against terrorism, port security, terrorist financing, terrorism policy engagement exercises, and tourism security. Topics on the agenda of the Committee on Hemispheric Security include trafficking in arms (conventional) and persons, fighting transnational organized crimes, and nonproliferation of nuclear weapons and nonproliferation education.

One early indicator that the OAS was going to be involved in the 1540 implementation process was a special meeting organized by the Committee on Hemispheric Security in 2004 on combating the proliferation of nuclear, chemical and biological weapons, their delivery systems, and related materials within the framework of Resolution 1540. Since then, three outreach seminars, more than any other region, have taken place in Latin America and the Caribbean focusing on 1540 implementation (Buenos Aires, Argentine in 2005, Lima, Peru in 2006, and Kingston, Jamaica 2007). Support for Implementation at the Hemispheric Level of United Nations Security Council Resolution 1540 is also one of the themes that are being debated by the Committee on Hemispheric Security in 2008. Writes Herz in on the Committee on Hemispheric Security and CICTE in connection to resolution 1540: "it is possible for the OAS to play a role in supporting compliance with 1540...Institutional structures that are in place such as the Committee on Hemispheric Security and CICTE can get involved in the subject, generating debate and assistance programmes, sharing information and producing verification mechanisms where they cannot be generated by the state."

2. South-East Asia and the Pacific

Without intruding on the principles and traditions of consensus-based decision making, non-interference, and informal dialogue, it would seem that there are opportunities for the Association of South East Asian Nations (ASEAN) states to take steps to address and promote the mandate of 1540 in a way that maximizes implementation of the objectives of the resolution and avoids the risk of weak links in the chain, recognizing that consistency in scope and measures serves the security interests of each state and of the region as a whole and reduces the risk that non-state actors, illicit traffickers, and terrorists will be able to use the territory of any ASEAN state to promote and carry out their nefarious activities.

Identifying the threats, vulnerabilities and risks for all members of ASEAN, as well as agreeing on the nature of measures to be taken to protect oneself and each other pursuant to the legal and institutional foundations of each state involved, should be an objective on which all states could agree. Where assistance in achieving common objectives is needed ASEAN could serve as a vehicle for facilitating access from relevant outside sources. Bilateral assistance also would work but to the extent that states would prefer not to have bilateral involvement out of concern of a more intrusive involvement in national activity by an outside state, ASEAN could stand as an appropriate and acceptable means by which to address assistance requirements of its member states and in so doing be able to exercise some oversight over the consistency and compatibility of state measures in the interest of maximizing harmony and minimizing the risk of gaps in practice that could unintentionally undermine regional security as a whole.

Decoupling actions taken from the "War on Terrorism" with which many do not identify, but recognizing that certain threats and risks do exist and need to be addressed and weaknesses remedied in the interest of keeping the region safe from terrorism is important. Again, there is the consideration that regional security writ large really depends on the avoiding of weak links in the chain, that is to say assurance that all relevant states are addressing a range of problems and that each state and the region as a whole stand to gain or lose depending on the extent to which there is, or is not, a seamless web of measures and capabilities in place and being implemented and, where assistance is needed, it is accessible.

In short, regional coordination is an optimizer that serves the interests of all and that can be achieved in a manner consistent with ASEAN traditions of dialogue, consensus and non-interference. A focus on overall regional coordination via ASEAN that respects the regional tradition and still takes agreed steps that work in the common interest and for common security need not undercut regional traditions and should not be seen as such.

Cooperation and coordination are necessary for the region to benefit as a whole. One should want to avoid losing out in this regard because of unnecessary gaps between states which, in many respects, are interdependent. The key question is whether ASEAN can formulate and implement a strategy that ensures consultation, exchange of information, efforts to formulate a cooperative entity that, based on equivalence of approach, respects national differences, but nevertheless optimizes consistency and avoids the risk of the weak link in the chain. This applies to export controls, in particular strategic trade controls, border controls, focus on trans-shipment and transit activities — things that also provide enhanced security for a state in terms of concerns with drug and human trafficking, trafficking in small arms and light weapons, cross-border criminal activity that adversely affects the state, and the like.

In her chapter on South East Asia and the Pacific for the UNIDIR-MIIS study, Tanya Ogilvie-White offered recommendations for ASEAN and the ASEAN Regional Forum (ARF), taking into account the traditions and practices of those organizations. At one level she suggested that "there could be some potential to expand the work of the [ARF] Intersessional Meeting on Counter-Terrorism and Transnational Crime (ISM-CTTC) to include a more specific focus on the implementation of 1540 or to assign this work to a new body on WMD counter-proliferation, which is currently under discussion within the [ARF}." In addition she recommended that ASEAN and ARF should "consider establishing a dedicated entity within ASEAN to liaise with the 1540 Committee and oversee and coordinate 1540 implementation in South-East Asia; consider setting up a working group on counter-terrorism...to set goals and agree priorities; construct an ASEAN website to identify gaps and keep track of all cooperative WMD-related counter-terrorism initiatives taking place across the region;" and very importantly, "adopt the export controls template being developed by the CSCAP Export Controls Experts Group; this would create a peer review tool to assist in capacity building and monitoring and to encourage best practice in the area of export controls."

3. Africa

The WMD nonproliferation issue is, and has since the 1960s been, on the agenda of the African Union (AU), and its predecessor the Organization for African Unity (OAU). It should be noted at the outset that other issues that has a more direct impact on the social order of African nations, such as the AIDS/HIV epidemic, poverty, civil wars, and the increase and spread of Small Arms and Light Weapons (SALW), take priority on the third world continent. It is not that African countries are indifferent toward the WMD proliferation issue, but African states need to allocate political energy and scarce resources toward matters imperative to maintaining viable civil society.

Notwithstanding these realities, among other nonproliferation and arms control efforts, the OAU played a crucial role in promoting the NPT, contributing to today's universal adherence to that treaty in Africa — although numerous African states have yet to conclude comprehensive safeguards agreements with the IAEA, something that would indeed further 1540 implementation. The Pelindaba Treaty, establishing Africa as a nuclear-weapon-free zone (NWFZ), is another initiative where the OAU, in collaboration with the UN, played a critical role throughout the years. To date, the treaty does not enjoy the necessary 28 ratifications to go into force, however, recent ratifications have renewed the hope that a NWFZ in Africa may be realized.[4] In recent years, Africa has also seen a significant increase in ratifications to the Comprehensive Test Ban Treaty and even though the OAU and AU have been less active in promoting such treaties as the CWC and BTWC over the years, signatures and ratifications have continued to trickle in. Further, the Peace and Security Council of the AU is designated to consider regional or international peace and security issues. One of its objectives is to "co-ordinate and harmonize continental efforts in the prevention and combating of international terrorism in all its aspects" and one must assume, considering the sufficiently well understood linkage between terrorism and WMD, that that article includes the problem that resolution 1540 addresses.

Specifically regarding resolution 1540, two outreach seminars have taken place in Africa, one last year in Gaborone, Botswana, and one in 2006 hosted by Ghana. In February 2007, Ghana's ambassador to the UN strongly endorsement the use of regional organizations in the 1540 implementation process:

The European Union, the Association of Southeast Asian Nations, the Caribbean Community, the Organization of American States, the League of Arab States, and the African Union...have the appropriate mechanisms for the pooling of resources for the implementation of such obligations under resolution 1540 as border controls and illicit financial networks within the regional context. Given their respective characteristics, they are able to develop more effective and contextually driven means to fulfill the obligations of resolution 1540, rather than simply transplanting measures from States with different values and cultures. Moreover, such bodies can place the fulfillment of the resolution on the regional agenda and thereby promote its universal adherence by all States in the region.[5]

Bearing in mind the current differences in saliency and urgency between SALW and WMD in Africa, there are also lessons to be learned by examining the work of African sub-regional organizations in implementing the 2001 UN Program of Action to Prevent, Combat, and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (PoA).

First, African sub-regional organizations — perhaps because they consist of a smaller and more homogenous membership and as a result are able to tailor their efforts even further to reflect sub-regional strengths and weaknesses — have, to a greater extent than the AU, been able to agree to and promote ratification of treaties, accords, and protocols in connection to the PoA. The Southern African Development Community's (SADC) Protocol on the Control of Firearms, Ammunition, and Other Related Materialsm is one example of a measure that covers comprehensive PoA implementation. Another measure that in fact goes beyond PoA provisions is the Nairobi Protocol in the Great Lakes Region and the Horn of Africa. That protocol requires states to introduce controls on illicit manufacturing, import, export, and transit, capacity-building, awareness-raising, information sharing and cooperation, harmonization of legislation, and requiring states to incorporate specific provisions in national legislation. Resolution 1540 includes almost identical obligations with regard to WMD, and it is reasonable to assume that efforts focused on, for example, illicit trafficking of SALW should have positive impacts on preventing illegal transfers of WMD or vice verse. Taking steps in Africa, or in any part of the world, to meet the challenge posed by WMD, states also stand to strengthen their ability to confront the challenges posed to their security by other issues. Effective border controls designed to deal with radioactive material or, chemical or biological agents, can be relevant to efforts to deal with the drug and SALW challenges. The same holds true for transit and transshipment controls. Laws, regulations and administrative measures focused on export controls to deal with illicit trafficking of dual use commodities such as ring magnets or maraging steel, which are relevant to nuclear activities, can also be a template for dealing with small arms, drug, and human trafficking challenges confronting a state (or region). The particular objective may differ, but much of the infra-structure needed to deal with one or another problem — illicit trafficking and SALW on the one hand, control over chemical, biological, nuclear materials and components on the other — may overlap in fundamental ways. Passing legislation, applying laws, creating infrastructure, training a corps of specialists to deal with strategic trade controls, border controls, and the like, can be a first step for a range of near term objectives, but such steps also can be adjusted and serve as a template to deal with other priority concerns of a state as noted above.

Second, coordinating organs within sub-regional organizations have played a crucial role helping to implement agreed-upon treaties, accords, and protocols. Such bodies have in some cases been relatively successful managing the sharing of information, harmonizing legislation, running awareness-raising programs, and lobbying governments to implement commitments. The Regional Center on Small Arms and Light Weapons (RECSA) in the Great Lakes Region and the Horn of Africa is a fully recognized independent sub-regional coordinating body with a legal mandate that facilitates implementation information-sharing and provides crucial assistance in harmonizing small arms legislation in the sub-region as agreed upon in the PoA. RECSA is also the forum for regional workshops and seminars on small-arms legislation. In SADC, the Southern African Regional Police Chiefs Cooperation Organization has taken a leadership role, and a Task Team to address SALW issues has also been set up and mandated to lead sub-regional efforts to implement PoA. The Task Team in addition aims to study the potential for implementation of the SADC Protocol, using the Nairobi Protocol and RESCA in its coordinating role as a model. SADC looking at the Nairobi Protocol and RESCA is another lesson learned: sub-regional organizations can learn implementation and infrastructural lessons from each other.

Recognizing that there are other pressing issues on the African continent, and that the WMD issue currently receive relatively little political attention, it should not be ruled out that Africa, if motivated and provided with adequate resources, can continue to make progress with regard to WMD nonproliferation and international treaties, agreements, and resolutions, such as 1540. This is particularly true if other pressing issues noted above receive increased attention from outside states and international organizations.

Conclusion

The culture of the particular regions or regional organizations in question, resolution 1540 legitimacy deficit, priorities, and capacity are challenges to be considered when trying to utilize regional organizations in facilitating the implementation of resolution 1540. However, as can be seen from the specific cases above there are windows of opportunity in all three regions for the utilization of regional organizations in implementing 1540.

First, in contrast to some other regional organizations, whose scope may only encompass economic and cultural issues, international peace and security or regional security, is, if not the primary concern, at least increasingly important for the OAS, ASEAN, and African regional and sub-regional organizations. Second, these regional organizations have forums or bodies in which the mentioned issues are handled. Third, there are precedents showing that these regional organizations have been, or are currently actively involved in 1540 implementation activities, or activities similar to what would be required to implement 1540.

One specific recommendation to fulfill the potential for regional organization to play a role in the process toward 1540 implementation is to establish a unit dedicated to the 1540 agenda within the existing regional organization forums mentioned above, each of which have a broadly defined security focus covering terrorism, transnational illegal trafficking in all its aspects, and related cross-border criminal activities. An alternative would be to create an independent unit dedicated exclusively to implementing Resolution 1540. Such a unit within each regional (or where more appropriate, sub-regional) organization would be dedicated explicitly and exclusively to the implementation of the resolution, unlike the earlier mentioned entities that have a broadly defined security focus. An independent unit could devote systematic, continuous attention to the WMD challenge while coordinating with institutions having broader but related missions. It could function as a bridge between the individual states, the regional organization and the 1540 Committee, but also liaise with sub-regional organizations and other institutions that have implementation resources available, such as the IAEA and the OPCW. Proposed entities could coordinate training, generate debate, provide for the sharing of information, establish best-practice guidelines and, in general, oversee the implementation of 1540. In cases where sub-regional organizations were deemed to be more appropriate (likely the case for Africa with its great expanse and wide diversification in terms of levels of development, prioritization of issues confronting contiguous states and the like), they could take on these responsibilities. The work of these entities could also benefit the outreach activities organized by the UN and other organizations because they would be able to pinpoint the specific regional or sub-regional issues needing attention and recommend that they be the focus of seminars, assistance and other outreach activities. These proposed entities would coordinate a regional organization's efforts with regard to 1540 implementation, ensure that there is no duplication of work and that valuable resources would be utilized for their intended purpose and not wasted.

Notwithstanding the obligatory nature of Resolution 1540, states that see the issues that prompted the resolution as remotely, if at all, relevant to their own situations in terms of urgency, priority or allocation of scarce resources, may consider non-implementation of Resolution 1540 to be a totally rational act on their part. Ultimately, however, such decisions, if pursued by other states for any reason, would lead to continued or increased risk of the spread of WMD to terrorist organizations and undermine the common security of all—a situation described in academic literature as a "tragedy of the commons," wherein behavior driven by self-interest to maximize private gains (or minimize private costs) threatens common security.[6]

In an age characterized by the rise of disaffected, alienated or apocalyptic movements, the last thing that we can afford is the existence of weak links in the chain of control over WMD, their components or their means of delivery. Today, common security can only be achieved by common efforts because, as pointed out by former UN Secretary-General Kofi Annan, "In today's world, the security of every one of us is linked to that of everyone else."[7] In other words, the global community can either collectively strengthen measures against WMD terrorism, as laid out in resolution 1540, or continue to face the same or increased risk of a terrorist organization acquiring and using a chemical, biological, or nuclear or radiological weapon with all the consequences that would entail for civil society and social order.

Notes

[1] This paper reflects the broad themes and conclusions from a joint United Nations Institute for Disarmament Research and Monterey Institute of International Studies study on the role of regional organizations in implementing 1540. The study, Implementing Resolution 1540: the Role of Regional Organizations, which was released in September of 2008, was directed by Dr. Lawrence Scheinman. Johan Bergenas is one of several contributors to the publication. Other authors included Dominique Dye, Monica Herz, Tanya Ogilvie-White, and Jean du Preez.

[2] Gabriel H Oosthuizen, and Elizabeth Wilmshurst, "Terrorism and Weapons of Mass Destruction:United Nations Security Resolution 1540," Chatham House Briefing Paper, September 2004.

[3] See the following reports and papers: UN Secretary General Kofi Annan's July 28, 2006, report to the Security Council, "A regional-global security partnership: challenges and opportunities;" Former 1540 Committee Chairman, Ambassador Peter Burian, "Talking Points," For the Briefing of Outgoing Chairmen to the Security Council on 17 December, 2007; 1540 Committee Chairman, Ambassador Jorge Urbina, remarks during a Joint Briefing by the Chairmen of the Security Council Committees established pursuant to resolutions 1267 (1999), 1373 (2001) and 1540 (2004) on 6 May, 2008; Johan Bergenäs (with Lawrence Scheinman), "The role of regional and sub-regional organizations in implementing UN Security Council Resolution 1540: a preliminary assessment of the African continent," UNIDIR Highlights: number 5, 2007; and Johan Bergenäs (2008) "THE SLIPPERY SLOPE OF RATIONAL INACTION," The Nonproliferation Review, 15:2, 373 — 380.

[4] See Jean du Preez, "The Race Towards Entry Into Force of the Pelindaba Treaty: Mozambique Leading the Charge," CNS Research Story, March 31, 2008.

[5] Nana Effah-Apenteng, UN Security Council 5635th meeting, February 23, 2007.

[6] Johan Bergenäs (2008) "The Slippery Slope of Rational Inaction," The Nonproliferation Review, 15:2, 373 — 380

[7] Kofi Annan, remarks at the Truman Library in Independence, Missouri, December 11, 2006

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