Appendix 11A. United Nations Security Council Resolution 1540: non-proliferation by means of international legislation

Summary

The terrorist attacks of 11 September 2001 put the threat of proliferation of weapons of mass destruction among non-state actors firmly on the international agenda. The attacks demonstrated the fact that terrorists had the will, and even the capacity, to perpetrate acts of destruction on a massive scale. Thus, it became clear that non-proliferation efforts could no longer ignore non-state actors.

In September 2003 President Bush called on the United Nations Security Council to adopt a binding ‘anti-proliferation’ resolution that would remedy the lack of focus on non-state actors in the existing international non-proliferation legislation. The decision to adopt the resolution was prompted by a desire to fill the gaps in the non-proliferation regime quickly and avoid the drawn-out and politically complicated negotiations likely to accompany attempts to formally amend the existing treaties. On 28 April 2004, after seven months of negotiations, Resolution 1540 was adopted by consensus in the Security Council. Under the resolution, states will not provide any form of support to non-state actors attempting to manufacture, acquire, possess, develop, transport, transfer or use WMD and their means of delivery.

The adoption of Resolution 1540 raises important questions. First, what authority does the Security Council have to adopt binding resolutions that contain ‘legislative’ elements under Chapter VII of the UN Charter? Second, what are the precise extent and character of the legal obligations established by the resolution? Third, how can Resolution 1540 be implemented effectively?

The record of implementation of Resolution 1540 to date seems to indicate that it is still far from universally accepted among the UN member states. Many states have missed their deadlines for submitting national reports on their implementation of the resolution, and those reports that have been submitted suggest that the resolution has had little impact on national legislation and practices. Full implementation of Resolution 1540 by all UN member states probably lies several years ahead.

On the evidence of Resolution 1540’s current level of implementation, it appears that the innovation of securing a ‘legislative’ Security Council resolution in order to bypass the normal international law-making process—even one that has legally binding force under the UN Charter—offers no guarantee of an effective and prompt response to an urgent threat to international peace and security.

Dr Christer Ahlström (Sweden) is Associate Professor of International Law at Uppsala University and a career diplomat in the Swedish foreign service.