In June 2005, the congressionally mandated bipartisan Task Force on the United Nations concluded that the UN Security Council, in adopting Resolution 1540, “created a potentially powerful tool for countering the nonstate proliferation threat.”[1] The task force thought that the effectiveness of the resolution, which obliges all states to take measures to combat the proliferation of nuclear, chemical, and biological weapons and their means of delivery to nonstate actors, would depend heavily on the committee it established to carry out its directives.
In particular, the task force wondered what standards the 1540 Committee, as it is known, would use to evaluate how well states were implementing the resolution; how much the committee would press states to comply with the legally binding obligations of the resolution; and whether the work could be done with only seven committee experts. By 2012, the answers to those questions are none, very little, and no, respectively.
The committee does not evaluate states; it uses the lightest of touches to encourage them to comply with the resolution, and it has far too few resources to do the work envisioned by the task force. Nonetheless, the evidence suggests that states have taken many actions meant to meet their obligations and that Resolution 1540 and the 1540 Committee have become linchpins in the global nonproliferation regime.[2]
Although the 1540 Committee has had success so far, it must meet new challenges to sustain or enhance its achievements. Perhaps most importantly, the Security Council has added tasks to the committee’s agenda in each extension of the mandate[3] without a commensurate increase in its resources.[4] In its 2009 comprehensive review, the committee also received many requests from other states and international organizations to take on additional tasks.[5] Consequently, the 1540 Committee has experienced a rapidly increasing mismatch between its assigned tasks and its means. This article explores that issue and, on the assumption that a large increase in resources is unlikely, proposes some alternative means of closing the gap.
The 1540 Committee in Context
Prior to Resolution 1540, the regime for preventing the spread of weapons of mass destruction (WMD) consisted of essentially distinct mechanisms, focused almost exclusively on the proliferation activities of states. With some exceptions, nonproliferation governance evolved in response to separate WMD concerns, each issue having its own unique and exclusive set of international legal instruments, its own international organizations or arrangements, and its own discrete sets of national authorities responsible for implementation. Resolution 1540 changed that landscape by linking these disparate elements, adding the dimension of nonstate actors to the mix.
Adopted unanimously under Chapter VII of the UN Charter, the resolution creates more than 200 legally binding obligations for each state, covering specific proliferation-related activities. These obligations cut across the formerly distinct realms of proliferation of nuclear, chemical, and biological weapons and their means of delivery.[6] Implementing these obligations, particularly those that involve accounting for, securing, physically protecting, and managing trafficking in WMD-related materials, entails considerable costs. Despite these costs, states have done much to comply with the resolution. In its reports, for example, the 1540 Committee has found that many states have taken measures, without coercion, to meet their obligations under the resolution, a sure sign of legitimate and successful governance.[7] After more than eight years, the resolution has become a legally binding fixture to which many states now tie their own nonproliferation efforts.
At the same time, the committee has found that most states still have obligations for which they have taken no relevant measures to meet. For many obligations, the number of states in noncompliance remains quite large. Members of the Security Council understand that implementation by all states will take time and that some states require assistance in meeting their obligations. Still, some of the simplest signs of compliance have proven difficult for some states. In 2011, for example, the committee noted that 24 states still had not submitted an initial report to it, despite nonbinding requests in Resolution 1540 and each resolution extending its mandate, as well as in its formal communications and informal dialogue with states.
In crafting the resolution, the Security Council took care not to usurp national sovereignty or the influence of existing international nonproliferation authorities. The resolution makes this explicit in the case of international authorities and implicit, but clearly understood by all, regarding national sovereignty. Instead, the resolution details what states must accomplish to combat proliferation and what might help states in their endeavors to do so. How to implement the resolution, however, remains entirely up to existing national and international authorities.
Moreover, the Security Council did not give the 1540 Committee a mandate to establish norms, assess compliance, impose sanctions, or take other actions often associated with governance—precisely the roles against which the congressional task force believed success would be measured. The committee had a very limited initial mandate: examining implementation of the resolution and reporting its findings to the Security Council.[8]
Most notably, the committee goes to great lengths in practice to avoid assessing compliance by individual states. For example, the primary tool it uses for organizing data on what states have done, the 1540 Committee matrix, registers the presence or absence of relevant measures, but not how well those measures fit specific obligations or how well the state is implementing or enforcing the measures. Only after it became clear that almost all states extensively underreported their relevant laws and policies did the committee even agree to use other sources of information to prepare a matrix besides that reported directly to the committee by the state. Even so, the committee limits these sources to information the state publicly supplies about itself, such as through laws that appear in an official gazette, or what it reports and becomes publicly available through international organizations. The committee’s reports demonstrate this desire to avoid evaluation. They provide data only in aggregate global terms, such as the number of states with a measure to prohibit production of a weapon, without reference to individual states or even regions.
Just as it avoids assessing individual states, the 1540 Committee emphasizes that it is not a sanctions body. Instead of coercive measures, the committee relies on other means to promote compliance, particularly awareness raising, information sharing, and the prospect of assistance. It also distances itself from creating or endorsing international norms, standards, lessons learned, or best practices, although it identified an extensive catalogue of relevant international conventions, standards, and practices in its 2008 and 2011 reports.[9]
Subtle Governance
Although the 1540 Committee does not use several tools commonly believed to be necessary for effective international governance, it has other means of building the trust on which such governance depends, such as identifying key facts, providing forums for exchanging ideas, developing common understandings, and fostering a spirit of assistance and cooperation. Indeed, simply prompting national officials to monitor their own legal framework and policies for stopping the spread of WMD-related items has had its own subtle but significant impact on the current international nonproliferation regime.
In practice, efforts to meet the very diverse obligations of the resolution generally inaugurate pressure within a state to develop new interagency mechanisms that connect stakeholders from a wide range of authorities, often for the first time, just to prepare a robust report to the 1540 Committee. Although not an obligation itself, at a minimum these interagency mechanisms, whether wholly new or adapted from existing institutions, create opportunities for domestic authorities to share information on what steps each has taken or intends to take. The job descriptions of some officials, even at lower levels, require them to report on national activities relating to Resolution 1540. At higher levels of interaction, these mechanisms can improve coordination of nonproliferation policies and practices at the national level, making them more effective and efficient.
In the resolution, the Security Council calls on states to cooperate on nonproliferation issues with other states.[10] Going further, it calls on states, within the context of international and domestic law, “to take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials,” which refers indirectly to the Proliferation Security Initiative.[11] Although seen as nonbinding, these words reflect the larger belief underlying the resolution, namely, that individual states, however powerful, cannot meet their national nonproliferation objectives on their own.
Although not an obligation, some states report such cooperation. Most of this information, however limited, covers assistance partnerships with other states or support for initiatives and programs in international organizations. Unlike the pressure created inside national governments, it is not clear that the resolution itself provoked greater cooperation among states outside of the context of international organizations. Still, one can anticipate that the pressure at the national level to create new interagency mechanisms for nonproliferation stakeholders also creates opportunities for cooperative dialogue among states with such domestic mechanisms. Anecdotal evidence suggests that some national “coordinators” for Resolution 1540, although few in number, do engage in dialogue with their counterparts.
The resolution is very explicit about the relationship between the 1540 Committee and the norms and obligations of existing international nonproliferation conventions and their associated governance institutions. The resolution states that “none of the obligations set forth in this resolution shall be interpreted so as to conflict with or alter the rights and obligations” of states-parties to the nuclear Nonproliferation Treaty, the Chemical Weapons Convention, or the Biological Weapons Convention (BWC) or change the responsibilities of the International Atomic Energy Agency or the Organization for the Prohibition of Chemical Weapons, and, by analogy, the Implementation Support Unit of the BWC. Designed to address some of the gaps in and between existing nonproliferation treaties, Resolution 1540 builds on and complements these instruments and institutions rather than replacing them.
Within these constraints, however, the 1540 Committee cautiously but consistently moved to support efforts by international organizations to facilitate implementation of the resolution. The resolution does not call on international organizations to report to the committee or to cooperate with one another. Moreover, the short-term mandates given the committee in its early years implied that international organizations could simply ignore the committee in practice without consequence.
Despite these challenges, considerable evidence exists that the resolution and the 1540 Committee have had an impact on the behavior of a variety of international organizations. Many organizations, for example, have adopted resolutions or made formal decisions calling on their members to implement the resolution.[12] More concretely, some international bodies have developed new protocols, guidance, or recommendations specifically designed to reflect obligations of the resolution, while several have incorporated implementation of Resolution 1540 into their work programs, including three that have 1540 Committee “coordinators” to assist in their implementation efforts.[13] When adopting resolutions or revising work programs, these institutions typically call on the committee and its experts for input into these processes.
In practice, the convergence of these international mandates produced a growing number of formal and informal mechanisms for coordination between these organizations and the 1540 Committee. Perhaps more importantly, in the summer of 2007, the committee began informal efforts to link these international organizations with one another. This strategy became clearer and more formal during the open meetings of the committee held over three days in the autumn of 2009 in which 21 international organizations participated. There also was a parallel informal meeting of nongovernmental organizations (NGOs).
The current apex of this strategy was reached in December 2010, when 27 international organizations gathered in Vienna to exchange information on their mandates stemming from resolution, on their relevant activities, and on how they could cooperate.[14] Although the 1540 Committee has yet to follow up comprehensively on this first meeting, the Global Partnership Working Group has picked up an important element—assistance—of this nascent effort at coordination.[15]
The Growing Gap
As noted earlier, the Security Council repeatedly has added tasks to the mandate of the 1540 Committee. Consequently, under its most recent mandate in Resolution 1977, the committee now has more than a dozen tasks in addition to monitoring implementation of the resolution, from matching assistance-seeking states with potential partners to building cooperation with international organizations.16 At the same time, the resources allocated directly to the committee have remained relatively stable and low.
The direct budget for the 1540 Committee, for example, covering UN Secretariat staffing, fees for experts, official travel expenses, and various operational costs, started at roughly $2.1 million in 2006 (the first full year for which experts were on staff), and grew to $3.1 million in 2011. Although this represents slightly more than a 50 percent increase, most of this growth stems from the addition of a single senior position in the UN Secretariat to service the 1540 Committee in 2009, the costs associated with relocating the offices of the committee experts as required under the UN Capital Master Plan, and increases in official travel budgets. As doing a robust assessment of just a single national nonproliferation export control system can cost more than $100,000, including fieldwork, even a $3 million budget seems to give the committee an underfunded mandate.
Similarly, the 1540 Committee as originally envisioned was to have six to seven experts, a number that rose to eight through a compromise made in early 2005. Prior to 2011, this maximum number of eight remained constant, with the actual number of experts in place dropping by two or three in months when personnel changed. From February 2005, when the first experts stared work for the committee, to April 2006, the committee had a full complement of eight experts. Coupled with frequent meetings of the committee and its subcommittees, the committee and its experts were able to accomplish their primary task and prepare a comprehensive report on the implementation of the resolution covering 129 UN member states.17 Even for that one task, however, expanding the coverage to 192 UN member states in the 2008 and 2011 reports increased the volume of work significantly.18
Perversely, the growing interest in the resolution among relevant stakeholders in the international community has worsened the task-resources gap. Consider the effort to promote and facilitate implementation of the resolution through outreach activities, arguably the second most important task of the committee, after monitoring. In 2005 the committee chairman, delegates, and experts participated in a total of 17 outreach activities, usually at the regional or international level. Although the exact number fluctuates, participation in these activities has followed an upward trend, reaching 54 events in 2011. This should not surprise anyone; as noted earlier, when states and international organizations work on Resolution 1540 issues, they usually want input from the 1540 Committee to avoid missteps.
Arguably as early as April 2006 in Resolution 1673, which reaffirmed Resolution 1540 and extended the mandate of the 1540 Committee, the volume of tasks before the committee had overwhelmed its capacity to complete them. With Resolution 1977, the Security Council officially recognized this fact. It asked Secretary-General Ban Ki-moon to elevate the 1540 Committee experts into a more formal “group of experts” and asked the committee to consider recommendations on expertise, leadership and other requirements for this new group of experts on which they would report by August 31, 2011.19
The report, which was not submitted until December 30, 2011, makes several important recommendations designed to improve the efficiency, effectiveness, and legitimacy of the 1540 Committee experts, including how outside specialists, especially former experts, might be used.
The Security Council also decided that the 1540 Committee needed to explore possibilities for strengthening support from the UN Secretariat, a topic on which it was supposed to issue a separate report by January 2012, and encourage states and international organizations to support the work of the committee through contributions of technical expertise, “in kind” resources, and funding.20 Unfortunately, as of mid-2012, the committee has not finalized this report.
Closing the Gap
On June 29, 2012, the Security Council adopted a short resolution to expand the number of committee experts from eight to nine, although in practice the actual number of experts in place had fallen from eight in April 2011 to two by that time. If the 1540 Committee needed eight experts to monitor the status of implementation of the resolution in 2005, nine experts do not seem sufficient to accomplish that task, which already now involves more work than in 2005, and a dozen more tasks. At the same time, Resolution 2055 and the December 2011 report suggest that one can anticipate only marginal increases in the resources of the committee for the near future. How can the committee navigate this restriction on its resources and accomplish its tasks?
First, the committee needs to do more to prioritize its tasks. Although no consensus exists in the committee for giving priority to one set of obligations over another, it has on occasion sought and reached agreement on the priority given to some of its many tasks. Doing this more regularly and comprehensively will require close coordination between the chairman and the coordinators of the committee working groups on what tasks to assign the experts, with realistic input from the experts on what they can achieve.
In that regard, monitoring the implementation of the resolution should remain a very high priority for the committee. Its efforts have produced the first truly comprehensive and systematic view of national nonproliferation policies and practices from 2006 to 2011. (With few exceptions, this information is available on the committee website.) Updating and refining the information in the committee matrix for each state takes considerable time, but the work has made several contributions to efforts to combat proliferation. The committee experts, for example, use this information as a guide to their discussions with states on implementation and assistance. Experts supporting several UN sanctions and counterterrorism committees use these observations in their work, such as in providing a baseline understanding of national export or border control systems. National officials have employed the matrix in preparing their plans for implementing the resolution, among other uses.
NGOs also have used the information in their efforts to promote nonproliferation norms, such as in the “report card” for the 2012 nuclear security summit by the Nuclear Threat Initiative, which relied heavily on the 1540 Committee matrices. As important, the monitoring function of the committee is one that remains largely under its direct control, whereas national and international authorities, not the committee, have the necessary funds, personnel, and legal mandates for direct action in the areas of assistance and implementation by individual countries.
The committee will need to increase time spent on making strategic decisions, particularly on what specifically it should achieve and how to achieve it. An inordinate amount of time at meetings of the committee and its working groups goes toward editorial tasks, decisions on individual additions to e-mail distribution lists of its already publicly available materials, or similar matters. At the same time, committee members’ requests for facts, such as how many states have established interagency bodies responsible for implementing the resolution, have gone unanswered because collecting the necessary data would have required the committee to make a strategic decision months or even years earlier.
The delegates on the 1540 Committee, who are usually generalists in international security issues, may be ill-prepared to discuss strategy in the absence of experts or guidance from their capitals. In the 2009 comprehensive review, however, Russia proposed having experts from national capitals participate in committee meetings. That proposal was reflected in Resolution 1977. Continued advances in modern communications technologies make this real-time participation an ever more feasible option.
Even these changes will not be enough. States and other actors will have to do more themselves, proactively fulfilling various needs. The 1540 Committee, however, can make these efforts more effective and coordinated if it shares its priorities widely. States that have identified their own national 1540 interagency bodies or implementation plans, for example, should set up a mechanism through which they can exchange views directly on challenges to implementation, lessons learned, and ways to improve international cooperation, but not necessarily bound to an already overextended committee.21 By sharing its priorities, the committee could guide this mechanism without attempts, which probably would be futile, to exercise control over it.
Initially, the major challenge facing the resolution and the 1540 Committee seemed to stem from questions raised about their legitimacy.22 In the years since the Security Council created the committee, however, states have rarely questioned the legitimacy of the resolution when given a formal opportunity. By 2012, almost every state has taken the affirmative step of voting to support the resolution either as a member of the UN Security Council or another international organization. Several dozen states have done both.
Today, a much more concrete challenge to the legitimacy of the 1540 Committee has emerged. Unless the committee adopts new approaches to its work in the coming years, failure and inconsequence will eventually cost the committee its hard-won success.
Richard T. Cupitt is an independent consultant in Washington. He served as an expert with the 1540 Committee from 2005 to 2012. Prior to 2005, he held posts in the U.S. government and several universities and research institutions.
ENDNOTES
1. Task Force on the United Nations, “American Interests and UN Reform, “ U.S. Institute of Peace, 2005, p. 67, www.usip.org/files/file/usip_un_report.pdf.
2. UN Security Council, “Letter Dated 25 April 2006 From the Chairman of the Security Council Committee Established Pursuant to Resolution 1540 (2004) Addressed to the President of the Security Council,” S/2006/257, April 25, 2006 (hereinafter 2006 1540 Committee report); UN Security Council, “Letter Dated 8 July 2008 From the Chairman of the Security Council Committee Established Pursuant to Resolution 1540 (2004) Addressed to the President of the Security Council,” S/2008/493, July 30, 2008 (hereinafter 2008 1540 Committee report); UN Security Council, “Letter Dated 12 September 2011 From the Chair of the Security Council Committee Established Pursuant to Resolution 1540 (2004) Addressed to the President of the Security Council,” S/2011/579, September 14, 2011 (hereinafter 2011 1540 Committee report). For an independent view on the impact of the resolution and the 1540 Committee, see Cole J. Harvey, “Two Steps Forward, One Step Back: Slow, but Steady Progress Implementing UNSCR 1540,” Nuclear Threat Initiative, July 20, 2011, www.nti.org/analysis/articles/unscr-1540/.
3. The UN Security Council extended the original mandate of the 1540 Committee for two years in Resolution 1673, passed in 2006; for three years in Resolution 1810, passed in 2008; and for 10 years in Resolution 1977, passed in 2011.
4. For the year 2005, see UN General Assembly, “Estimates in Respect of Special Political Missions, Good Offices and Other Political Initiatives Authorized by the General Assembly and/or the Security Council: Report of the Secretary-General: Addendum,” A/59/534/Add.1, November 23, 2004, pp. 94-97. For the year 2011, see UN General Assembly, “Estimates in Respect of Special Political Missions, Good Offices and Other Political Initiatives Authorized by the General Assembly and/or the Security Council: Thirteenth Report of the Advisory Committee on Administrative and Budgetary Questions on the Proposed Programme Budget for the Biennium 2012-2013,” A/66/7/Add.12, December 2, 2011, pp. 14-22.
5. For the final document, see www.un.org/ga/search/view_doc.asp?symbol=S/2010/52.
6. The total count differs depending on how one defines and isolates specific activities and obligations in the text.
7. See 2006 1540 Committee report; 2008 1540 Committee report; 2011 1540 Committee report.
8. UN Security Council, S/RES/1540, April 28, 2004, para. 4.
9. See 2008 1540 Committee report, app. 17; 2011 1540 Committee report, app. 16.
10. UN Security Council, S/RES/1540, April 28, 2004, para. 9.
12. See 2006 1540 Committee report (sections on international cooperation); 2008 1540 Committee report (sections on international cooperation); 2011 1540 Committee report (sections on international cooperation).
13. The three are the Organization for Security and Co-operation in Europe, the Caribbean Community, and the Central American Integration System.
14. See 2011 1540 Committee report.
15. The Global Partnership Working Group is an offspring of the Group of Eight Global Partnership Against the Spread of Weapons and Materials of Mass Destruction, which now includes more than 30 states and international organizations that provide assistance for WMD nonproliferation efforts.
16. These tasks include identifying effective practices and guidance (including drawing on, where appropriate, civil society and industry); working with states and international and regional organizations to promote the sharing of these practices and guidance, as well as experiences and lessons learned; liaising with states and international and regional organizations on the availability of assistance programs; being a clearinghouse and matchmaker for assistance requests and offers; drawing up assistance templates; helping states prepare assistance requests and national implementation plans if asked; conducting visits to countries for more-intensive dialogue on implementation and assistance efforts; building cooperation with the two main Security Council counterterrorism committees, as well as with other UN bodies; promoting, organizing, and participating in international, regional, subregional, and national outreach events; instituting further measures to build transparency; and conducting annual reviews of its work, plus two comprehensive reviews.
17. See 2006 1540 Committee report.
18. The 1540 Committee chose to limit the findings of its first report to the 129 states that had submitted reports to the committee by the winter of 2006. In subsequent reports, the committee allowed the examination of the status of implementation in all UN member states, even those that had yet to submit an initial report. See 2006 1540 Committee report; 2008 1540 Committee report; 2011 1540 Committee report.
19. UN Security Council, S/RES/1977, November 9, 2011, para. 5.
22. For example, see Ian Johnstone, “Legislation and Adjudication in the Security Council: Bringing Down the Deliberative Deficit,” American Journal of International Law, Vol. 102, No. 2 (April 2008): 275-308.