Presentation to the Institute of Nuclear Materials Management Panel Discussion, March 15, 2005
Research Director, Arms Control Association
I want to thank the hosts today for inviting me to speak with such a distinguished panel on this important topic. This is an important topic because Security Council Resolution 1540 could have far-reaching and significant implications for the international nonproliferation regime, and thereby U.S. and world security. I want to emphasize the word could. That word is important because the resolution is an initiative that governments, with the necessary prodding, might still forge into an effective instrument. It isn’t there yet, and, I fear, the odds may be stacked against such an outcome.
In my view, those odds stem from five primary challenges, each of which I will discuss further:
- Vague guidelines and definitions
- National enforcement
- International enforcement
- A weak structural foundation, and
Before exploring these five challenges further, let me note that my remarks are based on two assumptions. One, that Resolution 1540 in practice applies to trying to stop all WMD-related proliferation, not just that to non-state actors. And, two, the resolution opens the door for the international community, through the Security Council, to penalize governments failing to abide by the resolution’s terms since 1540 was adopted under Chapter VII of the UN Charter.
Vague Guidelines and Definitions
Suffice it to say that the Resolution 1540 is short on specifics. What items specifically are supposed to be controlled? Should all items on the control lists of the Australia Group, the Nuclear Suppliers Group, the Missile Technology Control Regime, and the Wassenaar Arrangement be subject to all countries’ national export controls? If yes, that would be a remarkable step toward harmonizing and universalizing these export control regimes, which is something that International Atomic Energy Agency Director-General Mohamed ElBaradei has called for.
Moreover, what are “appropriate effective” laws, physical protection measures, and border controls? And, does the last one apply to just goods or people too? Would U.S. border controls—given the mixed record of keeping out illegal immigrants—be sufficient in this regard or would they be found lacking? This all depends on how governments decide to interpret and apply the resolution. Standards must be set. Governments should err on the side of ambitious rather than cautious.
Once these ambitious laws, physical protection measures, border controls, and export controls are on the books, they must be enforced. It’s not enough to simply codify these obligations and restrictions; they must be acted upon. Proliferators are not going to change their behavior simply because stricter rules or measures are put on paper.
Exhibit A would be China. Since 1992, Beijing has issued a series of proclamations and regulations limiting exports of ballistic missiles and their technologies in order to conform with the export guidelines followed by the 34-member Missile Technology Control Regime. Still, the State Department regularly imposes proliferation sanctions on Chinese entities. During its more than four years in office, the Bush administration has imposed proliferation sanctions 112 times; 62 of those sanctions have been on Chinese entities, including state-run businesses. Many of these sanctions stem from alleged missile-related transactions with Iran.
Whether Beijing is turning a blind eye toward this proliferation activity or it simply does not have the capacity to stop these transactions isn’t really the issue here. Although clearly, the former is of greater alarm. The fundamental point is that a government must be both willing and able to enforce its laws, export controls, physical protection measures, and border controls to successfully impede proliferation. Governments should not simply view Resolution 1540 as a law-making exercise. If they do, proliferation will continue; just as missile proliferation has from China.
How the international community responds as a whole to poor national enforcement, intentional or unintentional, also looms large. Will the international community, in the form of the Security Council, apply the same rules and standards to all or will it be selective in which governments will be taken to task for not fulfilling their legally-binding responsibilities? A universal approach will lend the resolution greater legitimacy and prevent the emergence of zones or regions where proliferators feel they can act with impunity.
My concern is that the resolution could be implemented in a way reflecting the Bush administration’s general approach to proliferation, which is that the problem is bad actors, not bad weapons. From this perspective, it’s more important to focus on certain regimes rather than taking a more comprehensive approach to eliminating WMD wherever it may be found, regardless of whether that source is a U.S. friend or foe. This approach greatly influences the administration’s Proliferation Security Initiative or PSI, which I believe is a fine concept, if not a bit oversold.
First, interdiction is not as novel as some in the administration make it out to be. Second, PSI does not legally empower governments to do anything that they could not do before. This issue of legal authority in PSI is a bit of a red herring because ultimately the initiative’s success rests upon good intelligence. You can’t intercept something if you don’t know where it is.
To be sure, PSI has a broad mandate of intercepting threatening shipments at sea, on land, or in the air. But the administration has narrowed the scope of the initiative by caring more about the specific recipients than the suppliers. State Department Spokesman Richard Boucher noted, “The country of origin is obviously important, but destination is much more important.” Although predating PSI, the administration’s decision to permit Yemen to receive its North Korean Scud missiles intercepted by Spanish forces in December 2002 points to this selective approach.
Furthermore, John Bolton, a chief architect of PSI, said in an interview with my organization’s monthly publication Arms Control Today, “There are unquestionably states that are not within existing treaty regimes that possess weapons of mass destruction legitimately. We’re not trying to have a policy that attempts to cover each and every one of those circumstances.” In other words, India, Israel, and Pakistan are not under PSI scrutiny despite their possession of the very weapons and materials that the initiative is trying to stop the trade in and the exposure of the A.Q. Khan network operating from Pakistan.
Islamabad ’s punishment of Khan, or more appropriately lack of punishment, also raises the question of how Washington and other capitals might respond under Resolution 1540 to another government taking such a lenient stand against a confirmed proliferator. A country’s temporary standing in the global war on terror or other political considerations should not trump enforcement of the resolution. As the A.Q. Khan network amply demonstrated, proliferation has many sources, including perceived allies, whose allegiances and motivations are always subject to change. Setting standards that hold allies accountable for the same transgressions or failings as enemies is essential for protecting against the long-term dangers posed by proliferation.
If the United States and the international community take a similar tack with Resolution 1540 as that with PSI—as a tool to be used against a few select states, while neglecting others—the resolution will certainly fail. As Deputy Assistant Secretary of State Andrew Semmel has warned, “a single state supplying critical materials or technologies could defeat the efforts of us all.” Resolution 1540 will surely be only as strong as its weakest link.
A Weak Structural Foundation
Another potentially limiting factor of Resolution 1540 that is also apparent in PSI is the lack of a solid foundation. This reflects the Bush administration’s skepticism about formal, multilateral institutions. In PSI, no secretariat has been established, no formal channels for sharing intelligence have been created, no obligations to participate in exercises or operations exists, and no specific funding is set aside for PSI’s operation. The whole initiative conforms to the administration’s preference for acting with coalitions of the willing that permit the greatest freedom of action possible. Likewise, the administration opposed the creation of a permanent committee to oversee Resolution 1540, opting instead for a two-year life span.
This is shortsighted. Two years might not be enough time to identify the problems, let alone solve them. In addition, there are vows to lend assistance to those in need under the resolution, but at this time those are simply vague promises. Perhaps a donor contribution fund should be established, experts identified, and best practices collected and distributed to give governments some idea of what resources may be available to help them live up to Resolution 1540. One can imagine some governments being reluctant to acknowledge shortcomings in their export control systems for which they would be held accountable without having some assurances that they alone will not bear the responsibility for improving or strengthening those systems. Adding some flesh and muscle to the bones of Resolution 1540 would help, but this is a tall order given that the committee only has one more year before it expires.
All of these four challenges will impact whether governments view Resolution 1540 as legitimate. However, Resolution 1540’s legitimacy over the long run will not be based solely on its own merits. Much of the world will be waiting to see how the norm against exporting WMD, delivery vehicles, and related materials (i.e. nonproliferation) will be translated into a norm against possession as well (i.e. disarmament). By not addressing existing arsenals, Resolution 1540 is vulnerable to charges that it is just another discriminatory, supply-side mechanism designed to keep the developing world down. Therefore, Resolution 1540’s ultimate success will also hinge upon parallel actions by countries armed with WMD to reduce the quantity and salience of such arms. Without such steps, a mix of apathy, cynicism, and mistrust will undermine the resolution.
If this quick analysis appears a bit pessimistic, it is only because Resolution 1540 has such great potential. In the resolution lies the opportunity for expanding the tools and mindsets necessary for slowing proliferation beyond those countries that are members of the exclusive, some would say discriminatory, export control regimes.
It could also serve to overcome one of the biggest obstacles inhibiting trust among the nuclear-weapon states, as well as between those states and the non-nuclear-weapon states: secrecy. In operative paragraph 3(a), Resolution 1540 orders states to develop appropriate effective measures to account for their weapons and materials subject to control. Once accomplished, the potential exists for that information to be shared. If some type of mechanism were established to facilitate this activity, it would address one of the major criticisms of the non-nuclear-weapon states about being kept in the dark by those with nuclear arms. This matter will be raised repeatedly at the forthcoming nuclear Nonproliferation Treaty (NPT) Review Conference in May.
Still, the crux of the debate at the upcoming review conference will be whether all states are living up to their treaty obligations and whether some states are unfairly taking on greater burdens than others. Such questions must be avoided in implementing Resolution 1540. For the resolution to succeed, each government's obligations must be clearly spelled out and all must be held equally accountable. Otherwise, weak links will emerge and proliferators will exploit them.
*On April 28, 2004, the United Nations Security Council unanimously adopted Resolution 1540 requiring all states to adopt “appropriate effective” measures to prevent non-state actors from acquiring biological, chemical, and nuclear weapons, as well as the means for their delivery. See “Security Council Unanimously Adopts Resolution Denying Terrorists WMD,” Arms Control Today, May 2004, and “ U.S. Disappointed with Worldwide Response to WMD Resolution,” Arms Control Today, December 2004.