UN Security Council Resolution 1540: NZ adopts Ju-Jitsu approach
Alyn Ware, IALANA Consultant

In the 16th Century Shirobei Akiyama, a Japanese man studying medicine in China, noticed that in a heavy blizzard branches of most strong trees broke while the elastic branches of the willow tree bent and efficiently freed themselves from the snow. He thus developed a martial art called Ju- Jitsu, which aims not to neutralize power with power but rationally absorb an attack and convert that energy to the opponent’s own detriment.

On April 28, 2004, the UN Security Council adopted Resolution 1540 requiring all States to take measures to prevent non-State actors from acquiring or developing nuclear, chemical and biological weapons, and to prevent the general proliferation of these weapons.

The resolution was proposed by the US to support its counter-proliferation efforts, and some critics fear that it provides a mandate for the powerful countries that already possess nuclear weapons, particularly the permanent members of the Security Council (P5), to impose pressure or even use force to prevent other States and non-State actors from acquiring such weapons themselves.

However, last minute changes in the resolution, made at the insistence of non-P5 Security Council members, provide opportunities for countries to adopt a Ju-Jitsu approach and utilize the political momentum for action required by the UN resolution to strengthen the norms and controls not only against the spread of nuclear, biological and chemical weapons, but also against those possessed and deployed by the P5.

Disarmament obligations
The resolution notes that proliferation means ‘proliferation in all its aspects of all weapons of mass destruction,’ and that action to prevent proliferation includes the implementation of ‘multilateral treaties whose aim is to eliminate or prevent the proliferation of nuclear, chemical or biological weapons,’ and the need for ‘all member States to implement fully the disarmament treaties and agreements to which they are party.’

The resolution can thus be read to refer to efforts to prevent both horizontal proliferation (spread of weapons and related materials to those who do not yet have them) and vertical proliferation (continued possession, deployment and development of weapons by those who already have them).

State and Non-State actors
UNSC Resolution 1540 requires all States to adopt and enforce 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. However there is nothing in the resolution which legitimizes the manufacture, acquisition, possession, development, transport, transfer or use of such weapons by State actors.

The recent revelations of the Khan nuclear market indicate that both State and non-State actors can be engaged in proliferation activities and thus prevention measures should address both. This would be consistent with the objectives of the resolution, as outlined in the pre-amble, which does not distinguish between State and non-State actors in determining proliferation risks.

Many countries, including some P5 members, have already adopted criminal laws relating to both State and non-State actors with respect to chemical weapons as part of their actions to implement the Chemical Weapons Convention. The P5 are not supportive of criminal law prohibiting State actors from involvement in nuclear weapons activities as that could impact on State agents involved in their own nuclear weapons programs, especially if a norm of universal jurisdiction developed. Some countries, e.g. New Zealand, have already adopted laws prohibiting State actors from engagement in nuclear weapons activities (much to the displeasure of some of the Nuclear Weapon States). UNSC 1540 provides opportunities for more States to do so.

Customary abolition norm
Of significance in Resolution 1540 is that it requires States to implement domestic measures in order to prevent proliferation. On the one hand, this raises questions about whether the Security Council is authorized to act as a global legislating body. There has been some criticism that such obligations to enact domestic implementing measures can not be imposed by the Security Council except in a specific situation addressed to the specific States concerned when there is a clear threat to peace and security. Such was the case, for example, with disarmament measures required of Iraq following the 1991 conflict, but does not apply to the more generalized threat from proliferation globally. The appropriate mechanism for developing domestic obligations in other circumstances would be through negotiating a treaty where the obligations are not imposed on States, but are assumed by States parties to the treaty. Thus, some critics believe that UNSC Resolution 1540 indicates a move away from legitimate non-proliferation measures through such agreements as the Non-Proliferation Treaty, International Atomic Energy Agency and Convention on Nuclear Terrorism (still being negotiated) towards measures developed and policed by an unrepresentative and unaccountable body (the Security Council).

On the other hand, in requiring States to implement non-proliferation measures irrespective of whether States concerned have accepted such obligations under treaties, the Security Council has helped to strengthen a universal and customary norm against nuclear, chemical and biological weapons. While the P5 has attempted to restrict this norm to horizontal proliferation, and will continue to do so, other countries and the global peace movement has the opportunity to ensure that the norm for prohibition will be strengthened along with the norm against proliferation.

Reporting
Under the resolution, the Security Council established a Committee of the Security Council, consisting of all members of the Council, and called on all States to present a first report to the Committee by the end of October 2004 on steps they have taken or intend to take to implement the resolution.

The reporting process provides an opportunity to encourage other governments to take strong nuclear abolition steps. In its report, New Zealand, for example, stated that “all weapons of mass destruction should be eliminated” and that New Zealand had adopted legislation ‘making it an offence to aid, abet or procure any person to manufacture, acquire, possess, or have control over any nuclear explosive device.” New Zealand reported that these prohibitions “apply to both State and non-State actors under New Zealand’s jurisdiction,” and also “apply extra-territorially to agents or servants of the Crown outside the New Zealand nuclear free zone.”

Disarmament Education
The resolution calls upon all States to ‘develop appropriate ways to work with and inform industry and the public regarding their obligations under such laws [arising from multilateral treaties to which they are parties].’

This provides an opportunity for States to report on actions undertaken to inform and educate industry and public on non-proliferation issues including work done to implement the recommendations of the United Nations Study on Disarmament and Non-Proliferation Education.

New Zealand reported that “New Zealand’s non-government organisations (NGOs) play a vital role in disseminating information about disarmament issues and New Zealand’s obligations and the government has recently allocated some funding to assist them in carrying out the recommendations of the UN Study on Disarmament and Non-Proliferation Education.” Other governments could be encouraged to also allocate funding to NGOs in their countries to do the same.

International Cooperation
The UN resolution calls on States to promote dialogue and cooperation on non-proliferation. While some critics saw this as possibly supporting coalition actions such as the Proliferation Security Initiative, New Zealand saw it as an opportunity to reinforce multilateral approaches stating that “ad hoc measures and activities are however, in our view, in no way a substitute for the development of strong and effective multilateral instruments” and that “the most effective non-proliferation moves we could make collectively would be to ensure and enhance compliance with the NPT in all its aspects including nuclear disarmament, to bring the Comprehensive Nuclear Test Ban Treaty into force, and to negotiate a Fissile Material Cut-Off Treaty with strong verification provisions.”

Conclusion
UN Security Council Resolution 1540 provides opportunities for significant disarmament steps by States, including opportunities to put pressure on nuclear weapon States to implement their disarmament obligations. The degree to which States act on these opportunities will depend mostly on how much encouragement and support they receive from disarmament advocates globally. So in short, it is up to us to make this happen and to ensure that Resolution 1540 is used as an effective tool for disarmament.

For more information on UNSC 1540: Reaching Critical Will
See: NZ submission to the UNSC 1540 Committee: www.pnnd.org Update 11