Security Council & non-proliferation

THE SHOCKING images of abuses against Iraqi prisoners have over-shadowed an important debate over a recently adopted Resolution by the United Nations Security Council on non-proliferation of weapons of mass destruction, and the risk that non-state actors may acquire, develop, traffic in or use nuclear, chemical and biological weapons and their means of delivery. For many, especially developing countries, the Resolution withdraws, rather than deposits, and raises questions more than providing answers, in particular, regarding the Resolution's possible legal, political and technical implications.

In its recent Resolution, bearing the number 1540 (2004), the 15-member body approved what is thought to be a binding text criminalising the acquisition of weapons of mass destruction by such private parties as terrorists and black marketers. Following passing references in the preamble of the Resolution to various disarmament concepts and commitments in a desperate attempt to make the size of the Resolution an all-fitting one, the Council called on all states to "adopt and enforce appropriate effective 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, in particular for terrorist purposes, as well as attempts to engage in any of the foregoing activities, participate in them as an accomplice, assist or finance them."

The Resolution further calls on all states to take and enforce effective measures to establish domestic control to prevent the proliferation of WMDs and the means of delivery, including by establishing appropriate controls over related materials. To that end, states are also demanded to "develop and maintain appropriate effective measures to account for and secure such items in production, use, storage or transport," and "develop and maintain appropriate effective physical protection measures" and also maintain "appropriate effective border control and law enforcement efforts to detect, deter, prevent and combat" the illicit trafficking in such items.

The Council decided that all states shall "establish, develop, review and maintain appropriate effective national export and trans-shipment controls over such items, including appropriate laws and regulations to control export, transit, trans-shipment and re-export and controls on providing funds and services related to such export and trans-shipment such as financing, and transporting that would contribute to proliferation, as well as establishing end-user controls; and establishing and enforcing appropriate criminal or civil penalties for violations of such export control laws and regulations." According to the Resolution, a committee comprising all members of the Security Council will be established to monitor for the next two years the implementation of the Resolution while all states are further urged to present reports on their efforts to execute the provisions of the Resolution within six months.

Indeed, there is no controversy over the relevance of keeping WMDs out of terrorists hands. The attack on the Tokyo metro, even the spread of natural diseases such as SARS, not to mention the reported stories of "dirty," let alone "clean," bombs are all stimulants for international cooperation, and a continuous reminder of what a biological or chemical attack might look like. There is also no controversy over the imperative of filling the gap in international law on such issues not covered by existing treaty regimes.

However, the apprehensions expressed by many countries left serious doubts over any possible contribution Resolution 1540 could make to the question of non-proliferation, considering not only the poor track record of the Security Council itself since its adoption in 1992 at the level of Heads of State and Government of a presidential statement on arms control and disarmament, in which all member-states pledged to prevent proliferation in all its aspects of all weapons of mass destruction, but also the uncertainties surrounding the Council's repeated recourse to shortcuts to evolve an international consensus replacing existing treaty regimes for issues that should best be addressed through current international instruments.

There is a strong impression that by arrogating to itself wider powers of legislation, the Council departs from its Charter-based mandate, which is essentially the maintenance of international peace and security. And by increasingly assuming a law-making function, the Council risks interfering with the mandate of other multilateral organisations established by treaty as well as the risk of undermining the stability of the international legal framework. Excessive recourse to Chapter VII may signal coercion rather than cooperation, and may open the door for punitive actions not necessarily agreed upon by the entire membership of the Council.

Like previous efforts, the Security Council anchored its Resolution within the global-fight-against-terrorism framework in order to ensure the absence of any dissenting voice. In so doing, there are various contradictions that need to be reconciled. Whereas the Council's Resolutions, especially under Chapter VII, are legally binding on all states, ways and means to cater to the interests of other powers who are not party to certain non-proliferation arrangements as recognised by Resolution 1540 are yet to be drawn out. Another deficiency is that while the Council seeks global adherence to its resolutions, its very unrepresentative nature and the enjoyment of veto powers by its key nuclear actors make it an inappropriate body to be fairly entrusted with the authority for oversight over non-proliferation and nuclear disarmament.

In 2000, during the Sixth Review Conference of the Treaty on Non-Proliferation of Nuclear Weapons, the five nuclear-weapon powers unequivocally committed themselves to eliminating their nuclear stockpiles. Yet while the threat of nuclear weapons is on the rise, the imperative of ensuring a fair, rational and non-discriminatory non-proliferation is the only way to ensuring realisation of the objectives set forth in Resolution 1540. The fact that there has never been sufficient will to back the workings of existing multilateral disarmament and non-proliferation regimes, indeed a retreat from some of the commitments made, explains why any new attempt to establish a mechanism in the Security Council in isolation from the Biological Weapons Convention, Chemical Weapons Convention and the safeguards regime of IAEA will not be successful.

It is interesting to note that Resolution 1540 targets non-state actors while neglecting the threat to international peace and security created by proliferation by states. And while targeting proliferation by non-state actors, the Resolution seeks to impose more obligations on member-states. The Resolution is based in this context on prevention anchored on punitive measures but not on the elimination of WMDs through a transparent and verifiable process of disarmament. After all, it is the Security Council itself that has recently blocked the adoption of a long-awaited draft on transforming the Middle East as a zone free of all weapons of mass destruction, thus losing an opportunity to incorporate the WMDs Free Zones concept within a global search strategy for their elimination.

The Resolution is further riddled with definitional problems and lack of precision in many aspects and measures outlined in the text. The definition of "non-state actor" which is taken in the text to mean "individual or entity, not acting under the lawful authority of any state in conducting activities which come within the scope of this solution" may not be an exhaustive one. There are also grounds for differing interpretation in such new areas in which established definitions are yet to be worked out. While the Resolution calls on all states to work with and inform industry and the public regarding their obligations, the dual use nature of materials involved may cause unnecessary negative implications on the activities of laboratories and research centres.

The lessons drawn from the Iraqi experience is that political judgments will always supersede technical considerations. And while the text remains ambiguous regarding enforcement measures against non-compliance, the adoption of the Resolution under Chapter VII may be taken as a justification for unilateral use of force, using such language in the text calling on "all states" (and not the U.N. or the combined membership of the Security Council) to "take cooperative action to prevent illicit trafficking in nuclear, chemical or biological weapons, their means of delivery, and related materials," "in accordance with their national legal authorities and legislation" and "consistent with international law," to "counter that threat." As this may form the basis for the oft-referred "coalition of the willing" outside the U.N. framework, such ambiguity may be used to jeopardise innocent passage of ships through territorial waters and violate the rights enshrined in the maritime law and aviation conventions.

The mechanism established by the Security Council to monitor the implementation of the Resolution leaves a lot to be desired. The restricted nature of the Committee as opposed to an open-ended one, and the resistance not to assign its tasks to the U.N. Secretariat raise many questions about the efficacy and direction of the current initiative. Perhaps many would repeat the question raised by the representative of India during the debate, "who will monitor the monitors?"

(The writer is the Ambassador of Sudan to India and former member of the U.N./OAU Expert Group on the De-nuclearization of Africa.)

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