Preventing non-state actors from having WMD

Desra Percaya, New York

On April 28, 2004, the UN Security Council unanimously adopted Resolution 1540, intended to keep nuclear, biological and chemical weapons, known as weapons of mass destruction (WMD), out of the hands of non-state actors, particularly terrorists. In this context, these non-state actors were clearly defined as individuals or entities not acting under the lawful authority of any state.

The resolution calls on the 191 UN member nations to criminalize the proliferation of WMD and their means of delivery to non-state actors. It also calls on members to adopt laws to prevent sensitive materials and technology from getting into the hands of non-state actors.

What is more important, this resolution is legally binding and mandatory for all UN member states as it invokes Chapter VII of the UN Charter. Accordingly, it needs further examination from at least two perspectives, namely, its procedural process and its substantive aspects.

The effort to combat international terrorism has been intensified since the terrorist attacks that took place in the U.S. on Sept. 11, 2001. In this endeavor, one of the most horrifying catastrophes that people can imagine is if non-state actors, particularly terrorists, succeed in acquiring WMD. Against this backdrop, there is a compelling rationale for shutting down any possibilities for them to gain access to WMD. The shocking news of the recent activities of Pakistan's A.Q. Khan and nuclear proliferation has expedited the need to redouble efforts in this regard.

Indeed, technological developments have made it easier to acquire WMD and have increased the risk of their proliferation. Globalization and the spread of information technologies, the global allocation of resources and the transboundary movement of peoples and goods have become easier, freer and faster. Theft of WMD material and technology and their illicit trafficking are distinct possibilities as more than 100 countries have inadequate controls to prevent their spread. These factors have made it more urgent to apply stricter regulations to prevent the proliferation of WMD.

In his speech before the UN General Assembly last year, President George W. Bush called for the adoption of a new nonproliferation resolution requiring nations to criminalize the proliferation of WMD, enact tighter export controls and secure any and all sensitive materials within their own borders.

While concern for filling a loophole in the current nonproliferation regimes by preventing WMD from falling into the hands of non-state actors is broadly shared by all states, the implementation of President Bush's initiative was unfortunately confined to the UN's so-called Permanent Five (China, France, Russia, the U.S. and the UK). Even the draft resolution was made available to the nonpermanent members of the Council only on March 24, 2004, after nearly five months of working behind closed doors.

Therefore, what is critically missing from this process has been a lack of transparency and wider participation in formulating a draft resolution that has far-reaching implications for many countries' domestic legislation. Outraged by this situation, a number of countries have requested the convening of an open debate in the Council, which eventually took place on April 22, 2004.

From the convening of an open debate to a series of consultations with various political groupings, it appeared that the vast majority of countries expressed their support for preventing non-state actors from acquiring WMD. However, concerns have also been aired about the very substance of the draft resolution, particularly the enforcement of the resolution and the absence of linkage to fulfilling the commitment for nuclear disarmament. The invoking of Chapter VII of the UN Charter has further created unease among the majority of member states and increased suspicion and fear in light of the current preemptive policy of one particular state.

There was also a different point of departure between countries that had reservations about the very substance of the draft and its cosponsors. For the former, this exercise was accompanied with high expectations that their basic concerns would be taken on board through an adjustment of the language in the text. For the latter, consultation appeared to have been designed to generate political support and build a basis for legitimacy. In the end, however, the text received only cosmetic changes.

The Security Council's initiative in taking a greater interest in the nonproliferation of WMD could generally be considered a positive development. While the Council has some responsibility to act on arms control, its tendency to take a legislative role has been the source of deep concern for the majority of member states. It has no mandate whatsoever to draft laws, taking the legislative role away from the General Assembly or a process by which treaties are negotiated in multilateral forums. Thus, the Council has proliferated its own work beyond its original mandate.

In any case, Resolution 1540 has been adopted. There is no way to turn back the clock now. Every country has to abide by this resolution and embark on the steps required by it, including, among other things, adopting and enforcing laws prohibiting non- state actors from developing, acquiring or using chemical, biological or nuclear weapons, and establishing effective domestic controls over these weapons and their key ingredients.

In the meantime, there is an urgent need to further strengthen the existing mechanisms on the nonproliferation of WMD, such as the Nuclear Non-Proliferation Treaty, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, and the Biological and Toxin Weapons Convention. The creation of a mechanism outside of these frameworks should only be regarded as a catalyst toward the renewal of multilateral cooperation on arms control and disarmament.

In a broader context, there is also a necessity for the convening of broad-based discussions among UN member states, leading to the establishment of international norms regulating WMD and their access to non-state actors on a permanent basis through a multilateral process. Indeed, Resolution 1540 should have laid the groundwork for further efforts in this endeavor through the convening of an international conference to comprehensively address the issue.

One may also venture to ask whether the threat from WMD stems from the acquisition of WMD by non-state actors or from their very existence. Logically, as long as these kinds of weapons exist, the threat will never completely disappear. Therefore, the elimination of all WMD remains valid as the ultimate objective toward the creation of a WMD-free world.

In the final analysis, measures are definitely needed to prevent non-state actors from acquiring WMD. Enhanced international cooperation is undeniably needed in this respect. Fighting the threat of access to, and the use of, WMD by non- state actors should be an issue that unites all countries, rather than dividing them. In this context, no sovereign state is immune from threats by non-state actors. No single state authority can defeat cross-border threats on its own. All countries must meet this challenge, and consequently share a common interest in successfully meeting this threat.

The writer works at the Indonesian Mission to the United Nations in New York. The views expressed here are his own and do not necessarily reflect the position of the Indonesian government.