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Assessing UNSCR 1540’s significance for national export controls. Andreas Persbo Nuclear Law and Policy Researcher VERTIC. What does UNSCR 1540 require?. The resolution aspires to create a comprehensive, international export control regime. Export Transit Transshipment Re-export

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Assessing unscr 1540 s significance for national export controls

Assessing UNSCR 1540’s significancefor national export controls

Andreas Persbo

Nuclear Law and Policy Researcher

VERTIC


What does UNSCR 1540 require?

The resolution aspires to create a comprehensive, international export control regime.

  • Export

  • Transit

  • Transshipment

  • Re-export

  • Encourages States to set up control lists

  • No controls? State must establish them.

  • Controls? States must review and develop them.

  • Reviewed? States must maintain them

  • Controls on the provision of funds and services

  • End user controls

  • Implementing UNSCR 1540 will be a steep task for many states, especially those who are least developed.

  • Criminal penalties (i.e. fines or imprisonment)

  • Civil penalities (i.e. confiscation of goods or profits)


What does UNSCR 1540 require (continued)?

The paragraph is not limited to non-state actors, but applies to proscribed items in general, whether in relation to states, industry or terrorist groups.

The paragraph applies to “materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery.”

France: the resolution‘does not compel any State to abide by the rules of instruments to which some States have chosen not to accede’. Moreover, the resolution ‘leaves each state free to define the penalties, legal regulations and practical measures to be adopted’

Pakistan: ‘the list prepared by closed regimes such as the Missile Techology Control Regime (MCTR), the Nuclear Suppliers Group (NSG) or the Australia Group cannot automatically be accepted by or imposed upon States that are not parties to those regimes’

Many states have nevertheless decided to look at AG, MCTR, NSG or ZC lists.


Where are the obstacles?

  • Vauge language and terms. What is ‘appropriate’, what is ‘effective’?

  • Lack of guidance on national control lists

  • No compliance deadline

  • No direct implementation assisstance --- ‘compliance is required without direct recourse to resources’


The ultra vires debate---may it still cause problems?

Resolution 1540 is only the second time the Council has used its powers to take a far-reaching, general decision, that can be described as being legislative in nature. The first time this happened was following 11 September 2001, in response to the threat of international terrorism (UNSCR 1373)

The identified threat, the proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, is without doubt real, but remains abstract. The resolution is not responding to a concrete situation.

UNSCR 1373, which bears many similarities with UNSCR 1540, has been regularly reaffirmed by subsequent Security Council practice. States have not objected to its adoption.

Lawmaking resolutions are, by now, firmly established in Security Council practice, but the real test for UNSCR 1540 is to see if states are implementing it. The best way to look at this is by examining reporting.


The pace of reporting

The submission of new reports have slowed down considerably since December 2005


The non-reporters are least developed

The majority of States which has not reported are either a least-developed state and/or a small island developing state

11 States in category

Botswana

Cameroon

Côte d'Ivoire

DPR Korea

DR Congo

Gabon

Montenegro

Nicaragua

San Marino

Swaziland

Zimbabwe


State of play of implementation

Reporting states only


What’s the way forward?

  • Vauge language and terms. A more proactive committee may be the answer. Instead of reporting on statistics, the committee should report on substance. It should perhaps also try to identify common ground and terms acceptable to all states.

  • Lack of guidance on national control lists. A proactive committee could elp establish good practice in the field of dual use export control legislation. It is likely that existing guidelines and control lists will continue to play a very important role.

  • No direct implementation assisstance. There are several initiatives out there, implemented by States (US), Regional Groups (EU), or non-governmental groups (Monterey, SIPRI, VERTIC). The Committee should continue to act as the natural focal point. A more proactive committee could help match supply and demand.

  • No compliance deadline. May not be a problem after all, it is widely recognized that this is going to be a long term effort. The resolution forms an important basis for future efforts, but real progress will come from deepened and expanded cooperation and dialouge.


Thank you our contact details are
Thank you!Our contact details are:

Andreas Persbo Angela Woodward

Nuclear Law and Policy ResearcherDeputy Director (handles BW issues)

[email protected] [email protected]

VERTIC

Development House

56-64 Leonard Street

London EC2A 4JX

Tel: 020 7065 0880

Fax: 020 7065 0890


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