Introduction
In the decades since chemical, biological, and nuclear (CBN) weapons1CBN weapons are considered weapons of mass destruction, defined by the UN General Assembly (A/RES/32/84-B) as ‘atomic explosive weapons, radioactive material weapons, lethal chemical and biological weapons and any weapons developed in the future which might have characteristics comparable in destructive effect to those of the atomic bomb or other weapons mentioned above’. This paper discusses CBN weapons exclusively (not radiological) as Resolution 1540 does not explicitly include obligations related to radiological weapons (radioactive material weapons), but focuses on chemical, biological and nuclear weapons, their means of delivery and ‘related materials’. entered the annals of history, States have gone to great lengths to prevent their proliferation and further use. An international legal regime to prevent the proliferation of these weapons consisting of the Geneva Protocol (1925), the Treaty on the Non-Proliferation of Nuclear Weapons (1970), the Biological Weapons Convention2The BWC includes toxin weapons as well. (1972), and the Chemical Weapons Convention (1992) was gradually set up in the decades following the two world wars, the Cold War, and their aftermath. Global non-proliferation and disarmament norms were further strengthened and consolidated through the establishment of Nuclear-Weapon-Free Zones, including the African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba) adopted in 1996.3For more on Nuclear-Weapon Free Zones, see UN Office for Disarmament Affairs, https://www.un.org/disarmament/wmd/nuclear/nwfz/. The 2017 Treaty on the Prohibition of Nuclear Weapons constitutes the most recent addition to this global framework.4For more on the Treaty on the Prohibition of Nuclear Weapons, see UN Office for Disarmament Affairs, https://www.un.org/disarmament/wmd/nuclear/tpnw/.
These legal measures were all aimed at preventing CBN weapons proliferation by States and do not explicitly consider the role of non-State actors such as terrorists, organised criminal groups or illicit networks who might also show interest in proliferation activities for commercial, political, or ideological purposes – thereby creating an additional threat to international peace and security. The sharp increase in terrorist and violent non-State actor activity across the globe since the early 2000s has drastically reshaped the international security environment and the legal frameworks that govern it. The danger of potential CBN weapons proliferation by non-State actors is well-known and illustrated through several recorded incidents involving chemical compounds, biological agents and nuclear technologies, and related materials across the globe since the late 1980s.5See for example the WMD Terrorism Database of the Center for Nonproliferation Studies at the Monterey Institute for International Studies compiling incidents from 1900 to 2000, https://www.nonproliferation.org/wp-content/uploads/npr/wmdchr72.htm; and the Profiles of Incidents involving CBRN and Non-State Actors (POICN) Database prepared by the National Consortium for the Study of Terrorism and Responses to Terrorism (START) Center at the University of Maryland, covering the period 1990 to 2016, https://www.tandfonline.com/doi/abs/10.1080/1057610X.2019.1577541?journalCode=uter20.
It is within this context that the UN Security Council, acting under its Chapter VII powers,6Resolutions enacted under Chapter VII of the UN Charter are binding on all Member States. enacted UN Security Council Resolution (UNSCR) 1540 on April 28, 2004. This made UNSCR 1540 binding on all UN-Member States and requires that they ‘refrain from providing any form of support to non-State actors that attempt to develop, acquire, manufacture, possess, transport, transfer or use’ any of the CBN weapons, their related materials, and their means of delivery.7UN Security Council, Resolution 1540, Non-proliferation of weapons of mass destruction, S/RES/1540 (2004), https://undocs.org/S/RES/1540(2004).
Illicit cross-border trade is an age-old problem, but when it comes to the proliferation of CBN weapons, the stakes are high. In an interconnected world where international trade is recognised as an engine for inclusive economic growth, poverty reduction, and the achievement of the Sustainable Development Goals (SDGs),8UN General Assembly resolution, Addis Ababa Action Agenda of the Third International Conference on Financing for Development (Addis Ababa Action Agenda), A/Res/69/313, July 27, 2015, https://undocs.org/A/RES/69/313. it is important not to lose sight of this reality. With trading under the Agreement Establishing the African Continental Free Trade Area (AfCFTA Agreement) officially commencing on 1 January 2021, now is an opportune moment to consider the interplay between such a landmark agreement and the objectives of UNSCR 1540.
The AfCFTA Agreement is a flagship project for enhancing Africa’s development and socio-economic integration and achieving the goals of the African Union’s (AU) Agenda 2063 – its longterm development vision. The AfCFTA Agreement establishes a single African market, the largest in the world, and aims to enhance intra-continental trade while strengthening the continent’s global market power.9AU, African Continental Free Trade Agreement (AfCFTA), ‘About the AfCFTA’, https://au-afcfta.org/about/. It is therefore important to ensure that the benefits to be reaped from removing barriers to trade are not overshadowed by the risk of CBN weapons proliferation by non-State actors. Additionally, the export and border controls required by UNSCR 1540 must serve as an enabler of trade flows and economic development within a reliable, secure, and predictable regional trading system.
This policy brief will consider the relationship between international trade and proliferation risks before taking a deeper, albeit brief, look at the transfer control obligations stipulated in UNSCR 1540. It then considers the interplay between the AfCFTA Agreement and UNSCR 1540, paying specific attention to the former’s security exceptions, before finally identifying areas where further action is required to increase cohesion between these two distinct instruments.10The target audience of this policy brief is policymakers and practitioners engaged in the areas of trade and non-proliferation in Africa, including the AfCFTA Agreement organs and States Parties, the 1540 Committee, the United Nations and relevant regional and international bodies and donors.
This publication is the result of a collaboration between UNODA and SAIIA, with the financial support of the European Union and the Government of the United States.
