Combating proliferation of weapons of mass destruction [electronic resource] : law, politics, and institutional design of United Nations Security Council resolution 1540
Keywords: Law JSD.

This thesis addresses how international institutions respond to a perceived legitimacy gap through analysis of the adoption and evolution of U.N. Security Council Resolution 1540. With Resolution 1540, the Security Council created an international institution—the 1540 regime—that was intended to prevent proliferation of Weapons of Mass Destruction and related materials by closing legal, regulatory, and policy gaps in every U.N. member state. From its very start, however, the 1540 regime lacked legitimacy and faced potential disempowerment, as it was created through a process and authority deemed not rightful by its constituencies. Resolution 1540 was a departure from the consensual model of international law, because it utilized the Security Council's Chapter VII authority to introduce general legal obligations mandatory on all U.N. member states without their explicit consent. Many U.N. member states rejected such externally prescribed norms, criticized the Security Council for assuming the role of a global legislator, and refused to commit resources to implementing 1540 obligations. Conventional wisdom would predict that the 1540 regime would be unable to secure sufficient support and would likely be abandoned or ignored. Paradoxically, ten years later, the countries that voiced the greatest concerns over the Resolution have now become its strongest proponents. Through in-depth case study research comprising forty-eight in-depth interviews with key stakeholders and extensive fieldwork, as well the analysis of documentary information and administrative data, this work studies how perceptions about Resolution 1540 have shifted. It evaluates both how and why the 1540 mechanism evolved over time. The trajectory provides more general insight into how international institutions define, interpret, and implement their policy mandates in response to complicated political pressures. The findings suggest that the 1540 mechanism cultivated its legitimacy primarily through two institutional choices: changing the norms of appropriate behavior―that is, developing its norms around cooperation and flexibility; and changing the stakes of participation―that is, lowering the costs of compliance and offering incentives to induce cooperation from skeptics. By its text, Resolution 1540 was designed as legally binding hard law; however, the Security Council employed a soft mode of governance to enhance the legitimacy of the 1540 regime. In particular, the 1540 Committee was organized as a Special Political Mission under the Sanctions and Monitoring cluster, but it did not choose to become a U.N. sanctions regime, either in the name of nonproliferation or counterterrorism. Instead, the Committee adopted a cooperative approach to its work, exercised self-restraint, and tried to market the Resolution through targeted outreach activities. Many of the Committee's early practices reflected a search for legitimacy, with constant attempts to diffuse member states' fears in order to gain their acceptance. The voluntary nature of the Committee's work has been successful in creating unprecedented political consensus for the Resolution, but at the same time, this structure has limited the Committee's ability to effectively guide and support domestic implementation of policies to combat WMD proliferation. Some of the U.N.'s institutional choices that were designed to regain legitimacy and promote more positive attitudes towards the 1540 regime today constrain the regime's ability to meaningfully engage with WMD non-proliferation challenges. The 1540 story offers a cautionary tale to international institutions facing legitimacy claims: when an international regime is born in a highly contentious political environment, resolving legitimacy claims through certain institutional choices may come at the cost of the regime's primary goals. These early institutional choices may have a path-dependent effect—a situation where institutional processes, once adopted, tend to reinforce the status quo and increase the costs of institutional change over time.