Why Nuclear Non-proliferation Disputes Cannot Be Settled through Judicial or Adjudication Arrangements

Abstract

Whilst the NPT regime constituted from several international treaties provides judicial and adjudicatory arrangements for nuclear dispute settlement such as ad hoc arbitration and litigation before the International Court of Justice (ICJ), in the Comprehensive Safeguard Agreement (CSA) and International Atomic Energy Agency (IAEA) Statute respectively, such arrangements, in contemporary practice, have remained silent towards nuclear proliferation problems, and the Security Council has dominated the proliferation issues in its own capacity. This phenomenon may be explained by the fact that there is some obstacle in the dispute settlement clause itself: the arbitral clause in the CSA precludes the essential proliferation disputes as being able to be arbitrated, and the dispute settlement clause in the IAEA Statute covers no disputes possibly arising out of the CSA. Even if a better judicial procedure is to be developed, it is hard for them to function effectively because in the event of non-compliance with international adjudications, their enforcement needs support from external authority. On the other hand, the key to the settlement of nuclear proliferation disputes is the continued duty of performance, fulfillment of international obligations ever violated, to a large extent, implementation of international law, which also need legitimate coercive authority. These two elements may justify contemporary international practices in the settlement of proliferation disputes.