Arbitrating Arms Control Disputes
Fry, James D., Stanford Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. THE HISTORY OF INTERNATIONAL ARBITRATION AND ARMS CONTROL A. Arbitration of Military-Related Disputes 1. Definitions 2. Military-Related Arbitrations from Ancient Times to Today B. The Link between Arbitration and Arms Control III. ARBITRATION CLAUSES IN ARMS CONTROL AGREEMENTS A. Direct Consent to Arbitration 1. IAEA Safeguards Agreements a. The Standard Language b. Variations of the Standard Language c. Genuine Arbitration Clauses 3. Convention on the Physical Protection of Nuclear Material B. Indirect Consent to Arbitration 1. Indirect Consent 2. Treaties with Indirect Consent to Arbitration a. Chemical Weapons Convention b. Comprehensive Test Ban Treaty c. Treaty of Tlatelolco d. Ottawa Landmine Convention e. Treaty of Pelindaba 3. Consent as the Fundamental Element of Public Arbitration Agreements IV. THE BENEFITS FROM SUBMITTING ARMS CONTROL DISPUTES TO ARBITRATION A. The Security Council's Ability to Impose the Terms of Settlement B. The Need for the Security Council to Respect Treaties 1. U.N. Charter Obligations to Respect Treaties 2. Security Council Extra-Treaty Enforcement and the Resulting Problems C. The Due Process Advantages of Arbitration over Security Council Resolution D. Removing the Threat to International Peace and Security E. Response to Potential Fears V. CONCLUSION
Over two centuries ago, Benjamin Franklin lamented, "When will mankind be convinced and agree to settle their difficulties by arbitration?" (1) Today, the merits of international arbitration are well known, at least in the commercial and investment realm, (2) so much so that Henry Campbell-Bannerman's wish might be more appropriate for the times: "Gentlemen, I fervently trust that before long the principle of arbitration may win such confidence as to justify its extension to a wider field of international differences." (3) It is debatable whether the time has arrived for arbitration to expand into such sensitive fields as arms control. Although commentators see states as tending not to want to submit politically sensitive disputes to arbitration on account of their importance to national security, (4) in fact arbitration has been used since ancient times to resolve sensitive military-related disputes and conceivably could be applied to arms control disputes notwithstanding their sensitivity. Many dispute settlement provisions in arms control agreements provide for the possibility of arbitration, though they ostensibly have not been used. This includes at least 78 IAEA Safeguards Agreements and six multilateral arms control treaties. Given that several current arms control disputes seem to have reached at least a temporary impasse (namely, those arising from Iran's and North Korea's nuclear ambitions), the stage might be set for arbitration to make its grand entry in this field.
Disputes over compliance with arms control agreements are inevitable. (5) Relying on arbitration to resolve such disputes might be a viable option that states and the international community should consider in trying to maintain international peace and security. On the one hand, states such as Iran and North Korea might find it beneficial to invoke the arbitration clauses found in key arms control agreements vis-a-vis letting the international community, via its main agent the Security Council, dictate how they must change their actions. (6) At the same time, the international community should consider that the difficulties in the current negotiations with such states as Iran and North Korea arise partly out of shortcomings in the process and are not wholly substantive in nature. …