Dialogue and Management Do Provide Hope
While none of these disputes can be resolved easily, there is a way forward that decreases some of the risk and heads toward more common ground. Leaders in China and the United States, as well as throughout East Asia, can take positive steps in four important areas: international law, regional institutions, military confidence-building measures, and balanced US-China relations.
Advance International Law
Although international law is rarely the main topic of discussion among political leaders, tensions in the East and South China Seas now require them to embrace it and expand rules-based conflict management mechanisms. In the next two years, they can advance international law in three ways.
First, claimant countries in the region should make the Philippines-Chinese UNCLOS arbitration an important precedent. They can do this by offering diplomatic support for the basic approach, thereby putting moral pressure on China to accept the ultimate determination of the panel. After all, the panel is not deciding sovereignty but rather seeking to clarify legal questions surrounding claims, including China's claim to the nine-dash line area covering most of the South China Sea. While
Chinese leaders may believe that a claim only applies to land features and their surrounding waters, they appear either unable or unwilling to publicly state that it does not apply to the entire body of water, largely because this would undoubtedly inflame Chinese nationalist sentiment. An independent international determination that such a claim lacks a basis in contemporary international law could encourage China to narrow its claims, which in turn could make it easier to advance joint development projects and alleviate some concerns over the freedom of navigation. Although some officials believe China will only make concessions in private, when not threatened with a loss of face, it seems equally plausible that Chinese diplomats are sufficiently agile to taking a more conciliatory line to pre-empt deteriorating relations with neighbours.
Second, non-claimant countries should host an international legal and political conference to explore conflict-prevention and conflict-resolution mechanisms, including the third-party arbitration mechanism in UNCLOS. Australia, India, and others might be able to mobilise new ideas and debate best practices for managing conflicts and averting escalation. Selecting a nongovernmental conference organiser could encourage new ideas and the convener could brief the results to different bodies such as ASEAN and claimant country governments.
Third, the United States needs to fully join the Law of the Sea by ratifying UNCLOS. The United States has long sought to establish rules by which all nations can get along and prosper. US policy towards the region currently focuses on establishing a rules-based international system, but it is robbed of moral authority by the failure of the US Senate to ratify the treaty that American political, military, and business leaders have embraced (including Henry Kissinger, George Shultz, James Baker, Colin Powell, and Condoleezza Rice.)18 The United States already abides by the law's provisions, and the commercial reasons for ratifying UNCLOS are becoming even more important. The main conservative argument is that ratification would buttress the creation of a faceless, unaccountable international bureaucracy, has some validity; but the best way to address that concern is by joining and then shaping the administrative body. The United States needs to be a full participant in shaping effective institutions for global problems; the problems of the East and South China Seas are not simply local problems to be left to the largest local power. More importantly, the United States cannot be persuasive if it criticises others for not using the dispute mechanisms of UNCLOS when it has not even ratified the agreement. Thus, the failure to ratify UNCLOS limits the United States' ability to press for positive resolution of disputes and to establish rules of the road because the United States simply lacks credibility.