Multilateralism and the "Three Principles for the Rule of Law" in the South China Sea

Two recent developments in the ongoing South China Sea dispute would suggest countries in the region are getting closer to a peaceful resolution.  The first emerged when Japan proposed an intergovernmental "Shangri-La Dialogue Initiative" (SDI) aimed at fostering disaster preparedness, maritime domain awareness, and crisis management.  The SDI could become a vital platform for countries in the region to share information, negotiate disputes, and develop management frameworks for natural resources, shipping lanes, and territorial claims.  It builds on Japanese Prime Minister Shinzo Abe's "three principles for the rule of law" in the South China Sea.  Here's Tetsuo Kotani's breakdown:

In view of rising territorial and maritime tensions in the Asia-Pacific region, Abe called for countries to make and clarify claims based on international law, to avoid using force or coercion in resolving conflicts, and to seek to settle disputes by peaceful means. Putting these three principles of the rule of law into practice is essential for the stability of the Indo-Pacific region.

Sounds nice, but isn't the conflict unresolved in part because international law is ambiguous with respect to territorial and maritime claims?  It seems difficult to imagine China signing on to the SDI.  But here's Kotani again:

The next step is to establish a code of conduct in the maritime and air domains. Similar efforts are being made between the United States and China, and between ASEAN and China. These efforts are designed to manage crises through the application of existing international law (UNCLOS) and international rules (such as COLREGS and CUES). If they prove successful, they will contribute substantially to establishing the rule of law in Asian seas.

So there's some indication that China may be willing to participate, as evidenced by those bilateral peacebuilding efforts with Japan and the United States.  And that leads to the second development that might signal a warming in relations: China has been calling for direct negotiations with the Philippines, arguably the most ardent opponent of China's territorial and maritime claims in the South China Sea.  Talks between the two stalled in 2012, and the Philippines submitted a (pending) case against China to the UN Permanent Court of Arbitration in 2013.  There has been rancor ever since.  

Neither of these developments represents a sea change in regional dynamics, unfortunately.  While China may be willing to negotiate territorial and maritime claims, it insists on doing so bilaterally, where its military, economic, and political advantage over its regional neighbors gives it the upper hand.  Predictably, countries in the region insist on multilateral talks, where they can form a bloc capable of countering China's bargaining power.  As a result of the procedural disagreement, the conflict drags on without resolution.  And that might be playing right into China's hand:

[T]he Chinese government has deliberately adopted a legal policy of studied ambiguity about the scope of its claims. This “strategic ambiguity” is just one facet of China’s larger strategy of delay. The nine-dash line creates the legal space for more expansive interpretations of China’s claims in the future, but it does not necessarily call for them now. As a result, China maintains flexibility in the long run while avoiding the short-term costs of advancing unrealistic claims.

Of course, delaying the peacebuilding process incurs the risk of unpredictable future events swinging the balance of power in one way or another.  The UN Arbitration case is one such event: it could emphatically reject China's territorial and maritime claims and clarify international law ambiguities, or the court could decide it doesn't have jurisdiction over the legal matter, dismiss the case, and create even more ambiguity.  Political tides ebb and flow as well.  Japan, the US, Australia, and even India are throwing their support behind China's smaller neighbors for now.  Will they continue to do so if push comes to shove?  Even the Philippines may not be such a vociferous critic - next year's election may result in a more China friendly government.  

On the other hand, continued bullying and aggression could build momentum towards a united stance from the international community that weakens China's standing.  It's hard to say, and that's why ambiguity and delay are a risky strategy.  The United States and Japan may be willing to negotiate with China one-on-one, but if smaller neighbors like the Philippines, Vietnam, or Malaysia are to be engaged, a platform for multilateral negotiation - like the SDI - may be the right mechanism to get the job done.  There already exist a multitude of multilateral organizations in the region, but none are dedicated specifically to territorial and maritime disputes in the South China Sea.  The SDI, dedicated to the three principles for the rule of law, could break the mold and make multilateral negotiation a mutually beneficial process.

 Thumbnail Image and Map: CSIS Asia Maritime Transparency Initiative.

Thumbnail Image and Map: CSIS Asia Maritime Transparency Initiative.