The second type of accord that Washington and Delhi might broach with China is a multilateral confidence-building measure to build confidence, lessen tensions, and set the stage for a rules-based order at sea. The CBM might include pre-notification of large-scale exercises, less “hyping” of freedom of navigation (FON) assertions in exchange for demilitarization and removal of offensive weapons on the militarized features in the SCS. Promoting confidence-building at a more strategic level between China and the Quad States seems a logical development since all five states militarily operate in the South China Sea and have a common interest to lessen tensions in the region. Such a CBM could facilitate the joint development agreement mentioned above and could lead to increased shared understandings of various rights and entitlements in UNCLOS. A Quad-based CBM would also send a signal that the major Indo-Pacific “maritime players” are united in their goal to get China to conform its behavior to generally accepted norms of International Law and UNCLOS in particular. By the same token, involving the other major maritime players in the CBM should provide some reassurance to the PRC that the major maritime powers in the region will operate near the Chinese coastline in a predictable, professional and hopefully, a nonthreatening manner.         

Considerable care would be required in crafting this CBM proposal to ensure that they did not dilute the traditional rights of navigation and overflight contained in UNCLOS. Using the Quad format gives the Quad a “new lease on life” to promote regional stability and security. Use of the Quad also provides some diplomatic cover to the participants and helps to reassure the rest of the countries region that all of the major regional players are seriously committed to a rules-based order at sea.

Conclusion

The ability of Washington to enlist the aid of New Delhi will be dependent upon crystallizing the common policy objectives discussed above and then selecting approaches vis-à-vis India and China that will send a clear and convincing signal to China that it needs to moderate some of its policies while protecting bilateral trade relationships.

Working together to restore order in the SCS is something that is enshrined in the policies of the United States, India and other Quad members. The use of the QUAD as the negotiating foil enables both India and the United States to positively involve the two other major maritime powers in a combined effort to lessen the risk of military encounters and set the stage for more a comprehensive joint development deal or an effective ASEAN Code of Conduct.

The United States has always asserted an interest in preserving freedom of navigation and overflight in the SCS for military and commercial purposes. The Trump administration has shown repeatedly that it is willing to break from conventional wisdom when it comes to advancing the security interests of the United States and those of its allies. For that reason, some of the aforementioned proposals may prove attractive as a way to break the legal/policy logjam in the South China Sea.

Mark Rosen is the Senior Vice President and General Counsel at CNA and is an international maritime lawyer. Rebecca Wolfson, JD, is a legal/regulatory specialist at CNA who focuses on national security law and policy matters. The views expressed by both authors are their own and do not represent the views of CNA or any of its sponsors.

Image: Reuters