To wrap up my discussion on using arbitration instead of war, I’ll offer a concrete example of how it would work. I’ve repeatedly mentioned the situation in the South China Sea, so I’ll use that in this example.
Arbitration can succeed in this scenario if it can result in the following: a “law of the South China Sea” which both the US and China agree to follow. This arbitrated law would look like a treaty arrangement, and could be compared to conventional international law. It would be more than that. It would be a specific set of norms that these two powers both agree ought to apply in a certain place, but not necessarily in other places.
If such a law was established, it would facilitate a peaceful solution to any problem in the region. Other, smaller, nations would act with the understanding that this is the law the great powers choose to follow. If Vietnam, for instance, wanted to build an outpost on an island claimed by China and recognized as such by this new “law”, then they should expect no US support in defending their claim. Vietnam wouldn’t be required to follow these norms, just because the US does, but it also won’t be able to play the great powers against each other. China could choose how to deal with Vietnam, concede or offer challenge, but it could do so without having to incorporate plans for a nuclear war with the US.
Non-state actors could also abide the “law of the South China Sea”. Major companies that build oil rigs in multiple nations might choose to abide this law – maybe they will refuse to build mines in China if it jeopardizes their oil platforms controlled by Indonesia (assuming China is threatening to violate the norm there).
Laws change, and institutions deal with it. The “law of the South China Sea” would be a product of the balance of power between China and the US, for better or worse. Its norms could adjust as that balance adjusts. Nevertheless, as institutions adopt norms, they create inertial resistance to change.
How would arbitration produce a “law of the South China Sea”. First, both the US and China have to agree that broadening conflict is something neither would prefer. Next, both have to acknowledge that the other has at least potentially legitimate grievances. China might not concede their invocation of their supposed historical rights, but they surely they can concede that the US might have interests too, some of which might deserve a little respect.
This sets the stage for arbitration. Although arbitration is a proceeding, if states engage in it as a substitute for war or diplomacy then the process of shopping around for judges, or defining the terms of the arbitration, would very much resemble a negotiation with outcomes clearly in mind. This isn’t to take away from the arbitration process itself, since really the goal is to discover a consensus normative frame for dispute resolution, subjecting both state’s prerogatives to a common set of norms. This takes a lot of the wind out of the sails of any potential conflict.
Both states have to agree on each others’ grievances, stated clearly, plainly, and comprehensively. The act of acknowledging a grievance is not a concession to that grievance, and so there’s more room for honesty. Consequently, there’s a greater stigma in misrepresenting a national interest (US hegemons beware).
Once grievances are clear, each state shops around for a “judge” that they prefer, and also a common judge they are both comfortable living with. What these judges will do during the shopping around process is creatively develop some sort of consistent legal norm that addresses as many of both states’ grievances in the most optimal way.
Once the judges are picked, they’ll deliberate. The states’ advocates will present their preferred norms, and defend their objective fairness, before a public audience that includes the international community and if possible the domestic political audience as well. At this point, the judges will get together and essentially negotiate. While they might reference the public arguments – these having the value of good “face” – they’re going to be trying to win a settlement close to their country’s preferences, with the neutral judge hopefully trying to achieve the very best balance.
The decision procedure will involve one judge proposing a discrete set of norms (and also actions that both parties have to complete in order to comply with the norms). The other judges must then unanimously approve that one set. This is similar to how the US Congress passes a bill despite having two houses.
One could also imagine each “judge” being a council. Especially for important international matters, it might be prudent to not have one single man (with a family or blackmail potential) be a decision maker. Instead, the US and China might choose as an example for their neutral judge the Indian Supreme Court (I admit not a good choice here), whose voice is expressed by a super-majority vote of that body.
Any outcome of an arbitration would address grievances, so primarily the outcome would prescribe behaviors and settlements. However, new precedent could be invented to facilitate compromise between the judging parties. This precedent could then be invoked in future cases, especially if they involve smaller parties. The reason why the law developed here would apply only to the South China Sea would be because, speculatively, the US chosen judge would not want the precedent to apply in other regions of the world – so they’d get the other judges to concede that this is a norm that “makes sense” only for this region, and include that in their final settlement.
Arbitration could solve the crisis in many rounds. The first round establishes the “law of the South China Sea”. The second round settles the great power disputes between the US and China more broadly. The third round address specific grievances of smaller nations. The fourth round deals exclusively with fishing rights. The fifth round addresses lingering concerns about military escalation and aims at partial disarmament. And so forth. Each round builds on the precedent of the last and more comprehensively settles the political concerns in a given place and time. This defuses the military question.
This process could be used today, anywhere in the international realm. Ideally, nations could eventually integrate into their constitutions the principle of seeking objective legal norms as the solution to international disputes. National constitutions could reject war, formally, as contrary to morality and practicality.