Asia’s Melian Moment
Prior to the siege of Melos, the Melians argued that they had the right to remain neutral when the Athenians demanded their surrender. The famous dialogue depicted by Thucydides in the History of the Peloponnesian War illustrates political realism in international relations. It is a tale of might making right; as the Athenian emissaries bluntly put it, “the strong do what they can and the weak suffer what they must.” Another, often unobserved aspect of this story is the role of a neutral State in great power conflict and the virtue of norms governing the relationships between neutral and belligerent States.
Many Asian countries are likely to face this Melian moment in the event that heightened tensions in the Indo-Pacific escalate into a large-scale armed conflict, testing their ability to rely on normative protection against the demands of a belligerent. Under modern international law, Hague Conventions V and XIII of 1907 provide basic norms for the neutral-belligerent relationship. However, these instruments do not apply to many Asian countries that are not a party, and their relevance to the international order in the context of a contemporary armed conflict has been increasingly contested. The resulting fluidity in legal situations leaves considerable uncertainty as to how neutral States might position themselves to protect their national interests while maintaining peaceful relations with belligerent parties.
Together with Arie Afransyah as co-author, I have explored how Indonesia—one of the largest Asian countries that is likely to stay out of a great power conflict drawing on its long-standing “free-active” foreign policy—might implement the law of neutrality. In the article, we have identified specific legal positions Indonesia might pragmatically adopt and associated legal risks.
Many other Asian States are likely to stay neutral, navigating the precarious situation germane to strategic rivalry between major powers. How these countries assert their rights and assume obligations has strategic implications for U.S. forces deployed to the region in the event of a large-scale armed conflict. This post illuminates the strategic significance of such neutrality issues to the Indo-Pacific theater.
The Movement of Troops and Logistical Operations
The ability to project power at speed and scale of relevance requires distributed sustainment operations that can be disconnected and operated independently as necessary, especially in a contested environment. In the Indo-Pacific theater, this requirement translates into assured access to regionally aligned, dispersed sustainment infrastructures located in countries such as Australia, Japan, the Philippines, and Singapore. Their readiness to ensure continued access to these facilities is therefore key to successful military engagement for the United States.
These countries will face a Melian moment, however, if they decide to maintain neutrality. Chief among the neutral obligations most likely to have survived in modern international law is the inviolability of neutral territory. Under Articles 1, 2, and 5 of Hague Convention V of 1907, belligerent parties are prohibited from conducting hostilities in neutral territory and neutral parties have the corresponding obligation not to allow belligerents’ movement of troops, munitions of war, or supplies across their territory. These treaty obligations only arise when all the belligerents are parties to this convention. When that is the case, these obligations are not optional, as one scholar appears to suggest, but continue to be binding on neutral States parties.
These obligations are generally considered binding on any State under customary international law. For example, the United States considered the North Vietnamese use of Cambodian territory as a sanctuary for moving and storing supplies, training and regrouping, and as a center of their command-and-control networks as violations of Cambodia’s neutrality, even though neither of them was a party to Hague Convention V (p. 26-27). During the 1973 Yom Kippur War, many European countries denied access to or use of their territory for the transfer of war supplies, even though none of the belligerents had ratified the convention (p. 34).
The inviolability of neutral territory could impose significant constraints on U.S. forces’ ability to use military bases and servicing facilities located in neutral States. It may impede logistical coordination, including repair and maintenance, for U.S. Navy ships operating in the region. The passage of belligerent military aircraft and projectiles could also be denied as these obligations are generally considered to extend over national airspace above neutral territory (p. 384). Indeed, Iran recently reminded neighboring Persian Gulf States of their obligations not to allow use of their airspace or military bases for attacks against Iran.
Political exigencies often dictate the neutral State’s decision to adhere to its neutral obligations. During the 2003 deployment of coalition forces in Iraq, Türkiye denied U.S. troops access to their military bases in its territory as a staging area to open the northern front against Iraq. Even though Türkiye was a signatory to the 1907 Hague Convention V (without ratification), the decision was a political one resulting from the failure to secure a majority vote in parliament due to the lack of political support. Saudi Arabia, also a non-party, allowed U.S. forces to use its military bases to control operations but refused to permit U.S. military aircraft to take off for airstrikes.
The United States may leverage its allied partners’ legal obligations under a bilateral defense agreement, such as the Treaty of Mutual Cooperation and Security with Japan and the Mutual Defense Treaty with the Philippines. Such bilateral treaty obligations raise questions whether the allied partners can justify, or are even obligated to accord, free movement of troops and access to facilities by U.S. forces in contravention of their obligations under Hague Convention V or its equivalent under customary international law.
These allied States hosting U.S. troops may decide to honor their treaty obligations with the United States—possibly even denying a state of war (as Japan did during the Vietnam War (p. 105)—or may be compelled to limit cooperation for fear of conflict entanglement. If these States insist on prior consultation, as some scholars contend they would, the process will cause a delay in forward deployment or reduced ability to carry out planned operations with detrimental outcomes at the decisive stage of the conflict.
Freedom of Navigation
For U.S. forces, the Indo-Pacific theater presents extended lines of communication with diverse terrain separated by large swaths of water. The need to rely heavily on shipping transportation for force projection and logistical supply is evident. The adversary’s deployment of anti-access/area denial capabilities will swiftly transform much of the sea lanes of communication into contested zones, posing threats to the ability of U.S. forces to conduct freedom of navigation for reinforcement and resupply.
The inviolability of neutral territory extends to certain maritime areas, which restricts the geographical scope where U.S. warships can exercise freedom of navigation. Hague Convention XIII requires belligerent parties to abstain from hostile activities, including an exercise of belligerent rights of search and capture, in neutral waters. Owing to the modern development of a legal regime governing maritime affairs, neutral waters are now considered to encompass the internal waters, territorial sea, and, where applicable, archipelagic waters of any neutral State (p. 228).
Each coastal State has the right to establish a territorial sea, which may not exceed twelve nautical miles from baselines. On the other hand, archipelagic waters can cover a vast area of the sea enclosed by archipelagic baselines drawn around the outermost islands of an archipelagic State. In the Indo-Pacific theater, Indonesia and the Philippines are the two largest island countries that qualify as such, enclosing 3,081,756 square kilometers of waters by the former and 589,739 square kilometers by the latter. Within these enclosed waters are numerous sea lanes of communication that assume strategic importance for force deployment and logistical support.
(Source: U.S. Department of State, Limits in the Seas No. 141, p. 12; U.S. Department of State, Limits in the Seas No. 142, p. 9)
During an armed conflict in the region, archipelagic waters would be regarded as part of sovereign territory from which belligerent parties may not conduct hostilities. U.S. forces would not only be prohibited from launching strikes from within these waters or conducting visit, search, and seizure but would also be subject to restrictions on access to neutral ports and roadsteads for repair and resupply (p. 229-32).
Of greater strategic significance is that navigational rights are subject to restrictions within this wide stretch of archipelagic waters. U.S. Navy ships, like other foreign-flagged vessels, are still entitled to mere passage through archipelagic waters, but they must navigate on the surface (without any right to submerge or overflight) in a manner consistent with the right of innocent passage (Law of the Sea Convention, arts. 19, 52). Neutral States are also entitled to suspend access to their territorial sea or archipelagic waters, provided such suspension is essential for the protection of their national security.
These restrictions provide the context in which the U.S. Navy would assess the strategic value of archipelagic sea lanes and air routes there above, where its fleets are entitled to non-suspendable passage rights (Law of the Sea Convention, art. 53). Akin to transit passage through international straits, archipelagic sea lane passage is designed to ensure uninterrupted navigation for the continuous and expeditious passage with fewer restrictions. Indonesia has designated three south-north passage routes but has not done so for east-west routes where this passage right may be asserted through routes normally used for international navigation. The Philippines recently enacted the Archipelagic Sea Lanes Act, designating three sea lanes for crossing Philippine archipelagic waters.
Sustainment
The sustainment and logistics of military operations is a strategic imperative in a large-scale armed conflict. Maintaining trade relationships with Asian countries is critical to U.S. economic well-being and its ability to sustain war efforts. The same is true for the adversary to a varying degree depending on the latter’s economic self-sufficiency. Attempts will therefore be made to cut off the adversary’s trade links with neutral States by imposing a blockade, conducting ship visits, search, and seizure of contraband, and calling out the supply of arms and military equipment as unlawful.
The traditional law of neutrality provides a legal basis for these belligerent rights. Under Hague Conventions V and XIII, neutral States parties are prohibited from supplying arms and military equipment to belligerent parties. In practice, this neutral obligation has been variably implemented, with notable examples of defiance due to national security interests or in the pursuit of economic gains (p. 583-601). As many Asian countries are not party to these instruments, the United States will be hard-pressed to insist that they must abstain from arms trade with a belligerent party. Indeed, unlike many western States imposing sanctions against Russia for its aggression against Ukraine, Indonesia has continued to trade oil and energy products with Russia.
The doctrine of qualified neutrality, treasured by some observers keen to justify arms supply in support of Ukraine and a position previously adopted by the United States (§ 15.2.2), could backfire in the event of a U.S. intervention in the Taiwan crisis. Given that a majority of States either endorse or acknowledge the People’s Republic of China’s position that Taiwan is an inalienable part of China, U.S. involvement could be regarded as an act of aggression. Neutral States politically or economically aligned with the People’s Republic of China could rely on the doctrine of qualified neutrality to justify maintaining arms supply in support of the latter’s war efforts.
Either way, the United States cannot expect neutral States to be obligated to sever their trade relationships with the adversary. As Professor Heintschel von Heinegg envisaged, one might hope that neutral States can be swayed to adopt a policy of abstention, but failing that, belligerent parties will be entitled to exercise belligerent rights against neutral merchant ships (pp. 128-29). The question, however, is whether such forcible measures garner domestic and international support despite likely criticisms from those who uphold and pursue liberal internationalism.
The United States may instead assert the right of self-defense to conduct a visit and search against foreign-flagged merchant ships on the high seas. The British government indeed expressed the view that the right of self-defense must be exercised to conduct a visit and search during the Iran-Iraq war (p. 133) and since then appears to have maintained this position (para. 13.3). However, this justification will substantially constrain the ability of U.S. warships to conduct visit and search, by allowing it only in the event that the neutral State’s support amounts to an armed attack against the United States. It will be difficult to justify a visit and search merely based on the reasonable suspicion that a neutral ship is taking arms to the adversary. This is because of the restricted reading of “armed attack” as a requisite condition for exercising the right of self-defense adopted by the International Court of Justice in 1986 (paras. 191, 230), which has been widely accepted since then.
Concluding Thoughts
While the rapid deployment of forces can be decisive in warfare, logistical efficiency matters to sustain war efforts. In the Indo-Pacific theater, the latter poses a particular challenge to U.S. forces due to the large swath of the Pacific Ocean stretching the lines of communication necessary to sustain operational tempo. Assured access to U.S. military bases and other facilities scattered across the region, maximizing the geographical reach where U.S. forces can enjoy uninterrupted navigation and flight, and maintaining economic activities with neutral States while disrupting their trade with the adversary are critical to effective force projection.
Unlike the Melian dialogue, these demands can be met without requiring total submission by neutral States. Nevertheless, it is important to be aware of the difficulties that these demands may present to Asian countries. They are likely to make a pragmatic choice based on a variety of geopolitical and socioeconomic factors prevailing at the time of a large-scale armed conflict. How they might position themselves in a legal quagmire to maintain neutrality has strategic implications for U.S. force posture and the future direction of normative developments shaping the law of neutrality.
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Hitoshi Nasu is a Professor of Law in the Department of Law and Philosophy at the United States Military Academy.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
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Photo credit: U.S. Department of Defense
