Kabul has fallen. Russia and Ukraine fight bitterly for the Donbas and Southern Ukraine. An emergent China expands into the South China Sea and throttles water in the Himalayas destined for its South Asian neighbors. [1] Russia, Pakistan, and Iran maneuver in Central Asia and the Middle East. Gone are the days of the "end of history," when the U.S. enjoyed a unique military, economic, and cultural advantage on the world stage, in the years immediately after the fall of the Soviet Union.[2] The United States faces growing threats throughout the world and waning commitment from its slow-growth European allies. But a burgeoning relationship with the world's largest democracy and key Pacific Ocean partners promises new hope in the Indo-Pacific region—a loosely defined tract of ocean, coastline, and shallow seas encompassing the Indian Ocean and Western Pacific Ocean.[3] A new Indo-Pacific Treaty can formalize these relationships borrowing text from previous mutual defense treaties to create a best of breed for current-day exigencies.
Talk of a "multi-polar world" is already a bit cliché.[4] A globalized world, without the dominance of a single player like the Soviet Union has created a new version of great power politics, akin to that of the world before World War II, albeit with even more powerful players.[5] For most of its history, the U.S. eschewed binding agreements with foreign countries.[6] The Senate famously withheld support for the League of Nations and adopted only a watered down version of the Kellogg-Briand Treaty in the 1920s.[7] However, in the immediate aftermath of World War II, the U.S. in its new role as superpower brokered numerous multi-lateral mutual defense treaties. These treaties call on member nations to undertake defense against common enemies collectively.[8] The post-Cold War world saw some of these treaty systems, particularly the North Atlantic Treaty Organization (NATO), put to the test. The strain on these treaty systems raised important questions about the effectiveness of these agreements.[9]
The U.S. could never go it alone, and it certainly cannot go it alone now. A new generation mutual defense treaty is needed with narrowly-tailored aims and a degree of enforceability for all members to counter new threats. Washington policymakers have an opportunity to formalize and ratify the existing Quadrilateral Security Dialogue with India, Japan, and Australia as an Indo-Pacific Treaty Organization. An enhanced agreement would build on the lessons of over seventy years of mutual defense treaties, providing an opportunity for other key regional players to join, such as Indonesia, the Philippines, Vietnam, Thailand, Malaysia or South Korea. In spite of growing threats to global interconnectedness, the world is linked by trade like never before and so an Indo-Pacific Treaty would need to consider the role of trade and focus primarily on freedom of navigation. Without the intense ideological dimensions of the Cold War, a Treaty must also leave open the possibility of cooperation with current opponent nations like China and Russia, and grant observer status to these states to prevent the escalation of tensions. Through formalized cooperation, the U.S. and its Indo-Pacific allies have an opportunity to fend off challenges to global security.
The U.S. could work to coordinate a new Indo-Pacific Treaty with allies in the Indo-Pacific region to improve collective security in the face of threats from China. Section II will discuss the background of military alliances, mutual defense, and U.S. treaty involvements, as well as ongoing geo-strategic developments in the Indo-Pacific region. Section III, in turn, will examine the case for an Indo-Pacific Treaty, and Section IV analyses the feasibility of implementing a treaty.
II. BACKGROUND
A. Military Alliances, Mutual Defense, and U.S. Treaty Commitments
Military alliances have a deep history.[10] Thucydides in the 5th century B.C.E. analyzed the reasons that alliances formed and ancient states like Rome and Messina allied in the Punic Wars against Carthage.[11] Foreign affairs scholars distinguish between security alliances and multilateral alliances.[12] Security alliances involve a pledge of collective defense, where member nations agree to defend against an outside threat, whereas multilateral alliances may share intelligence and training capabilities, but typically fall short of collective defense.[13] In recent history, the NATO is perhaps the most famous example of a security alliance.[14] The Arab League and the now defunct South East Asia Treaty Organization (SEATO) are characteristic of multilateral alliances.[15] Since the early 20th century, two organizations have emerged as a hybrid of these older concepts: the League of Nations in the interwar period, and now the United Nations can be described as collective security alliances, aimed at promoting international stability.[16]
In the early years of the republic after independence, U.S. leaders were wary of mercenary balance of power politics in Europe.[17] In his farewell address, President George Washington cautioned Americans to avoid permanent alliances.[18] Perhaps ironically, the new nation owed its independence at least in large part to the 1778 Franco-American Treaty.[19] At the time of independence, the U.S. was a largely Protestant nation and Federalists soon pressed for closer trade ties with Britain.[20] The US declared neutrality in the 1790s and brokered the 1795 Jay Treaty with Britain, ushering in a period of maritime conflict with France under President John Adams during the Quasi-War.[21]
As a gestating republic, developing its domestic industries, the US largely avoided foreign alliances throughout the 19th century.[22] President James Monroe promulgated the now famous Monroe Doctrine, asserting a U.S. sphere of influence throughout the Americas.[23] By the 1880s, the U.S. had grown to become one of the world's largest economies but still preferred unilateral action: "opening" Japan and Korea and issuing the 1899 Open Door Notes calling for equal opportunity to trade with China.[24]
The Spanish-American War and the voyage of the Great White Fleet indicated that with the nation's growing significance, officials in Washington now had international—and imperial—ambitions.[25] In spite of this change in attitude, the U.S. remained hesitant about foreign entanglements, resisting involvement in World War I until the cause celebre of the sinking of the Lusitania.[26] In 1917, President Wilson launched a brief involvement in the war, dispatching the American Expeditionary Force to France.[27] American units refused to integrate with British and French units on the Western front.[28]
By the end of World War I, the U.S. was an acknowledged world power.[29] However, isolationist senators in Washington rejected Wilson's proposed involvement in the League of Nations.[30] American officials in Constantinople refused to coordinate with other European powers into the 1920s, while in China, the U.S. was more receptive to collaboration with Europeans and the Japanese.[31] U.S. Secretary of State Frank Kellogg deftly avoided a formal defense commitment with France, pushing for the lofty Kellogg-Briand Pact instead.[32]
World War II transformed American thinking on foreign treaties, as the U.S. emerged from the war as a superpower. Compared with World War I, American military leaders were willing to coordinate operations, as when General George Marshall implemented the Combined Joint Chiefs with Britain.[33] The U.S., Britain, and Soviet Union shared resources throughout the war, but the relationship suffered from serious ideological divergences. The U.S. and Britain were the most aligned of the three major allies, and President Roosevelt adopted the Atlantic Charter in 1914 with Winston Churchill, articulating wartime goals.[34]
Multilateral collective defense treaties surged in popularity in the decade immediately after World War II, many with the U.S. at the helm.[35] In 1947, countries in the Americas adopted the Rio Treaty, providing that member states would assist one another in the event of attack.[36] Following the creation of the Western European Union in 1948, 1949 witnessed the adoption of the North Atlantic Treaty Organization (NATO).[37] This new treaty included the U.S. and Canada as well as much of Western Europe and significantly indicated in Article V that an attack on any individual member would be considered an attack on all members.[38]
Building on Rio and NATO, the U.S. brokered the ANZUS Pact in 1951 with Australia and New Zealand.[39] The South East Asia Treaty Organization (SEATO) formed soon after, modeled loosely on NATO. The new organization included the U.S., Australia, New Zealand, the Philippines, U.K., France, Thailand, and Pakistan.[40] Other collective defense arrangements were organized without U.S. intervention, such as the 1948 treaty creating the Western European Union or the Arab League's 1950 Joint Defense Treaty.[41]
In spite of the commonality of collective security treaties, mutual defense provisions have only rarely been invoked.[42] SEATO's mutual defense provisions were never formally invoked, but in 1963 U.S. Secretary of Defense Robert McNamara and Secretary of State Dean Rusk relied on the treaty's obligation to "meet common danger" as a basis for U.S. involvement in the Vietnam War in support of South Vietnam.[43] NATO expanded considerably after the Cold War during the 1990s and launched armed interventions in Bosnia and Kosovo.[44] Following the September 11, 2001 attacks, the U.S. invoked Article 5 of the NATO Treaty, prompting an intervention by the alliance in Afghanistan.[45]
B. Current Challenges in the Indo-Pacific
A worldwide confrontation is emerging between the U.S. and China, as the two superpowers vie for economic and political power.[46] This new contest for military, political, and economic power has resulted in a heightened focus on what strategists and leaders loosely term the "Indo-Pacific."[47] Although the precise bounds of this newly imagined geo-strategic region are unclear, "In terms of geo-spatiality, the Indo-Pacific is broadly to be understood as an interconnected space between the Indian Ocean and the Pacific Ocean."[48]
Within this broader region, one of the greatest areas of tension is the South China Sea.[49] One-third of all global shipping passed through the South China Sea in 2016, amounting to over three trillion dollars of commerce.[50] The South China Sea is a key chokepoint for maritime trade, but is not the only area of strategic maritime geography in the Indo-Pacific region.[51] A tiny archipelago of rocky islands east of Taiwan are known as either the Senkaku or Diaoyu islands—and due to a unique position astride the sea lanes and valuable seabed hydrocarbon resources are fiercely disputed between China, Japan, and Taiwan.[52] Portions of the Indian Ocean and adjoining waterways have also gained increased strategic significance, particularly the Strait of Malacca between Indonesia and Malaysia, and parts of the Bay of Bengal that are within striking distance of long-range Chinese anti-ship missiles.[53]
China published maps in 1948 claiming the majority of the South China Sea and renewed this claim in a correspondence with the UN in 2009, asserting ownership of 3.5 million square kilometers of sea, and an estimated 193 trillion cubic feet of natural gas and eleven billion barrels of oil.[54] China is within its rights to claim an exclusive economic zone (EEZ) extending 200 nautical miles beyond its shoreline, because it is a party to the UN Convention on the Law of the Sea. Despite this right, the claims in the South China Sea by China stretch hundreds of nautical miles further than its acknowledged EEZ.[55] Besides the value of fisheries and sea trade in the South China Sea, the presence of extensive petroleum resources in the region is significant because China is one of the world's largest oil and gas consumers, and relies heavily on imports.[56]
Indications of undersea oil and gas reserves in 1969 prompted aggressive territorial claims by multiple countries in the South China Sea.[57] Currently, the Philippines, China, Taiwan, Vietnam, and Malaysia each have territorial claims in the Spratly Islands.[58] The Philippines, China, and Taiwan have competing claims to the Scarborough Shoal.[59] China has pursued its claims most aggressively, identifying its claims on maps of the South China Sea with an infamous "nine-dash line," and drawing sediment off the seabed to construct artificial islands.[60] After using fill to make islands out of several submerged reefs, China has installed airstrips, harbors, and radar stations for military use.[61]
Because the U.S. is the dominant naval power in East Asia apart from China and Japan, it routinely patrols and surveils the South China Sea in furtherance of freedom of navigation.[62] In 2001, this resulted in a series of confrontations between the US and China, including a Chinese frigate's interception of the hydrographic ship U.S.N.S. Bowditch and a collision between a U.S. Navy EP-3E ARIES Signals Intelligence aircraft and a Chinese fighter jet.[63] Beginning in the late 2000s, incidents occurredagain, including harassment of U.S. warships and interception of U.S. surveillance aircraft.[64] Simultaneously, as China began constructing artificial islands, the U.S. sent the destroyer Lassen to sail within in twelve nautical miles of Subi Reef[65] and dispatched B-52 bombers to fly over an artificial island in December, 2015.[66]
China's actions in the South China Sea have hardly gone unnoticed by neighbors in the region. In 2013, the Philippines began arbitration proceedings against China under Articles 286 and 287, and Article 1 of Annex VII of the United Nations Convention on the Law of the Sea (UNCLOS).[67] Both countries are party to UNCLOS, and therefore the Philippines sought a judgment on China's historic claims and entitlements, and whether its activities were lawful.[68] China refused to participate and rejected the arbitration, but UNCLOS allows such proceedings to continue even if a party is absent.[69] On July 12, 2016, the Tribunal issued its report and held that any historical rights possessed by China were eliminated by UNCLOS exclusive economic zone (EEZ) provisions.[70]
In 2004, a massive tsunami devastated Indonesia and India, prompting the creation of a Tsunami Core Group.[71] The group evolved into an ad hoc concert between the U.S., Australia, Japan, and India, known as the Quadrilateral Security Dialogue, and held the two Malabar naval exercises in 2007.[72] The concert was abandoned out of fear of irritating China, but revived again throughout the 2010s as China became more aggressive in its foreign policy with new dialogues and naval exercises between the original four Quad "members."[73]
The Quad's revival began in November, 2017 during the first year of the Trump presidency.[74] Throughout the intervening decade, the U.S. military initiated its "Pivot to Asia" in 2011 and attempted to broker the Trans-Pacific Partnership for trade.[75] The Trump administration went further, with the U.S. Navy inaugurating its Free and Open Indo-Pacific policy, and Washington accusing China of currency manipulation and intellectual property theft.[76] The U.S. mounted a trade war with China and condemned human rights abuses in Hong Kong.[77]
European states have a substantial stake in world trade, but are mostly at the periphery in ongoing confrontations with China.[78] Nevertheless, France, Germany, and the Netherlands have all published Indo-Pacific strategies. [79] The EU has five existing strategic partnerships in the Indo-Pacific with China, India, Japan, and South Korea, and the EU in 2018 announced an EU-Asia connectivity strategy, loosely modeled after China's Belt and Road economic integration initiative.[80] Of states situated outside the Indo-Pacific, the U.K. and France could be considered implicitly aligned with the Quad.[81] The U.K. has a long history of concern over world trade and freedom of navigation, and maintains a military base in Brunei.[82] France considers itself a full Indo-Pacific country, with 1.5 million residents across the Indian and Pacific oceans, and ninety-three percent of its exclusive economic zone in the region.[83]
Many states abutting the Indo-Pacific share in indignation about China's actions in the South China Sea, and broad-spectrum concerns about Chinese expansionism.[84] The members of the Quad, implicitly aligned European states, and other regional players remain interested in principle in a rules-based order for freedom of navigation in the Indo-Pacific, but divided in their degree of opposition to China.[85] The European Parliamentary Research Service observed, "The other Quad countries [and other regional powers], being geographically closer or more economically linked to China. . .than the U.S., have been more circumspect in identifying Beijing as a threat actor, and have voiced support for an inclusive concept about the Indo-Pacific."[86] Although potential Quad members differ in degree of willingness to confront China, all share common concerns about expanding Chinese aggression in the region.[87]
III. LEGAL ANALYSIS
Mutual defense treaties are rarely invoked, though the behavior of policymakers suggests that such agreements offer an ability to express geo-strategic objectives—and deter potential adversaries.[88] The NATO Treaty has seen some of the most widespread use. After the specter of Soviet attack dissipated at the end of the Cold War, treaty members pivoted to interventions in the former Yugoslavia. The U.S. carried out the only invocation of the treaty’s Article V mutual defense provisions after the 9/11 attacks, prompting a nearly twenty-year NATO mission in Afghanistan.[89]
A future mutual defense agreement can provide a best of breed, based on the mostly successful experiences of the NATO alliance and the hard-fought disagreements that that treaty—and others like it have engendered. Additionally, an Indo-Pacific Treaty needs to respond to real-world circumstances to demonstrate potential as an effective agreement. Therefore, such a future treaty must (1) carefully define objectives, (2) set boundaries on intervention, (3) ensure members spend proportionally, and (4) consider the place of trade and human rights. It should also provide a meaningful framework for engagement with current day adversaries—and future diplomatic alignment.
A. Defining Objectives, Constraining Conduct
Freedom of the seas and territorial integrity must be the highest objectives of an Indo-Pacific Treaty. But how should these objectives be achieved and how could a treaty be narrowly tailored to these goals?
Indo-Pacific Treaty members should agree to uphold the duties of cooperation outlined in Part IX of the UN Convention on the Law of the Sea, Article 123, which governs enclosed and semi-enclosed seas.[90]
A key objective for an Indo-Pacific Treaty is to prevent the entanglement of Indo-Pacific allies with an India-Pakistan conflict.[91] In the years since the 1999 Kargil War that nearly became a nuclear conflict, tensions have simmered, but at times nearly boiled over between the two states. [92] Tensions remain about Jammu and Kashmir, and India blames Pakistan for backing Islamist militants who carried out the 2008 Mumbai terrorist attacks.[93] Border skirmishes have intensified in recent years, with Indian airstrikes into Pakistan in 2019 and an internet blockade combined with counter-insurgency operations in Kashmir in 2020.[94] Border tensions have also increased with China, culminating in a deadly fight between soldiers of both countries at high altitude in the Galwan Valley in June, 2020.[95] India also faces internal struggles, related to perceived discriminatory policies against Muslims[96] and rural poverty.[97]
Simply put, an Indo-Pacific Treaty must ensure that member states are not drawn into any armed conflict between India and Pakistan stemming from Kashmir territorial disputes or religious strife. India has defended its territory successfully for over seventy years and can continue to do so; nothing in an Indo-Pacific Treaty would prevent other member states from providing India with supplies or technical military assistance for border conflicts or internal insurgencies if those states wish.
An Indo-Pacific Treaty must focus principally on freedom of navigation, although defense of member states from outright acts of aggression by China would also be within the bounds of the treaty. Based upon current developments in the South China Sea and the build-up of China's navy, it appears that Chinese aggression might take the form of harassing or sinking foreign fishing vessels, cargo ships, naval, or oceanographic vessels, particularly within the South China Sea.
China's military is large but much less experienced in combat than that of India, the U.S., or Australia.[98] Except for its participation in the Korean War, a brief border war with India in 1962 and with Vietnam in 1979, China has had few expeditionary involvements.[99] However, over the long-term, it is possible that China might deploy uniformed or irregular forces in neighboring countries, or launch airstrikes against neighbors.[100]
A point of variation between an Indo-Pacific Treaty and the NATO Treaty, is the need to eliminate the central role of the U.S. in archiving treaty instruments.[101] Article 14 of the NATO Treaty indicates that "[Treaty documents] shall be deposited in the archives of the Government of the United States of America."[102] To signal equality among all member states, each member state of an Indo-Pacific Treaty should archive each treaty document to the same degree.
Since the spate of mutual defense treaties in the years immediately after World War II, technology has developed substantially. Cyberwarfare is now a major concern in modern conflicts, with a dimension of non-state actors and hackers who attack public and private systems.[103] The threat of cyberattacks, where state-backing can be difficult to determine, means that an Indo-Pacific Treaty must be tightly proscribed.[104] Leaving things somewhat vague in a treaty instrument allows for greater flexibility in responding to attacks. However, it is important not to formalize a requirement for all members to respond to a cyberattack on one member nation because of the risk of a rapid escalation to armed conflict.
The treaty would serve as a touchpoint for member states to share intelligence about cybersecurity threats, as well as uninfected hardware, cybersecurity software, and perhaps even secure backup capability. While novel, the concept of secure, "air-gapped" backups to improve redundancy against cyberattack is not untested. Russia targeted Estonia with cyberattacks in 2007, temporarily taking down government and banking websites. In response, Estonia established a high-security "data embassy," with a data center in Luxembourg.[105]
If flexibility is the objective with cybersecurity, the same is true for pandemic responses. The Covid-19 pandemic witnessed bouts of nationalistic policymaking from all corners, as countries prioritized masks, medical equipment, and vaccines for their own citizens. As some of the pandemic's pressures relented after the advent of vaccines, the leaders of the four Quad nations met virtually to coordinate vaccine sharing initiatives.[106] Epidemics and pandemics are easy to frame as a metaphor for war. But it is important to separate analogy from actuality. Pandemics are different than war because the "enemy" is invisible, natural, and non-strategic, and cannot be deterred through diplomacy or military strength.
An Indo-Pacific Treaty could serve as a starting point for sharing of vaccines, medical research, and medical technology, but combatting a pandemic is a sufficiently different task that it does not belong as a formal treaty objective. A pandemic response typically involves private or public healthcare personnel, pharmaceutical researchers, and typically private sector medical equipment makers that exist outside the traditional purview of militaries. Therefore, an Indo-Pacific Treaty should not encompass pandemic preparedness.
B. Spending Requirements and Enforcement Mechanisms
The NATO Treaty requires member nations to spend two percent of gross domestic product on national defense.[107] Candidate and later president Donald Trump vigorously criticized other NATO members for failing to make payments in-line with the treaty, and by 2018 even NATO Secretary General Jens Stoltenberg was forced to admit that only eight of the alliance's twenty-nine members were making their requisite payments.[108] Currently, there is no mechanism to expel NATO members, with its view of all thirty members as equal parts of the organization.[109]
In light of the contribution concerns which emerged intensely, but briefly during the Trump presidency, an Indo-Pacific Treaty must include an ombuds mechanism to voice concerns among member states, and carry out a degree of internal policing. Furthermore, it must include a means to discipline and even expel member states, to affirm its commitments. An Indo-Pacific Treaty, even if initiated by U.S. policymakers, must be more than simply U.S. defense of a vast region of the Earth with little participation from treaty allies. The World Trade Organization's Appellate Body, which is used to resolve international trade disputes could serve as a model for some form of secretariat to resolve disputes about contributions among Indo-Pacific Treaty member states.[110]
C. Observer Status for China and Russia
The Cold War was defined by a global clash of ideologies with Marxist-Leninist communism and Third World independence movements on one side and democratic, capitalist, and traditionalist authoritarian regimes on the other.[111] The emergence of a proposed "Cold War II" between Western liberal democracies and China and Russia is described in terms of a clash between Western democratic ideals and nationalist, autocratic ideas, albeit with far less extremes of ideology than the original Cold War.[112] Professor Michael Doyle argues that “Neither Russia nor China is as implacably hostile as the USSR or PRC were during the Cold War. There are areas of common interest between current actors.”[113] For instance, China and the US share concerns about North Korea's nuclear weapons program.[114] This likely remains true even with the fallout of the Russia-Ukraine War.
Throughout most of history, a multipolar world has predominated, with multiple states that amount to great powers vying for power and influence.[115] After a comparatively unique period in which two superpowers—and then just one—predominated, great power politics are reemerging.[116] In the past, great power alignments commonly shifted, but such concerts rely on a relatively stable configuration of power, common interests, and a looming crisis.[117] Because the relative power of many great powers is rapidly changing, it is difficult to say whether a new set of global concerts could arise.[118]
In spite of the strong possibility that this pessimistic analysis is correct, an Indo-Pacific Treaty must consider ways to assuage the concerns of great powers that are not voting members. NATO's relationship with Russia is instructive. In December, 1991, as the Cold War drew to a close, new Russian president Boris Yeltsin wrote to NATO indicating that Russia wanted to join the alliance.[119] Throughout the rest of the 1990s, Russia descended into economic chaos and corruption, buttressed by foreign IMF lending leaving it in no position to join NATO.[120] In exchange for aid, Russia acceded to the Founding Act, establishing the Partnership for Peace and the NATO-Russia Permanent Joint Council, in an effort to make Russia a de facto ally.[121] The Permanent Joint Council was intended to foster discussion with Russia on joint issues, notifying Russia of upcoming NATO operations, without granting it a veto.[122]
The idea of any closer relationship between Russia and NATO is currently off the table.[123] NATO started with the right idea of engagement with an admittedly flawed Russia, but never opened the possibility of further growth in the alliance.[124] The degree to which NATO seemingly looked askance at Russia in the 1990s is ironic given that the second largest military in the NATO alliance is fielded by Turkey, a nation that ranked only a few points ahead of Russia in the latest Freedom in the World assessments.[125]
Observer status might also be important for expanding membership in an Indo-Pacific Treaty to states that might be "on the face" due to current trading relationships. Indonesia is the world's third largest democracy and as an archipelago nation has a major stake in freedom of the seas.[126] Indonesia ranked low in U.S. priorities except when Suharto came to power in a violent anti-communist bloodbath in 1965. In the late 1990s, the U.S. sanctioned Indonesia as Suharto lost popularity—and over its actions in East Timor—leading Jakarta to reorient toward China, India, and Russia.[127]
Indonesia has economic touchpoints with potential Indo-Pacific Treaty members, particularly Japan, which procures most of its natural gas from Indonesia and has a history of foreign investment and disaster assistance.[128] Officials in Jakarta are wary of Chinese claims in the South China Sea and the country's yawning trade deficit with China, yet China remains the country's biggest trading and foreign investment partner.[129]
D. Free Trade and Human Rights
Most mutual defense treaties were adopted in the mid-20th century at a time before the reduction of tariff barriers and liberalization of international trade.[130] Today, regional customs and trade unions are commonplace, ranging from NAFTA and CAFTA to the European Union.[131] But thus far, trade has not figured in mutual defense treaties. The U.S. has ratified Defense Trade Cooperation Treaties with the U.K. and Australia in 2010 and more recent vaccine sharing with India, Australia, and Japan hints at the possibility that trade generally, or in a defense context, might be a valuable element of future treaties.[132] Because of the relative novelty of including trade provisions in a mutual defense treaty, a proposed Indo-Pacific Treaty would do best to include an "agreement to agree," prompting member nations to negotiate in the future.
The U.S. has attracted domestic and international criticism for its historical support of anti-communist authoritarian regimes during the Cold War and modern-day alliances with illiberal states like Saudi Arabia, Vietnam, Turkey, and Central Asian powers. Yet human rights objectives have not faded from the scene. Every country faces some human rights challenges, although these challenges vary widely. Because all prospective members have acceded to major human rights instruments the inclusion of a commitment to human rights would be a worthy inclusion, and depending which party is in the majority in Congress might be a part of reservations qualifying U.S. participation in a treaty.[133]
Adhering to a commitment to human rights and humane treatment of prisoners of war or detainees is important, even if adversary nations do not take similar steps. Treaty member states need to be prepared to detain people who are violent non-state actors like terrorists and pirates in accord with the laws of war, and be prepared for the possibility that adversaries will use "irregular," un-uniformed forces.[134] China is borrowing from Russia's use of irregular forces in Ukraine and militarizing civilian fishing vessels.[135]
E. Prospects for Adoption
As an international agreement, an Indo-Pacific Treaty has better prospects for implementation than many other instruments. However, it would likely face political headway within the U.S. and might not withstand divergences in the foreign affairs of the prospective Indo-Pacific allies.
Indian participation would be an important breakthrough for Indo-Pacific security. But Indian domestic policy might produce stumbling blocks for a treaty. Additionally, efforts to avoid involving other Indo-Pacific Treaty members in a confrontation between India and Pakistan might in-turn irritate policymakers in Delhi and could even prompt India not to accede to a treaty agreement at all.
An Indo-Pacific Treaty could be quite successful with the four members of the Quad.[136] But to have an even greater impact in the region, a treaty would ideally include the regional powers of Southeast Asia, particularly Vietnam, Malaysia, the Philippines, and Indonesia.[137] The near universal global non-recognition of Taiwan means that Taiwanese involvement would likely be informal.[138] Apart from Taiwan, the aforementioned states are all members of the Association of Southeast Asian Nations (ASEAN), and approach international relations from similar perspectives.[139] The ASEAN countries emerged from intractable civil wars and political violence toward the end of the Cold War and benefited from U.S. control of the sea, experiencing rapid economic growth and even pushing back against China's aggression in the South China Sea.[140] This resolve flagged throughout the 2010s as cooperation in the region broke down, and many states like Malaysia transitioned toward a more traditional policy of making nice with China.[141] The region eschews outside influence, and some of its poorest members like Cambodia—as well as autocracies like Myanmar—have shifted toward the Chinese sphere of influence out of economic necessity or in response to Western chastising.[142] All of this could deter Indo-Pacific Treaty membership, but some of the largest countries Southeast Asia, particularly Indonesia, are distancing themselves from ASEAN to combat Chinese influence and might be candidates for membership.[143]
Within the U.S., both Republicans and Democrats have favored a heightened focus on China, although the exact defense and foreign policy prescriptions have varied.[144] So far, the Biden administration has signaled some willingness to coordinate with Indo-Pacific allies.[145] It has also expanded the U.S. focus on the Indo-Pacific region.[146] In September, 2021, the Biden administration unveiled the AUKUS agreement, with Australia and the U.K., sharing AI and nuclear-powered submarine technology.[147] AUKUS signaled strong interest in Indo-Pacific issues, but focused on two countries the U.S. already has close ties with and alienated France, which lost a valuable defense contract with Australia.[148]
The Trump administration spurred the relaunch of the Quad and the Biden administration has picked up the reins since taking office in January, 2021, suggesting a degree of continuity between the foreign policy of both administrations. Trump's term may have introduced multiple trends to U.S. foreign policy, such as: (1) a strong preference for alternatives to multilateral treaties, and (2) greater hostility to China.[149] If this observation holds true, it may weigh against the passage of an Indo-Pacific Treaty.[150]
A potential barrier to adoption is U.S. hesitation about further defense commitments at a time when many citizens and policymakers fear the country is in retreat on the world stage, and unable to keep up its existing commitments.[151] But extensive case law limiting the application of treaties domestically means the U.S. would not be mandated to participate in a dangerous conflict under the terms of an Indo-Pacific Treaty. In 1979, President Carter established that a US president could withdraw unilaterally from a treaty, revoking the U.S. mutual defense treaty with Taiwan.[152] President George W. Bush, in-turn, withdrew the US from the Anti-Ballistic Missile Treaty in 2002.[153] Presidential powers have tended to be extensive in the area of foreign relations and presidents have the both the sole ability to recognize other states and the ability to create compacts with other states without involving the Senate.[154] Under this reasoning, the president might see no reason to push for an Indo-Pacific Treaty, given the ability to broker seemingly more personal compacts with a similar effect.[155]
In spite of case law indicating substantial presidential authority to withdraw the U.S. from an international agreement, a formal treaty promises slower changes than the wide variations in policy common between American presidential administrations.[156] Over the past decade, several U.S. attitude changes have signaled uncertainty to allies: the hasty withdrawal from Iraq in 2011 resulting in the rise of the Islamic State militant group, the nearly overnight pullout of forces from Kurdistan under President Trump, and the remarkable chaos and unpreparedness after the fall of Kabul in 2021.[157] Because of these instances of strategic flightiness, the U.S. may need to undertake a policy shift in-favor of formal agreements to reassure other countries and to limit the same sort of abrupt abandonment by allies in the future.
IV. CONCLUSION
REFERENCES [1] Udayan Das, What Is the Indo-Pacific?, The Diplomat, Jul. 13, 2019, https://thediplomat.com/2019/07/what-is-the-indo-pacific/. [2] See generally Jonathon R. Macey & Geoffrey P. Miller, The End of History and the New World Order: The Triumph of Capitalism and the Competition Between Liberalism and Democracy, 25 Cornell Int'l L.J. 277, 279-80 (1992). [3] Udayan Das, What Is the Indo-Pacific?, The Diplomat, Jul. 13, 2019, https://thediplomat.com/2019/07/what-is-the-indo-pacific/. [4] See generally Stanimir Alexandrov et al., An Introduction: International Law in a Multipolar World, 107 Am. Soc'y Int'l L. Proc. 1, 1 (2014). [5] Michael Mazarr & Hal Brands, Navigating Great Power Rivalry in the 21st Century, War on the Rocks, April 5, 2017. [6] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 11-13 (2010). 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[45] LCDR Jon D. Peppetti, Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats, 55 Naval L. Rev. 73, 124 (2008). [46] See LCDR Jon D. Peppetti, Building the Global Maritime Security Network: A Multinational Legal Structure to Combat Transnational Threats, 55 Naval L. Rev. 73, n. 280 (2008). [47] Udayan Das, What Is the Indo-Pacific?, The Diplomat, Jul. 13, 2019, https://thediplomat.com/2019/07/what-is-the-indo-pacific/. [48] Udayan Das, What Is the Indo-Pacific?, The Diplomat, Jul. 13, 2019, https://thediplomat.com/2019/07/what-is-the-indo-pacific/. [49] Gaaret Marinelli, Refocusing the United States' Perspective of China and the South China Sea, 22 San Diego Int'l L.J. 115, 126 (2020). [50] Gaaret Marinelli, Refocusing the United States' Perspective of China and the South China Sea, 22 San Diego Int'l L.J. 115, 126 (2020). [51] Routledge Handbook of Naval Strategy & Security 47 (Joachim Krause & Sebastien Bruns, eds. 2016) (hereinafter Handbook of Naval Strategy). [52] Routledge Handbook of Naval Strategy & Security 47 (Joachim Krause & Sebastien Bruns, eds. 2016) (hereinafter Handbook of Naval Strategy). [53] Routledge Handbook of Naval Strategy & Security 83-84 (Joachim Krause & Sebastien Bruns, eds. 2016) (hereinafter Handbook of Naval Strategy). [54] F. Shannon Sweeney, Rocks v. Islands: Natural Tensions Over Artificial Features in the South China Sea, 31 Temp. Int'l & Comp. L.J. 599, 604 (2017). [55] F. Shannon Sweeney, Rocks v. Islands: Natural Tensions Over Artificial Features in the South China Sea, 31 Temp. Int'l & Comp. L.J. 599, 604 (2017). [56] Irina Slav, The Oil Industry’s Biggest Weakness Is Its Reliance On China, Oil Price, Aug. 20, 2020, https://oilprice.com/Energy/Crude-Oil/The-Oil-Industrys-Biggest-Weakness-Is-Its-Reliance-On-China.html. [57] Adam W. 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[68] Office of the Staff Judge Advocate, U.S. Indo-Pacific Command, The South China Sea Arbitration Award, 97 Int'l L. Stud. 62, 63 (2021). [69] Office of the Staff Judge Advocate, U.S. Indo-Pacific Command, The South China Sea Arbitration Award, 97 Int'l L. Stud. 62, 63 (2021). [70] Office of the Staff Judge Advocate, U.S. Indo-Pacific Command, The South China Sea Arbitration Award, 97 Int'l L. Stud. 62, 64 (2021). [71] Tanvi Madan, The Rise, Fall, and Rebirth of the ‘Quad,’ War on the Rocks, Nov. 16, 2017, https://warontherocks.com/2017/11/rise-fall-rebirth-quad/. [72] Tanvi Madan, The Rise, Fall, and Rebirth of the ‘Quad,’ War on the Rocks, Nov. 16, 2017, https://warontherocks.com/2017/11/rise-fall-rebirth-quad/. [73] Tanvi Madan, The Rise, Fall, and Rebirth of the ‘Quad,’ War on the Rocks, Nov. 16, 2017, https://warontherocks.com/2017/11/rise-fall-rebirth-quad/. [74] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [75] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021); 10 USCA § 161 (responding to China as a maritime challenger in the broader Indo-Pacific region—and heightened tensions--the US renamed its longstanding Pacific Command as US Indo-Pacific Command in May, 2018); Routledge Handbook of Naval Strategy & Security 47 (Joachim Krause & Sebastien Bruns, eds. 2016) (hereinafter Handbook of Naval Strategy) (since the 19th century writings of Alfred Thayer Mahan, US geopolitical thinking has focused on control of the ocean to guarantee trade and access throughout the world.[75] However, the relative significance of American naval power has waxed and waned throughout the nation's history. In contemporary history, the US Navy has enjoyed unique worldwide reach, with its greatest capabilities in the 1940s, 1950s, 1960s, and 1980s). [76] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [77] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [78] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [79] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [80] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [81] See European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [82] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [83] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [84] See European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [85] See European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [86] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [87] European Parliamentary Research Service, The Quad: An emerging multilateral security framework of democracies in the Indo-Pacific region (2021). [88] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 11-13 (2010). [89] Patrick T. Warren, Alliance History and the Future NATO: What the Last 500 Years of Alliance Behavior Tells Us about NATO’s Path Forward 11-13 (2010). [90] Christopher Linebaugh, Joint Development in a Semi-Enclosed Sea: China's Duty to Cooperate in Developing the Natural Resources of the South China Sea, 52 Colum. J. Transnat'l L. 542, 546 (2014). [91] Kishala Srivastava, The Future of India-Pakistan Relations: The Declining Role of Mediation Between These Rival States, 34 Ohio St. J. on Disp. Resol. 221, 222 (2019). The modern states of India and Pakistan formed out of the partition of British India in 1947. Millions of people fled from massacres as the partition took effect, dividing the Indian sub-continent along religious lines between predominantly Muslim Pakistan and predominantly Hindu Indians.[91] In 1947, 1965, and 1971, India and Pakistan fought three major wars. After 1971, both countries developed nuclear weapons and acceded to the Simla Agreement, creating a "Line of Control" dividing administration of the disputed Jammu and Kashmir region. The more limited Kargil War, centered on Kashmir in 1999 raised the specter of a regional nuclear war. [92] Kishala Srivastava, The Future of India-Pakistan Relations: The Declining Role of Mediation Between These Rival States, 34 Ohio St. J. on Disp. Resol. 221, 227 (2019). [93] Kishala Srivastava, The Future of India-Pakistan Relations: The Declining Role of Mediation Between These Rival States, 34 Ohio St. J. on Disp. Resol. 221, 228-230 (2019). 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India's Supreme Court authorized the construction of a Hindu temple on the site of a mosque destroyed by Hindu rioters in 1992, eliminated protections for Kashmir's Muslim majority culture, and passed a 2019 amendment to its Citizenship Act offering amnesty to non-Muslim illegal immigrants from Afghanistan, Pakistan, and Bangladesh. [97] Sandeep Avinash Prasanna, Red Belt, Green Hunt: India's Naxalite-Maoist Insurgency and the Law of Non-International Armed Conflict, 63 UCLA L. Rev. 486, 514-15 (2016). Although muted in comparison with confrontations with its neighbors, India also contends with examples of domestic insurgency. Beginning in the 1960s, poor peasants and members of low caste drew inspiration from the writing of Mao Zedong, launching the Naxalite Maoist insurgency. The movement continues today and has intensified its militarization, carried out thousands of attacks, and has an estimated 23,000 fighters. 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