McNair Paper Number 33 Chapter 7, January 1995
A State may be neutral, insofar as it does not participate in hostilities, even though it may not be impartial. Whether or not a successful position of nonparticipation is possible, in the absence of complete impartiality, is quite another question.(Note 1)
Remember the MAINE!--that is, remember that no one can be sure if MAINE was actually attacked. And, if MAINE was attacked no one could prove it was Spain and not the Cuban insurgents who attacked her. We only know there was a pre-disposition to believe she was attacked and that decisionmakers at the time believed it enough to go to war. Further, consider the lingering doubts that continue to be raised about the Gulf of Tonkin incident. From these examples, the dangers of December 1971 should give us pause.
The entire Indo-Pakistani episode illustrates an ever-growing problem that will confront U.S. naval planners through the remainder of this century and beyond. The dangers of unneutral U.S. policy have been minimized to date by the preponderance of power behind the U.S. flag at sea. The objective or absolute measurement of U.S. power can be expected to retain its edge against likely adversaries; however, the subjective or relative power of the United States is less than only a decade ago. "Right-sizing" our forces is appropriate and an economic reality. This does not mean forces can do all the things they once could
do simultaneously, nor does it mean they will be perceived the same way by coastal states empowered by what has been referred to as the military technological revolution with potent sea denial forces. The local relative combat power balance is shifting, and combined with perceived U.S. reluctance to act when the stakes in terms of likely combat losses are high in comparison to the benefits obtained through military action, will likely embolden coastal states as never before in this century.
Remember, the Monroe Doctrine was asserted against the European monarchies when our Navy was small and new by international standards. Young self-confident governments with small military forces can be quite adventurous. This problem is especially clear when the potential for problems is viewed situationally. U.S. forces operating close to troubled shores far from friendly bases could prove quite vulnerable in the given place and time.(Note 2)
The foregoing analyses illustrating the inability of the United States to deal with the impartiality requirements of the law of neutrality is not a condemnation of U.S. policy. Neither is it an attempt to claim that naval forces are inappropriate for assigned missions. On the contrary, it clearly demonstrates the versatility and utility of naval forces even in exceptionally adverse circumstances. But why make those circumstances any more adverse than necessary? This historical review demonstrates there is good reason to examine more closely the legal consequences of otherwise useful policy to ensure that there are no hidden costs which would argue for a different course of action. Or, if the policy is affirmed by this legal examination, U.S. forces can then proceed to influence the execution of that policy better informed and thus less exposed to risk.
Remember, surprise is on everyone's list of the principles of war. Therefore, denying a potential enemy the advantage of surprise is part of effective preparation for action. It is clear, in light of the previous chapters, that a fuller understanding of the law as it pertains to a naval commander's mission and situation will help reduce the enemy's element of surprise. Viewed this way, understanding these aspects of international law becomes a subset of the principles of war for naval commanders operating in the vicinity of belligerent forces or territory.
In the 20th century the United States became a world power, offering the country many advantages but also bringing many responsibilities the United States was slow to recognize and reluctant to accept. That reluctance was evidenced in rejection of League of Nations membership and the isolationism of the thirties. Since World War II and the advent of the United Nations the global interests of the United States have forced a more active participation in world affairs. This is all the more true in the post-Cold War world. In each case, U.S. participation reflects the best efforts of well-intentioned people with all the limitations human frailty bestows upon them. Frequently, the risks inherent in their policies are clear only with the benefit of hindsight.
A grasp of international law can help anticipate these problems because it provides an insight into the likely perspective of other nations. International law has not been developed arbitrarily: its substantive rules express the collective expectations and long-range interests of most nations in the case of customary law and incorporates all the variables that affect negotiations in the case of treaty law. These expectations, interests, and variables are also the essence of international relations. Action in excess of a state's authority, just like failure to use that authority in some situations, confuses allies and allows unnecessary advantages to antagonists. The law therefore provides a touchstone for objective policy evaluation outside of the subjective environment of national policy development.
It is not reasonable to expect that policy will always be perfectly conceived or executed. What is imperative, however, is that policy be developed as carefully as possible when lives and the fortune of the state are at stake. Further, domestic political considerations must be accepted as part of the strength of our political system but should refine policy formulation rather than detract from the effectiveness of national policy or increase the risks to those charged with its execution. That is, the facts of a situation cannot be changed by attaching domestically attractive labels.
If more candor will reduce diplomatic and military losses, more candor is required. If that candor will make the policy unacceptable domestically, the policy will eventually prove unacceptable anyway and should not be pursued. Attaching the correct legal labels will allow on-scene commanders greater understanding of the facts in dangerous situations.
Interdependence portends ever increasing demands on a country with expanding reliance on access to the world's resources. In 1982 the Department of Defense reported the United States was importing more than 50 percent of its needs for 21 different strategic materials. In half those cases the actual percentage of imports exceeded 90 percent. These statistics do not consider energy resources.(Note 3) The broad and increasing economic interdependence of the United States may now lead, rather than reflect, our political interests.
The commitment to reconcile our national policy goals to an attainable consensus in the United Nations more frequently deepens our involvement with, support for, and responsiveness to, the expectations and aspirations of the international community in general.
A neutral United States put troops into Surinam in fall 1941 when the Dutch were at war with Germany. Access to the oil resources of Persian Gulf states today is a topic of continuing concern. Desert Storm confirmed that we will not tolerate access to those resources being in question. Willingness to threaten force to assure access to strategic or otherwise essential supplies is, in general, directly proportional to dependence upon external sources. This willingness also applies to the lines of communication along which these supplies must move. Disputes arising within or near the sources of these supplies will demand the attention of the United States. Impartiality regarding these disputes is not a likely U.S. response, at least not for long.
Coincident with the growth of interdependence, small states have acquired formidable sea denial forces. States that could previously be influenced by U.S. power now may choose another option. Besides purposeful actions, they can make the waters off their coasts exceptionally inhospitable by "accidental" engagements or unacknowledged surprise attacks and retain "plausible deniability." Such actions can unacceptably increase the costs of naval diplomacy.
An aircraft carrier could be damaged severely enough to temporarily lose its mission capability by actions such as a missile or suicide attack causing a flight deck or hangar fire. The same result could follow a collision at sea with a ship owned (or controlled) by a belligerent (or otherwise unfriendly state) but sailing under a flag of convenience. A collision could even result in the loss of a smaller ship. In short, the targets of U.S. suasion efforts have the option to raise the stakes of the game with relative impunity if they are determined enough. Such actions can be precipitated by U.S. policy decisions and statements by U.S. Government officials when viewed in light of the law of neutrality.
If today's naval officers are to recognize the difference between peacetime steaming and standing in "harm's way,"(Note 4) they must fully understand not only U.S. policy, practice, and legal position, but equally comprehend a contending belligerent's interests, objectives, and priorities (which may prove infinitely more difficult to assess). This major challenge must be met by those who aspire to command. Their mission, and perhaps even the lives of those in their charge, may depend on it.
The technology of our age already militates strongly against self-sufficiency, thus driving the United States toward ever-increasing international economic entanglements with attendant political implications. Traditional interests and their implicit alliances will continue to commit the United States even in the absence of formal treaty relationships, as George Washington predicted. Consideration of national interests will present more significant impediments to impartiality.
The expansion and deepening of trade relationships may strengthen the peace with trading states but also tend to make peace indivisible where they are concerned. With or without treaties, threats to those states are, in essence, threats to the interests of the United States.
The role of law in situations that threaten the peace is often underestimated. Law is criticized for not accommodating the political and military realities of the present day world on the one hand, or because it demands states take actions that may lead to a rupture on the other. These criticisms may sometimes be valid. More often than not, though, the situation is best assessed by this observation from Professor Leo Gross: "Legal arguments aired by governments on suitable occasions may in fact be legal cloaks for political ends. What causes wars in such a situation is not the cloak but the clash of seemingly irreconcilable political ends."(Note 5)
The exigencies of world politics do not yet preclude neutrality, but they do prevent great powers from maintaining that status most of the time. Widely read international relations pundits such as Palmer and Perkins remind us that, "As the 'realists' like to emphasize, this is a great power world, and the major decisions in world affairs, including the ultimate decisions on war or peace, are being and will continue to be made by the most powerful states."(Note 6)
When power is used to influence the conduct of world affairs it gives rise to a responsibility among states to ensure that those affairs are not influenced officiously or unjustly. Officious action, meddling in affairs legally beyond the concern of the actor, makes enemies of even one's friends, or makes tools of them and destroys their own constituency bases. Failure to defend one's proper legal interests, on the other hand, also undermines alliances and breeds domestic disillusion.
Perceptions of justice in the various power centers will, unfortunately, differ. Nevertheless, each must do its best to preserve justice without threatening the peace. When a choice must be made between peace and justice, choosing peace does not always strengthen that peace and may have the opposite effect in the long run.