Victorious warriors win first and then go to war; defeated warriors go to war and then seek to win.1
Never has the U.S. military been more reliant upon strategic partners for mission success. Operations and readiness requirements in Iraq, Afghanistan, Korea, Eastern Europe, and across the contingency spectrum all rely upon the Army’s ability to cultivate and leverage interoperability with others. In this multilateral world, Army leaders are empowered and most effective when they are able to think and act with a regional focus in concert with allies, and when they learn to link military education and experience with partners—both long-standing and evolving—in new and different ways.
In some regions, like Europe, experience and interoperability succeed as a product of decades of coalition work and comprehensive legal frameworks that bring predictability and definition to relationships. But in the absence of profound historical or cultural affinity, and recognizing our expeditionary Army is becoming increasingly CONUS-based, there is a growing need for leaders with regional fluency in the countries in which they operate. The regional alignment of forces (RAF) to combatant commands clearly established the strategic focus for regionally aligned units.2 The challenge, then, is how to prepare officers and NCOs who will lead those units.3
This is particularly the case in regions like the Indo-Pacific, where U.S. forces operate in the absence of a unifying treaty construct like the North American Treaty Organization (NATO).4 The relative ease and consistency of the NATO treaty regime, and its established leadership and decision making structure, are straightforward when compared to the Indo-Pacific web of bilateral and multilateral agreements and arrangements governing military relationships. Where NATO was an event—a reaction to the post-WWII cold war environment—the legal framework for the Indo-Pacific has evolved over time in response to the region’s economic and military importance throughout the past century.
The distinctions are important. The sixty-nine year experience of the NATO intergovernmental military alliance and its associated command structure, galvanized by the 1950 Korean War, brought a cohesive lexicon to how member states talk and function in support of one another and in support of the broader alliance. America’s military, political, cultural, and historic ties make the relationships all the more predictable.
In the Indo-Pacific, however, the relationships are generally newer and are increasingly cultivated in an atmosphere of evolving threats—China, a nuclear North Korea, Philippine insurgency, and high probability of natural disasters across the region—and a more recent tapestry of national diplomatic, economic, and military arrangements and priorities.
In response, since World War II the U.S. has entered into myriad arrangements and agreements governing bilateral and multilateral operations and activities, including three mutual defense treaties (Korea, Philippines, Japan); two collective defense treaties; (Compact Nation defense obligations the Taiwan Relations Act); thirteen different Acquisition and Cross-Servicing Agreements (ACSA)/Mutual Logistics Support Agreements (MLSA) and unassociated logistics support agreements; nineteen Status of Forces Agreements (SOFA), Diplomatic Notes, and Visiting Forces Agreements; and various facility and basing agreements.
This article describes some of the key operational and legal challenges of an expeditionary Army and the need for leaders who can function effectively in foreign environments across the spectrum of a theater level campaign. It describes observations from the Pacific Pathways initiative developed by U.S. Army Pacific in 2014 to enhance readiness through experience in partner nations without foreign basing. We offer a detailed case example of the complexities of operating in a largely bilateral environment, and the nature and history of some of those bilateral relationships. Finally, we argue that developing regionally-focused leaders for service in a complex world is, ultimately, a readiness issue meriting a systemic approach to leadership training, education, and career management.
II. Regional Focus and Cultural Fluency
Regionally-focused leaders are officers and NCOs who have achieved a level of professional and cultural fluency within a geographic area of operations. They understand the operational environment, bilateral and multilateral legal regimes, personalities, priorities and agendas, and have the ability to optimize interoperability with allies and partners. These leaders are appropriately “talent matched” to their commands and missions. Just as small unit combat has a distinct physicality requiring a specific type of training and experience, so too do judge advocates and others in the sustainment force require special skills and understanding to achieve their full potential among regional partners. As noted in Joint Publication 3-0, Joint Operations:
. . . regional knowledge, and cultural awareness enable effective joint operations. Deployed joint forces should understand and effectively communicate with HN populations, local and national government officials, and multinational partners. This capability is best built on analysis of national, regional, and local culture, economy, politics, religion, and customs. Lessons learned from Operation IRAQI FREEDOM (OIF) and Operation ENDURING FREEDOM (OEF) indicate these capabilities can save lives and are integral to mission accomplishment. Consequently, commanders should integrate training and capabilities for foreign language and regional expertise capabilities in contingency, campaign, and supporting plans, and provide for them in support of daily operations and activities.5
It has been said that you can’t surge trust, empathy, or understanding. If we are truly an Army and a JAG Corps focused on operational readiness, then it is worth considering how the Corps prepares its leaders to operate within the RAF units, whether in combat, humanitarian assistance/disaster relief, or operations other than war. This is particularly important given our largely CONUS-based force, and the natural limit of synthetic training environments (Military Training Centers), which hone critical skills, but generally do not qualify as experience.
In his book, Three Cups of Tea: One Man’s Mission to Promote Peace...One School at a Time,6 former registered nurse and mountain climber Greg Mortenson tells a story (as relayed to his co-author, David Oliver Relin) about the importance of personal relationships and cultural understanding in his effort to build schools in rural Pakistan. He explains that that takes three cups of tea . . . not just one or two, to develop the requisite level of trust needed to get by-in from local leaders to get things done. It is a lesson in cultural understanding and patience which sometimes runs counter to the American desire to get things done quickly. It is also a lesson in regional understanding that was hard-fought by Provisional Reconstruction Teams, Advise and Assist Brigades, and others, but is being lost as opportunities for deployments diminish and strategic priorities shift to other parts of the world.
This same kind of understanding—and patience—is required to get things done in regions like the Indo-Pacific. We have personally encountered planners and legal advisors of various services who, for example, are entirely too quick to cite their experience in Iraq or Afghanistan as a qualification for operating in the world’s most populated Islamic country—Indonesia—or among the Muslim populations in India, Malaysia, or Bangladesh. Their cultures, religiosity, and rule of law traditions could not be more different.
So how can the Army and the JAG Corps identify and develop leaders with regional focus and fluency? At the unit level, the Army has cultivated and trained readiness via rotational brigades (Korea, Eastern Europe) and myriad exercises including the innovative Pacific Pathways program forged in 2014 by U.S. Army Pacific. That program, which ties and synchronizes U.S. and partner exercises in the Indo-Pacific region, enables “cooperative and persistent engagement with regional partners, fostering greater collaboration with Joint and intergovernmental stakeholders without forward basing.”7 The allegorical reference refers to the idea that hands-on experience and presence in the region contribute to conditions and expertise that make future operations in Asia easier, via “pathways” laid by repeated and meaningful entry, exercise, and partnership.
A fundamental premise of the Pathways initiative is that development of readiness for regionally-focused units and leaders is a process of “relationships, rehearsal and reconnaissance.”8 In a 2016 article in Military Review, MG Charles A. Flynn, Commanding General of the 25th Infantry Division, offered the following observations after two years of Pathways exercises:
Because of Pacific Pathways deployments, the leaders of our BCTs and other organizations have spent countless hours with their foreign counterparts, from every branch and across the Total Army; the bonds they created through their shared tactical experiences in training will have positive strategic impacts. This is time well spent, as gestures of respect and friendship are all in an effort to create interoperability at the most junior levels.9
Soldiers, leaders, and, most important, commanders at every echelon learn and grow while deployed on Pathways. They develop confidence in their skills and abilities through the repetitive performance of tasks and the continual decision making associated with accomplishing missions in foreign countries.10
The Soldiers assigned to Pacific-based units (and those, like the Indiana National Guard, who participated in a 2018 Pathway to Indonesia and Hawaii) are developing precisely the kind of regional focus that will serve them now and in the future. The Senior Service Colleges have long-standing programs for regional orientation—academic seminars and trips overseas—but nothing can compare to the experience of actually serving in foreign countries with the same partners we will rely upon in real-world operations.
So what are the basic elements to consider when building a regionally-focused force? MG Flynn11 and others reduce the basic building blocks for regionally-focused leaders and operations to three essential considerations: personal relationships, tactical rehearsals, and reconnaissance of possible areas of operation.
A. Relationships (People)
Regionally-focused and engaged leaders are, in part, valuable to broader regional strategies because of the opportunities that arise from the relationships they build over time via routine engagement with partner militaries and other regional actors, including U.S. interagency personnel and non-governmental organizations. The challenge is to leverage these personal relationships in a way that garners mutual trust and understanding, creating opportunities for cumulative growth between and among militaries.
The importance of relationships finds expression at a number of levels, including the Military Personnel Exchange Program,12 attendance at various schools, training exercises, subject matter expert exchanges, and collaboration during regional professional conferences to name a few. It is the reason senior leaders at combatant commands and the service components spend so much time traveling and hosting—to personally engage counterparts in furtherance of common goals and objectives. This is no less important for staff officers, whether they operate within plans and exercises directorates, security cooperation programs, the medical community, or the JAG Corps.
Over the past eighteen months or so, Army judge advocates have participated in engagements and exercises with partner uniformed legal personnel across the Indo-Pacific, including Australia, Japan, Korea, Indonesia, Thailand, Cambodia, Nepal, Bangladesh, Taiwan, Singapore, and Malaysia. No doubt the same is happening in Europe, Africa and South America. Through these experiences, judge advocates develop relationships with foreign commanders, as well as develop expertise in foreign legal systems—military justice, operational law, ROE development—and in the legal and policy constraints on their operations, to name a few. They come to understand their professional development systems and the seams and gaps where the U.S. can provide assistance with, for example, opportunities for engagement in U.S. military training and academic centers. With sufficient time in the region, they also garner professional relationships—even friendships—which can serve as important resources for operations: people we can call with questions, coordinate with in advance of exercises, or engage with to solve real world problems such as foreign detention of U.S. personnel under criminal investigation.
The idea that relationships matter is recognized in joint doctrine, including in Joint Publication 3-0, Joint Operations, which states:
Most operations require commanders and other leaders to engage key local and regional leaders to affect their attitudes and gain their support. Building relationships to the point of effective engagement and influence usually takes time. Commanders can be challenged to identify key leaders, develop messages, establish dialogue, and determine other ways and means of delivery, especially in societies where interpersonal relationships are paramount.13
The opportunity for personal relationships in a regional context simply cannot be replicated at training centers; it requires something more. The same could perhaps be said for foreign officers who attend U.S. schools, including the Judge Advocate Officer Basic and Advanced Courses. The Army values and supports foreign attendance at U.S. military schools precisely because it allows those officers to develop a vital understanding of U.S. Army education, culture, people, and operational focus. In exchange, U.S. officers have the chance to enter into personal relationships with current and future strategic leaders of partner nations. These relationships hold great promise for future readiness and cooperation in multilateral strategic environment, and should be actively cultivated.
B. Rehearsal (Process)
The Pathways program offers a model for how the active component supports the RAF model and develops experience in leaders. Indeed, all the Geographic Combatant Commands (GCCs) and their associated service components and theater enabling commands work tirelessly to develop rigorous training and exercise programs designed to replicate the challenges of operating outside the U.S., with (and without) partner nations, the interagency, and others.
One of the challenges reserve component judge advocates have had is how to obtain valuable experience and regional understanding in advance of possible mobilizations, particularly in the case of the Korean Peninsula, where mobilization times could be as short as fourteen days in a theater where the U.S. might not control timelines the way it has during the past seventeen years of conflict. As a training and readiness exercise consideration, Army Service Components / Theater Armies must leverage reconnaissance in support of reserve component units that might logically be called upon to support the GCCs.
So, how does Legal Command shorten the anticipated mobilization time for legal support to operations in the Pacific Theater? How do we develop a cohort of trained, ready, and regionally-focused officers and NCOs who are prepared to deploy on short notice to the AOR, able to immediately integrate asymmetrically at all levels of command from brigade, to garrison, to JTF, to sustainment, to Non-Combatant Operations (NEO), to the USARPAC Main Command Post? And, importantly, how do we achieve regional currency in support of readiness for future contingencies?
In late 2017, leaders from the U.S. Army Legal Command, U.S. Army Pacific, and the 12th Legal Operations Detachment (LOD) met in Hawaii to develop a readiness training plan that would help answer these questions. Internally called “Pacific Surge”, the plan was born out of the idea that any conflict in the Pacific Rim would afford very little pre-mobilization time; certainly not the thirty to ninety days we have become used to. This requires a cohort of Reserve Personnel truly prepared to fall in on the considerable (53 PAX) un-resourced judge advocate contingency requirements for the AOR. While not equivalent to service and stationing in the region, from the RC perspective this offered an intense, hands-on introduction to the Pacific region.
On 25 January 2018, BG Ural Glanville, Commander for the Legal Command, approved a concept that would bring 12th LOD personnel to various locations in the Pacific for twenty-eight days under USARPAC guidance, with the purpose of providing real-time operational context, realistic readiness training, immersion, and systems integration (NIPR, SIPR, clearances, etc.).
The first of three cohorts of 12th LOD personnel were identified, and immediately began pre-deployment training as though for a real-world contingency mission. Medical, SERE, etc. The first cohort of four field grade officers arrived on 8 April 2018; the second of two field grades and one senior NCO arrived on 17 June. Each spent three days in orientation at HQ USARPAC (operational family of plans, network access, badging, etc.), and then were sent out to units in support of exercises—Key Resolve (KR), the NEO TTX—and real world tasks: one to USARPAC SJA for exposure to fiscal, operational and administrative law issues; one to Japan for the KR/NEO exercise; one to 25ID for KR; and one to 8th TSC for exercise and real-world experience. The second cohort, in June and July, had a similar experience among Hawaii-based units.
The third cohort of approximately a dozen officers and NCOs trained exclusively in Korea in coordination with the 8th U.S. Army and its subordinate units. There they integrated with respective legal staff sections and developed as much experience with the mission on the Korean peninsula as possible during the three week readiness training program. The after action reviews were extremely positive, and from the perspective of 12th LOD personnel offered them a regional perspective and mission orientation they could never have achieved in an academic or CONUS training environment. The rehearsal of moving from CONUS to theater for several weeks left them better prepared, better regionally oriented, and better trained in support of possible contingency mission than ever before.
C. Reconnaissance (Places)
The nature and importance of reconnaissance in military operations is well understood. In its most basic form it is concerned with developing situational understanding through intelligence and assessment of an enemy, an area of operation, etc. It can involve land, sea, space, or any partition thereof. In a regional context, reconnaissance enables and empowers leaders through awareness, and affords a contextual and first hand appreciation for the operational environment.
Although methods of reconnaissance vary greatly, we argue there is a profound benefit for judge advocate leaders who actually walk the ground in areas they may one day operate. This is a key justification for pre-deployment site surveys and senior leader recons, and is echoed by commanders at all levels. As noted by MG Flynn,
Mere presence alone provides remarkable insights into our partnered countries’ governments. Given the growing importance of the South China Sea, its surrounding nations, and the extensive span of tactical operations in Balikatan this year, the units participating in the Pathways TF were well versed in what was required to operate in the Philippines. Our planners at every echelon, our understanding of the operational environment, and our knowledge of the threats and the political nuances in that environment were excellent. . . . From port operations, to customs, command-and-control nodes, airspace, and cyber, the reconnaissance that our soldiers and leaders accomplished on Pathways was extraordinary. It set conditions for the United States to be in a position of relative advantage upon arrival if called upon to respond to a crisis.14
For regionally-focused leaders, the idea of reconnaissance simply identifies the inherent value of in-country experience with partner nations and the ability to rapidly anticipate challenges they can expect to encounter while serving in and among the different countries in the Indo-Pacific. It is something that can be learned over time, when there is time. But when there isn’t, as in the case of humanitarian assistance missions arising from natural disasters, the experience that these leaders bring becomes invaluable and assists commanders and others to make informed decisions in support of Army operations.
III. The Challenge of Complex Regional Legal Regimes—The Indo-Pacific
The United States military remains steadfastly committed to the Indo-Pacific region as an enduring focal point of strategic interest and priority, just as it has since Commodore Dewey first made contact with the Chinese in 1842. North Korean aggression and missile development, Chinese expansion into the South China Sea, and a seemingly intractable extremist threats elsewhere are reminders of the challenges the U.S. and partner nations face in the region.
Secretary of Defense Mattis, speaking in June 2017 at the Shangri-La defense summit in Singapore, noted that
[t]he United States will continue to adapt and continue to expand its ability to work with others to secure a peaceful, prosperous and free Asia, with respect for all nations upholding international law…Because we recognize no nation is an island, isolated from others, we stand with our allies, partners and the international community to address pressing security challenges together.15
The global importance of the region therefore cannot be understated. As summarized by U.S. Indo-Pacific Command (USINDOPACOM), the U.S. presence underpins national security, economic, and national leadership “across roughly half the earth’s surface, from the West Coast of the U.S. to the western border of India, and from Antarctica to the North Pole. The region’s 36 nations are home to more than 50% of the world’s population, five of the top seven largest militaries, and the world’s the largest democracy and its largest Muslim-majority nation. Approximately 375,000 U.S. military and civilian personnel are currently assigned to the USINDOPACOM area of responsibility.”16
Any discussion about the importance of developing leaders with regional fluency can find easy examples in the legal regime behind American partnership and presence in the Indo-Pacific region, an area largely composed of a mosaic of mature albeit evolving mutual defense and cooperation treaties; bi-lateral compacts; domestic legal arrangements based on status as U.S. territories; special relations status based on U.S. law; cross-service and military logistics support agreements; SOFAs; and facilities and basing agreements.
To understand the patchwork of largely bilateral agreements which enable U.S. operations in the Pacific Rim, it is important to realize that each has its own historical basis—some quite interesting—and technical implementing requirements benefiting from regional fluency and understanding. The following paragraphs discuss some of the most important of our defense relationships in the region.
IV. The Treaty Nations. Five of the U.S.’ seven treaty alliances are located in the Indo-Pacific Region
The U.S.’s security relationship with Japan is governed by the Treaty of Mutual Cooperation and Security between Japan and the United States (MST) (1960).17 Article V of the MST provides that an armed attack against either Party in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger. The U.S.’s position is that the territories administered by Japan include the disputed Senkakus Islands, claimed by China, Taiwan, and Japan. In addition to the MST, the U.S.-Japan SOFA was signed in 1960. There is also a mature ACSA with Japan, the latest of which entered into force in 2017.
The Guidelines for Japan-U.S. Defense Cooperation of 2015 further define the Alliance between the U.S. and Japan, providing a general framework and policy direction for the roles and missions of each country. The Guidelines outline that the U.S. and Japanese forces operate as a bilateral, rather than a combined or coalition, force. Under this construct, U.S. forces will operate in support of Japan’s defensive operations. Therefore, judge advocates advising commanders on the defense of Japan must have a working knowledge of Japan’s Constitution and its laws that place strict limits on the use of force by the Japanese Self-Defense Force.18 Exercise YAMA SAKURA, the largest annual Army command post exercise conducted in the Indo-Pacific AOR each year, exercises this bilateral construct.
B. The Republic of Korea
The U.S.-Republic of Korea (ROK) security relationship is governed by the Mutual Defense Treaty between the United States and the Republic of Korea (1953). The treaty entered into force four months after the Korean War Armistice Agreement was signed, and provides that an armed attack in the Pacific area on either of the Parties in territories under their respective control would be dangerous to its own peace and safety and the Parties would act to meet the common danger. The treaty also grants the U.S. military the right to “dispose” its armed forces in and about the territory of the ROK, as determined by mutual agreement. The U.S. also has a SOFA with Korea, signed in 1966, and a MLSA, the most recent of which was signed in 1988.
Unlike the U.S.-Japan bilateral security arrangement, the U.S. and ROK forces prepare to conduct combined/coalition operations. In 1950, after tens of thousands of North Korean People’s Army forces crossed the 38th parallel, the UN Security Council issued UNSCR 84, recommending the creation of the United Nations Command (UNC) under the authority of the United States.19 Based on this recommendation, the U.S. established the UNC under the command of a U.S. four-star general officer (originally GEN Douglas MacArthur). The UNC exercised operational control over ROK units during the Korean War and until the creation of the ROK-U.S. Combined Forces Command (CFC) in 1978. The Commander of CFC is a U.S. four-star general who is triple-hatted as the Commander, UNC, CFC and U.S. Forces Korea (a sub-unified command of USINDOPACOM). The CFC deputy commander is a ROK four-star general officer. Exercise ULCHI FREEDOM GUARDIAN (UFG), an annual U.S.-ROK joint and combined CPX, focuses on training for joint/combined operations.20
C. The Philippines
The U.S. security relationship with the Philippines is governed by the Mutual Defense Treaty between the Republic of the Philippines and the United States (1951). It is U.S. policy that it does not speculate as to whether or not the treaty applies to disputed land features in the South China Sea. Under the treaty, the Parties recognizes that an armed attack in the Pacific area on either Party would be dangerous to its own peace and safety and that it would act to meet the common dangers. The treaty clarifies that an armed attack is deemed to include an armed attack on the metropolitan territory of either Party, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific. State Department guidance issued on 11 July 2014 applies this mutual defense provision to those attempting to resupply the Philippine Naval vessel Sierra Madre in the South China Sea.21 The U.S. also has a Visiting Forces Agreement with the Philippines which entered into force in 1999, and a MLSA, the most recent of which was signed in 2017.
Throughout the Cold War, the two largest overseas U.S. military bases were located in the Philippines: Clark Airbase and Subic Bay Naval Base (the largest U.S. military base overseas is now Camp Humphreys in South Korea). Both were closed in the early 1990s; however, after lease negotiations broke down the Philippine Government refused to renew the leases. Over twenty years later, the U.S. and Philippine Governments signed the Enhanced Defense Cooperation Agreement (EDCA) in 2014. Although the EDCA affirmed the parties’ understanding that the U.S. would not establish a permanent military presence or base in the Philippines, the Philippine Government agreed that U.S. forces, vehicles, vessels, and aircraft may conduct certain military activities at “Agreed Locations” within the Philippines. To date, there are five such “Agreed Locations” on Philippine military bases. Exercise BALIKATAN is the annual joint/combined bilateral exercise conducted in the Philippines to address contingency plans for the defense of the Philippines.
D. Australia and New Zealand
The security relationship with Australia and New Zealand is governed by the Security Treaty between Australia, New Zealand and the United States (ANZUS Treaty) (1951). This treaty was intended to protect the security of the Parties in the Pacific, and each Party declared that it would act to meet the common danger of an armed attack in the Pacific Area on any of the Parties. An armed attack includes an attack on the metropolitan territory of any of the Parties, or on the island territories under its jurisdiction in the Pacific or on its armed forces, public vessels or aircraft in the Pacific.
The U.S. continues its robust alliance with Australia. The U.S. has a SOFA with Australia (1963), as well as an ACSA (2010). The 2014 Force Posture Agreement between Australia and the U.S. reaffirms the U.S.-AUS strong defense relationship and intent to expand and increase opportunities for joint and combined training in locations within Australia. The Agreement authorizes the U.S. Forces to undertake mutually determined activities in Australia, including security cooperation exercises and joint/combined training. It also provides U.S. Forces unimpeded access to and use of “Agreed Facilities and Areas” for these activities. This includes a U.S. Marine Rotational Force in Darwin, funded under a separate cost sharing arrangement. Exercise TALISMAN SABER is the biennial, joint/combined bilateral exercise conducted in Australia that includes all components of USINDOPACOM and Australia’s army, navy and air force to exercise combined operations across the full range of military operations in the Indo-Pacific.22
In 1986, the U.S. suspended its ANZUS Treaty obligations to New Zealand when New Zealand refused to allow U.S. Navy vessels to enter its ports unless they specifically declared they were not carrying nuclear weapons. The resulting U.S. sanctions cooled relations between the two countries for twenty-five years. In 2010, the parties signed the Wellington Declaration, reaffirming close ties between the two countries and restoring military cooperation. In 2012, the Washington Declaration provided a framework and strategic guidance for security cooperation and defense dialogues. In November 2016, the destroyer USS Sampson visited New Zealand, the first bilateral ship visit in more than thirty years. Currently, USARPAC units participate in the New Zealand Defense Force biennial joint exercise SOUTHERN KAITPO, and biennial Army exercise KIWI KORU. While the U.S. has an ACSA (2012) with New Zealand, there is no SOFA.23
The security relationship between the U.S. and Thailand is governed by the Southeast Asia Collective Defense Treaty (Manila Pact) (1954). The Manila Pact was signed by the U.S., Thailand, Australia, New Zealand, Philippines, France and the United Kingdom. Under the Manila Pact, the Parties recognize that aggression by means of an armed attack in the Treaty area against any of the Parties or any State or territory which the Parties designate, would endanger its own peace and safety, and agree it will act to meet the common danger. The Manila Pact area is the general area of Southeast Asia, including the entire territories of the Asian Parties.24 The Manila Pact was originally part of the Southeast Asia Treaty Organization (SEATO), which was implemented to prevent the spread of communism in the region. SEATO was disbanded in 1977, but the Manila Pact remains in force and represents the formal security agreement between the U.S. and Thailand.
In 2012, the U.S. Secretary of Defense and his Thai counterpart issued a Joint Vision Statement for the Thai-U.S. Defense Alliance, focusing on partnerships for regional security in Southeast Asia, supporting stability in the Asia-Pacific Region and beyond, bilateral and multilateral interoperability and readiness, and relationship building, coordination and collaboration. After a military coup in Thailand in 2014, the U.S. reduced the size of joint military exercises, and took other steps to curtail ties with the Thai junta. Relations have since thawed, however, with a 2017 Joint Statement between President Trump and Prime Minister General Prayut Chan-o-cha reaffirming the importance of the U.S.-Thai enduring alliance and resolving to further strengthen the alliance through a broad range of measures, including defense modernization efforts. The two leaders also welcomed closer military-to-military cooperation and joint exercises, including exercise COBRA GOLD, the largest multilateral military exercise in Asia. The US has no SOFA with Thailand, although it has an ACSA (2014).
In 1979, pursuant to a U.S.-China Joint Communique, the U.S. recognized the Government of the People’s Republic of China as the sole legal government of China, acknowledging there is but one China and Taiwan is part of China. The communique also stated, however, that the U.S. would maintain cultural, commercial, and unofficial relations with the people of Taiwan. Legislation passed that same year, known as the Taiwan Relations Act (TRA),25 provides the legal basis for this unofficial relationship. Under the TRA, U.S. policy is to preserve and promote extensive ties with Taiwan, consider any effort to determine the future of Taiwan by other than peaceful means a threat to the peace and security of the Western Pacific and a grave concern to the U.S., provide Taiwan with arms of a defensive character, and maintain U.S. capacity to resist any resort to force or other forms of coercion that would jeopardize the security, or social or economic system of Taiwan.
USARPAC maintains a robust security cooperation program with Taiwan, conducting its activities with Taiwan under a program called “LU WEI,” which means Army Strong. These security cooperation activities include observer training, mobile training teams, and subject matter expert exchanges, including legal SMEEs developed and executed by the USARPAC OSJA. Because the U.S. does not recognize Taiwan as a separate nation, the U.S. has no SOFA or ACSA with Taiwan.
G. The Compact Nations
The Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau maintain a special relationship with the United States. After WWII, pursuant to UNSCR 21 (1947), all three Pacific Islands were placed under the UN Trusteeship System and the U.S. was appointed the Administering Authority. The Commonwealth of the Northern Marianas Islands (CNMI) was also placed under the administration of the United States. Although in 1975 CNMI chose to become a U.S. territory, Micronesia, the Marshall Islands and Palau have chosen to become sovereign countries, each entering into a Compact of Free Association with the United States.26 The Compact provides the U.S. full authority and responsibility for the security and defense of the Compact Nations, including the obligation to defend the countries from attack or threats of attack as the U.S. and its citizens are defended. Therefore, USINDOPACOM plans must account for the U.S. obligation to defend these countries.
Under the Compact, the U.S. also may establish and use military areas and facilities in the Compact Nations, subject to the terms of separate agreements. The U.S. currently has an agreement with the Marshall Islands to use Kwajalein Atoll, home of the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Test Site, supported by U.S. Army Garrison—Kwajalein. The U.S. also has a SOFA with each country, but no ACSA, as the countries do not have their own defense forces (under the Compact, citizens of these countries are eligible to volunteer for service in the U.S. Armed Forces).
Regionally focused leaders are a critical part of the future of the Army. Despite recent hints of unilateral rhetoric in US policy channels, there is little to suggest that DoD will waiver from its ever increasing role in programs facilitating partnership, shared strategic approaches, access, cooperation, and operational and tactical interoperability with strategic allies. Whether as part of Pacific Pathways, Army Europe’s multi-faceted Atlantic Resolve, Army Africa’s interagency and regionally partnered Unified Focus, or the National Guard’s State Partnership Program, training and readiness will remain inextricably linked to regional alignment with partner forces.
Judge advocates and paralegal NCOs who serve and practice in RAF units or those with distinct regional focus, such as Special Forces or the Army Service Components/ Theater Armies, face special challenges as do Reserve Component units on the time-phased force and deployment data roster (TPFDD). These leaders work hard to achieve maximum readiness for short-turn operational requirements, and are reconciling routine military training requirements with the professional obligation to function effectively outside the US with partners in real-world scenarios that are difficult to predict or replicate, e.g., humanitarian assistance missions in Liberia and Nepal.
Despite many years of increasing cooperation, most of the international legal regimes outside the NATO community are new to Army practitioners, complex, often bilateral, and evolving. The USINDOPACIFIC area of operation serves as a good example. As the Judge Advocate General’s Corps works to increase the readiness of leaders to serve in these compelling locations, it—and the rest of the Army—should consider the: (1) the academic opportunities afforded leaders for regional specialization; (2) regional operational training for Active, Reserve, and National Guard; and (3) the manner in which the talent management process is leveraged to cultivate cohorts of legal professionals at all echelons within the respective communities of practice most directly supporting the respective GCCs and other regionally focused commands. We also recommend that the Army Judge Advocate General’s School make a concerted effort to better track and engage foreign alumni of the School’s academic programs, akin to what the U.S. Army War College does.
In our view, regionally focused leaders rarely happen by accident and require either a dedicated effort or specialization by individuals (e.g., as a result of heritage or language ability), or a deliberate process by Army organizations to identify and cultivate the expertise and fluency required for service in support of GCCs. There is genuine goodness and wisdom to the idea of developing judge advocates who are versatile experts, at least in the early phases of a career model. But at the mid-grade and senior level, the institutional Army maximizes the potential of its leaders and enhances Army readiness when it develops the regional-focus these Soldiers need to function most effectively among the people, places, and processes they may one day face in support of GCC requirements and operations. The past sixteen years in places like Iraq and Afghanistan have demonstrated the worth of such expertise. The question is how we are preparing for the next decade in places now far less familiar. TAL
1. Sun Tzu, The Art of War (Lionel Giles trans., Thrifty Books) (2009).
2. See Headquarters, Dep’t Of Army, Execution Order 052-13 In Support of Regionally Aligned Forces (27 Dec. 2012); Headquarters, Dep’t of Army Fragmentary Order 1 To Execution Order 052-12 In Support of Regionally Aligned Forces annex AA (17 Oct. 2013); Headquarters, Dep’t of Army Fragmentary Order 2 To Execution Order 052-12 In Support of Regionally Aligned Forces, para 1.C.2.A (29 Jul. 2015).
3. For overview of the professional considerations required for judge advocates serving in regionally aligned units, see Lieutenant Colonel Ryan Dowdy, et al., A Primer on Key International Law Issues for the Regionally Aligned Legal Advisor, ARMY LAW, Nov. 2015, at 16–29.
4. See generally Colonel Brian Brady, The North Atlantic Treaty Organization Legal Advisor: A Primer, ARMY LAW, Oct 2013, at 2–25.
5. Joint Chiefs of Staff, Joint Publication 3-0, Joint Operations III-23 (Jan. 17 2017) [hereinafter JP 3-0]; see also Chairman, Joint Chiefs of Staff, Instr. 3126.01A, Language, Regional Expertise, And Culture (LREC) Capability, Identification, Planning, and Sourcing (31 Jan. 2013) [hereinafter CJCSI 3126.01A].
6. Greg Mortenson and David Oliver Relin, Three Cups of Tea (2006).
7. See https://www.usarpac.army.mil/pdfs/Pacific%20Pathways%2016%20Tri-fold.pdf (last visited 19 Jul 2018).
8. MG Charles A. Flynn, Pathways: A Division Commander’s Observations in the Pacific, 96 Mil. Rev., no. 6, Nov.–Dec. 2016, 107, 109 [hereinafter Flynn].
9. Id. at 109–110.
10. Id. at 111.
11. Id. at 109.
12. See 10 U.S.C. 311 (2012)
13. JP 3-0, supra note 5, at III-19.
14. Flynn, supra note 8, at 111.
15. Amy R. Connelly, James Mattis says U.S. committed to Asian-pacific nations, UPI.com (Jun. 3 2017, 6:13 AM), https://www.upi.com/James-Mattis-says-US-committed-to-Asian-Pacific-nations/9111496481151/
17. The original U.S.-Japan Security Treaty was signed in 1951 after Japan gained full sovereignty at the end of the Allied occupation. This earlier treaty expired upon the entering into force of the MST.
18. See Information Paper: Intro to U.S.-Japan Security Operations and Defense Cooperation (Jan. 18, 2017) found on JAGCNet, RAF Repository, for an excellent discussion of this issue. https://www.jagcnet2.army.mil/Sites%5C%5Cio.nsf/0/B8B7A48BB89CF723852580F00079AB4C/%24File/Japan%20Security%20Cooperation%20Information%20Paper.pdf
19. S.C. Res. 84, U.N. Doc. S/1588 (Jul. 7, 1950). The UN exercises no control of the United Nations Command.
20. Implementing the results of the June 2018 Singapore Summit between President Donald Trump and North Korean Chairman Kim Jun Un, Defense Secretary James Mattis indefinitely suspended UFG.
21. The Sierra Madre is a Philippine Navy ship anchored near Ayungin shoal in the Spratly group of islands in the South China Sea, west of Palawan, Philippines. The Philippine Navy deliberately ran it aground to mark the Philippine claim to the reef and a small contingent of Philippine soldiers are stationed onboard.
22. In 2019, the CPX portion of this exercise has been combined with Exercise PACIFIC SENTRY, a USINDO-PACOM Joint readiness CPX.
23. There is, however, a U.S.-New Zealand Exchange of Notes Constituting a Chapeau Agreement, which addresses certain defense commitments, including liability and claims and use of information. Exchange of Notes Constituting a Chapeau Agreement between the Government of New Zealand and the Government of the United States of American Concerning the Establishment of Certain Mutual Defense Commitments, 16 July 1996.
24. Article VIII of the Manila Pact specifically provides that the treaty area is the general area of Southeast Asia, including the territories of the Asian Parties, and the general area of the Southwest Pacific, but not including the Pacific area north of 21 degrees 30 minutes north latitude.
25. Pub. L. No. 96-8, 93 Stat. 14 (1979).
26. See the International Trusteeship System of the United Nations Charter, in particular Article 76. Micronesia and the Marshall Islands signed a Compact of Free Association with the U.S. and gained independence in 1986. Palau signed a Compact of Free Association with the U.S. and gained its independence in 1994.