By Roncevert Almond
Might China seek to amend customary international law in relation to air defense identification zones?
Cabo Verde, an island nation off the coast of West Africa, holds a unique distinction. According to a report [PDF] issued by the U.S. Congressional Research Service, Cabo Verde is one of just 27 nations (including China) of the 167 states party to the United Nations Law of the Sea Convention (UNCLOS) that claim the ability to regulate or prohibit foreign military activity beyond the territorial sea and within an exclusive economic zone (EEZ). The United States has long maintained otherwise [PDF]: UNCLOS, which established EEZs and reflects existing customary international law, only codified sovereign rights that are related to regulating economic activities within EEZs and are subject to the high seas freedoms, particularly navigation and overflight. As I ambled across the cobble stone streets of Praia, it seemed peculiar that the legal claim of a tiny island nation in the Atlantic Ocean could make waves in the South China Sea (SCS), but such is the dynamic and complexity of this geopolitical flashpoint.
One test of a rising power is its ability to effectively bend international law to legitimize tactical maneuvers and strategic objectives. Customary international law accommodates such an approach given its evolutionary nature and “bandwagoning” propensity (as revealed through state practice and opinion juris). In response, status quo powers are more likely to rely on treaty regimes, which are characterized by rigidity, institutionalization, and contractual consent. In the case of the SCS disputes, China is wielding custom like a sword and shield, while the United States [PDF] and its Pacific allies seek refuge in the fixed terms and procedures of treaties like UNCLOS.
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