As China’s unilateralism and conflicts with its South China Sea neighbors have increased over the last decade, so has the Association of Southeast Asian Nations’ (ASEAN) focus on implementing a binding Code of Conduct to obligate a peaceful resolution of the region’s territorial disputes. Last week, ASEAN and China issued a Joint Statement commemorating 25 years of dialogue and declaring progress on a variety of security and economic frameworks, including the elusive Code of Conduct. But ASEAN’s effort toward such a Code is now well into its third decade, which should temper excitement over any news of progress. Over those 25 years, ASEAN claimants have seen their positions in the South China Sea eroded in favor of China. Meanwhile, China has faced neither economic nor significant political costs for its actions, nor perceived unacceptable risk of armed conflict over them. Binding diplomatic progress appears unlikely until it does.

The challenge facing China-ASEAN diplomacy is that China controls the pace of conflict escalation. China’s military predominance means ASEAN nations typically de-escalate incidents, least one spark a conflict they couldn’t win. As the precipitator of most of those incidents, China retains the option to back off if one threatens greater escalation than it desires.

It was thus ASEAN’s recognition of its weaker position that motivated the idea of diplomatically limiting Chinese behavior in the South China Sea. ASEAN first proposed a binding Code of Conduct in 1992 after China adopted a controversial territorial law declaring sovereignty over the islands in the South China Sea and considered much of the sea itself to be territorial or internal waters. China’s occupation of the Philippines-claimed Mischief Reef in 1995 heightened ASEAN’s alarm over China’s regional intentions and strengthened calls for a binding Code of Conduct. China rebuffed those efforts until 1999, and subsequent negotiations led to a Joint Statement and Declaration on Conduct in 2002.

In 2003, Professor Leszek Buszynski, now at Australian National University, examined what finally brought China to the table with ASEAN. He showed that China was uninterested in participating in a Code of Conduct until 1998, when the Philippines sought to involve the U.S. in the dispute through new defense agreements and by restarting joint exercises. Around the same time, seeing a linkage with its obligations to Taiwan, the U.S. began deploying carrier strike groups to the South China Sea.  

Nonetheless, China and ASEAN’s objectives remained divergent. ASEAN sought to place limits on a stronger China that it saw as an instigator and aggressor. China wished to use the negotiations to placate anxious ASEAN states, limit deeper U.S. involvement in the region, and prevent a final agreement from restricting its interests. Since even the appearance of Chinese conciliation could be touted as a victory for ASEAN, China held the diplomatic upper hand. The result was not a binding Code of Conduct, but a non-binding Declaration on Conduct wherein the parties “undertake” to resolve disputes by peaceful means (not “commit” or “pledge”) and agree to work on a Code of Conduct based on consensus, a diplomatic “out” insisted on by the Chinese delegation.

Professor Buszynski’s key insight was that a militarily- and economically-dominant party would only place voluntary limits on itself if it faced balancing risks or costs from its behavior. In the late 1990s, new U.S. involvement in the region provided the prospect of such risks and costs, inducing China to come to the negotiating table. But that new power balance was insufficient to get favorable terms for ASEAN. Since the 2002 Declaration, China has built significant port, radar, and airfield facilities on features in the Spratly Islands, attempted unilateral oil exploration in areas contested by Vietnam, and used its Coast Guard and Maritime Militia to evict fishermen and government vessels of other South China Sea claimants.

Nonetheless, recent China-ASEAN statements still provide only ambiguous restrictions on behavior:

• Fourteen years after agreeing to continue to discuss a binding Code of Conduct, and 24 years after ASEAN first proposed the idea, last week’s Joint Declaration continues to merely “undertake” to resolve disputes by peaceful means and is committed to “working substantively” towards a binding Code of Conduct, which still must be “based on consensus.”

• The July 25th Joint Statement by ASEAN Foreign Ministers and China on implementation of the Declaration on Conduct states signatories will “undertake to exercise self-restraint” on activities that threaten peace and stability, to include “refraining from action of inhabiting on the presently uninhabited islands,” language that may implicitly recognize the disputed features China already occupies. Further, since the only major feature left that China may want to occupy is Scarborough Shoal—where the U.S. has explicitly warned China against construction—a non-binding prohibition against new occupation does not concede much.

• A September statement on use of the Code for Unplanned Encounters at Sea (CUES) by China and ASEAN seems to oblige parties to use its voluntary communications and safety protocols when their ships or aircraft meet and interact. But the agreement only applies to naval units and not the Coast Guards and irregular maritime units responsible for most harassment and incidents in the region.

China has delayed meaningful diplomatic progress on a binding Code of Conduct for decades by spacing out superficial concessions, and perpetually committing—and then affirming its commitment— to make progress towards that goal. China’s aggressiveness has not come without a price; many ASEAN nations now cooperate more closely with the U.S. on security, while significantly building up their own militaries. But China’s military spending is still five times the combined defense budgets of the major ASEAN powers. At the same time, studies show a narrowing gap between U.S. power projection and Chinese capabilities to counter it, suggesting that unlike the early 2000s, the mere presence of U.S. military power may be a diminishing motivation for China to engage in meaningful diplomacy. China is still largely setting the pace of events in the South China Sea, and ASEAN should not expect better diplomatic outcomes unless China perceives genuine costs or risk from its actions.

Steven Stashwick is a writer and analyst based in New York City. He spent ten years on active duty as a U.S. naval officer with multiple deployments to the Western Pacific. He writes about maritime and security affairs in East Asia and serves in the U.S. Navy Reserve. The views expressed are his own. Follow him on Twitter.

The views expressed in this post reflect those of the author and not that of the EastWest Institute.​