As ASEAN and China push to finalize a marathon code of conduct in the South China Sea, the Philippines has warned Beijing against using negotiations as a “talk and take strategy.” Despite monthly sessions aimed at meeting a deadline set by foreign ministers for a final text by the end of 2026, Manila remains highly skeptical as territorial disputes and militarized outposts persist.
ASEAN and China Seek Code of Conduct Agreement
Southeast Asia faces a crunch moment in its decades-long negotiation with China over a code of conduct. More than two decades after initial talks began, both sides are pushing to achieve a final agreement by the end of the year. A target date is November 10, when ASEAN leaders convene in Manila for the annual East Asia Summit, hosting Chinese President Xi Jinping. The proposed code aims to set rules of behavior and lessen confrontations where territorial claims overlap.
China asserts historic rights giving it sovereignty over nearly 90 percent of the South China Sea. This claim clashes directly with competing jurisdictions declared by Vietnam, the Philippines, Malaysia, Brunei, and Indonesia. The effort to secure a diplomatic code serves as an official counterpoint to ongoing physical confrontations at sea. The deadliest clash occurred in 1988, when a clash between Vietnamese and Chinese forces in the Spratly Islands killed 64 Vietnamese sailors.
Modern tactics have shifted toward gray-zone friction. Chinese operations frequently involve the ramming of foreign boats, alongside the use of water cannons, batons, flares, lasers, and sonar bursts. A Chinese fishing militia regularly swarms claimed territory to confront foreign vessels. In response, Vietnam has established its own fishing militia to contest control.
The Clash Over International Law and Regional Strategy
Confrontation at sea fuels widespread skepticism regarding the success of the current diplomatic push. The strongest recent words from ASEAN came in a May speech by Philippine Defence Secretary Gilberto Teodoro. His remarks so angered Beijing that it barred him from visiting China, claiming his comments undermined bilateral ties and legitimate Chinese interests.
Teodoro stated that instead of meeting legal obligations under the United Nations Convention on the Law of the Sea (UNCLOS), China tells the Philippines to return to the path of negotiations. He characterized this approach as a talk and take strategy. While calling for peaceful talks, China’s actions have fundamentally altered physical realities in the South China Sea.
Satellite imagery documents the scale of that physical alteration. China’s dredging and island-building has created 20 outposts in the Paracel Islands and seven in the Spratlys, while maintaining a constant coast guard presence at Scarborough Shoal. Meanwhile, Vietnam has built military facilities on 21 features in the Spratlys, including docks and a runway. The build-and-talk dynamic runs through this century.
| Feature / Claimant | Disputed Location | Reported Outposts / Facilities |
|---|---|---|
| China | Paracel Islands | 20 constructed outposts |
| China | Spratly Islands | 7 constructed outposts |
| Vietnam | Spratly Islands | 21 military facilities (docks, runway) |
The trek toward a code of conduct began in 2002 when ASEAN and China signed a non-binding declaration on the conduct of parties in the South China Sea. China hawks initially denounced the 2002 deal as a blunder because it granted status to other claimant states. Crucially, that foundational deal is based on UNCLOS. China publicly pledges commitment to the law of the sea while simultaneously flouting key provisions and rejecting the treaty requirement for dispute arbitration.
Third-Party Vetos and the Battle of Founding Treaties
Ignoring UNCLOS remains the primary mechanism for Beijing to argue for its indisputable sovereignty over the waterway. This year marked the tenth anniversary of an UNCLOS court rejecting China’s historic claims and upholding the legal rights to land claimed by the Philippines. To secure a new code of conduct, the fundamental clash between international law and Chinese traditional rights must be papered over.
When formal negotiations began in 2018, the draft document specified that it would not address nor affect rights under UNCLOS. The stated purpose of the code remains the prevention, management, and settlement of disputes. However, because of Beijing’s objections, any agreement must disregard the binding dispute mechanisms of UNCLOS.
Controversial provisions within the draft also focus on restricting external influence. China wants the code to ban ASEAN from holding joint military exercises with countries from outside the region. These provisions targeting third parties are aimed directly at the United States and its allies. Accepting a third-party veto would constitute tacit ASEAN acceptance of China as the region’s predominant military power.
In the duel over foundational documents—specifically UNCLOS and ASEAN’s Treaty of Amity and Co-operation (TAC)—China prefers that ASEAN live by the non-aligned spirit of the TAC. Following talks with ASEAN in July, Chinese Foreign Minister Wang Yi mixed soft-sell with steel, arguing that the South China Sea issue should not become an obstacle in relations.
