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frank ching

Optimism over a relaxation of tensions in the South China Sea generated by China's agreement to discuss a code of conduct with the 10-member Association of Southeast Asian Nations next month is rapidly dissipating in the wake of Beijing's clear reluctance to reach an early deal.

In late June, when China and ASEAN agreed to consultations in September over a legally binding code of conduct, the 10 ASEAN foreign ministers said that their aim was to "reach an early conclusion of a Code of Conduct in the South China Sea, which will serve to enhance peace, stability and prosperity in the region."

Chinese officials had previously declined to discuss such a code until, in their view, all ASEAN states properly complied with the 2002 accord "Declaration on the Conduct of Parties in the South China Sea." China had complained that actions by Vietnam and the Philippines had violated the accord. Those countries had levelled similar charges against China.

So, when Chinese Foreign Minister Wang Yi agreed to begin consultations on a code of conduct, it was seen as a concession by China.

However, China has now poured cold water on the idea of an early agreement. Mr. Wang, while still saying that Beijing was happy to hold such consultations, has warned against any expectation of a "quick fix," which he said was "neither realistic nor serious."

Meanwhile, China is trying to split ASEAN. By all accounts, last year, when Cambodia was chair, China successfully prevented the ASEAN ministerial meeting from issuing a communiqué that mentioned the South China Sea territorial disputes.

Mr. Wang recently visited Vietnam, Malaysia and Brunei – the three other ASEAN claimants – but conspicuously stayed away from the Philippines, which has taken its case to the United Nations. However, China has refused to be part of the dispute-resolution process set up by the United Nations Convention on the Law of the Sea.

While meeting the media in Vietnam, Mr. Wang said that China and ASEAN had discussed the code of conduct several times, but failed to reach agreement "due to interference from certain parties." What is important, he said, is to first "eliminate differences."

Mr. Wang seemed to be saying that in order to reach agreement with China, ASEAN must see to it that countries such as Vietnam and the Philippines are kept in line.

While refusing to acknowledge the role of the International Tribunal for the Law of the Sea, China is also trying to undermine Philippine trust in its ally, the United States.

A commentary in the Global Times, part of the People's Daily group, warns Manila that it is "better off dealing with Beijing than seeking U.S. military help."

The U.S., the commentary said, "has never explicitly declared that it would side with the Philippines in its territorial disputes with China." In fact, "according to U.S. thinking and strategy … China has always been more important than the Philippines."

Beijing insists that territorial differences should be settled bilaterally, that is, through negotiations between China and the much smaller individual Southeast Asian countries, giving China an inherent advantage.

However, in a speech Aug. 2 in Bangkok to mark the 10th anniversary of the "ASEAN-China Strategic Partnership," Mr. Wang acknowledged that territorial disputes have "an impact on China-ASEAN relations in reality."

Significantly, he stressed that China advocates resolution of disputes through respecting historical facts and international law. These two factors, the foreign minister said, are equally important.

This Chinese attitude goes to the root of the problem. The ASEAN countries rest their case on international law while China appeals to history when law is not on its side.

In their June statement, the foreign ministers recalled the Declaration of Conduct and "reaffirmed the collective commitments under the DOC to ensuring the resolution of disputes by peaceful means in accordance with universally recognized principles of international law, including the 1982 United Nations Convention on the Law of the Sea."

Now Mr. Wang says that "historical facts" are as important as international law.

However, the declaration – signed by Mr. Wang in 2002 on China's behalf – cites only "international law." At no time does it mention "historical facts."

Some of China's claims in the South China Sea clearly are not supported by the Law of the Sea – in fact, they run counter to the clear wording of the convention.

When that is the case, China appeals to "historical facts" saying that the law cannot change history. So, when the law is on China's side, it cites the law. When the law is not on China's side, it cites "historical facts."

Frank Ching is a Hong Kong-based journalist. He Tweets @FrankChing1