Thayer Consultancy Background Brief

ABN # 65 648 097 123

South China Sea: Thailand as
ASEAN Chair & Prospects for a
Code of Conduct
January 16, 2019

Q1. An ASEAN ministerial retreat is scheduled in Chang Mai this week. Now that
Thailand is the current ASEAN Chair, are there expectations that it will be tough on
Chinese incursions, aggressive actions, and militarization in the South China Sea?
ANSWER: At a November 2018 international conference held in Bangkok on Thailand’s
role as the next ASEAN Chair, Thai foreign ministry officials stated that they had spent
two and a half years preparing from this role.
Thailand will uphold past ASEAN policy on the South China Sea in tandem with the
Philippines which is the ASEAN country coordinator for China for the next three-year
period. At the moment the general situation in the South China Sea is stable and
ASEAN members and China are focused on negotiation for a final Code of Conduct.
Thai officials have stated it is their hope to conclude the first of three readings of the
South China Sea Code of Conduct by May of this year.
In the event the situation in the South China Sea deteriorates due to Chinese actions
Thailand is likely to pursue a dual track approach. First, it will seek consensus from
ASEAN members for a unified response. Second, it will pursue quiet diplomacy
towards China to ease tensions.
In sum, Thailand has no mandate to “be tough” with China and the present
circumstances do not warrant a tough stance.
Q2. How would you assess Thailand's chairmanship?
ANSWER: Thailand appears to be moving into a period of greater domestic stability.
This will reinforce the efforts of Thailand’s professional diplomats to pursue their
motto of Advancing Partnership for Sustainability. Thai officials were explicit that they
chose this motto to ensure that there was continuity in ASEAN policy implementation
across the board during their tenure. Thailand would seek practical consensus-based
outcomes already agreed.
In the past Thailand has used its role as ASEAN’s country coordinator for China to
promote low-key diplomatic initiatives on discussions relating to the South China Sea.
Thailand toned down some of the rhetoric and gradually increased the frequency of
working level meetings to advance a Code of Conduct in the South China Sea.
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In sum, Thailand will be a very competent ASEAN Chair and will make a concerted
effort to bring several ASEAN policy initiatives to fruition. In other words Thailand will
aim to be a practical results orientated ASEAN Chair.
Q3. China has repeatedly told Philippine officials that it wants to fast track
negotiations for a COC. Will the Code of Conduct take shape under Thailand's
leadership and under the stewardship of the Philippines as ASEAN China coordinator?
ANSWER: No sooner did China and ten ASEAN ministers reach agreement on a Single
Draft South China Sea Negotiating Text on August 3rd last year, that senior Chinese
officials, including Foreign Minister Wang Yi, state that negotiations were complex and
would take three years to complete. China specifically mentioned that it looked
forward to working with the Philippines as ASEAN country coordinator for the next
three years.
China’s three-year time frame was a unilateral one; as the past joint statements
between China and ASEAN members included the words “mutually agreed timetable.”
In recent months ASEAN officials have privately stated that China has put the COC ball
back in ASEAN’s court. China apparently is pushing to step up progress. It remains to
be seen if this is a tactical move to buy time as ASEAN members seek to overcome
their differences.
Q4. How important is for the Code of Conduct to be legally-binding?
ANSWER: The Code of Conduct is supposed to address state behavior in the South
China Sea until disputes over sovereignty and sovereign jurisdiction (control over
marine resources) are resolved. The COC, therefore, is aimed at confidence building
measures, cooperative activities of a practical nature, self-restraint in activities that
could affect regional security, upholding international law, and prohibiting the use of
force or the threat of force.
It is vitally important that the Code of Conduct be legally binding so aggrieved parties
can seek resolution of disputes, that dispute settlement be binding, and that there are
measures for compliance and enforcement. With legally binding provisions the COC
would be nothing more that a political declaration, like the ill-fated 2002 Declaration
on Conduct of Parties in the South China Sea or DOC.
Q5. Is it still a relevant document even as China has already completed building
artificial islands in the South China Sea?
ANSWER: The final South China Sea Code of Conduct will be relevant only to the extent
that signatories voluntarily respect the letter and spirit of the document.
But there is a major lacunae – how to reconcile the Award of the Arbitral Tribunal that
heard the case brought by the Philippines against China and the final COC text. The
Arbitral Tribunal ruled that two of Chinese-occupied features were low tide elevations
and not subject to appropriation. In other words, China’s occupation of Mischief and
Subi reefs and construction of two 3-kilometer long runways was illegal. These reefs
belong to the Philippines.
The Arbitral Tribunal also ruled that China’s nine-dash line had no basis in international
law. China has never established the legal basis for its claims to sovereign jurisdiction
over the waters and resources surrounding its artificial islands. China has not
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promulgated baselines and it has not given coordinates for claims to a territorial sea
and Exclusive Economic Zone. China claims and occasionally enforces a specious
“military alert (or security) zone.
In sum, China’s occupation and militarization of artificial islands South China Sea gives
it the ability to coerce littoral states should any dispute arise.

Suggested citation: Carlyle A. Thayer, “South China Sea: Thailand as ASEAN Chair &
Prospects for a Code of Conduct,” Thayer Consultancy Background Brief, January 16,
2019. All background briefs are posted on Scribd.com (search for Thayer). To remove
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Thayer Consultancy provides political analysis of current regional security issues and
other research support to selected clients. Thayer Consultancy was officially
registered as a small business in Australia in 2002.