Ever since its formation at the ASEAN Summit in Kuala Lumpur in December 2005, the Eminent Persons' Group (EPG) has been grappling with the task of transforming an informal, consensus-based and non-interfering ASEAN into a formalized, rule-bound, and legal-institutional structure. While the EPG debates a draft charter before submitting it to the member countries for their ratification, the discussion has brought into the open various fundamental points of disagreement among the member states regarding the governing principles of the charter, its mandate and its enforcement. These differences have been very much evident during the 40th ASEAN Ministerial Meeting (AMM), held in Manila from 30 July to 2 August 2007.

There are three main objectives in restructuring ASEAN - facilitating the integration of ASEAN into one community, developing ASEAN as a legal body and acting effectively on intra-national as well as international challenges facing the region. Lee Hsien Loong, Singapore's Prime Minister, underlines the rationale of charter as setting "a clear and ambitious long-term direction for ASEAN." In its pursuit of regional cooperation and integration, ASEAN has devised various principles and mechanisms, which have, over the years, come to be known as the 'ASEAN Way.'

The principle of 'non-interference,' which forbids any ASEAN interference in the domestic affairs of a member country, is perceived as the most fundamental principle governing the functions of the organization. Next, the principles of consultation and consensus ensure that measures taken to address the challenges facing the region are not imposed on any member country and that these are properly discussed and debated. Third, contentious issues, involving either the members or external players, have been dealt with under the 'lowest common denominator' strategy, by which initial dialogues begin over those aspects of any issue where the greatest agreement can be found. Above all, these policies have been put into practice with a greater emphasis on their informal nature.

Consequent to the ASEAN's ineffective response to various intra-national challenges after the Asian financial crisis in 1997, various objections have been raised over the methods and underlying principles of ASEAN functioning. It is being argued that the policy of non-interference has blunted ASEAN efforts in handling the problem of Myanmar, the economic crisis, and the problem of polluting haze in the region. Similarly, demands are being made about making exceptions to the principle of consensus. It is also being suggested that as ASEAN enters into the 21st century with a larger membership and greater complexity of its engagements, the regional body must have a charter comprising of rules, codes of conduct, governing principles and a dispute-settlement body. While members in general agree on the rationale for a charter, some of the components of the proposed charter have led to polarization among members.

The issue of whether or not democracy and human rights should be included as the basic principles in the ASEAN charter has split the members. Indonesia, Thailand and the Philippines have vigorously supported the inclusion of these two principles in the charter on the ground that in a larger comity of nations at the global level, an undemocratic ASEAN with large-scale human rights violations will not be able to exert its influence on the issues of global deliberations. On the other hand, Myanmar and Vietnam have vehemently opposed their inclusion along with muted opposition from Singapore and Malaysia on the ground that ASEAN represents countries which are culturally and socially diverse. Therefore, ASEAN as a political community will be a viable entity only when diverse political and economic structures within the region are equally represented.

Another important point of friction among the ASEAN member states is related to the enforcement of ASEAN decisions. Holding the principle of consensus responsible for ineffective mandate of ASEAN, the Philippines has called for the inclusion of the provision of 'decision by voting' on sensitive issues. Such a provision, the Philippines claims, would enable the organization to impose its decisions on its members either through near unanimity or majority. However, the provision could not be adopted given strong opposition from Myanmar. Similarly, provisions related to the setting up of a dispute settlement body within ASEAN with the mandate of punishing the members, who violate the ASEAN norms, have also faced opposition from some members.

Another formidable challenge facing the EPG is how to formulate the mandate of the organization. Though the EPG has been able to agree on a large number of areas, several issues such as migration and environmental problems have reportedly not found a place in the charter, inviting criticism from experts, civil society organizations and think tanks.

Though some of the disagreements have been overcome during the ongoing 40th ASEAN Ministerial Meeting, as evident in the agreement on the setting up of an ASEAN Human Rights Commission, a great deal of persuasion and arm-twisting will take place at the time of ratification of the charter by each member country. Moreover, whatever be the final principles, mandate and structure of ASEAN under its new charter, implementation will be the litmus test and key to a resurgent ASEAN.