In early 2016, the Max Planck Institute for Comparative Public Law and International Law was invited by the OSCE Task Force of the German Foreign Office to conduct a project on the OSCE Legal Framework aimed at reviving and reframing the discussion on the legal framework of the OSCE at the occasion of Germany’s OSCE Chairmanship in 2016. The project, consisting of an international academic conference and written scholarly work, seeks to examine legal and political implications that arise from the unsettled legal status for the Organization and its members of staff, for states as well as for individuals and peoples at large, who are affected by the Organization’s acts.
The context: The unsettled legal status of the OSCE
The Organization for Security and Co-operation in Europe (OSCE) is the world’s largest regional security organization with 57 participating States. The Organization covers a security, economic and environmental as well as human dimension and constitutes a key institution in the field of early warning, conflict prevention, crisis management, and post-conflict rehabilitation. While the OSCE possesses many of the attributes traditionally ascribed to an International Organization, including permanent structures such as the Secretariat, it lacks a constitutive act (founding treaty) under international law. There is no text which establishes its international legal personality. Therefore, the OSCE is currently not ─ despite its name ─ an International Organization in a technical, public international law sense.
The Organization’s sui generis legal status is the result of a distinctive institutionalisation process, which has started as an effort to build an East-West forum for political dialogue in the framework of the Conference for Security and Cooperation in Europe (CSCE), and which was formalized by the Helsinki Final Act of 1975 and later renamed into the OSCE (1995). Given the role of the OSCE in global governance, it is remarkable that questions surrounding its legal framework remain unresolved. Despite long-lasting attempts to formalise its institutional structure, the legal status of the OSCE remains an open issue until today. This leads to a patchwork of legal regimes under which the Organization operates in the participating States.
Despite many attempts, including the drafting of a convention that would endow the Organization with international legal personality, legal capacity, privileges and immunities, the OSCE legal status remains unsettled until the present day. Due to a political stalemate, in which the USA favours merely the adoption of a convention on the legal status and immunities, whereas Russia insists on the adoption of a constituent treaty, no agreement has yet been reached between participating States.
Yet, the need for strengthening its legal framework became
particularly pressing in the wake of the Ukraine crisis, when in early
2014 several OSCE observers were abducted and held hostage by armed
insurgents. What was the legal status of these OSCE observers? Were they
entitled to (functional) immunity? And who would pay for possible
damages or injuries?
International conference “Between Aspirations and Realities: Strengthening the Legal Framework of the OSCE”, 13 July 2016, Berlin
In order to provide for a new impetus to the debate, the Institute organized on 13 July 2016 an international conference entitled “Between Aspirations and Realities: Strengthening the Legal Framework of the OSCE”. The conference took place in the Harnack-Haus of the Max Planck Society in Berlin and was convened by Mateja Steinbrück Platise, Carolyn Moser, and Anne Peters. 46 academics and practitioners (plus the three conveners) attended the conference and contributed to a lively discussion.
Since in the past, the debate had primarily been framed by political considerations brought forward by the OSCE participating States at the high political level, the conference aimed to open up the debate to a broader international audience and to allow for an input by a larger community of scholars, practitioners and civil society representatives. By pursuing an open and discursive format of the conference, experts from legal, political and related fields, international scholars, practitioners and political representatives, civil society organizations and media representatives were all welcomed as speakers, engaged listeners and other conference participants.
The first panel explored the broader legal and political context in which the OSCE has been operating since its establishment. Subsequently, second panel examined the present legal framework of the OSCE. The third panel then went on to discuss the question of international legal status as a governance issue. Finally, the forth panel analysed legal and institutional implications of legal personality.
on the discursive interaction of the conference (13 July 2016), several
attendants of the event (i.e. Christian Tomuschat, Cedric Ryngaert,
Isabelle Ley, Gleb Bogush) discussed important dimensions of the legal
status of the OSCE in a dedicated symposium on the Völkerrechsblog throughout the first half of the month of August 2016.
Edited volume (Steinbrück Platise, Moser, Peters) “Revisiting the Legal Status of the OSCE”, forthcoming 2018
In parallel to the publication of a series of argumentative pieces on the Völkerrechtsblog, the conveners started to work on the project of an edited volume, in order to pass on the debate to a broader community of scholars, practitioners and civil society more generally. So far, a scholarly analysis of the OSCE’s legal status is lacking, and there is no monograph or edited volume yet dealing with the OSCE’s de jure and de facto situation.
The book has been designed by the three editors – Mateja Steinbrück Platise, Carolyn Moser, and Anne Peters – in such a way as to include selected contributions of conference speakers as well as chapters by other invited experts, which integrate novel aspects into the well-established debate on the OSCE legal status and which had either been brought up during the conference or in the context of the Völkerrechtsblog symposium. Both legal and international relations issues form part of the content of the book.
Under the title “Revisiting the Legal Status of the OSCE”, the book analyses core questions related to the legal status of the OSCE under three cross-cutting headings. The first part entails different perspectives on the quest for international legal personality of the OSCE. The second part of the edited volume deals with a range of cross-cutting issues tied to the manifestation of the OSCE’s current legal position under international law. The third and last part of the edited volume addresses governance issues related to the legal status of the Organization.
The publication of the edited volume, counting in total fifteen chapters, is planned for 2018 with Cambridge University Press. Amongst the authors are a range of distinguished professors, renowned researchers, and experienced practitioners, inter alia (in alphabetical order) Niels Blokker, Laurence Boisson de Chazournes, Tanja Börzel, Petri Hakkarainen, Christian Nünlist, Anne Peters, Isabelle Pingel, Cedric Ryngaert, Helmut Tichy, Ramses Wessel, and Jan Wouters.
Building on the discursive interaction of the conference (13 July 2016), several authors discuss important dimensions of the legal status of the OSCE in a dedicated symposium on the Völkerrechsblog (August 2016). The series of blogposts includes the following contributions:
The publication of an edited volume (Steinbrück Platise/Moser/Peters) is planned for 2018. Under the title “Revisiting the Legal Status of the OSCE”, the book analyses in 15 chapters core questions related to the legal status of the OSCE under three cross-cutting headings. Authors include, inter alia, Niels Blokker, Laurence Boisson de Chazournes, Tanja Börzel, Petri Hakkarainen, Christian Nünlist, Anne Peters, Isabelle Pingel, Cedric Ryngaert, Helmut Tichy, Ramses Wessel, and Jan Wouters
Clara Schindowski | Florian Kriener (student assistants)