36 OSCE

Sannoy Das

Introduction

The Organization for Security and Co-operation in Europe (“OSCE”) is an inter-State ‘regional security’ organization and the largest organization of its type. While its name indicates that the organization deals with security in Europe, its membership includes both North American and Central Asian countries. In fact, as will be evident from this module, the OSCE has had little work to do in Western/Continental Europe in the recent past. Fifty-six countries are members of the OSCE.

This chapter will introduce readers to the history of the OSCE, which has its beginnings in the Helsinki Final Act of 1975, and will chart its transformation from an ad hoc conference to its present organizational form. The module will also explain the institutional structure of the OSCE, the structure and function of three of its key executive arms – the Office for Democratic Institutions and Human Rights, the High Commissioner on National Minorities and the Representative on Freedom of the Media.

Learning Outcomes:

On completing this chapter, the reader is expected to understand:

• The evolution of the OSCE from a Cold-War era conference to a regional security organization;
• The changed nature of OSCE’s functions and the nature of its mandate;
• The structure and function of three of its important executive organs.

A. The Conference on Security and Co-operation in Europe: The predecessor of the OSCE

The Conference on Security and Co-operation in Europe (“CSCE”) opened at Helsinki on 3 July 1973, continued thereafter at Geneva and concluded on 1 August 1975 at Helsinki. The product of the CSCE was the Helsinki Final Act of 1975 – a declaration signed by 35 States/territories, including the Holy See, the United States of America and the Soviet Republic. Set in the context of the Cold-War era, the CSCE was meant to open a channel of dialogue between the ‘West’ and the Eastern Communist bloc to diffuse tension and maintain peace and security in Europe. Its outcome – the Final Act – was not a treaty, not at least in the ordinary sense of a binding legal instrument. It was, however, an expression of some common political will in the form of commitments to ten principles – Sovereign Equality, Refraining from the Threat of Use of Force, Inviolability of Frontiers, Territorial Integrity of States, Peaceful Settlement of Disputes, Non-Intervention in International Affairs, Respect for Human Rights and Fundamental Freedoms, Equal Rights and Self-Determination of Peoples, Co-operation among States, and Fulfilment in Good Faith of Obligations under International Law. The principle guiding the CSCE was security through co-operation and dialogue, and the Final Act reflects a spirit of compromise between the Cold War factions, to the extent that it incorporates both the ‘human-rights’ based concerns of the West and the commitment to territorial integrity, dear to the Soviet. The Final Act envisaged continuous co-operation between the participating States through confidence building measures in military matters and disarmament, co-operation in economics, science, technology and environment, and co-operation in humanitarian and other fields. Lastly, with a view to implementing the commitments made in the CSCE, the Final Act contemplated follow up conferences and other unilateral, bilateral and multilateral measures.

While there were follow up conferences in the fifteen years after the Final Act, the idea of promoting security through dialogue gained only marginal traction, as growing Cold-War animosity only served to deepen the divide between the West and Soviet.

B. Formation of an Organization: Intermediate Steps

With the end of the Cold-War, and a new found enthusiasm in Europe for “democracy, peace and unity”, the heads of CSCE member States met in Paris between 19 and 21 November 1990, concluding the Paris Charter for a New Europe. Aside from reiterating the commitment to the core values of the Helsinki Final Act, particularly to the humanitarian dimension, the Charter took the first steps towards turning the CSCE into an institution, establishing a secretariat in Vienna, a Council consisting of Foreign Ministers of the member States, a Conflict Prevention Centre in Vienna to assist the Council and Office for Free Elections in Warsaw (later, the Office for Democratic Institutions and Human Rights). Functionally, the CSCE remained a forum for co-operation through dialogue, and its new, specialized centers were tasked with the job of collecting information, acting as a contact point for member States and developing mechanisms to achieve the ends laid out in the Paris Charter.

At the CSCE Heads of State meeting at Helsinki during July 1992, further institutional changes to the CSCE were agreed upon. These changes were detailed in the document titled “Challenges of Change”, which shows that the strengthening of the institutional structure of CSCE was found necessary in order for the CSCE to play an important role as Europe reaffirmed its commitment to surge ahead on the basis of certain liberal values that had been declared triumphant at the end of the Cold War. In order to meet challenges that the changing times in Europe put forward, particularly the transition to democracy in several States, the CSCE was equipped with strengthened institutions and more formal structures. The Helsinki document of 1992 is particularly relevant for establishing the office of the Chairman, the troika (a team of three comprising the Chairman in Office, the immediately preceding Chairman and the to-be-successor) and the High Commissioner on National Minorities. In these years, the CSCE’s mandate also witnessed incremental changes to greater ‘action’ in the ‘field’ – for example, the office of the High Commissioner on National Minorities was entrusted with the mandate of diagnosing “early warning” signals in countries with national minority tensions, and recommending and coordinating “early action” in these matters.

Changes in the institutional structure of the CSCE continued through the 1990s. At the Budapest summit of the Heads of State during December 1994, member States expressed a commitment to give a “new political impetus to the CSCE, thus enabling it to play a cardinal role in meeting the challenges of the twenty-first century”. At this summit, the CSCE was renamed, the OSCE, as if to underscore the transformation of its institutional capabilities, and the strengthening of its mandate – to act as the primary instrument for early warning, conflict prevention and crisis management in Europe.

C. The OSCE: Structure and Mandate

While the largest amount of OSCE resources are dedicated to ‘on-field missions’, representing the change from CSCE to OSCE, the keywords to describe OSCE’s functioning remain, till date, co-operation, capacity-building, monitoring and assistance, reflecting in many ways, the ethos of its past. Nonetheless, with the OSCE having established missions in several theatres of conflict in Europe and Central Asia, it is safe to say that the OSCE has been playing a key role in furthering the mandate of establishing peace and security, by fostering, among other things, respect for human rights. At different places, OSCE missions perform different functions that vary from merely facilitating dialogue and negotiation, to more full blooded exercises like training, capacity building and the like. We shall review some of the work done by OSCE missions in the following section.

Institutionally, the OSCE can be broadly divided into ‘decision-making bodies’ and ‘executive structures.’ The decision-making bodies include the Summit (the meeting of the Heads of State), the Ministerial Council (meeting of foreign ministers), the Permanent Council, the Forum for Security Co-operation, the Chairman, the troika, and innovatively, a Parliamentary Assembly composed of law-makers from the member States giving parliamentary input and facilitating co-operation on legislative action. Executive structures, aside from the secretariat, include the Office for Democratic Institutions and Human Rights, Warsaw (“ODIHR”), the High Commissioner on National Minorities, Hague and the Representative on Freedom of Media, Vienna. While these three executive organs have separate mandates that they seek to implement in all OSCE member States, the bulk of OSCE’s work is done through concrete projects in individual host-States through their on-field missions. In the following section, we will take a closer look at the mandate of the executive organs alongside the workings of OSCE missions.

D. Discharging the OSCE Mandate

ODIHR:

The ODIHR is responsible for discharging the ‘human dimension’ of the OSCE mandate. Earlier the Office for Free Elections, the ODIHR still primarily engages in efforts to ensure free elections through election monitoring. The ODIHR is also responsible for dispatching most of the OSCE on-field missions, and for information sharing and assistance to local government authorities. In 2014, the ODIHR led the mission to Ukraine to assess the human rights situation there, and to observe the presidential elections. The ODIHR had also played a key role in reforming Ukraine’s electoral laws that ensured compliance with international domestic standards. The mission in Ukraine, one of the largest in OSCE history, is representative of the work done by the ODIHR – ensuring the elections comply with OSCE commitments, international obligations and standards for democratic elections, and relevant national laws. Alongside its contribution in the electoral  process of member States, the ODIHR plays a key role in promoting observance of human rights, tolerance and non-discrimination, inclusiveness in political processes (particularly of the youth and women), and democratization through long term trial monitoring (as in Georgia) and offering legislative assistance to member States.

High Commissioner on National Minorities:

The High Commissioner on National Minorities is the executive organ with the specific mandate of diagnosing and diffusing ethnic tensions in OSCE member States. Like the ODIHR, it discharges the function of achieving security through the ‘human dimension’, only that its role is in a far narrower context. The chief function of the office is to detect ethnic tensions and threats to rights of minorities in countries, and seek an early resolution of any conflict arising therefrom. The office discharges its functions primarily by examining conditions of minority populations and advising States on national legislation and policies in order to promote harmony between ethnic communities. The office has been particularly influential in promoting minority protection through constitutional provisions in member States.

Recently, the High Commissioner has focused on education as a key driver for ethnic-tolerance in multi-ethnic societies. The office has noted the promise of ‘education’ as a tool for conflict prevention – particularly by encouraging bilingual and multilingual education in member States. Simultaneously, the High Commissioner has encouraged the teaching of national languages to ethnic minorities, in order to enable them to participate more fully in public life, while retaining their distinctive linguistic identity. The office has noted the success of bilingual education in fostering ethnic harmony in Serbia, where the High Commissioner has been actively involved in a bilingual state-funded institute for higher education – the Bujanovac Department of Economics at the Novi Sad University in southern Serbia. Like the ODHIR, the High Commissioner was actively involved in the OSCE mission in Ukraine during 2014.

Representative on Freedom of Media:

The OSCE Representative on Freedom of Media is charged with ensuring that the press/media in OSCE member States remains a free and robust pillar of democracy. Like several other international institutions, OSCE reflects the common consensus that a free media is central to ensuring human freedom, and thus to a robust democracy. Like other avenues of OSCE’s functioning, the underlying principle with this organ is that peace and security is both achievable and stable in areas where governments do not curb the freedom of dissemination of information through media channels. The Representative takes up the cause of journalists with the governments in member States, particularly with a view to fostering environments where journalists can perform their function without fear; where they are secure from threats of violence and harassment.

The Representative on Freedom of Media discharges a large portion of its mandate by observing developments with respect to media in member States, detecting and flagging, like other organs of the OSCE, early warning signals of threat to media freedom. Simultaneously, the Representative engages in the constructive work of assisting member States achieve compliance with their obligations under various international laws and OSCE standards with respect to free expression. In an attempt to ensure that the freedom of media remains meaningful in a contemporary setting, the office of the Representative has, in recent times, focused its efforts on ensuring that member States protect a free internet.

While being committed to the idea that a free media is a sine qua non for a robust democracy, the Representative recognizes the importance of regulation in order to rein in hate speech, a problem now made particularly pernicious through the free internet based media. The Representative has recognized that the lack of regulation in this sphere is, at once, the strength and the pitfall of this form of dissemination.

E. Pitfalls & Criticism

Two broad forms of criticism can be levied at the functioning of the OSCE – the first, instrumental, and the second, political. From an instrumental perspective, it is important that the legal framework of the OSCE’s functioning lacks clarity, particularly with respect to the status of the organization. It is neither a regional co-operation organization in the sense of the erstwhile European Community, or other lesser integrated ones, nor a security organization like the Security Council. Its role in member States continues to remain undefined, and each mission is instituted in an ad hoc manner with a varied mandate and power. Most notably, it appears that any success of OSCE missions depends on the hospitability of host States. Thus, while the OSCE gives the appearance of a supra-national entity, it lacks the usual potential associated other treaty-based alliances. Indeed, the OSCE cannot be traced to any foundational treaty or document. Given the history of the OSCE and its gradual transformation from a forum for dialogue to one with a seemingly executive mandate, the absence of a clear watershed moment that clarifies its status as a matter of law continues to limit its efficacy.

The CSCE was constituted as a platform for dialogue between powers that had ideological differences over the nature of the world order. The broadly western ideal of a ‘liberal democracy’ was the visible opposite of Communism. However, the end of the Cold War pronounced a clear victory for one of these two views, and the OSCE is an organization conceived in the immediate aftermath of that victory, with a view to sealing the ideological triumph. Naturally, the OSCE has been criticized for being complicit, despite being a regional organization, in the project of the ‘West’, with a visible ideological bent. It is clearly evident that most of the OSCE missions and its efforts have been directed at east European and Central Asian countries, which were either a part of the former USSR, or under its influence. Inevitably, the OSCE has been accused of having an “unbalanced geographical bent”, by acting as a conduit for imposition of certain broadly ‘Euro-Atlantic’ values on its members from the East. As an institution, however, the OSCE has refuted such charges, particularly in view of its election monitoring activities in several western European countries, as in the United States and Canada.

OSCE in Ukraine

In March 2014, OSCE deployed a Special Monitoring Mission to Ukraine. The initial mandate for six months has been extended from time to time, and now stands extended to March 2016. The Special Monitoring Mission has deployed more than 400 international civilian monitors in conflict zones in Ukraine.

Operating on principles of neutrality and transparency, monitors are tasked with gathering information in conflict zones and preparing reports based on such information. These help establish “facts” in relation with incidents, thus facilitating interventions to defuse tensions. The SMM in Ukraine has monitored the implementation of the “Minsk Documents” – a set of agreements containing key elements of a peaceful settlement in Eastern Ukraine. In crisis situations, OSCE monitors have facilitated access for civilians to humanitarian aid, as also collection of information/physical materials at sites like the crash-site of the Malaysian Airlines flight MH-17, widely reported to have been shot down.

Given Russian involvement in the Ukrainian crisis, the OSCE has played a key intermediary role, facilitating the dissemination of information on the Russian role among OSCE States, carrying with itself an imprimatur of neutrality and transparency. The OSCE placed, at the request of the Russian government, an observer mission to the two Russian check-points at Gukovo and Donetsk along the Russia-Ukraine border.

OSCE institutions – the ODIHR, the High Commissioner on National Minorities and the Representative on the Freedom of Media – have been involved with OSCE’s mission in Ukraine. The ODIHR has initiated a programme that will help civil society and the State to respond to hate crimes and other religious strife that have been thrown into sharp relief, given the conflict in the east of Ukraine. The High Commissioner has been more particularly concerned with inter-ethnic conflicts rising in Crimea and the possible worsening in the aftermath of what has been described as the Russian “annexation” of Crimea. Finally, the Representative on the Freedom of Media has been involved in assessing and publicizing the threats to journalists reporting from Ukraine, with a view to improving safety for journalists and increasing their access – a concern that 15 OXFORD ENCYCLOPEDIA, supra note 2 at 5.

Summary

The OSCE is a regional security organization with fifty-six members, including all European countries and some Central Asian and North American States. The underlying focus of the organization is to foster peace and harmony in Europe by working with national governments on diverse matters, including politico-military and human rights issues. A significant portion of OSCE’s work is dedicated to its ‘human dimension’, motivated by the belief that regional security can be ensured by paying close attention to securing human rights. Within the human dimension, the OSCE is particularly influential in detecting warning signals, sharing information and assisting member States develop appropriate laws and policies with respect to democratic commitments (elections), minority rights and various other freedoms. Three important executive organs of the OSCE – the ODIHR, the High Commissioner on National Minorities and the Representative on the Freedom of Media – play key roles in discharging the humanitarian component of the OSCE mandate. However, it must be borne in mind that the OSCE continues to face challenges owing to some ambiguity with respect to its legal status and the nature of its mandate. This has to do significantly with the fact that the OSCE is an organization that succeeded an ad hoc conference known as the CSCE, which during the Cold War era was a platform for dialogue between opposing blocs.

Reference

1. Conference on Security and Co-operation in Europe Final Act, Helsinki 1975, available at http://www.osce.org/mc/39501?download=true (last visited on Sep. 19, 2015) (hereinafter “Helsinki Final Act”).
2. Organization for Security and Co-operation in Europe, in THE OXFORD INTERNATIONAL ENCYCLOPEDIA OF PEACE 1 (Nigel Young ed., Oxford, 2010, Online Version) (hereinafter “OXFORD ENCYCLOPEDIA”).
3. Conference for Security and Co-operation in Europe, Third Summit, CSCE Helsinki Document 1992, The Challenges of Change, Helsinki, July 1992, available at http://www.osce.org/mc/39530?download=true (last visited on Sep. 19, 2015).
4. CSCE Budapest Document 1994, Towards a Genuine Partnership in a New Era, Budapest Summit Declaration, available at http://www.osce.org/mc/39554?download=true (last visited on Sep. 19, 2015).
5. ORGANIZATION FOR SECURITY AND CO-OPERATION IN EUROPE, ANNUAL REPORT 2014 46-49, available at http://www.osce.org/secretariat/169971?download=true (last visited on Sep. 19, 2015) (hereinafter “OSCE ANNUAL REPORT”).
6. Arie Bloed, Organization for Security and Co-operation in Europe, 29 NETH. Q. HUM. RTS. 535, 536 (2011).