The Organization for Security and Co-operation in Europe (OSCE) brings together 57 participating states, including the USA and Russia, which makes it the world’s largest regional security organisation. Its mandate and policy fields are broadly defined, encompassing politico-military, economic, environmental and human aspects. Such a broad mandate enables the organisation to adopt policies in a wide range of security-related matters, including arms control, counter-terrorism, migration, democratisation, human rights, economic and environmental activities. Its transformative power has been well manifested with the fall of the Communist bloc, but its subsequent activities and engagements in Ukraine, Kosovo and other regions continue to evidence the effect of its standard-setting and other activities on different state and non-state actors, including individuals. Thereby, the OSCE acts not only through its permanent institutional structures in various states, including its Headquarters in Vienna, Austria, but also by sending field missions to participating states and third states, as well as by closely cooperating with international organisations, such as the United Nations and the European Union. Indeed, it features many elements of a traditional international organisation – just that it is not one of them.
…it cannot incur any rights and any obligations under international law, and cannot be held internationally responsible for any wrongful act that might result from its activities.
The book The Legal Framework of the OSCE , edited by Mateja Steinbrück Platise, Carolyn Moser and Anne Peters, reveals some less known features of the organisation, for example, that it has never been established as an international organisation under international law, so that, as a matter of principle, it cannot incur any rights and any obligations under international law, and cannot be held internationally responsible for any wrongful act that might result from its activities. Together with a number of legal scholars and political scientists, politicians and international civil servants, the editors analyse how the OSCE managed to keep its character of a purely political interstate cooperation despite its far-reaching mandate and growing competences, how it can function without a founding treaty and an established international legal personality, what are the opportunities and risks of such an informal international governance, and which reform is needed, if any, to address the unsettled legal status of the OSCE.
The pros and cons are assessed to a certain extent differently by different contributors to the book, as they are differently assessed by different participating states of the OSCE. That divergence results in competing scholarly and political calls regarding the future legal framework of the OSCE. Most notably, the USA seeks to protect the organisation’s informal character that enables flexibility and promptness in the OSCE decision-making and crisis response, which some authors view as contributing towards the organization’s effectiveness. Russia, on the other hand, advocates for the adoption of a founding treaty, on the basis of which the OSCE would be granted international legal personality. Several authors seem to agree that such a treaty could ensure greater legitimacy and legal certainty with which the organization and its personnel would operate, which could likewise improve the organization’s effectiveness. Yet, what is more, such a founding treaty would establish a fully-fledged regional security organization, shoulder-to-shoulder with the NATO and the EU – which may be seen as a risk or an advantage, depending on one’s perspective.
While participating states, as well as the OSCE Secretariat, still struggle to reach a compromise solution, such as to award international legal personality to the OSCE without adopting a founding treaty, they might all agree about one finding, well captured in the book: In the past, the OSCE heralded the era of less formal ways of international governance, by accommodating decision-making outside formal structures and institutional processes associated with traditional international organizations – a trait increasingly appreciated by states in times of fast-changing and increasingly diverse societies. Today, however, the OSCE is pioneering in signalling a number of risks that such informal governance carries with it for the organisation and its personnel, for the participating states, for third states and for private parties, including individuals that are adversely affected by such informal or “soft law” governance structures.