TIME FOR ANOTHER LOOK AT A CHARTER FOR THE OSCE?

UNCLAS USOSCE 000141 E.O. 12958: N/A TAGS: OSCE AORC PREL SUBJECT: TIME FOR ANOTHER LOOK AT A CHARTER FOR THE OSCE? Introduction: ¶1. Many countries, led by Russia, have long argued that the legal status of the OSCE should be upgraded to that of a full-fledged international organization. Doing so would remove legal uncertainties hanging over the personnel, improve efficiencies and reduce costs. While there is a general consensus on the need to upgrade, there have been serious divisions about the nature and extent of that upgrade. The result has been deadlock. The United States has come around to the idea that a convention on legal personality and privileges and immunities would be useful, but we have consistently opposed a more ambitious proposal to create a full-fledged Charter, since we argued it would supersede and undermine the political commitments which are the foundation of the OSCE and its work, and might be seen as perceived alternative to NATO's role on European security issues. In view of the upcoming informal OSCE Ministerial in Corfu June 28-29 where Russian proposals for a legally-binding European Security Treaty will be discussed, we would welcome refreshed guidance on the current U.S. position. Background: Convention or Charter? ¶2. The Organization for Security and Cooperation in Europe (OSCE) is not a treaty-based international organization -- or in fact technically an "international organization" at all. As the successor to the CSCE, initially established to negotiate the 1975 Helsinki Final Act, the OSCE transformed itself into an "organization" in 1994 on the basis of a political agreement. Participating States agreed at the 1993 Rome Ministerial to adopt national legislation providing for legal personality and privileges and immunities under national law, but only a minority (including the United States) did so, while a number of participating States argue that it is legally infeasible to do so within their domestic legal frameworks. Since that time, some participating States have thus urged adoption of a legally-binding convention to formalize its status as an international organization. This would afford the OSCE full international legal personality and require participating States to extend specified privileges and immun ities, tax-exempt status, and other Vienna Convention protections for the OSCE and its staff, premises and archives. Such provisions would both increase the OSCE's financial efficiency and significantly facilitate the work of OSCE missions in increasingly hostile host states. ¶3. An experts' group began work on a draft legal personality convention in the late 1990s, but work ceased after 9/11. Pressure to renew the effort began in 2005, and in late 2006 the USG decided to reverse its longstanding opposition to such a convention and support completion of the draft -- so long as it was limited to legal personality and privileges and immunities. Over the course of 2007 a text was effectively finalized, although Russia blocked conclusion by insisting that a "Charter" must be negotiated and enter into force simultaneously. The proposal for a Charter for the OSCE was adopted by the "Eminent Persons Report" on OSCE reform, but never taken up due to U.S. rejection of the idea. Russia offered a draft Charter text in May 2007. ¶4. Virtually all IOs have a charter -- a document setting forth the mandate and structure of the organization, as well as establishing its legal personality and privileges and immunities. It would be unusual (although not unprecedented) for the OSCE to have only a document providing for legal personality and privileges and immunities. Russia's demand for a charter is thus not inherently unreasonable, nor for the most part are the terms of its proposed text. Adoption of a charter, however, could undercut the existing acquis (the accumulated body of OSCE decisions -- including many made in the early 1990s when Russia and other FSU participating States were more supportive of Helsinki Final Act and other basic OSCE principles) by creating two levels of OSCE decisions -- a treaty-based and legally-binding Charter, with all previous political commitments in an inferior status. Negotiation of a charter, even if unsuccessful, could cast doubt on the standing of the acquis on the basis of which the OSCE now operates, permanently weakening its authority and functioning. The United States has for these reasons maintained its opposition to opening negotiations on a charter. ¶5. In an effort to get the process back on track, the Finnish Chairmanship last October organized a roundtable to provide a platform for an open dialogue on the draft Convention and to consider the work of an informal working group which had been tasked with examining the issue in greater depth. Most of the discussion focused on both the need for and the sufficiency of a legal personality convention to ensure the OSCE's continued effectiveness, but some also revisited the arguments in favor of linking the adoption of a convention to that of a full-fledged legal charter. The December 2008 Helsinki Ministerial approved a cautiously-worded decision tasking the Greek Chairmanship to "pursue a dialogue on strengthening the legal framework of the OSCE" and to report to the Athens Ministerial in December ¶2009. (To underscore the outstanding differences, the Russians and five other traditionally allied delegations appended an interpretative statement to that decision expressing their view that a Convention and a Charter should be adopted simultaneously.) ¶6. On April 30, the Greek Chairmanship announced the appointment of Zinovia Stavridi, the Deputy Legal Adviser in the Greek Foreign Ministry, as Personal Representative for the strengthening of the legal framework of the OSCE. Her mandate from the Chairmanship is "to support dialogue among the OSCE participating States to strengthen he legal framework of the OSCE, focusing on the legal personality of the OSCE(" No doubt, however, as past experience has shown, the question of whether to approve a Charter along with a Convention will be prominent among the topics she will cover. She hosted an informal discussion May 11 with interested participating States which saw a restatement of existing positions and covered littlenew ground in the debate. She will meet with the U.S. Delegation June 16 and hold another informal roundtable discussion for interested delegations the next day. Charter Pros & Cons ¶7. Those favoring a Charter generally cite the arguments in favor of an upgrade in the OSCE's legal status and insist that OSCE's transformation from a Conference to a full-fledged international organization can only be accomplished by a set of international statutes or a Charter. A 2005 report "Common Purpose: Towards a More Effective OSCE" by an OSCE-designated "Panel of Eminent Persons" is often referenced by Charter advocates. The panel called for structural reform, believing the organization was "handicapped" by its lack of a legl personality, noting that a Charter would "help the OSCE to become a full-scale regional organization." ¶8. The lack of a legally-binding mandate and of firmly-established structures with an independent legal basis is disturbing to many participating States. Adding such elements would give the OSCE a sounder institutional foundation, less subject to the whims (as some see it) of powerful participating States such as the United States and Russia. The United States' opposition is seen by some as counter-productively weakening the OSCE. Substantively, the Russian draft purports to carry over intact the existing acquis, and Russia has insisted that it is committed to no specific provisions in its draft and wishes to maintain the OSCE's accomplishments to date. ¶9. In an early May discussion, Senior Counselor Valerie Masalin, the Russian Deegton representative to the legal personality discussion, insisted on Russia's desire to see the OSCE attain a legal status comparable to the United Nations. He did not offer much substance, even when we pressed, remarking only that a Charter would give the OSCE some needed clarity and allow it to operate like other international organizations. He alluded to Russia's hindrance of OSCE activities in Afghanistan, citing the value of "having standing" with other international organizations that a charter would allow. He did not explicitly link progress on a charter to a proposed European Security Treaty but he cited the improved climate the treaty proposal has provided for the Charter discussions. ¶10. Charter opponents, including most prominently the U.S., divide their opposition into two main arguments: questioning the intentions of those favoring a charter and concern about the requirements that a legally binding OSCE could impose on member States, including how those demands might conflict with NATO treaty prerogatives. There is also a more unspoken concern --that a Charter would alter the balance of power between participating States and the permanent Secretariat staff, empowering the Secretariat to carry out activities based on their own interpretation of a legal mandate rather than the express will of national governments. ¶11. Many believe the goal of the Russians in leading the charge for a Charter is to create a narrower, higher tier of legally-binding commitments confined to the security dimension, thereby relatively weakening U.S.-priority political commitments, particularly in the human dimension. Since the terms of a Charter would have to be agreed by all participating States, some believe it is almost inevitable that some important elements of the acquis would be lost or "reinterpreted" in the process of incorporating them into the Charter. The Russian draft charter, however, makes clear in its preamble that "all those (UN Charter, Helsinki Final Act, Charter of Paris, the Charter for European Security as well as .. all other CSCE/OSCE commitments and documents to which we all agreed since 1975) represent our common commitments and are foundation for our work, and that all of them apply equally, and to all Member States." ¶12. In addition many view Russia's championship of the Charter as a way of establishing a European regional organization -- in which it would enjoy a veto -- as a rival to NATO, thus undermining the Alliance. On a related point, even if a Charter is not in the end agreed, the fact of "failing" in such an attempt would discredit and weaken the OSCE. Finally, on a more practical and prosaic level, in light of longstanding difficulties in paying assessed contributions, the U.S. prefers not to establish new legal obligations to do so. ¶13. USOSCE requests refreshed guidance on the question of a charter in advance of more substantial discussions on the topic likely to begin later this month. Scott