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