Time to tackle the OSCE’s lack of legal status, say participants at Helsinki +40 seminar

COPENHAGEN, 28 April 2015 – The OSCE’s lack of a clear, international legal status and the challenges that result for its personnel, particularly during crisis situations, was the topic of the OSCE Parliamentary Assembly’s latest Helsinki +40 seminar, held on 27 April in Copenhagen.

Participants in the event, including diplomats, legal experts and leading OSCE parliamentarians, noted that the situation in Ukraine, and the problems faced by the Organization in trying to respond rapidly, had brought the long-simmering problem to the fore: The question of granting a legally binding character to the Organization must be tackled once and for all if the OSCE is to fulfill its potential, they said.

The seminar, hosted by the Danish Parliament and in co-operation with the Danish Institute for International Studies (DIIS), was the fourth leg of the OSCE PA’s Helsinki +40 Project. The Project aims to evaluate the OSCE’s past and inspire reform on the occasion of the 40th anniversary of its founding document, the Helsinki Final Act of 1975.

“We need a political shock in the OSCE right now, particularly if we are to finally resolve the legal question. Otherwise, we could very well become irrelevant,” said Project Chair Joao Soares (MP, Portugal), who opened the seminar alongside Peter Juel Jensen, the Head of the Danish Delegation to the OSCE PA.

Lisa Tabassi, the Head of Legal Services at the OSCE Secretariat, and John Bernhard, the Special Advisor of the OSCE Chairperson-in-Office on the Legal Framework, explained that the Organization’s 24 separate entities in 23 countries operate under a broad variety of legal statuses, resulting in a patchwork of privileges and immunities -- and many gaps. 

Without an international legal status in place, the first OSCE Special Monitors deployed to Ukraine had no protection beyond the courtesies extended to official visitors. In the first three weeks of the Mission, its lack of formal legal status meant it could not open bank accounts or obtain customs clearance for equipment and armored vehicles. It took 12 weeks for the OSCE and the Ukrainian government to sign a Memorandum of Understanding on safety guarantees and other privileges for monitors. During that period of limbo, eight personnel were abducted by armed groups.

Tabassi noted that in the case of the OSCE observer mission to two Russian checkpoints on the border with Ukraine, there is still no Memorandum of Understanding in place between the OSCE and the Russian government regarding the deployment practicalities, capacities, privileges, immunities and security of personnel. 

“This problem is not just a theoretical one or a playground for lawyers… It is clearly unacceptable that common and clear rules about status, privileges and immunities are not already in place when the OSCE has to act so rapidly,” Bernhard said.

He described the options currently being considered within the Organization on strengthening its legal status and highlighted the importance of the parliaments of participating States in pushing for action on the issue.

Miodrag Panceski, the Deputy Head of Serbia’s Mission to the OSCE, said Serbia’s Chairmanship of the Organization has stressed the need to achieve tangible progress towards strengthening the legal framework. 

“Recognition of the OSCE as a legal entity and the granting of functional privileges is nothing more and nothing less than what is customarily and routinely granted to other international organizations established under public international law. Let us help the OSCE to provide for what it was created for 40 years ago: to provide for security and to provide for cooperation,” he said.

Seminar participants, including OSCE PA Secretary General Spencer Oliver, PA Vienna office head Ambassador Andreas Nothelle and Karsten Jakob Moller of the DIIS, also reviewed the Organization’s previous attempts to reach consensus on a document that would have the force of law.

“The only way for something this complex, requiring almost treaty ratification by the OSCE’s 57 countries, to work, is perhaps to start with a ‘coalition of the willing’ and build from there,” Oliver said.

“The PA has consistently pushed for the creation of a legal personality of the OSCE and will continue to do so,” he added, stressing that the Assembly’s status as OSCE Institution must be accurately recognized and its staff granted full privileges and immunities.

Previous OSCE PA Helsinki +40 seminars were held in Moscow, Washington and Stockholm. The Project’s final event will be held in Belgrade in May, in co-operation with the Belgrade Fund for Political Excellence (BFPE). 

The results of the Project will be presented as a final report during the OSCE PA’s 24th Annual Session in Helsinki on 6 July.

For more information, visit www.oscepa.org/parliamentary-diplomacy/helsinki40.