Status under international law

These attributes include standing decision-making bodies, permanent headquarters and institutions, permanent staff, regular financial resources and field offices. Most of the OSCE’s instruments, decisions and commitments are framed in legal language and their interpretation requires an understanding of the principles of international law and the standard techniques of the law of treaties.

The fact that OSCE commitments are not legally binding does not detract from their efficacy. Having been signed at the highest political level, they have an authority that is arguably as strong as any legal statute under international law. It does present, however, several real-life challenges for OSCE officials and structures, such as the conclusion of contracts or the purchase of equipment. Often, memorandums of understanding are used to outline agreements with third parties, replacing legally enforceable documents.

After 1990, the CSCECSCE
Conference on Security and Co-operation in Europe underwent a period of institutionalization that led to the creation of many of its organizational structures of today, such as the Secretariat, the Conflict Prevention Centre and the field operations. This evolution meant that the CSCE had developed from a conference process into a full-fledged organization. In 1993, the Russian Federation proposed at the Rome Council meeting to transform the CSCE into an international organization with legal status but the participating States did not adopt the decision. They did, however, consider the report of an ad hoc Group of Legal and Other Experts on the relevance of an agreement granting internationally recognized status to the CSCE institutions, and adopted the 'Rome decision' on legal capacity, privileges and immunities. Over the years, only a quarter of the participating States have implemented this decision.

One year later, at the 1994 Budapest Summit, the States adopted a proposal by the United States to rename the CSCE the Organization for Security and Co-operation in Europe, with effect from 1 January 1995. As part of the same decision, several other CSCE institutions were renamed: the CSCE Council became the Ministerial Council, the Committee of Senior Officials turned into the Senior Council and the Permanent Committee was renamed the Permanent Council.

These name changes, however, altered neither the character of CSCE commitments nor the status of the CSCE and its institutions, as the Budapest decision explicitly noted. 

One OSCE body created in the 1990s was given a legal status: the Court of Conciliation and Arbitration in Geneva, established by the legally binding Convention on Conciliation and Arbitration with the CSCE in 1995. The Court, which operates as an independent institution according to OSCE principles, is not a permanent jurisdiction.

Towards the end of the 20th century, the participating States revived the discussions on a legal personality for the OSCE in different forums. At the Istanbul Summit 1999, the Heads of State or Government tasked the Permanent Council, through an informal open-ended working group, to draw up recommendations on how to improve the situation.

In 2005, an OSCE Panel of Eminent Persons presented the Slovenian Chairpersonship with a report on strengthening the effectiveness of the Organization and made recommendations on “a concise Statute or Charter of the OSCE” and “a convention recognizing the OSCE’s legal capacity and granting privileges and immunities to the OSCE and its officials”.

A year later, at the Brussels Ministerial Council in 2006, a working group was established to finalize a Draft Convention on the International Legal Personality, Legal Capacity, and Privileges and Immunities of the OSCE. This open-ended Informal Working Group on Strengthening the Legal Framework of the OSCE aimed at advancing the dialogue among participating States, further to a Ministerial Council decision on the topic. It met, until 2022, two to three times per year in an ongoing effort to achieve legal protection for the OSCE and its officials, and to reach a solution that would grant international legal personality to the Organization.

The Informal Working Group has developed four possible options to secure a legal personality for the OSCE:

• Option 1: Adoption of the 2007 Draft Convention
• Option 2: Adoption of a constituent document prior to, or in parallel with, adoption of the 2007 Draft Convention
• Option 3: Development of a “Convention Plus” (a hybrid solution consisting of elements of a constituent document incorporated into the 2007 Draft Convention)
• Option 4: Implementation of the 1993 Rome Council Decision through signature and ratification of the 2007 Draft Convention by a group of interested participating States.