The Conference on Security and Co-operation in Europe (CSCE), renamed in 1994 the Organisation for Security and Co-operation in Europe (OSCE), is not strictly speaking a European organisation. Although its members now include all European countries, some other states, such as the United States, Canada and Tajikistan, are also members. Although the Organisation’s main focus is regional security it provides a comprehensive system in the field of human rights protection, differing considerably from that of other international bodies. For one, the OSCE standards do not generally impose enforceable international legal obligations, nor do they contain a list of rights to be protected. The instruments are of a more political nature, and have provided states and international bodies with valuable guidance in formulating standards as to what is ‘politically acceptable’ to states.
The CSCE came into being in the wake of the Cold War, when tensions between East and West had eased to such an extent that both blocs agreed to sit at one table to discuss the future. The preparatory talks that marked the start of the actual negotiating process for the CSCE took place between November 1972 and June 1973 in Helsinki. The Conference on Security and Co-operation in Europe was officially opened on 3 July 1973 in Helsinki. The subjects for discussion in Helsinki were divided into headings, which have become known as the three ‘Baskets’ of Helsinki: a) Matters of European security (First Basket); b) Co-operation in the field of economics, science, technology and environment (Second Basket); and c) Co-operation on humanitarian matters, including information, education and culture (Third Basket).
The CSCE was formally created by the Helsinki Final Act (HFA) in August 1975, which was signed by 35 states, 33 European, plus the United States and Canada. In March 2009, the OSCE has 56 participating states from Europe, Asia and North America.
East-West relations were still strained, however, in 1975, so it was not until 1989 —the year in which a wave of liberalisation swept across Eastern Europe —that a breakthrough within the CSCE framework in the field of human rights proved possible, resulting in the adoption of the Charter of Paris for a New Europe (1990), an event that marked the end of the Cold War.
The links between the Baskets form one of the most important elements of the HFA and, to maintain the CSCE/OSCE as an integral process, it is essential to strive for balanced progress in all three. The HFA is not a treaty and its provisions are not legally binding on the signatories. They conceived it as a nonbinding instrument proclaiming political commitments. According to the Preamble ‘determination to respect and put into practice [...] the following principles, which are all of primary significance, guiding their mutual relations’, setting out political commitments. The great achievement of the CSCE in the field of human rights and related issues was embodied mainly in Principle VII (‘respect for the human rights and fundamental freedoms, including freedoms of thought, conscience, religion or belief’); Principle VIII (‘equal rights and self-determination of peoples’); and in the First and Third ‘Baskets’. The Vienna Concluding Document (1989) consolidated the subject of human rights previously dealt with in Baskets I and III, and it subsumed both topics under the heading ‘Human Dimension of CSCE’ (see below).
A. Principal organs and institutional aspects
The CSCE/OSCE was established as a process; until 1990 there were no formal institutions. Even now, a strong emphasis is placed on the process-aspects. The OSCE process consists of the convening by the participating states of periodic inter-governmental conferences, meetings, and consultations to discuss the relations between the participating states, based on the principles of sovereignty and equality. In principle, proposals could only be accepted if they commanded a consensus, but at the Prague meeting in February 1992 the ‘consensus minus one’ principle was introduced for decision—aking in ‘cases of clear, gross and uncorrected violations of relevant CSCE commitments’ related to the Human Dimension principles of the CSCE/OSCE. This principle was used to suspend Yugoslavia in 1992. The pertinent provision in the Prague document has the heading ‘safeguarding human rights, democracy and the rule of law’.
The fact that the CSCE/OSCE is still an ongoing process is reflected in the periodic Meetings of Heads of States and/or Ministers and the various interim expert meetings and forums. The Meetings of Heads of States are preceded by Review Conferences. These Review Conferences aim to examine the degree to which the HFA has been implemented (the so-called implementation debate), to reach new agreements on improvements in the implementation of the Final Act, and, where necessary, to define and clarify its provisions.
Until the adoption of the Charter of Paris for a New Europe (1990), the institutional structure was very limited; no secretariat existed, the country hosting a meeting made the agenda, consulted all participants and provided services. Since the Paris Charter, the countries agreed to hold highlevel meetings on a more regular basis; generally, there is a meeting of Heads of State or Government every two years while the Foreign Ministers meet annually in the Ministerial Council, the main decision-making body. The OSCE’s regular body for political consultation and decision-making is the Permanent Council, which meets every week in Vienna and is composed of the permanent representatives of the OSCE participating states. The Permanent Council can be convened for emergency purposes. In the years following the Paris Charter the Committee of Senior Officials, since 1994 the Senior Council, was very active but in recent years it has become less important. Since 1993, an Economic Forum has been held every year, in May, in Prague. Since 1992, there is also a CSCE/OSCE Parliamentary Assembly meeting annually in Copenhagen.
To support the new CSCE/OSCE structure, the following bodies were created at the beginning of the 1990s:
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A Secretariat (Prague)
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A Centre for Conflict Prevention, as well as the office of the Secretary-General (Vienna)
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An Office for Democratic Institutions and Human Rights (ODIHR) (Warsaw)
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High Commissioner on National Minorities (The Hague)
The 1992 Helsinki Summit led to the establishment of new institutions of relevance for the Human Dimension and a framework for monitoring compliance, conflict prevention (‘early warning’ and ‘early action’), and implementation. In addition, the function of Chairman-in-Office was formalised. This function has become increasingly important as the Chairman has overall responsibility for executive action. Preceding and succeeding chairmen assist the Chairman-in-Office, together constituting the ‘Troika’. The chairmanship rotates annually.
B. Standards and supervisory mechanisms
1. Human Dimension of the CSCE/OSCE
The Human Dimension may be defined as the corpus of undertakings laid down in the Helsinki Final Act and in other CSCE/OSCE documents concerning respect for human rights and fundamental freedoms, human contacts and other related issues, including the rule of law and democracy. The expression ‘Human Dimension’ refers to the Seventh Principle of the 1975 Helsinki Final Act and a large part of the Third Basket introduced in the 1989 Vienna Final Act.
During the Cold War era, the differences between East and West were particularly apparent in the human rights field. While Western delegations emphasised civil and political rights and their close links with other CSCE issues, the communist countries emphasised economic, social and cultural rights and the principle of non-intervention. At the CSCE-meetings in the 1970s and early 1980s, results were only achieved in fields such as:
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Human contacts; related to matters like family reunion, marriage between nationals of two participating states, travel (visa and passport applications), international exchanges of young people, and sports.
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The free exchange of information; agreements were reached to improve the availability of newspapers and ease restrictions on journalists even in the difficult times of the Cold War.
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Cultural co-operation and exchange; since the adoption of the Madrid Concluding Document (1983) (see below), attempts were made to clear obstacles in this field. The establishment of a direct dialogue was also the ulterior objective of the Budapest Cultural Forum in the autumn of 1985.
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Initiatives to co-operate in the field of education; the exchange of students, tutors and academics; scientific co-operation, the dissemination of scientific information and co-operation in research; the study of foreign languages; and the exchange of experience in education.
HELSINKI DECALOGUE
The participating states at the 1975 CSCE meeting in Helsinki declared their intention to conduct their relations in the spirit of the following ten principles:
1. Sovereign equality, respect for the rights inherent in sovereignty;
2. Refraining from the threat or use of force;
3. Inviolability of frontiers;
4. Territorial integrity of states;
5. Peaceful settlement of disputes;
6. Non-intervention in internal affairs;
7. Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief;
8. Equal rights and self-determination of peoples;
9. Co-operation among states;
10. Fulfilment in good faith of obligations under international law.
As a result of the processes of Glasnost and Perestroika, initiated in the Soviet Union by President Michael Gorbachev in 1985, the political upheaval in Eastern Europe led to a narrowing of the gap between East and West on human rights issues. The CSCE strongly supported the radical changes taking place in Central and Eastern Europe and made use of the changes to agree on concrete commitments regarding human rights. Not only were the norms extended and deepened but also the supervisory mechanism was significantly improved.
The meetings held since Helsinki 1975, relevant to the Human Dimension, including standardsetting achievements, are summarised below.
The First Follow-up Meeting (Belgrade, October 1977 March 1978) ended after a year of discussions with a largely pointless final document in which the participating states agreed to reconvene at a later date.
The Second Follow-up Meeting in Madrid lasted with breaks from 11 November 1980 until 9 September 1983 and did result in a substantial concluding document. The participants codified a number of new commitments, including in the Human Dimension field the right to establish and join trade unions, the right of trade unions freely to exercise their activities, religious freedom and the equality of the sexes. In addition, the CSCE countries agreed on better arrangements for reuniting families.
The Third Follow-up Meeting took place in Vienna between 4 November 1986 and 19 January 1989. Here the participants were able to make significant progress on all Baskets, particularly the Third. Additional commitments were reached which signified a qualitative step forward: the right of every person to leave and return to his or her country; religious freedom; the rights of detainees; the right to effective remedy and to fair trial; and some rights of persons belonging to minorities.
In Vienna, the CSCE participating states also agreed on a Conference on the Human Dimension (CHD) consisting of three meetings to be held before the Fourth Follow-up Meeting in Helsinki in 1992. Especially the second CHD meeting in Copenhagen (June 1990) is regarded as a longawaited breakthrough in the Human Dimension of the CSCE. Thanks to the political change in Central and Eastern Europe, all the communist regimes had changed or collapsed. With the adoption of the Copenhagen document, the CSCE participating states committed themselves to pluralist democracy and the rule of law as the essential preconditions for the protection of fundamental human rights and freedoms. Special mention should be made of some of the additional provisions: freedom of expression; freedom of peaceful assembly and association; affirmation of the will of the people as the basis of the authority of government and of the rule of law; and limitations on provisions regarding the restriction of human rights. The agreed text with rights of persons belonging to minorities has served since as one of the most important guidelines on minority rights.
This is an especially important addition, because it was the first time since the Second World War that a multilateral human rights forum adopted a catalogue of minority rights. The third and last CHD meeting (Moscow, 1991) added some CSCE commitments in the field of the Human Dimension. It included the protection of human rights during a state of emergency; the right to peaceful enjoyment of one’s possessions; the question of humanitarian access; the rights of women; and the rights of disabled people.
In 1992, the Fourth Follow-up Meeting was held in Helsinki, followed by the above-mentioned Summit of Heads of State or Government. Given the shift of emphasis from standard setting to supervision and implementation, the final document of Helsinki included only limited additional commitments to standards. Included were, inter alia, the protection of minorities (including the prohibition of ethnic cleansing) and indigenous populations, the protection of refugees and displaced persons and the right to citizenship.
The Fifth Follow-up Meeting, now called Review Conference, took place in Budapest in 1994, again followed by a Summit of Heads of State or Government. Determined to give the CSCE new political impetus at the 1994 Budapest Summit, 52 heads of state or government from CSCE participating states renamed CSCE the Organisation for Security and Co-operation in Europe (OSCE). A Code of Conduct on Politico-Military Aspects of Security was adopted, setting forth principles guiding the role of armed forces in democratic societies. The most important improvement concerned the attention being paid to the issues of the Roma and Sinti.
A summit meeting of the Heads of State or Government took place in Lisbon in 1996 and concluded with the Lisbon Document 1996. The main results of the Lisbon meeting were related to the area of security problems. The Istanbul Summit (1999) resulted in the signing of the Charter for European Security and the adoption of the Istanbul Summit Declaration. It did not lead to major new standards in the human dimension field.
Multilateral mechanisms for supervising the Human Dimension of the OSCE
The OSCE has established a number of tools to monitor the implementation of commitments that participating states have undertaken in the field of human rights and democracy (human dimension). During the era of East-West confrontation, no agreement could be reached as to the control over the supervision of agreed standards. It was therefore a great breakthrough when, with the final document of the Third Follow-up Meeting in Vienna (1989), the participating states created a relatively far-reaching supervisory mechanism for the Human Dimension. It confirmed formally that Human Dimension issues were no longer considered internal affairs, through the acceptance of a so-called droit de regard. The meeting created a formal mechanism to deal with human rights violations which can be invoked on an ad hoc basis by any individual participating state or group of states. The ‘Vienna Mechanism’, is an inter-state complaints mechanism of sorts, allowing participating states, through an established set of procedures, to raise questions relating to the human dimension situation in other OSCE states. One of the first cases dealt with was that of the detention of Vaclav Havel, Czech human rights activist and later President. The mechanism was frequently used by countries bilaterally, as well as by the EU. It was used both in reaction to the violations of human rights of individuals, and to raise general human rights issues or draw attention to specific situations. It should be noted that the Vienna Mechanism was chiefly used by Western countries to raise issues in Central and Eastern Europe but seldom vice versa. While its value has been reduced by the substantial changes in Central and Eastern Europe, it still has some importance.
2. Expert Missions and Rapporteurs
The Moscow Mechanism (established at the last meeting of the Conference on the Human Dimension in Moscow in 1991) builds on the Vienna Mechanism providing for the possibility for participating states to establish ad hoc missions of independent experts to assist in the resolution of a specific human dimension problem either on their own territory or in other OSCE states. The mission of experts can either be invited by the participating state concerned, or initiated by a group of six or more participating states. The mission may gather information that is necessary for carrying out its tasks and, if appropriate, use its good offices and mediation services to promote dialogue and co-operation among interested parties.
The mandate of the missions can vary according to the procedure from which the missions arise. In general, the powers of missions of experts go beyond those of missions of rapporteurs. The powers of the latter are mainly related to fact-finding and the rendering of advice or proposals for the solution of the questions raised. Missions of experts have a broader mandate aiming at facilitating the resolution of a particular question or problem relating to the Human Dimension of the OSCE. For that purpose, these missions may gather information and, as appropriate, use their good offices and mediation services to promote dialogue and co-operation among states. The Moscow Mechanism has for instance been employed to investigate reports of atrocities and attacks on unarmed civilians in Croatia and Bosnia-Herzegovina (1992), to study Estonian legislation and to compare it and its implementation with universally accepted human-rights norms (1992), to investigate legislation and implementation of minorities’ rights and interethnic relations in Moldova (1993), to investigate reports of human rights violations in Serbia-Montenegro (this mission was unable to fulfil its task because of the authorities’ lack of co-operation) (1993), in relation to Turkmenistan to examine concerns arising out of investigations resulting from the reported attack on 25 November 2002 on President Niyazov (December 2002 – March 2003).
The Office for Democratic Institutions and Human Rights (ODIHR) (see below) is designated to provide support for the implementation of the Moscow Mechanism. It maintains a list of experts appointed by participating states to carry out Moscow Mechanism functions.
3. High Commissioner on National Minorities
The position of a High Commissioner on National Minorities (HCNM) was established in the final document of the Helsinki Follow-up Meeting (1992). The Office of the High Commissioner is located in The Hague, the Netherlands. The High Commissioner’s role is to identify, and seek an early resolution of ethnic tensions that might endanger peace, stability or friendly relations between the OSCE participating states. The establishment of the post demonstrates how human rights protection has been incorporated into the organisation’s modern security concept. The High Commissioner’s mandate includes acting as ‘an instrument of conflict prevention at the earliest possible stage’. The High Commissioner does not function as an international minorities’ ombudsman or as an investigator of individual human rights violations. The mandate does not contain a description or definition of what constitutes a national minority. The High Commissioner has been involved in minority issues in many OSCE participating states, including Albania, Croatia, Estonia, Hungary, Kazakhstan, Kyrgyzstan, Latvia, Romania, Slovakia, Macedonia and the Ukraine. Although not established under the heading of the Human Dimension, its early warning and early action mandate have contributed significantly to improving the supervisory system of the OSCE.
The Former Foreign Minister of the Netherlands, Max van der Stoel, acted as HCNM from January 1993 until July 2000. He was succeeded by Swedish diplomat Rolf Ekeus who served from 2001 till 2007 when former Foreign Minister of Norway, Knut Vollebaek, was appointed to the post.
4. Office for Democratic Institutions and Human Rights
Since the end of the Cold War, the OSCE has strongly emphasised implementation; with this aim, it established, inter alia, the Office of Free Elections (1990), later renamed ‘Office for Democratic Institutions and Human Rights’ (ODIHR) and the position of the Representative on Freedom of the Media (see below).
The ODIHR, based in Warsaw, Poland, is OSCE’s specialised institution dealing with elections, human rights and democratisation. It:
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promotes democratic election processes through the election monitoring and election assistance projects;
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assists states in the implementation of their human dimension commitments by providing expertise and practical support to strengthen democratic institutions through programmes to enhance the rule of law, civil society and democratic governance;
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assists field missions in implementing their human dimension activities, including through training, exchange of experiences and regional co-ordination;
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contributes to early warning and conflict prevention by monitoring the implementation of human dimension commitments; provides regular human rights training for government authorities, civil society and OSCE staff;
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assists states with the implementation of international legal obligations and OSCE commitments on anti-terrorism in compliance with international human rights standards;
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assists states in implementing their commitments on tolerance and non-discrimination and supports efforts to respond to, and combat, hate crimes and incidents of racism, anti-Semitism, and other forms of intolerance, including against Muslims;
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acts as the OSCE Contact Point for Roma and Sinti Issues; promotes the integration of these minorities into the societies in which they live;
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organizes regular meetings on the implementation of human dimension commitments, such as the Human Dimension Implementation Meeting, the annual Human Dimension Seminar and Supplementary Human Dimension Meetings; and
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works to ensure gender mainstreaming while implementing, in parallel, activities designed to improve the situation of women in the OSCE countries.
The ODIHR plays an important role in the field of democracy-building in the Central and Eastern European states. It employees around 40 staff members, in addition to a number of external experts on special service agreements contracted to implement projects. The OSCE has established various missions and field operations in a number of countries and carried out extensive field activities.
5. Representative on Freedom of the Media
Another mechanism for implementation and supervision has been developed in the field of freedom of expression and its corollary freedom of the media. The OSCE created the position of Representative on Freedom of the Media in 1997 to observe all relevant media developments and provide early warning on violations of freedom of expression. The Representative also assists participating states by advocating and promoting compliance with OSCE principles and commitments in respect of freedom of expression and the media. The office of the Representative is located in Vienna.