Steinbrück Platise, Moser, & Peters: The Legal Framework of the OSCE

Mateja Steinbrück Platise (Max Planck Institute for Comparative Public Law and International Law), Carolyn Moser (Max Planck Institute for Comparative Public Law and International Law), & Anne Peters (Max Planck Institute for Comparative Public Law and International Law) have published The Legal Framework of the OSCE (Cambridge Univ. Press 2019). The table of contents is here. Here's the abstract:

The Organization for Security and Cooperation in Europe (OSCE), the world's largest regional security organisation, possesses most of the attributes traditionally ascribed to an international organisation, but lacks a constitutive treaty and an established international legal personality. Moreover, OSCE decisions are considered mere political commitments and thus not legally binding. As such, it seems to correspond to the general zeitgeist, in which new, less formal actors and forms of international cooperation gain prominence, while traditional actors and instruments of international law are in stagnation. However, an increasing number of voices - including the OSCE participating states - have been advocating for more formal and autonomous OSCE institutional structures, for international legal personality, or even for the adoption of a constitutive treaty. The book analyses why and how these demands have emerged, critically analyses the reform proposals and provides new arguments for revisiting the OSCE legal framework.

Steinbrueck-Platise & Peters: Transformation of the OSCE Legal Status

Mateja Steinbrueck-Platise (Max Planck Institute for Comparative Public Law and International Law) & Anne Peters (Max Planck Institute for Comparative Public Law and International Law) have posted Transformation of the OSCE Legal Status (in The Legal Framework of the OSCE, Mateja Steinbrück Platise, Carolyn Moser, & Anne Peters eds., forthcoming). Here's the abstract:

The concluding paper of the volume on the legal framework of the OSCE brings together some of the main empirical and theoretical insights of the research project which has been conducted by lawyers and political scientists, scholars and practitioners, politicians and international civil servants. The variety of contributions results in a diversified yet nuanced analysis of the legal status of the OSCE, a prime example of an informal international organisation. The paper examines their contrasting results as well as their common features and structures along three themes. First, the paper contrasts different roles that the authors ascribe to the OSCE, ranging from a Cold War instrument over an informal mode of governance to a global governance actor in its own right. Second, it analyses the transformation of relevant interests of different actors (states, the OSCE bodies themselves, and governed individuals) which took place since the inception of the Conference/Organization. Third, the paper demonstrates that the competing reform proposals for strengthening the OSCE legal framework manifest divergent underlying ideas about the role and functioning of international organisations, both in the political and the legal dimension. The paper concludes that the debate on the reform of the OSCE’s legal framework should acknowledge the interdependence of effectiveness and legitimacy of the OSCE as a global governance actor and that an OSCE ‘constitution’ would not only empower the OSCE but also render it more accountable.

Steinbrueck-Platise: Legitimate Governance as a Privilege and Price for the Autonomy of International Organisations

Mateja Steinbrueck-Platise (Max Planck Institute for Comparative Public Law and International Law) has posted Legitimate Governance as a Privilege and Price for the Autonomy of International Organisations (in The Legal Framework of the OSCE, Mateja Steinbrück Platise, Carolyn Moser, & Anne Peters eds., forthcoming). Here's the abstract:

This paper addresses the legitimacy crisis of the OSCE beyond the well-rehearsed political debates between the participating States as to the OSCE’s institutional form, functions and structure, and situates it instead in a broader context of global governance, analysing it from the international institutional law and human rights law perspective. In a first step, the concept of autonomy is introduced as one essential element of legal personality of international organizations, but still broader in scope in that it can be identified also with organizations lacking legal personality. Since the autonomy of an organization gives rise to certain legitimate expectations as to its purpose, functioning and outcomes, some of the legitimacy standards typically appertaining to the organizations with legal personality become relevant also with respect to other international organizations, including the OSCE. In a second step, in order to assess competing efforts of participating States to justify the OSCE’s legitimacy, the paper contextualises these efforts within the global trend of questioning the legitimacy of international organizations in general. Such an approach reveals not only certain reform proposals common to various international organizations, but also, and in particular, the lack of certain proposals within the OSCE that would aim towards strengthening the OSCE’s legal framework in terms of good governance. Finally, the contribution sketches out some of the legitimacy standards that call for a reform of a range of international organizations, with the OSCE being a prime example. However, this rising normative framework applies to organizations not because they might possess international legal personality or be established by a constitutive treaty, but because they have the capacity to autonomously exercise public power over individuals and peoples at large.

Moser: Conceptualising Accountability in the Legal and Institutional Framework of the OSCE

Carolyn Moser (Max Planck Institute for Comparative Public Law and International Law) has posted Conceptualising Accountability in the Legal and Institutional Framework of the OSCE (in The Legal Framework of the OSCE, Mateja Steinbrück Platise, Carolyn Moser, & Anne Peters eds., forthcoming). Here's the abstract:

This paper investigates accountability in the context of the OSCE, considering the Organisation’s unsettled legal framework. The analysis unfolds in three parts. The focus of the first part is on outlining the conceptual framework. Approached from a constitutional – that is power-centred – perspective, accountability is defined as a mechanism in which the power-wielder (actor) is held to account by a meaningful other (forum) in a three-step process as conceptualised by Bovens. Accountability mechanisms can thus cover a wide range of issues (legal, political and administrative matters) and activities (decision-making, steering and implementation). The second part then goes on to contextualise accountability in a broader governance scheme. Here, the paper inter alia inquires what the decisive criterion for accountability in the international arena would be, given that much public power is channelled through formal as well as informal international institutions. In the third and last part, existing accountability arrangements in the current OSCE framework are mapped and the relevance of accountability for the OSCE is discussed, also with reference to other international institutions entrusted with similar functions and tasks.

Moser & Peters: Legal Uncertainty and Indeterminacy – Immutable Characteristics of the OSCE?

Carolyn Moser (Max Planck Institute for Comparative Public Law and International Law) & Anne Peters (Max Planck Institute for Comparative Public Law and International Law) have posted Legal Uncertainty and Indeterminacy – Immutable Characteristics of the OSCE? (in The Legal Framework of the OSCE, Mateja Steinbrück Platise, Carolyn Moser, & Anne Peters eds., forthcoming). Here's the abstract:

This paper disentangles the complex questions relating to the legal status of the Organization for Security and Co-operation in Europe (OSCE). It unfolds in five steps. First, the political context, institutional development and operational realities of the OSCE – from its inception during the Cold War until its present situation – are briefly outlined. Then, the analysis moves on to describe the patchy legal environment of the OSCE, in particular the interrogations revolving around the entity’s legal nature. Thirdly, the discussion turns to the international legal personality, domestic legal capacity and the privileges and immunities of the OSCE. The inquiry brings to the fore its current lack of a unified international legal personality, which is coupled with a lack of explicit and unequivocal rules on domestic legal personality (‘capacity’), both of which, in turn, lead to the status of the OSCE and its members of staff depending on domestic law or, more precisely, on a patchwork of national legal regimes of various participating States. Building on these insights, the fourth section of the paper outlines different formalisation options with a view to coping with the current legal uncertainty and indeterminacy surrounding the OSCE. Finally, the paper sketches out the content of the book by briefly recapitulating the main arguments made by the paper’s authors.

Gasbarri: The International Responsibility of the OSCE

Lorenzo Gasbarri (Univ. College London - Law) has posted The International Responsibility of the OSCE (in The Legal Framework of the OSCE, Mateja Steinbrück Platise, Carolyn Moser, & Anne Peters eds., forthcoming). Here's the abstract:

This paper contributes to the research project on the OSCE Legal Framework led by the Max Planck Institute for Comparative Public Law and International Law. It deals with the OSCE’s international responsibility by distinguishing three different but correlated phenomena: (1) its capacity to develop a legal system; (2) its possession of legal personality, whether international or domestic, does not compromise the existence of the institution as such; and (3) how its international responsibility is dependent upon the fact that the OSCE is either considered as founded by an instrument of international law or by an act of creation not based on international law. The introduction sets the scene describing the work of the International Law Commission. Section 2 further discusses the interaction between legal personality and the development of an ‘original’ or ‘derivative’ legal system. Section 3 then discusses four possibilities: (1) the OSCE possesses a derivative legal system and does not have international legal personality; (2) the OSCE possesses a derivative legal system and does have international legal personality; (3) the OSCE possesses an original legal system and does not have international legal personality; and (4) the OSCE possesses an original legal system and does have international legal personality. This paper does not define once and for all what the OSCE is and how its legal responsibility is to be assessed, but instead discusses the potential consequences that different legal constructions would have on its responsibility.The paper contributes to the law of international organizations analyzing how their international responsibility is affected by the adoption of one or another concept of legal system.

Tomuschat, Pisillo Mazzeschi, & Thürer: Conciliation in International Law

Christian Tomuschat (Humboldt-Universität zu Berlin - Law), Riccardo Pisillo Mazzeschi (Università degli Studi di Siena - Law) & Daniel Thürer (Universität Zürich - Law) have published Conciliation in International Law: The OSCE Court of Conciliation and Arbitration (Brill | Nijhoff 2017). Contents include:

• Jean-Pierre Cot, Expectations Attached to Conciliation Reconsidered
• Lauri Mälksoo, Conciliation within the Framework of Dispute Settlement Procedures: An East European Perspective
• Giuseppe Palmisano, Diplomatic and Jurisdictional Aspects in Conciliation Procedures: Conciliation between Dispute Settlement and Conflict Prevention
• Daniel Thürer, Peaceful Settlement of International Disputes: About the Essence and Role of Conciliation
• Riccardo Pisillo Mazzeschi, Prevention and Resolution of Conflicts in the OSCE and the Role of the Court of Conciliation and Arbitration
• Christian Tomuschat, Conciliation within the Framework of the OSCE Court of Conciliation and Arbitration. An Assessment from the Viewpoint of Legal Policy
• Edouard Planche, UNESCO Mediation and Conciliation Procedure for Promoting the Return and Restitution of Cultural Property
• August Reinisch, Elements of Conciliation in Dispute Settlement Procedures Relating to International Economic Law
• Stuart Bruce, The Project for an International Environmental Court
• Rüdiger Wolfrum, Conciliation under the UN Convention on the Law of the Sea
• Ulf Linderfalk, The Jan Mayen Case (Iceland/Norway)