Legal Uncertainty and Indeterminacy – Immutable Characteristics of the OSCE?

Abstract

This paper (forthcoming in Steinbrück Platise/Moser/Peters (eds), The Legal Framework of the OSCE, Cambridge University Press) 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.

Keywords: OSCE, legal personality, legal capacity, privileges and immunities, formalisation, indeterminacy