2.1.1.2.1 Remarks on the Characteristics of the OSCE
and its Commitments
The Organization for Security and Co-operation in Europe (the OSCE) is rather a unique international organisation, one differing from the CoE and the UN in terms of its normative framework and character as well as its working methods. Accord-ingly, some remarks on the characteristics of the OSCE are in order before turning to an examination of the minority protection developed within the organisation.
In the OSCE49 various issues, including those concerning human rights and minorities, are considered primarily from the viewpoint of the peace and security of states. The organisation’s focus is also on the incidents and developments oc-curring, i.e. security threats originating, within the OSCE area. The concept of comprehensive security employed by the OSCE points to three different but inter-twined dimensions of security: the politico-military dimension, the human dimen-sion and the economic and environmental dimendimen-sion.50 The OSCE’s characteristics, strengths and comparative advantages in general have been seen as deriving from its comprehensive approach to security, which combines various dimensions of security, as well as from its consensual, co-operational, and operational character.51
The “human dimension” of the OSCE is a broad concept covering commitments on human rights and fundamental freedoms in general, the protection of persons belonging to national minorities, democracy (including democratic elections and democratic governance and institutions), tolerance and non-discrimination, the rule of law, human contacts and humanitarian law.52 In recognition of both the intra- and inter-state relevance of human dimension issues, including those relating to
mi-49. The foundation of the OSCE was laid with the adoption of the Helsinki Final Act in 1975 and over the years this forum of inter-state co-operation developed from a conference-like framework into a forum with permanent structures and institutions. The decision to change the initial name of the Conference of Security and Co-operation in Europe (CSCE) to OSCE as of the beginning of 1995 was made at the summit meeting of the CSCE states held in Budapest in 1994 in order to signal this change.
Unless otherwise indicated, when references to the OSCE are made in the text at hand, they are not limited solely to the period since the change of name but encompass the work of both the CSCE and the OSCE and the documents adopted since the Helsinki Confer-ence of 1975. The name CSCE still appears in connection with the historical facts dating to the pre-1995 period, including the names and titles of the meetings held and the documents adopted at that time.
50. For initially labelling the various questions considered by the CSCE as “baskets”, and for the interlinkages of various questions considered within the OSCE, see Bloed (1993), pp. 8 and 27–28. For the various dimensions, see also Ghebali (1996), pp. 222–565.
51. Kamp (2004), pp. 322 and 328.
52. ODIHR (2005), p. xiii.
norities, the participating states have expressly declared that the questions belong-ing to the human dimension of the OSCE are in the interest of all participatbelong-ing states, i.e. are of international concern.53 Whilst the OSCE’s focus has clearly been on state-centred security, in recent years some attention has also been paid to the security of individuals by employing the concept of human security. Although this concept has been discussed at the international level – particularly within the UN54 – and has been used within the OSCE, for instance, by the Office for Democratic Institutions and Human Rights (ODIHR), and has appeared occasionally in politi-cal discussions of the organisation,55 it has not yet developed into a concept used regularly and officially by the OSCE.
Among the characteristics of the OSCE is that the commitments adopted since the 1975 Helsinki Final Act build on each other and that this whole “package”
of commitments, sometimes also called the OSCE acquis, which has been adopted by consensus, binds all participating states equally.56 Accordingly, the OSCE has sometimes been called a “community of values” whose values are seen as relating to the human dimension in particular.57 The human rights belonging to the human dimension primarily concern what are known as civil and political rights, whilst
53. An express reference to the international nature of human dimension matters was inserted in the Preamble to the 1991 Moscow Document. In fact, this also meant that the CSCE was among the first forums within which the states participating in its work clearly declared the international nature of human rights questions. For this “revolutionary” declaration, see also e.g. Kemp (2001), pp. 7 and 14.
54. These discussions have been prominent particularly within the UNDP. Of the UN member states, particularly Canada, Japan and Switzerland have actively discussed the issue of hu-man security. Alkire (2003), Smith (2006), pp. 41–42, and KATU Report (2007).
55. These political discussions have concerned, among other things, the issues of border control and security, small weapons and trafficking in human beings. Pentikäinen (2005), pp. 72–73.
The OSCE Ministerial Council has mentioned that e.g. violence against women constitutes a threat to human security. Ministerial Council Decision No. 15/05 on Violence against Women (2005), preambular para. 9. The ODIHR has linked human security to such issues as gender-based persecution, violence and exploitation, trafficking in human beings, prevention of illicit trafficking in drugs and arms, other forms of international organised crime and the prevention of terrorism. ODIHR (2005), pp. 209–248. The Panel of Eminent Persons that is-sued its views on the (future) role of the OSCE on the occasion of the 30th anniversary of the Organization in 2005 noted that within the OSCE human security links human rights and security and relates to the individual and collective responsibility of all OSCE states for the security of the individual. OSCE Panel of Eminent Persons (2005), p. 16.
56. ODIHR (2005), p. xvii.
The OSCE commitments on the human dimension have been incorporated in a number of documents adopted over the years, the most essential being the concluding documents of the general OSCE meetings and the documents adopted by certain specific human dimen-sion meetings. The OSCE Ministerial Council meetings have also made pertinent deci-sions. For a comprehensive compilation of the OSCE commitments in the area of the hu-man dimension, see e.g. ODIHR (2005).
57. Ibid., p. xvii. For example, the 1992 Helsinki Document links respect for human rights and fundamental freedoms, including the rights of persons belonging to national minorities, to
the commitments on economic, social and cultural rights are much more generally worded.58 The OSCE commitments also contain references to many internation-al conventions, including the Internationinternation-al Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and to the importance of both adhering to them and their implementation.59 Some of these references suggest that the norms of these other international instruments have been rendered part of the standards also relevant in the area of the human dimension of the OSCE and are thus to be taken into account by the OSCE states. Some human dimension commitments of the OSCE, including those addressing democracy and democratic institutions, go beyond the provisions laid down in many other international instruments, including human rights conventions. For instance, the OSCE commitments on democracy and democratic institutions contain references to the prerequisites that the internal structures of states should fulfil in order to meet the criteria of democracy.60
Also characteristic of the OSCE standards is their strict political nature; i.e. the OSCE commitments are not laid down in treaty-format documents but rather are politically binding upon the participating states.61 The OSCE commitments contain express commitments of the OSCE states to implement the organisation’s standards at their national level.62 As regards the international supervision of this national implementation, unlike the monitoring systems established under many interna-tional human rights conventions, the OSCE commitments introduce no regular state reporting system or complaint mechanism for individuals.63 The monitoring
the shared values and common aims of the participating states. Helsinki Document, Dec-laration, para. 6.
58. On economic, social and cultural rights, see ODIHR (2005), pp. 131–137.
59. For a reference to the ICERD, see e.g. the 1992 Helsinki Document, Decisions, Chapter VI, para. 32. The 1989 Vienna Document refers to the ICESCR. See para. 13.2 under
“Questions Relating to Security in Europe”.
60. Some of these commitments are rather detailed and as such unique commitments incorpo-rated in inter-state instruments. For the pertinent commitments, see ODIHR (2005), pp.
75–96.
61. For the remarks on the nature of the CSCE commitments, see e.g. Bloed (1993), pp. 22–25.
The nature and significance of the OSCE commitments compared to international legal obligations have been considered by many scholars over the years. See e.g. van Dijk (1980), pp. 97–124, and Bothe (1980), pp. 65–95.
The OSCE states have negotiated some documents in a treaty-format within the frame-work of the OSCE. These documents do not concern the material human dimension issues but address politico-military issues and settlement of disputes. For example, the Treaty on Open Skies has been negotiated among the OSCE states. See the OSCE website at http://
www.osce.org/item.13516.html (visited on 10 October 2007).
62. See e.g. the 1992 Helsinki Document, Decisions, Chapter VI, para. 23, and the 1994 Buda-pest Document, Decisions, Chapter VIII, para. 21.
63. The OSCE states have created a specific mechanism for the purposes of the human dimen-sion, the so-called Human Dimension Mechanism, which may be activated by the OSCE states. The mechanism was resorted to a number of times in the first half of the 1990s, but
of the implementation of the OSCE human dimension commitments takes place essentially within the context of various OSCE meetings. In recent years, the major meeting considering these aspects of implementation has been the Human Dimen-sion Implementation Meeting (HDIM),64 which may be viewed as rather a unique forum at the international level for the assessment of states’ compliance with their international commitments. This meeting, held annually in recent years, takes up various human dimension issues, including those concerning national minorities, the Roma, migrant workers and tolerance. Additionally, non-governmental organi-sations (NGOs) have more opportunities to participate in these discussions than in other international frameworks assessing states’ compliance with international norms. Of late, the OSCE’s implementation review has faced increasing criticism due to its overwhelming and almost exclusive focus on the eastern participating states, i.e. the OSCE states “East of Vienna”.65
2.1.1.2.2
OSCE Commitments on Persons Belonging to National Minorities The OSCE has paved the way for the positive regulation of minority protection at the international level. References to national minorities, albeit of a very general nature, were inserted as early as in the 1975 Helsinki Final Act and subsequently minority questions have become a prominent part of the human dimension. In the course of the 1990s, prompted by a number of conflicts in the beginning of the de-cade in the OSCE area – including the war in the former Yugoslavia66 – increased attention was focussed on minority issues, as the treatment of minorities was rec-ognised as one of the root-causes of conflicts in the OSCE area. Recognising that even intra-state minority-related tensions and conflicts have destabilising effects on other participating states resulted in the establishment by the 1992 Helsinki Sum-mit of the post of the High Commissioner on National Minorities (HCNM) to ad-dress minority-relevant situations in the OSCE states.67 The OSCE commitments on minorities have also served as examples for the standards on minorities adopted
since then the interest of states in using it has declined. For this mechanism and its use in the beginning of the 1990s, see Pentikäinen (1997), pp. 95–102.
64. Another framework for implementation review is the General Review Conferences, which are organised in the years when an OSCE summit takes place. The HDIM convenes in those years when the Review Conferences and summits do not convene. Since the latest OSCE summit was held in Istanbul in 1999, the HDIM has been organised annually since 2000. The HDIM is organised by the ODIHR.
65. Zellner (2005), p. 16. For the critical remarks on the effectiveness and significance of the HDIMs, see e.g. Jääskeläinen and Pentikäinen (2005), pp. 123–133.
The remark “East of Vienna” refers to the geographical OSCE area east of the capital of Austria, which hosts the headquarters of the OSCE, including the OSCE secretariat.
66. Kemp (2001), pp. 4–5.
67. For the mandate and activities of the HCNM, see chapter 4.3 infra. Minority questions are addressed also by other OSCE institutions and actors, including e.g. the ODIHR, the RFoM and the field missions. See the remarks on the OSCE website at http://www.osce.org.
by other international organisations, including the UN and the CoE. For instance, the OSCE minority commitments directly influenced drafting work on the UN Minority Declaration68 and the CoE Framework Convention.69
The 1989 Vienna Document introduced new elements vis-à-vis the previously adopted OSCE commitments on minorities, which focussed on equality before the law and the opportunity for the actual enjoyment of human rights and fundamental freedoms.70 In addition to reiterating the commitment to ensure human rights and fundamental freedoms on a non-discriminatory basis also for persons belonging to national minorities,71 the Vienna Document undertook to advance minority issues in that the participating states committed themselves to protecting and creating conditions for the promotion of the ethnic, cultural, linguistic and religious identity of national minorities on their territory.72
The subsequent acceptance of the 1990 Copenhagen Document signified the adop-tion of the most important OSCE document incorporating minority-related stan-dards. The instrument reiterates the principles of equality and non-discrimination73 and goes on to define the rights of persons belonging to national minorities to ex-press, preserve and develop their ethnic, cultural, linguistic or religious identity and to maintain and develop their culture in all its aspects. It is expressly noted that there should not be any attempts to assimilate such persons against their will. The document refers to a number of rights of persons belonging to national minorities, including the right to use their mother tongue in private and in public as well as to disseminate, have access to and exchange information in their mother tongue;
the right to establish and maintain their own educational, cultural and religious institutions, organisations or associations; the right to profess and practise reli-gion (including the right to conduct religious educational activities in their mother tongue); the right to establish and maintain contacts among themselves both within their country and across frontiers; and the right to participate in international
non-68. See also the remarks supra in chapter 2.1.1.1.1.
69. See the explicit reference to the OSCE documents in preambular para. 12 to the CoE Framework Convention. See also the remarks made at the CoE summit of 1993 discussed infra in chapter 2.1.1.3.3. See also Bloed (1995), p. 19.
The CoE Language Charter also takes note of the work carried out within the OSCE, and refers particularly to the 1975 Helsinki Final Act and the 1990 Copenhagen Docu-ment. See preambular para. 5 to the Charter.
70. See the 1975 Helsinki Final Act, “Declaration on Principles Guiding Relations between Par-ticipating States”, Principle VII, para. 4. The 1983 Madrid Document essentially reiterates this commitment. See “Questions relating to Security in Europe”, para. 15.
71. See the 1989 Vienna Document, “Questions relating to Security in Europe”, para. 18.
72. Ibid., para. 19.
73. The relevant provision sets out the right of persons belonging to national minorities to ex-ercise fully and effectively their human rights and fundamental freedoms without any dis-crimination and in full equality before the law. The 1990 Copenhagen Document, para. 31.
governmental organisations (NGOs). Additionally, both the individual and com-munal dimensions of minority rights are emphasised.74
The 1990 Copenhagen Document echoes the 1989 Vienna Document by re-ferring to the commitment of states to protect the ethnic, cultural, linguistic and religious identity of national minorities on their territory and to create conditions for the promotion of that identity.75 The participating states also assumed commit-ments with respect to the instruction of or in the mother tongue of persons belong-ing to national minorities, as well as the use of minority languages before public authorities. Furthermore, the need to learn the official language or languages of the state concerned is stressed, and the importance of taking account of the history and culture of national minorities in the context of the teaching of history and culture in educational establishments is mentioned.76 The Document recognises the right of persons belonging to national minorities to effective participation in public affairs, including participation in the affairs relating to the protection and promotion of the identities of such minorities. It is of some interest that the instrument also draws attention to establishing local or autonomous administrations as one of the possible means to achieve the aims to protect and create conditions for the promotion of the ethnic, cultural, linguistic and religious identity of certain national minorities.77
The links of OSCE minority commitments to security matters are clearly vis-ible in the 1990 Copenhagen Document in that respect for the rights of persons belonging to national minorities is noted as being a factor contributing to peace and stability in the participating states. It is noteworthy that respecting the rights of persons belonging to national minorities is also linked to the issues of justice and democracy. Moreover, inter-state co-operation in questions relating to national mi-norities is referred to as promoting mutual understanding and confidence, friendly and good-neighbourly relations, international peace, security and justice.78 Certain express cross-references between minority issues and questions relating to intoler-ance and like issues in the 1990 Copenhagen Document also merit mention in this connection.79 Additionally, the fact that the Document places the OSCE commit-ments on various forms of intolerance right after the minority commitcommit-ments and in the same section of the document signals the close relationship between these two issues.
74. Ibid., para. 32.
75. Ibid., para. 33.
76. Ibid., para. 34.
77. In this connection, the instrument mentions the specific historical and territorial circum-stances of minorities and the need to comply with the policies of the state concerned. Ibid., para. 35. See also references to consultation in para. 33, which addresses identity issues.
78. Ibid., paras 30 and 36.
79. The minority commitments contain explicit references to promoting (social) tolerance and cultural diversity. Ibid., para. 30. See the remarks infra in chapter 2.2.1.2.
Many subsequent OSCE documents reiterate the issues highlighted in the 1990 Copenhagen Document, such as the commitment of the OSCE states to ensure general human rights also for persons belonging to national minorities,80 commit-ments relating to identity issues81 and participation,82 and the link between the pro-tection of minorities (identity of national minorities) and peace, stability, justice and democracy.83
While the OSCE commitments on minorities clearly set out positive obligations for states, for instance, the commitments concerning instruction of or in a minority language and those addressing the use of minority languages before public authori-ties, they also contain a number of expressions lessening their committal charac-ter, thereby widening the states’ margin of discretion.84 Furthermore,
While the OSCE commitments on minorities clearly set out positive obligations for states, for instance, the commitments concerning instruction of or in a minority language and those addressing the use of minority languages before public authori-ties, they also contain a number of expressions lessening their committal charac-ter, thereby widening the states’ margin of discretion.84 Furthermore,