¹ CSCE, Budapest Summit Declaration, para. 3 (Dec. 6, 1994); CSCE, Budapest Decisions, ch. 1, para. 1 (“Strengthening the CSCE”). The CSCE Budapest Document 1994, which includes the Budapest Summit Declaration and the Budapest Decisions, is reprinted in 34 ILM 764 (1995). As of January 1,1995, all references to the “Conference on Security and Co-operation in Europe” (CSCE) will be deemed to be references to the “Organization for Security and Co-operation in Europe” (OSCE). Because this essay focuses on the transformation, for the sake of clarity it continues to use “CSCE” when referring to events prior to January 1, 1995.

² See generally John J. Maresca, To Helsinki: The Conference on Security and Cooperation in Europe, 1973–75 (1985) (describing the negotiations that led to adoption of the Helsinki Final Act); Michael R. Lucas, The Conference on Security and Cooperation in Europe and the Post-Cold War Era (Institut fur Friedensforschung und Sicherheitpolitik, Hamburg, 1994). As stated in the Budapest Summit Declaration, supra note 1, para. 2, the OSCE is “the security structure embracing states from Vancouver to Vladivostok.”

³ The concluding paragraphs of the Helsinki Final Act request the Government of Finland (which was the host Government) to transmit to the Secretary-General of the United Nations the text of the Act, “which is not eligible for registration under Article 102 of the Charter of the United Nations” (emphasis added). Article 102(1) of the UN Charter provides that “every treaty and every international agreement entered into by any Member of the United Nations … shall as soon as possible be registered with the Secretariat and published by it.”

As President Gerald Ford stated prior to attending the signing of the Helsinki Final Act: “I would emphasize that the document I will sign is neither a treaty nor is it legally binding on any participating state. The Helsinki documents involve political and moral commitments aimed at lessening tensions and opening further the lines of communications between the peoples of East and West.” The Law of Treaties, 1975 U.S. Digest §7, at 325.

⁴ OSCE norms that reflect customary international law could also be characterized as legally binding. However, whether provisions of the Helsinki Final Act and subsequent CSCE/OSCE documents could be interpreted as creating customary international law is more complicated. See, e.g., Thomas Buergenthal, The CSCE Rights System, 25 Geo. Wash. J. Int’l L. & Econ. 333, 375–78 (1991). Professor Buergenthal observes that, irrespective of whether certain CSCE commitments reflect or create norms of international law, “these commitments and the process they have set in motion have laid the foundation for a new European public order based on democratic pluralism, free elections, the rule of law, and the protection of human rights.” Id. at 381.

⁵ For example, in 1990 the 16 member states of the North Atlantic Treaty Organization and 6 members of the former Warsaw Pact concluded negotiations on the Treaty on Conventional Armed Forces in Europe (CFE), which had been launched within the framework of the CSCE process. It was agreed beforehand, however, that the negotiations would be autonomous and that they would not be formally linked to the CSCE process.

In a somewhat different situation, in 1992 CSCE states decided to adopt a Convention on Conciliation and Arbitration within the CSCE as one option in a politically binding package of measures for the peaceful settlement of disputes. The treaty, which was advocated by members of the European Community (with the exception of the United Kingdom), entered into force in December 1994 after ratification by 12 states. The United States is not a party to the Convention and, together with others, resisted the negotiations until it was agreed that the treaty option would be part of a larger package of measures more consistent with the political, inclusive nature of the CSCE, and that it would not provide a precedent for addressing other CSCE issues. Article 38 of the Convention makes it clear that nothing in it shall be interpreted as establishing any obligations or commitments for CSCE participating states that are not parties to it.

Of course, the CSCE encourages the conclusion of politically and legally binding agreements between and among participating states outside the framework of the CSCE process. In fact, the Budapest Decisions, supra note 1, in ch. 1, para. 3, task the CSCE with encouraging good-neighborly relations by, among other things, concluding bilateral, regional and potential CSCE-wide agreements. However, using OSCE documents to create legally binding obligations could complicate their negotiation considerably. It could, for example, take longer to reach consensus, and the substance of the documents might be less ambitious.

⁶ See note 1 supra.

⁷ Budapest Summit Declaration, supra note 1, para. 3.

⁸ Remarks by President Clinton at a plenary session of the Budapest Summit (Dec. 5, 1994), reprinted in 5 U.S. Dep’t St. Dispatch 813, 814 (1994). See also Steven Greenhouse, Clinton Outlines Plan to Bolster Europe-Wide Security, N.Y. Times, Nov. 16, 1994, at A3; Jane Perlez, Unease at European Security Parley, N.Y. Times, Dec. 5, 1994, at A13.

⁹ Remarks by President Clinton at a plenary session of the Budapest Summit, supra note 8, at 814.

¹⁰ Nov. 21, 1990, 30 ILM 190 (1991).

¹¹ CSCE, Declaration and Decisions from Helsinki Summit, July 10, 1992, 31 ILM 1385 (1992).

¹² It should be emphasized, however, that the participating states are determined to avoid transforming the OSCE into a large, inflexible bureaucracy, and are committed to ensuring that it will remain flexible and dynamic. See, e.g., Budapest Decisions, supra note 1, ch. 1, para. 29.

¹³ See, e.g., Peter H. F. Bekker, The Legal Position of Intergovernmental Organizations (1994).

¹⁴ The European Community is known today as the European Union.

¹⁵ The International Organizations Immunities Act defines an “international organization” as a

public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities herein provided.

22 U.S.C. §288 (1988).

¹⁶ Section 422 of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, provides:

The President is authorized to implement, for the United States, the provisions of Annex 1 of the Decision concerning Legal Capacity and Privileges and Immunities, issued by the Council of Ministers of the Conference on Security and Cooperation in Europe on December 1, 1993, in accordance with the terms of that Annex.

Pub. L. No. 103-236, 108 Stat. 382, 457 (1994). An executive order implementing the provisions of Annex 1 for the United States should be issued shortly.

¹⁷ See note 3 supra.

¹⁸ Budapest Decisions, supra note 1, ch. 1, para. 29.