Discussion paper: ENSURING UNHINDERED NGO ACCESS TO OSCE EVENTS
The Working Group on reform of International Organisations of the Civic Solidarity Platform issued a discussion paper "Ensuring unhindered NGO access to OSCE events: A Need for a Transparent, Predictable, and Rule-of-law Based Procedure for Implementing Paragraph 16 of the 1992 Helsinki Document".
The discussion paper addresses the issue related to grounds for restricting NGO participation in OSCE events outlined in the 1992 Helsinki Document, namely its Paragraph 16 (Chapter IV), which states that access to OSCE meetings is allowed for “persons or organizations which resort to the use of violence or publicly condone terrorism or the use of violence.” Absense of the implementation procedure for Paragraph 16 of the 1992 Helsinki Document often results in situations when the OSCE Chairmanship and/or ODIHR are to take decisions in cases when a State raised an objection to the presence of a specific NGO or a person, claiming the provision of Paragraph 16. No requirements for justification of such objections exist, and consultations have often happened in the past in a non-transparent, ad hoc manner. In the past, some Chairmanships have given in to such pressure to avoid retaliation by states in other areas of the OSCE’s consensus-based decisions. And indeed, some States have retaliated in the past when Chairmanships turned down their requests to deny NGO participation, and blocked adoption of institutions’ budgets, calendar of human dimension events or their agenda.
The discussion paper offers a set of recommendations for the implementation of the provisions of Paragraph 16 of the 1992 Helsinki Document. In particular, this procedure should be:
3. rule-of-law based
5. used in exceptional situations
6. having a final decision entrusted to an independent arbiter.
More specifically, it is recommended to use the following approach:
1. Transparent means that other States and all OSCE institutions and executive bodies are immediately informed about the objection of a concerned State; that the NGO in question is immediately notified of the objection and is provided with its content; that the NGO is given an opportunity to provide a response before the State’s claims are reviewed; that the NGO, other States, all OSCE institutions and executive bodies are informed about all stages of the process; and that the decision and its rationale are communicated to all the parties and participating States.
2. Predictable means that the procedure has clearly outlined successive stages such as application of all NGOs for registration for an event; submission of an objection by a State against access of a particular NGO; automatic registration of all other NGOs; submission of a response by the NGO in question; an expert review of the State’s claim, the NGO’s response, and other evidence and adoption of conclusions by the experts; study of the expert conclusions by an arbiter and holding its consultations with OSCE institutions and executive bodies; a decision by an arbiter to either register the NGO for the event or to deny the registration.
3. Rule-of-law based means that concerned States should outline precise, compelling and evidence-based claims that an NGO in question has “resorted to the use of violence or publicly condones terrorism or the use of violence”. Mere references to national “terrorist lists” or citing decisions by domestic courts should not be regarded as sufficient. The NGO in question should be given an opportunity to submit a response before the claims are reviewed. This approach would ensure application of the principles of presumption of innocence, legal certainty, and equality of arms that are essential to the rule of law and a fair process. If the matter concerns not only facts about the NGO’s activities or statements but its presumed views, a written statement by the NGO’s governing body confirming that it denounces violence and terrorism might be required. A review should engage internal and, where necessary, external experts who would make their conclusions based on clear and objective criteria. OSCE has the necessary in-house expertise such as the Anti-terrorism Unit at the Secretariat and the Advisor on Anti-Terrorism Issues at the ODIHR Human Rights Department. Possibly, ODIHR could maintain a roster of experts submitted by participating States. Obviously, the experts involved should not come from the State submitting an objection.
4. Time-bound means that the procedure should have a concrete and reasonable timeframe to both ensure predictability and allow the NGO in question to participate in the event in case a decision is made to reject the objection raised by a State. There have been cases in the past when decisions on this matter took too long, including after the event’s end. An ideal timeframe, in our mind, is two weeks for the whole procedure, in the case that the registration for the event ends a month before its beginning. That would leave two more weeks after the procedure for the NGO in question to make travel arrangements. If the registration deadline is announced later than one month, the procedure should be shortened, keeping two week before the event. Equally importantly, the time for submitting an objection by States should be very short, for example, within two days after the deadline for registration. That would allow all other NGOs to proceed with their normal travel arrangements and preparation for the event.
5. Exceptional means that the procedure should be invoked in extremely rare cases, not as a routine matter. Indeed, excluding an NGO from OSCE events can only be seen as “ultima ratio”, i.e. when an NGO’s activities and views directly contradict the OSCE’s goals of comprehensive security and sustainable peace.
6. The final decision should by no means be based on a consensus decision by all participating States (either “consensus in favour” or “consensus against”) which would be arbitrary and politicised, but instead entrusted to the organisation’s official mandate holders. After holding many consultations with interested parties, we believe that it is preferable that the role of an arbiter, responsible for taking a final decision on participation of a particular NGO, should be made by the OSCE Troika composed of the current, past, and incoming Chairmanships. This would allow sharing responsibility, taking the pressure off the current Chair-in-Office, and distributing the burden. We recommend that a decision be taken after reviewing the State’s claim, the NGO’s response and experts’ conclusions, and after holding consultations with OSCE institutions and executive bodies. Consensus among the Troika members appears to be the most reasonable mechanism of decision-making. A decision and its rationale should be communicated to all the parties and participating States. It cannot be contested or appealed. Denial of registration is not a ban for life; the NGO may apply for registration for further OSCE events. The State may submit a more well-grounded claim against its participation next time.
Full version of the discussion paper can be accessed HERE.