Applicability and utility of the HCNM’s conflict prevention approach in contexts across the OSCE?
It was generally agreed among those consulted that there is a genuine link between a lack of integration, societal tensions, and potentially violent intercommunal conflict. It was also acknowledged that integration and conflict are not necessarily strongly linked in all OSCE contexts. Experts agreed, however, that the management of tensions around diversity is an essential challenge for all states in their endeavours to build stable and harmonious societies. Although the scope/intensity of tensions and the risk of violent conflict will vary greatly amongst OSCE participating states, this does not invalidate the approach. The aim of the Guidelines is therefore to provide guidance for all states seeking to accommodate diversity and avoid risk of cleavages and tensions developing that can impact on stability and in the worst cases lead to violent conflict.
A key consideration in developing the Guidelines was the extent to which sensitivities of participating states and the extent of political will should be influencing factors in deciding on the substantive content. This is critical bearing in mind past experience whereby thematic recommendations developed under HCNM auspices have both drawn on states’ practice and become a normative reference for states in terms of what they can and cannot legitimately do under international law.
Obviously, the HCNM has no interest in incorporating ‘bad practice’ just because it reflects a trend in states’ policies and practices at the time. HCNM staff and experts took varying positions on the extent to which (perceived) existing political will should be taken into account in developing the Guidelines. Some took the line that there would be no point in including provisions which states could be expected to resist (e.g. those relating to restrictions imposed on religious apparel). A variation of this argument is that if states object to one provision it could lead them to question the validity of the document as a whole and ultimately reject the whole thing. The countering view is that provided the provision is rooted in accepted principle and norms and that compliance would probably contribute to social cohesion then it should be included. It was pointed out that the role of the HCNM is not to descend to the lowest common denominator as set by states, but to push the boundaries in terms of what is principled and workable. In addition, as some experts observed, while national public discourses around integration can be negative, states’ practice may actually be quite positive in terms of the realization of rights as a tool for integration. The implication for the HCNM is that states will often accept and implement a principled normative approach to integration (as promoted by the HCNM) although this may not always be reflected within the national discourse. In the end, some ‘hot’ issues for integration such as the ban on wearing of religious symbols in France were not addressed directly in the text. The Explanatory Note to Guideline 41 on Participation in Cultural and Religious Life does refer to ‘disproportionate limitations on the public display of cultural or religious symbols and clothing’.49 However, no guidance is provided as to what kind of actions would be considered disproportionate under international law.
Research into the reactions of states where the HCNM has invoked the Ljubljana Guidelines in situations where she or he is engaged, but also more generally from states, including those ‘West ofVienna’, would be informative (a) generally in terms of how some of the guidelines considered more sensitive by the drafters have been received, and (b) specifically in terms of whether resistance stems partly from the ‘soft’ nature of many of the norms relied upon and/or from the soft nature of the instrument itself (i.e. as a set of policy guidelines that can basically be ignored or be rejected as lacking the legitimacy of a consensus-based norm setting).
The status of the final document as Recommendations or (softer) Guidelines was also discussed at length
The term ‘guidelines’ was ultimately preferred over ‘recommendations’ as reflecting a less prescriptive and more practical guidance-oriented approach setting out a range of options. This partly reflects concerns about what states will and will not accept and, thus, the limits of subsequent normative reach and, ultimately, compliance. Indeed, it is vital to avoid overreach which would undermine both the norm and the overall system.