The Helsinki Final Act

The process of recognizing states and membership in an intergovernmental organization also speak to the nature of relations between states in the international community. The Helsinki Final Act is one of key documents of the Cold War era that emphasizes the importance of constitutional principles for the development of peaceful and mutually secure international relations. The Act lays for the foundation for countries of differing ideologies to cooperate for the protection of human and minority rights and, more broadly, prioritizes the mutual co-existence and peaceful interaction of the states in the international arena. It also reveals states’

expectations that the promotion of fundamental rights and freedoms would, in part, help to achieve international peace and security. For this reason, the Helsinki Final Act has become part one of the texts referenced in debates over the recognition of new states.

178 Jack Goldsmith and Eric Posner, The Limits of International Law (Oxford, New York: Oxford University Press, 2005), 32-43.

Adopted in 1975 by the first Conference on Security and Cooperation in Europe, the Helsinki Final Act politically bound 35 states to the principle of détente.¹⁷⁹ The agreement comprises three main sections (also referred as baskets): the first covers issues related to security in Europe; the second concerns cooperation in the fields of economics, science, technology, and the environment; and the third involves cooperation in the humanitarian sector and in other fields such as culture and education. All three sections aim to frame the guiding principles of international relations among states to ensure international peace and stability.

More specifically, the Helsinki Final Act contains provisions that call for sovereign equality and respect for the rights inherent in sovereignty; restraint from the threat or use of force; the territorial integrity of states and inviolability of their frontiers; the peaceful settlement of disputes; non-intervention in countries’ internal affairs; respect for human rights and fundamental freedoms, such as the freedom of thought, conscience, religion or belief; equal rights; the self-determination of peoples; cooperation among member states; and the fulfillment in good faith of members’ obligations under international law. The Principle “Respect for human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief”, in particular, is worth quoting at length here. It states that:

The participating States will respect human rights and fundamental freedoms, including the freedom of thought, conscience, religion or belief, for all without distinction as to race, sex, language or religion.

They will promote and encourage the effective exercise of civil, political, economic, social, cultural and other rights and freedoms all of which derive from the inherent dignity of the human person and are essential for his free and full development.

[…]

The participating States on whose territory national minorities exist will respect the right of persons belonging to such minorities to equality before the law, will afford them the full opportunity for the actual enjoyment of human rights and fundamental freedoms and will, in this manner, protect their legitimate interests in this sphere.

179 Conference on Security and Cooperation in Europe. Helsinki Final Act. (1975).

The participating States recognize the universal significance of human rights and fundamental freedoms, respect for which is an essential factor for the peace, justice and wellbeing necessary to ensure the development of friendly relations and co-operation among themselves as among all States.¹⁸⁰

As this excerpt reveals, the Helsinki Final Act and, specifically, its Principles,¹⁸¹ created “a framework for progress”¹⁸² based on constitutional norms that have had a noticeable impact on the process of recognition.

First, although this text does not explicitly reference a constitution, the principles it outlines clearly relate to many internal functions of a constitution, the very purpose of which is to limit state power. The obligation a state bears to protect the people within its borders necessitates mechanisms to implement the principles of the Helsinki Final Act and to limit the state’s activity in order to protect basic human rights. As “a codification of interstate relations and commitments that is grounded in long-established principles of international law and in such basic documents as the UN Charter,”¹⁸³ these Principles must be implemented “by legal acts,"¹⁸⁴ one of which is a constitution.

Second, as the example of many Central and Eastern European states after the end of the Cold War show, acceptance of the principles of the Helsinki Final Act has become a condition

180 Final Act of the Conference on Security and Cooperation in Europe, August 1, 1975, reprinted in 14 International Legal Materials (1975), 1292.

181 Declaration on Principles Guiding Relations between Participating States, in Final Act of the Conference on Security and Cooperation in Europe, 1975.

182 First Semiannual Report by the President to the Commission on Security and Cooperation in Europe, submitted to House Committee on International Relations, 94th Cong., 2d Sess. 5 (1976), cited in Alexandre Charles Kiss, and Mary Frances Dominick. “The International Legal Significance of the Human Rights Provisions of the Helsinki Final Act.” Vanderbilt Journal of Transnational Law 13, no. 2 (1980), 293-316, 299.

183 Statement on behalf of the United States Delegation to the Belgrade Review Conference by Ambassador Sherer, Oct. 19, 1977, excerpted in Commission on Security and Cooperation in Europe, 95th Cong., 2d Sess., The Belgrade Followup Meeting to the Conference on Security and Cooperation in Europe, a Report and Appraisal 19 (Comm.

Print 1978), cited in Kiss and Dominick, 1980, 304.

184 Prevost, Observations sur la Nature Juridique de l'Acte Final de la Conference sur la Securite et la Cooperation en Europe. Annuaire Francais De Droit International (Centre National de la Recherche Scientifique), 1977, 149-53, cited in Kiss and Dominick, 1980, 309.

for regional and international recognition. For instance, the EU Guidelines on Recognition, explicitly stipulated that:

[T]he process of recognition of these new States, [] requires:

- respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights

- guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the CSCE.¹⁸⁵

For their part, requests for recognition by the states of the Central and Eastern Europe provided explicit assurances of their commitment to the goals and principles of the Final Act.¹⁸⁶

The importance of democratic governance and the protection of human rights received additional emphasis in the Charter of Paris for a New Europe. This Charter was adopted by participating states in the Conference on Security and Cooperation in Europe (CSCE), which, in 1990, included most European countries, Canada, the United States, and the Soviet Union. The Charter of Paris explicitly states that:

We undertake to build, consolidate and strengthen democracy as the only system of government of our nations. In this endeavour, we will abide by the following:

Human rights and fundamental freedoms are the birthright of all human beings, are inalienable and are guaranteed by law. Their protection and promotion is the first responsibility of government. Respect for them is an essential safeguard against an overmighty State. Their observance and full exercise are the foundation of freedom, justice and peace.

Democratic government is based on the will of the people, expressed regularly through free and fair elections. Democracy has as its foundation respect for the human person and the rule of law. Democracy is the best safeguard of freedom of expression, tolerance of all groups of society, and equality of opportunity for each person.

Democracy, with its representative and pluralist character, entails accountability to the electorate, the obligation of public authorities to comply with the law and justice administered impartially. No one will be above the law.

[…]

185 Declaration on the “Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union”

and “Declaration on Yugoslavia”, December 16, 1991 (hereforth the EU Guidelines on Recognition, 1991), emphasis added.

186 Kiss and Dominick, 1980, 295.

We affirm that the ethnic, cultural, linguistic and religious identity of national minorities will be protected and that persons belonging to national minorities have the right freely to express, preserve and develop that identity without any discrimination and in full equality before the law.¹⁸⁷

The Charter of Paris further strengthened the document’s grounding in the principles of the Helsinki Final Act by including the new “Guidelines for the Future,” which stressed signatories’

commitment to human and minority rights, democracy, and the rule of law.

As is evident, both the Helsinki Final Act and the Charter of Paris clearly communicate the international community’s vision for a system of democratic states with strong state protection of human and minority rights. They also specify the requirements with which a new state must comply if it wishes to become a member of world community or to have relations with other countries. Finally, the two documents both implicitly link the admission to the inter-state community and the co-existence and cooperation of the states with an internal governance structure based on constitutional principles.