UNESCO CULTURAL DIVERSITY DRAFT

UNCLAS SECTION 01 OF 04 PARIS 001486 SIPDIS FROM USMISSION UNESCO PARIS SENSITIVE E.O. 12958: N/A TAGS: SCUL ETRD FR UNESCO SUBJECT: UNESCO CULTURAL DIVERSITY DRAFT CONVENTION REF: PARIS 329 ¶1. (SBU) SUMMARY. Preparing a revised draft Convention on Cultural Diversity for adoption at the October 2005 UNESCO General Conference was the key goal at this 31 January-11 February meeting, despite a welter of unresolved substantive and drafting issues. Several days into the negotiations and following repeated interventions, USDel succeeded in establishing a reasonable bracketing protocol, which helped make progress in identifying areas that require further consideration. USG concerns included consistency with current international law, definition and use of problematic terms including trade language; respecting and enforcing, without expanding, Intellectual Property Rights (IPRs); and establishment of new administrative and enforcement bodies. Representatives from more than 130 countries participated in the meeting. At the end of the two- week meeting, these representatives entrusted the Chair with completing the preparation of a revised draft Convention and set the dates of May 23-4 June for a third intergovernmental negotiating session. END SUMMARY. Procedures Reflect Rush to Finish the Job by March 3 -------------- -------------- ¶2. (SBU) Much of the initial week was taken up in procedural battles, particularly in the drafting sessions. Many of these appeared trivial at times, but were important in terms of allowing delegations to preserve their positions on substantive issues. The United States insisted that it be permitted to bracket text. (Comment. The Chair of the Drafting Group (Finland) was not helpful in adopting the new procedure, and USDel had to fight him at every step. Had it not done so, the Chair of the Plenary, South Africa, might well have accepted the majority position and forwarded an unbracketed text to the General Conference, as he did on a procedural matter involving a provision concerning entry into force, when he ruled the plenary had reached "consensus" because only four members (US, Russia, Australia and New Zealand) objected to the proposed text. End comment.) ¶3. (SBU) As a result of persistent arguments over procedural rules, very little was accomplished during the first week. Progress on the text accelerated during the second week, after the U.S. secured, through sheer tenacity, the use of brackets. The two-week meeting did not complete a full review of the 34- article Draft Convention. For example, the preamble was not discussed, the definitions were not resolved, and there was only cursory discussion of the enforcement/follow on mechanisms (articles 20 through 34). The group could not agree on the title itself. The Drafting Committee (a subgroup of 24 Member States established at a previous session (reftel)) met in the evenings and completed its second in-depth review of articles 1 to 11. ¶4. (SBU) The rush to completion was also evident in the scheduling. After a full day of plenary sessions, attended by representatives of the approximately 130 Member States participating in the meeting, Drafting Committee meetings were held until 9:00 pm or later virtually every evening. This left precious little time for side discussions and lobbying to reach consensus. ¶5. (SBU) At the beginning of the session, the Chair proposed setting up "ad hoc" working groups, apparently to speed progress. --Reps at first resisted establishing ad-hoc groups, apparently because of questions about how the group's work fit in with the Drafting Committee, but as the days wore on, ad-hoc groups on development issues and on definitions were formed. --A procedure developed whereby the Chair referred matters on which he found no consensus to an informal working group for discussion and further refinement of issues. The results of the informal working group were transmitted to the plenary. If the Chair found that consensus existed, he referred the matter to the Drafting Committee to craft specific language. The results of the Drafting Committee's work were supposed to be referred back to the plenary, but this opportunity did not arise during this meeting. ¶6. (SBU) The rush to complete a text can perhaps be explained by UNESCO Rules, under which a Convention should be adopted only if the Director General (DG) has presented a "final report with one or more draft texts" of a proposed Convention to Member-States seven months in advance of the biennial General Conference of Member States, which is the highest authority in the UNESCO structure. Thus, March 3, 2005 is the deadline for a DG final report on the Cultural Diversity Convention, as the next General Conference will begin on 3 October ¶2005. (UNESCO Rule E, Article 10). (Note. As the 2003 General Conference invited the DG to submit a "preliminary" report, there is arguably nothing that compels the DG to meet this deadline. UNESCO Secretariat officials report, however, that the DG is SIPDIS determined to meet the March 3 deadline in order to give the October General Conference the option to adopt the Convention. End note.) USG Concerns: Consistency with International Law -------------- -------------- ¶7. (U) Article 19 of the current working Draft Convention concerns the relationship between the Convention and existing international law. (Note. Articles 6 through 11 state rights and obligations, concerning trade and other matters, but do not specify whether the Convention is intended to supercede current international obligations. End note.) ¶8. (U) The USG -- supported by New Zealand, Australia, and Mexico, among others -- takes the position that the Convention must be consistent with obligations derived from existing international law. Other delegations, from both developed and developing countries including France, Canada, Switzerland, Brazil, Jamaica, argued that in case of a conflict, the provision in the Cultural Diversity Convention should govern or be "complementary" with other international obligations. Towards the conclusion of the two-week meeting, the EU Member States submitted a proposed new text for Article 19 - based on the idea of "complementarity" -- for discussion at a continuation session tentatively scheduled for 23 May-4 June. Respecting and Enforcing, Without Expanding, IPRs -------------- -------------- ¶9. (SBU) The current working draft requires signatories to respect and enforce intellectual property rights under existing treaties. The USG interventions supported the current text, while stressing that the draft convention must not become a vehicle for creating new intellectual property rights or limitations. ¶10. (SBU) At the end of the meeting, former Article 7.2(b),the primary provision addressing intellectual property rights, remained in the operative text with brackets around the key phrases reflecting the concerns of Brazil. Over the strong intervention of the United States, the drafting committee also adopted a proposed new paragraph offered by Brazil aimed at the protection of traditional knowledge with brackets around the key phrases reflecting the concerns of the United States and a footnote stating these issues are under extensive discussion in other international fora. Definitions of problematic terms-"protect" -------------- ¶11. (SBU) Use of the term "protect" was a major point of contention, as it had been in the September 2004 discussions (reftel). Many delegations, including the USG, argued that the use of the terms "protect" and "cultural goods and services" had transformed the Draft Convention into a trade agreement rather than a cultural agreement. ¶12. (U) During these discussions, the USG first suggested that "protect" be deleted throughout the text, then suggested it be replaced with "preserve and promote", a broader and more cultural term, which did not bring trade-related connotations into the definition. Other delegations, however, said that "protect" had been used for years in a cultural context. ¶13. (U) Towards the end of the second week, the Chairman presented an options paper with possible definitions for "protect" and asked members to seriously reconsider their positions. The next morning, the USG explained at length its serious concerns over the term, but offered to accept the term "protect" if a definition could be reached that walled off any impact on trade, investment or intellectual property. The USG also asked the term "safeguard" be avoided due to its trade implications. ¶14. (U) Following presentation of the options paper, the Chair then convened an ad hoc group of reps from approximately 30 Member States, co-chaired by Costa Rica (head of G-77) and Korea. The group did not reach any conclusions. Some delegations maintained that it was unnecessary to define protection because the substantive provisions of the Convention would determine the meaning of the term. Other delegations, including the USG, supported defining "protection" so as to exclude specifically any possibility of legitimizing trade barriers. A third group pointed out that the reach of the term "protection" was tied up with unresolved questions concerning the relationship of this Convention with other obligations of international law. ¶15. (U) During the concluding session of the two-week meeting, the Chair said that the term "protect" would appear in brackets. Per the UNESCO Legal Office, he noted, "protect" must remain in the title as the title was set forth in the October 2003 General Conference Resolution, but the intergovernmental body could eventually recommend to the General Conference that the name be changed. "Cultural Goods and Services" -------------- ¶16. (SBU) The term "cultural good and services" was the focus of many of the informal or ad hoc discussions. (Note. The issue was only discussed in passing by the plenary. End note.) Initially these discussions were lead by Canada and involved representation from the EU, Brazil, India, Japan and the United States. Later, at the request of the Chair, they were lead by Luxembourg and were open to all participants. ¶17. (SBU) The United States argued the concept was both flawed and ill defined and would permit countries to create new protectionist barriers under the banner of cultural diversity. The U.S. delegation asked that the term, including the definition, be entirely excluded from the text. At the end of the two-week meeting, the Chair also noted the issue was still in dispute. (Comment. Several delegations appeared to seek to use this term to effect a permanent carve out of a portion of goods and services from the disciplines of other international agreements. End comment.) "Vulnerability" -------------- ¶18. (SBU) An ad hoc group on development reviewed and reorganized the articles on International Cooperation (formerly Articles 12-18). The group proposed a new article on the "Promotion of International Cooperation" to facilitate the creation of conditions conducive to the promotion of the diversity of cultural expressions, specifically focusing on enhanced management capacities, partnerships, information exchange, new uses of technology, and a general provision to "encourage, when possible and appropriate, the conclusion of co-production and co-distribution agreements." A new article on the "Promotion of the Central Role of Culture in Sustainable Development," incorporates many provisions on partnerships, capacity building, and the strengthening of cultural industries and market access, all with a particular focus on providing assistance to developing countries. (In earlier drafts of the proposed Convention, these provisions applied to all countries, not just to developing countries.) ¶19. (SBU) The Committee also discussed the concept of "vulnerable cultural expressions." Language was added to the article on the "Promotion of International Cooperation" to foster efforts to "take particular account of the different forms of vulnerability of such expressions." The ad hoc group at first proposed a new article that would provide "preferential treatment" to vulnerable cultural expressions, as well as to cultural actors facing discrimination, marginalization, or exclusion in their cooperation frameworks. However, the group reworked this provision to read that, in the application of the articles on cooperation, State Parties should endeavor to provide recognition and attention to endangered, vulnerable expressions, specifically those that are at the risk of extinction, as well as to cultural actors facing discrimination, marginalization, or exclusion. (Note: Some countries may try to expand this provision to authorize preferential treatment or actions for any cultural expression that could be deemed marginalized or excluded in all bilateral or multilateral agreements.) Establishment of New Administrative and Enforcement Bodies -------------- ¶20. (SBU) The current working Draft Convention anticipates new administrative and enforcement bodies, i.e., a General Assembly of States Parties, an Intergovernmental Committee, an Advisory Group and a dispute-settlement mechanism, apparently modeled on WTO. Hurried discussions on this matter toward the end of the two-week session indicated general acceptance of the idea of a General Assembly under that shortened name, majority support for an Intergovernmental Committee and virtually no support for the Advisory group. There was no substantive discussion of the dispute resolution mechanism. What's Next? -------------- ¶21. (SBU) On the final day of negotiations, the plenary decided that the Chair should himself complete a draft Convention, based on the work already done by the Drafting Committee (which twice reviewed Articles 1- 11),the work of the ad-hoc groups, which had focused and narrowed issues concerning the development/assistance provisions of Articles 12-18, and the plenary's debate on Article 19 (the Relationship between the Convention and Other International Instruments) and on Articles 20-34 (Follow-up Mechanisms and Administrative Clauses). ¶22. (SBU) Member State representatives established tentative dates of May 23-June 4 for the third session to review the new draft text. The April Executive Board must approve the third session and financing questions must be resolved. (Note. The regular UNESCO budget does not cover the costs of these sessions. France and Canada helped defray the costs of the September, December and January sessions and the Flemish government in Belgium might help meet the costs of the third May-June session. End note.) ¶23. (SBU) Comment. The failure of this meeting to finish a complete, in-depth review of the draft text, and the fact that the plenary was not given an opportunity to review or adopt any text coming out of the drafting group or working groups, reinforce USG doubts that a Revised Draft Convention can be prepared and ready for adoption in October 2005. End comment. ¶24. (U) Ambassador Oliver and the delegation reviewed this text. CARSON