Identifier
Created
Classification
Origin
05PARIS1486
2005-03-07 18:11:00
UNCLASSIFIED//FOR OFFICIAL USE ONLY
Embassy Paris
Cable title:  

UNESCO CULTURAL DIVERSITY DRAFT

Tags:  SCUL ETRD FR UNESCO 
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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

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