UNESCO: UNESCO Draft Cultural Diversity Convention:

UNCLAS SECTION 01 OF 03 PARIS 004145

SIPDIS

FROM USMISSION UNESCO PARIS
SENSITIVE BUT UNCLASSIFIED
STATE PLS PASS TO USTR
GENEVA ALSO PLS PASS FOR USTR

E.O. 12958: N/A
TAGS: OTRA AORC SCUL FR UNESCO USTR
SUBJECT: UNESCO: UNESCO Draft Cultural Diversity Convention:
EC/EU isolates USG; talks produce draft convention that
threaten to undermine the WTO and WIPO Legal Regimes


1. (SBU) Begin Summary. The draft convention adopted (over
U.S. objections) at the conclusion of the May 25-June 3
UNESCO cultural diversity negotiations, turned out to be
about anything but culture. In proceedings marred by
unveiled, anti-US hostility, France and the European
Commission (EC),several European Union (EU) countries,
Brazil, and Canada, worked in concert with the Chair of the
talks -to isolate the US positions and prevailed on all key
issues. French and Canadian media are already reporting
that the final document will enshrine the "cultural
exception" in international law by providing a permanent
exemption from trade law for audiovisual materials and other
"cultural goods and services." End summary.


2. (SBU) Despite strenuous US delegation efforts to have the
draft convention conform to existing international treaty
obligations and customary international law, the document
approved by the delegates June 3 at the conclusion of the
talks creates vague new substantive rights related to
cultural goods and services, and could undermine
international trade and intellectual property law. Again,
over US objections, the delegates also recommended it for
adoption by the full UNESCO membership at the biennial
UNESCO General Conference in October 2005


3. (SBU) The Major Problems with the June 2005 Preliminary
Draft Convention text:

--It threatens to undermine international trade law through
a vague definition of "cultural goods and services", "
cultural industries", "cultural activities" and "cultural
policies" and operative provisions, such as language
arguably allows parties to enact culture-related
protectionist measures, including quotas and subsidies, that
would be legitimized by the draft convention. In other
words, its overall effect will be to establish and enshrine
the "cultural exception" as a dominant principle in
international law.

--Language (in Article 20) on relationship of this
convention to other treaties is deliberately ambiguous and
open to being interpreted as overriding WTO, IPR, and any
other conflicting treaty obligations. (Comment: It should be
noted that the EC's DG Trade used as one of its rationales
for participating in these negotiations, not only its trade
competence per se but the fact that Article 20 deals with
the relationship of this convention and other international
agreements, specifically identifying WTO and trade
agreements.)

--Despite Usdel pleas to avoid interference with ongoing
talks at the World Intellectual Property Organization,
Brazil led those determined to promote and protect
"traditional knowledge." At the same time, Brazil
successfully ensured that the document contains scant
mention of the role of IPR in promoting culture.

--The document clearly intends to create new individual
rights, as well as new State obligations. It contains
language giving "individuals and peoples" a "fundamental
right to participate in and enjoy" economic aspects of
development. Other language might be read to give a right
to "equitable access" to means of "expression and
dissemination."


4. (SBU) France, Brazil and Canada spearheaded the movement
to bulldoze this draft convention to completion and
aggressively lobbied other delegations to isolate the US and
create an atmosphere of hostility to our positions. Numerous
delegates even told Usdel that they supported our positions
but feared ostracism if they spoke in favor of them.


5. (SBU) This convention has been a top French foreign
policy goal. In a May 2 speech, President Chirac said,
"France will make every effort to ensure that the convention
is signed next autumn (by UNESCO's General Conference)."
Though the EU presidency spoke for all EU States on the
cultural aspects of the convention, given the active role
played by the French delegation, a casual observer might
have thought France was in charge. (Note: We even observed
the head of the French delegation sharply telling the
Hungarian UNESCO ambassador to put down his nameplate during
a vote to strengthen human rights language.)


6. (SBU) The European Commission claimed competency on
several aspects of the convention but essentially was most
concerned about trade. As a result member states were
prohibited from speaking either in the meeting. The EC's
participation was carefully negotiated during the April 2005
UNESCO Executive Board. The EC was supposed to delineate
the area of competence they were addressing in their
interventions, which they never did, and on at least two
occasions the EC violated the agreement by breaking
consensus. Despite earlier promises, it was never really
made clear where the EC's competencies ended and those of
the EU began. They both seemed to address the same issues.
The Chair refused to enforce the Executive Board agreement.
The Chair Sets Anti-USG Tone and Ignores Usual UNESCO
Consensus-Seeking Practices
-------------- --------------


7. (SBU) The anti-US tone of the negotiations was set by the
Chair, Kader Asmal, a South African law professor, who
betrayed his bias in his rude and internally inconsistent
responses to Usdel interventions. Asmal also repeatedly
called for votes, which he generally termed
"significations," especially in the opening days. At one
point the US delegation objected to his characterizing of
the lopsided votes (against the US) as consensus. Asmal
refused to give ground on the "consensus" issue until
confronted with a 2002 ruling by the UN legal advisor.
(Note: Voting is unusual in UNESCO, given well-established
traditions of seeking consensus. End note.) The atmosphere
was so negative that a couple of US interventions were met
with jeers in the meeting room.


8. (U) On 3 June, delegates voted overwhelmingly in favor of
a resolution forwarding the June 2005 Preliminary Draft
Convention to the Director General and recommending it for
adoption by the full UNESCO membership at the biennial
UNESCO General Conference in October 2005. The US and seven
other countries (Argentina, Australia, Chile, Israel, Japan,
Turkey and New Zealand) expressed formal objections or
reservations to the murky language in Article 20, which
concerns the Convention's relationship to other
international instruments.


9. (U) At the final session, in addition to reiterating its
specific objections to the text, the US made a strong
statement criticizing the proceedings and the document (see
http://france.usembassy.gov/usunesco/ ).


10. (U) The UNESCO secretariat is aware that they have a
serious problem on their hands. At a June 7 meeting of
European and Asian cultural ministers, UNESCO Secretary
General Matsuura said, "On certain key clauses, it has not
been possible to reach a consensus." He also expressed hope
that, "In the months between now and the time of the General
Conference, these differences can be ironed out so that
satisfactory wording can be found for all articles."


11. (SBU) Comment.

This is what happens when culture ministers are allowed to
make foreign and trade policy. Since UNESCO's work is often
wrapped in the lofty language of culture and education, we
fear that too many capitals have not paid attention to what
is going on here and thus allowed their delegations to be
guided by "cultural" experts who have no knowledge of trade
law or even to operate without instructions.

For UNESCO the results of these negotiations are a problem:
the US was badly treated at the most important major
negotiations since our return in the fall of 2003.

It is also unfortunate that France used the EC as a cudgel
to promote its trade interests. The same week that Secretary
Rice was meeting in Washington with the EU leadership, the
EC was firing a shot across our bow in Paris on the trade
front. It is ironic that the US brought its WTO case against
Europe over Airbus subsidies, at exactly the same time the
EC was actively manipulating these negotiations in order to
close markets to audiovisual products, one of the largest US
exports by value.

Because of the strict discipline imposed by the Commission,
our usual friends in Central Europe, the Baltics, the Dutch
and the UK were forced to remain silent and take positions
opposed to ours. A few were carried away with EU fervor but
a couple made it clear to us that they were very unhappy to
be used as pawns in this game.

We also see the EC trying to use their gains at UNESCO to
set precedent for additionality in other future UN meetings.
While we thought we had an agreement that circumscribed
their participation, they took an active role that far
exceeded their "observer" status. Despite our pleas to
leave the issue for the General Conference, they also
succeeded in inserting language that would allow the EC to
join the convention.
We will be working in coming weeks to devise a U.S. strategy
and an external strategy to signal to capitals what is at
stake in this document. It is possible that the positions
they expressed in Paris might not pass full interagency
review at home.

A cable will follow with USTR's analysis of the convention
and talking points.

Oliver