UNESCO: REPORT ON NEGOTIATION OF DRAFT PRINCIPLES RELATING

UNCLAS SECTION 01 OF 04 PARIS 005594 SIPDIS FROM USMISSION UNESCO PARIS PASS TO L (LAHNE) AND EUR (BECKER) TAGS: KNAR PHUM SCUL UN SUBJECT: UNESCO: REPORT ON NEGOTIATION OF DRAFT PRINCIPLES RELATING TO CULTURAL OBJECTS DISPLACED IN RELATION TO THE SECOND WORLD WAR Ref: State 108279 ¶1. Begin Summary. The UNESCO Intergovernmental Meeting on the Preparation of a Declaration of Principles Relating to Cultural Objects Displaced in Connection with the Second World War took place in Paris on July 19-21, 2006. The United States delegation consisted of the Permanent Representative, Ambassador Louise Oliver; USUNESCO Legal Adviser T. Michael Peay; and Department Attorney-Adviser Richard Lahne. The United States achieved virtually all the goals outlined in reftel, with a high level of consensus and cooperation from a group of like-minded States including Canada, Germany, Japan, the Netherlands, and the United Kingdom. ¶2. (Summary continued). A first reading was completed of all substantive draft Principles. However, the Preamble, which it was agreed should be deferred until the substantive Principles had been discussed, did not get a first reading. (The text as it stood at the end of the meeting appears in paragraph 8 below.) There was consensus that a second reading would be required, to review both the substantive Principles and the Preamble, before the draft could be recommended to the General Conference (scheduled to take place in October 2007). If funding is secured for a second Intergovernmental Meeting (not a foregone conclusion),the next negotiating session is likely to take place early in 2007. End Summary. ¶3. On day one, Romania agreed to serve as Chair (at the last minute). At the request of Western European States (Group I),the U.S. agreed to be one of four Vice Chairs during this session of these negotiations. The Mission Legal Adviser assumed the Vice Chair duties on behalf of the United States. ¶4. During the opening plenary, many governments made initial statements setting forth their general views and concerns. The U.S. statement drew substantially from the introductory text in the demarche non-paper (see reftel). Japan intervened early to lay out a fairly strident political position (as explained to us privately, largely for domestic political consumption). Japan challenged the need for these principles, forcefully questioned several concepts contained in the draft, and generally urged a "go-slow" approach. Russia was represented intermittently by a member of its permanent delegation who appeared to be primarily a note-taker, and who spoke only once, late on the last day. Greece and South Korea were the strongest proponents for retaining the draft text of 13 principles in un-amended form. ¶5. Over a handful of objections, it was decided to use the draft text of 13 principles as a working text on which to base deliberations (although many countries, including the U.S., had served notice in their opening statements that the draft would require substantial revision). The debate concerning the first several principles went slowly because they contained key concepts that would shape the remainder of the principles. However, the pace quickened on the second day, and a late-night session that day enabled the meeting to complete a first reading of all principles by the end of the third day. ¶6. The U.S. succeeded in winning support for most of its key substantive goals. It was quickly established that prescriptive language was inconsistent with the non-binding nature of these guidelines, and that words such as "shall," and "obligation" would be replaced by other, less directive terms. Most significantly, the U.S. and its allies succeeded in eliminating all text that expressly or implicitly contemplated compensation or reparations for loss of use of cultural objects prior to their return, or resorting either to compensation or to "equivalent" cultural objects as replacements, in the case of destroyed or vanished objects. The U.S. argued that these concepts went far beyond the appropriate scope of the Principles, were impractical, and were likely to complicate and delay, rather than promote, returns. Though our red line issues were hotly debated, a broad consensus was ultimately reached to accommodate the U.S. positions. ¶7. Text Adopted on First Reading. The text as adopted on first reading is set out below. Because of insufficient time, the Preamble was not discussed or adopted and will be taken up during a second reading of the principles. The text agreed to after a first reading appears below verbatim. (However, see the explanatory comments that follow regarding issues of particular interest). ¶8. Begin text: DRAFT 18H00 21July 2006 at end of session DECLARATION OF PRINCIPLES RELATING TO CULTURAL OBJECTS DISPLACED IN RELATION TO THE SECOND WORLD WAR PREAMBLE (The Preamble has not had a first reading) Noting with appreciation the growing number of voluntary returns of cultural objects displaced in relation to the Second World War, and that such voluntary return should be further encouraged; Noting with concern, nevertheless, that a number of issues related to cultural objects displaced in relation to the Second World War has not been settled; Acknowledging that only some countries have adopted national legislation to regulate or solve these issues; Encouraging States to develop national processes to implement the following Principles, particularly as they relate to alternative dispute resolution mechanisms for resolving these issues; Calls upon every State concerned to enter into intensive negotiations on the reciprocal return of cultural objects displaced in relation to the Second World War, on the basis of the following Principles. (The following Principles have been adopted pursuant to a first reading only) Principle I Scope of Application: These Principles are of a non-binding character and are intended to provide general guidance for bilateral or multilateral interstate negotiations in order to facilitate the conclusion of agreements related to Cultural Objects. Under these Principles "Cultural Objects" mean objects, which: i) are defined by Article 1 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; and ii) have been removed from, or the possession of which has been lost within, a territory during or in connection with hostilities or occupation related to the Second World War, even if such occupation was total or partial or had met with no armed resistance. PRINCIPLE II Meaning of Loss of Possession or Removal: These Principles apply to any loss of possession or removal where there are reasonable grounds to conclude that the Cultural Objects concerned: (i) were looted or plundered; or (ii) were otherwise appropriated in a manner contrary to the law in force in the territory where they were located at the time, even if appropriated in a manner in conformity with a law or a judicial or administrative measure, the recognition of which would be offensive to the principles of humanity and dictates of public conscience; or (iii) were transferred pursuant to a transaction apparently, but not actually legal or vitiated for whatever reason, even when the transaction purports to have been voluntarily effected; or (iv) had otherwise left the possession of a person or an entity in circumstances deemed offensive to principles of humanity and dictates of public conscience. PRINCIPLE III Measures that should be taken by the State of Location or Depositary State: States, other than responsible States within the meaning of these Principles, within whose territory the Cultural Objects are currently located for reasons other than deposit, should take appropriate steps to promote and facilitate their return to the competent authorities of the territory from which they were removed or where their possession was lost. (ii) States that are recipients of Cultural Objects deposited in their care by another State for the purpose of protecting the objects against the dangers of the events referred to in Principle I should secure their return to the competent authorities of the territory from which they were removed or where their possession was lost and, should, within the limits of their domestic law, prohibit their export until such return. PRINCIPLE IV Measures that should be taken by the Responsible State: (i) A State, being also the State of location, that was responsible for the loss of possession or removal of Cultural Objects should return such objects to the competent authorities of the territory from which they were removed or where their possession was lost. (ii) A State, not being the State of location that was responsible for the loss of possession or removal of Cultural Objects should participate in the search for and in negotiations to secure the return of such objects. PRINCIPLE V Multiple Responsible States: Where more than one State is responsible for the same or successive acts of removal or loss (es) of possession of a Cultural Object, each of these States shall be considered as a responsible State within the meaning of these Principles. PRINCIPLE VI Measures that should be taken by the Recipient State: The competent authorities of the territory to which the Cultural Objects have been returned, should exercise due diligence to seek out and identify the person or the entity, if any, which was entitled to the Cultural Objects at the time the loss of possession occurred, or the successor to that person or entity, and to return these objects to such a person or entity. PRINCIPLE VII Successive Displacements: Where there have been successive displacements, the Cultural Objects should be returned to the competent authorities of the territory where they were located immediately before the first removal or loss of possession as referred to in Principle I. (To be reconsidered in second reading: In exceptional cases, where cultural objects were temporarily in another State at the time of loss of possession or removal, objects could be returned to a State different from the State or the territory from which they were (Netherlands: originally) removed.) PRINCIPLE VIII Documentation: Cultural Objects being returned should be accompanied by the relevant scientific, technical and legal documentation available. PRINCIPLE IX Exclusion of War Reparations: Cultural Objects referred to in Principle I, shall never be retained as war reparations. PRINCIPLE X Time Limit: No time limits apply to the above Principles. PRINCIPLE XI Relationship to International Law: Nothing in these Principles shall be interpreted as amending, abrogating or replacing relevant international law. (PRINCIPLE XII?) These Principles are without prejudice to issues relating to Cultural Objects no longer available to be returned because they have been destroyed or lost. End Text ¶9. (U) Explanatory Comments: (N.B.: The original draft text is set out in reftel. Where provisions in the original draft text of 13 principles were deleted as a result of these negotiations, explanatory comments relating to them appear in brackets below.) Principle I: The first phrase was deleted, and a new first sentence substituted ("These Principles are of a non-binding character and are intended to provide general guidance for bilateral or multilateral interstate negotiations in order to facilitate the conclusion of agreements related to Cultural Objects."),to underscore the non-binding character of the Principles, and to clarify that they are not intended to undercut private restitution procedures. Principle II: The language of sub-paragraph (iii) was simplified, but not changed substantively. In sub-paragraph (iv),many delegations found the phrase "grossly offensive" too vague and broad, and there was a strong movement to delete the provision altogether. A compromise substituted the phrase "offensive to principles of humanity and dictates of public conscience," which parallels the language of (ii) and is not intended to effect any substantive change. Principle III: The adopted text was proposed by the UK, supported and amended by Canada and the U.S., to eliminate prescriptive language and clarify the different roles that should be expected of "states of location" and "depositary states." Principle IV: The adopted text was proposed by the UK, supported and amended by the U.S., Canada, France, Japan, and the Netherlands. It clarifies the role of a "responsible state" when it is, or is not, also the "state of location." Most significantly, all references to compensation are eliminated, as are attempts to dictate the means by which a "responsible state" should effect or facilitate returns of cultural objects. Principle V: The concept of "joint and several liability" was eliminated, and a substitute text proposed by the UK (with slight amendment) was adopted. [Original draft Principle VI: Deleted as unnecessary in light of Principles III and IV. There was also broad consensus that this provision was unhelpful, because it attempted to prejudge relative equities between "responsible state" and "state of location," and attempted to dictate the resolution of issues between them. Canada proposed deletion, supported by the U.S., U.K., France and Japan, among others.] Principle VI (formerly VII): In addition to eliminating prescriptive language, the U.S. proposed simplified language that left room in appropriate cases for objects to be returned to a State other than the one from which they originally were removed; the U.S. also proposed elimination of the qualifier "in accordance with the law of the Recipient State." Both proposals received consensus support. Principle VII (formerly VIII): Bracketed text represents a proposal by Italy for an additional clause, covering a case in which objects might be returned to a State different from the one from which they were originally removed. The U.S. conceded that such cases might arise, but objected to the singling out of one small subset of a potentially much larger category of cases. Moreover, the U.S. considered that attempting to "legislate" for specific contingencies is unnecessary, because these Principles are merely guidelines, and States faced with such cases remain free to reach different resolutions whenever dictated by justice and common sense. No consensus was reached, and the proposal was held over for a second reading. [Original draft Principle IX: Deleted on a proposal by Germany, supported by a large number of delegations, including the U.S. The replacement of destroyed or vanished objects with other, "equivalent," objects was deemed incompatible with these principles and thus rejected as a form of war reparations that was, in any event, unworkable and likely to prolong rather than resolve disputes.] [Original draft Principle X: Deleted on a proposal by the U.S., supported by a large number of delegations. The idea of compensation for destroyed or vanished objects was broadly rejected. However, see new Principle XII.] Principle IX (formerly XII): The U.S. argued for substitution of "should" for "shall", on the ground that "shall" is inappropriate for a non-binding instrument. However, an overwhelming number of delegations were in favor of retaining the original language, as a statement of established international law. A U.S. proposal to refer to this principle in preambular language was likewise rejected. Principle X (formerly XIII): Substitute text proposed by Greece, supported by a large number of delegations, including the U.S. Principle XI: Not in the original draft Principles. Proposed by Canada in its written comments, and supported by many delegations. The U.S. preferred less specific preambular language (believing that such a "savings clause" was unnecessary and inappropriate in a non-binding instrument) but was prepared to accept the adopted text. New Principle XII: This new text was proposed in response to the deletion of original draft Principle X. (The parenthesis and question mark are part of the provisional text as adopted). Although most delegations rejected the idea of compensation for destroyed or vanished objects, a substantial minority believed that in such cases the "responsible state" should consider increased cooperation in areas of cultural cooperation or cultural development. The U.S. and Mexico proposed a compromise preambular text, which drew some support, but a majority of delegations preferred to have something in the body of the document. This text is based largely upon a U.S. proposed text that had two components and that drew substantial but not universal support. A compromise proposed by Italy, to jettison the second half of the U.S.-proposed text and retain the remainder, resulted in the text as adopted. The U.S. considered this unobjectionable. KOSS