UNESCO EXECUTIVE BOARD BODY PLANS TO TEST NEW CONSTRAINTS

UNCLAS SECTION 01 OF 02 PARIS FR 001999

SIPDIS

E.O. 12958: N/A
TAGS: UNESCO PHUM
SUBJECT: UNESCO EXECUTIVE BOARD BODY PLANS TO TEST NEW CONSTRAINTS
ON OBSERVING ITS PRIVATE SESSIONS

UNESCOPARI 10311999 001.2 OF 002



1. Summary. Strong U.S. leadership was needed at the UNESCO
Executive Board's September 30-October 17, 2008 session in order to
vindicate the right of any Executive Board Member State to "observe"
the private meetings of any subsidiary body of the Board, even if
that Member State is not a formal member of that subsidiary body.
This right to attend such sessions is well established in UNESCO's
practice and grounded in Rule 30.5 of the Executive Board's Rules.
The latter provides that: "Any Member of the Board . . . may take
part in the work of subsidiary bodies to which it does not belong.
In such cases, and in the absence of any contrary decision by the
Board, it shall not have the right to vote." Rule 30.5 recognizes
that Executive Board Member States have the discretion to observe
subsidiary body proceedings. In so doing, this rule implicitly
affirms an important institutional principle -- the equality of
States that are members of a governing organ of a UN agency (such as
UNESCO's Executive Board). Despite strident opposition by several
Executive Board delegations, including Cuba and South Africa, the
resolve shown by the United States (with Canadian support) led to
adoption of a decision that has the potential to ensure continued
respect for the underlying principle reflected in Rule 30.5.
Whether this theoretical potential materializes in practice in ways
that we will find acceptable can only be known when the decision is
actually implemented, most likely beginning with the April 2009
spring session of the Board. End Summary.

2. At its spring 2008 session, the Board decided to inscribe an item
on the agenda of its autumn 2008 session to address a controversy as
to whether Executive Board Member States could be prevented from
exercising their right to observe the private meetings of the
"Committee on Conventions and Recommendations" (i.e., informally
referred to as the "CR"). The CR is a subsidiary body of the Board
composed of 30 (thirty) of the 58 Executive Board Member States that
are elected to serve as the formal members of the Committee. The CR
has public sessions, but it meets in private session only when
examining human rights complaints (called "communications") that
have been lodged by individuals or NGOs against Member States of
UNESCO. (These complaints must fall within one of the fields of
UNESCO's core mandate, i.e., violations of rights relating to
education, science, culture, freedom of expression and opinion). CR
examination involves question and answer exchanges (on a
country-by-country basis) between the CR Committee members and
representatives of a respondent concerned state regarding the
alleged human rights violation(s). The CR also explores and
suggests possible steps the government concerned could take to
correct those violations. These exchanges are inherently sensitive
and therefore require that all Executive Board Member States who are
present respect the confidential nature of this process. This
respect has been consistently ensured over time. As a matter of
general practice, most Executive Board Members have voluntarily
refrained from attending CR private sessions as observers, despite
their right to do so under Rule 30.5. Yet, on occasion, there have
been a few States that have observed the private sessions
(Indonesia, Canada, and the United States, at three different
sessions). Moreover, a few States have wished to attend but were
impeded from doing so (Norway during the 179th session and the U.S.
and Malaysia during the 180th Board session).

3. It was only when the United States, as a Board Member but non-CR
member, decided to observe the CR's private proceedings at the
spring 2008 (179th) Board session that the availability of this
right suddenly became controversial (for some members of the CR).
This was no doubt due in part to the fact that the U.S. observed,
among others, cases involving Cuba, Iran, and Myanmar. When Cuba
and South Africa voiced strong objection to the United States'
presence in the room, the CR Chairman vindicated our right under
Rule 30.5 to be present to observe. In view of those developments,
the first item of business that the CR took up at the just concluded
(180th) Board session was the "The Question of the Participation of
Observers in the Private Meetings of the CR."

4. Hardliners on the CR (e.g., Cuba, India, Mexico, Russian
Federation, and South Africa) urged that the CR shut down henceforth
any further possibility for Executive Board Member States non-CR
Members to observe CR private sessions. There was, however,
considerable pushback or hesitation from a number of countries, led
by Portugal and France, who argued that the undisturbed track record
of productive CR proceedings demonstrated that concerns about
observers being present are overblown and that in any event the CR
could not ignore the core principle enshrined in Rule 30.5. In view
of this sharp divergence of views, the Chairman (German Amb.
Overfeld) embarked on an initiative to find a viable solution.
Ambassador Oliver had several informal discussions with him that had
the effect of stiffening his resolve to reach an outcome that the

UNESCOPARI 10311999 002.2 OF 002


U.S. could live with, or face a possible public debate and vote on
this sensitive issue. Ambassador Oliver stressed to him repeatedly
(and to other Ambassadors sitting on the CR) that the dispositive
issue is not the presence or absence of observers, but rather the
commitment of all fellow Board Members who attend the private
sessions, observers included, to ensure full respect for the
confidentiality of the private deliberations that take place.

5. In the end, the decision, in effect, acknowledges the possibility
of Executive Board Member State observation of private CR sessions,
albeit with one important modification, i.e., henceforth observers,
after observing the question and answer session with the government
concerned, will be invited to leave the room when the CR begins its
own internal private discussions about what next steps to take in a
given case, including the specific elements that should be included
in the decision concerning that case. A critical quid pro quo which
enabled the U.S. to go along (at least provisionally) with this
outcome was the Chairman's assurance on the record that "Obviously,
in implementing this decision, all CR chairpersons will bear in mind
Rule 30.5 of the Executive Board Rules of Procedure when asking the
Committee to consider a request" by another Executive Board Member
State to observe the CR's private sessions. The essence of this
statement was drafted by the U.S. delegation.

6. The decision on this matter was adopted by consensus and without
debate at the Executive Board Plenary session on October 16, and can
be found in document 180 EX/63. Following adoption of that
decision, Ambassador Oliver was given the floor so that she could
make the following statement for the record:
Begin USG Explanation of Position (EOP)
The United States has followed closely the discussion of document
180 EX/63 and has listened with great interest to the CR Chairman's
report.
- We particularly welcome the reassuring statement in his report
reflecting the intent of the Chair to bear in mind the fundamental
principle enshrined in Rule 30.5 of the Executive Board Rules of
Procedure in considering requests to observe private CR sessions,
when submitted by Executive Board Members States who are non-CR
Members.
- On the basis of that statement, the United States has joined
consensus for final adoption of the decision for 180 EX/63.
- I ask that this statement be fully recorded in the records of this
meeting. End USG EOP.

7. Comment: The United States (and Malaysia as well) had submitted
a formal request to the CR Chairman to observe the CR's private
sessions at the most recent session, but we were unable to do so
because the issue of observation was being debated within the CR and
was not finally resolved until a draft decision was crafted during
the final days of the Board session after all private CR meeting had
concluded. However, the Mission intends to pursue this matter with
care and diligence to ensure that the likes of Cuba, South Africa,
and Russia do not succeed in precluding other Executive Board
Members States from ever again observing the CR's private sessions.
Towards this end, we intend to submit another request to observe
(probably a month before the spring 2009 session) to see whether the
Chairman and the CR membership are willing to abide by the letter
and the spirit of the compromise reached. If there is another
effort to block us from observing, we will seek Department guidance,
with a view to ensuring respect for the underlying principle and the
decision just adopted. Interestingly, the Egyptians approached the
U.S. delegation the day before the full Board's consideration of
this matter to say that they had given further thought to the
principle the U.S. was defending and had come around to seeing
things our way. That too remains to be seen, in the event there is
a later challenge to our or another Board Member's right to observe.
Finally, if the U.S. (as we expect) is elected to the CR at the
fall 2009 UNESCO General Conference, that will place us in an even
more influential position to defend this principle and to ensure the
proper application of the decision just adopted in document 180
EX/63. End Comment.
OLIVER