FRANCE SOFTENS VIEWS ON UNCITRAL REFORM, SEEKS GUIDELINES

UNCLAS SECTION 01 OF 03 UNVIE VIENNA 000129

DEPT FOR IO/T, EB/IFT/ODF AND L/PIL
EMBASSIES FOR ECON/POL

SIPDIS
E.O. 12958: N/A
TAGS: ABUD AORC EAID EINV ETRD KCRM KUNR UNCITRAL AU UN

SUBJECT: FRANCE SOFTENS VIEWS ON UNCITRAL REFORM, SEEKS GUIDELINES
FOR CHAIRPERSONS

REF: 08 UNVIE VIENNA 000036, 08 UNVIE VIENNA 000038
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SUMMARY
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1. (U) The French mission on March 3 hosted an informal meeting to
discuss UNCITRAL's working methods and rules of procedure.
Representatives of 20 countries, the European Commission, and the
UNCITRAL Secretariat attended the meeting. Switzerland, Colombia,
Russia, Belarus, Spain, and the U.S. contributed to the discussions.
France's main objectives are to establish guidelines to assist
chairpersons of UNCITRAL meetings, with regard to consensus decision
making and the participation of non-governmental organizations
(NGOs),and to increase the transparency of the UNCITRAL
Secretariat. France has significantly softened its approach since
2007 (see reftels),and is merely seeking clarification of existing
rules rather than the introduction of new ones. The U.S.
counter-position, that the Commission has been a very productive
technical and non-political UN body that should not be rendered less
effective through introduction of over-constraining rules, continues
to resonate with other Missions.


2. (U) The French mission opened the meeting by thanking the
Secretariat for its work on clarifying working methods, adding that
substantial progress had been made, but several outstanding points
still needed to be resolved. The discussion then turned to France's
four main topics: the definition of consensus, status of observers,
the work of the Secretariat, and language use. Dominique Bellenger,
the UNCITRAL expert from Paris, opened each segment of the
discussion with an appeal for formalized rules, but the
representative from the French mission would summarize his comments
on each point by proposing more informal solutions, suggesting
French flexibility and willingness to compromise. End summary.

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Defining Consensus
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3. (U) The French proposed formal rules defining consensus --
specifically when and how consensus can be broken. Their objective
is to develop guidelines for the chairpersons of working groups, who
are typically non-experts on UN procedures. France opposed
paragraph 14(b) of the draft Secretariat paper (A/CN.9/676),which
states that "formal objection by a delegation. . . is to be treated
as an implicit request for formal voting." France's view is that if
there is a formal objection, discussions should go on until
consensus is reached and voting should be used only as a last
resort. This view was supported by a majority in the meeting,
although few supported it when formal meetings were held last year.
Belarus added a third option, that the formal objection be noted in
the report, without blocking consensus, which is consistent with
existing practice. That option appears favored in the Secretariat's
latest Note on rules and procedures. All states and the Secretariat
agreed that voting should be avoided at all costs and used only as a
last resort.

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NGO Participation
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4. (U) The main French grievance is the lack of transparency with
regard to the participation of NGOs. The French proposed
establishing formal observer status for UNCITRAL in two categories,
for general and specific expertise. In their subsequent comments,
however, France admitted that all they really wanted was the
Secretariat to share information about which NGOs are invited to
participate in UNCITRAL meetings. The Secretariat explained that it
had assumed the role of pre-screening NGO applicants on behalf of
member states, who had the right to reject an NGO application,
although this has never happened. The vast majority of applications
is non-controversial and routinely approved, according to the
Secretariat, and any questionable or borderline cases are forwarded
to member states for approval.


5. (U) When asked by the U.S. whether it wanted member states to
assume the Secretariat's role of screening NGO participation, France
replied no, it just wanted more transparency in the form of a list
of NGO participants. The U.S. for example, along with any other
states that indicate an interest such as France, are routinely
appraised of applications for attendance. France accepted the

UNVIE VIEN 00000129 002 OF 003

SUMMARY
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Secretariat's rather flexible criteria for NGO participation (in
A/CN.9/676, paragraph 26). The Republic of Korea noted that it
would be impractical for member states to approve the participation
of every NGO in advance, and suggested that they be approved at the
beginning of each meeting. When pressed by the U.S. about whether
they would have such decisions made only in June, the French again
said no, the Secretariat could send out note verbales at any time to
announce proposed NGO participants. The French bottom line appears
to be that the Secretariat should keep member states informed about
which NGOs have been invited to participate.

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Role of NGOs During Meetings
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6. (U) The French paper states (in para. 6.1) that NGOs are
entitled to comment "on a specific point at an early stage, prior to
the actual deliberations." The U.S. has expressed its opposition to
that and concern that NGOs continue to be allowed to freely
contribute during the course of deliberations, and its opposition to
anything that would restrict their participation. The U.S. asked
France to clarify whether this proposal would allow NGOs to speak
only at the beginning of meetings and remain silent for the rest of
the session. France agreed that NGOs should be able to contribute
throughout the session, and clarified that their main point is that
NGOs have no formal role in decision-making (a position with which
the U.S. agrees).

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Work of the Secretariat
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7. (U) This segment of the meeting was primarily a dialogue between
the French and the Secretariat. The main complaint of the French,
again, was lack of transparency. France wants the Secretariat to
publish the dates and participants of informal expert group meetings
on the UNCITRAL website. The Secretariat responded that in the last
several years, the only country that has asked for this information
was France, and the information was provided as requested. The
French balked, saying countries should not have to ask for
information; it should be provided to them. The Secretariat noted
its reservations about publicly releasing information about specific
participants and that in any case there were only a few such
meetings each year. The crux of the issue apparently is different
interpretations of the concept of transparency. The French say the
Secretariat lacks transparency because states must ask for
information. The Secretariat counters that it is transparent
because it always provides information when asked. UNVIE's
suggestion is to strike a middle ground between the "push" and
"pull" interpretations of transparency, by proposing that the
Secretariat list the dates and subjects of informal expert groups on
its website, but provide potentially sensitive information on
participants only upon request.

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Language Parity
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8. (U) The French again raised their long-standing concern about
the drift toward use of only one language in working meetings and
proposed that the future guidelines stress the importance of the
principle of parity of the two working languages. France noted that
in Vienna especially (compared to New York, Geneva, and Nairobi, for
example),there was a strong tendency to use English as the only
working language. The Swiss representative gave an impassioned
speech on the merits of multilingualism, and lamented that many
speakers of the five other official languages used English during
meetings even when full interpretation was available. The
Secretariat gave its usual reply that it does what it can subject to
budgetary resources and provides language services on an "as
available" basis.


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Closing on a Conciliatory Note

UNVIE VIEN 00000129 003 OF 003

SUMMARY
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9. (U) COMMENT: France closed the meeting by reassuring states that
it merely wanted to "improve UNCITRAL, nothing more" and that its
only wants to "clarify, not change" the rules and working methods of
UNCITRAL. These were welcome comments because they represent a
substantial shift from December 2007 and they align France with the
prevailing view of UNCITRAL member states, including the U.S., that
no significant revisions to UNCITRAL's rules are needed.


10. (U) The Secretariat noted, both during the meeting and in
private consultations the day before, its strong desire to put the
working methods issue to bed this year. UNVIE fully concurs with
this objective and is optimistic that a guidelines document can be
developed by July that will clarify the Commission's rules without
substantively altering them.


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COMMENT: UNVIE'S SUGGESTIONS
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11. (U) UNVIE's view is that draft guidelines for chairpersons on
the application of consensus would help reduce ambiguity and ensure
consistency across various UNCITRAL working groups. Such
guidelines, however, must be informal, flexible, and not overly
restrictive. UNVIE shares France's concerns about the transparency
of the UNCITRAL Secretariat, because if there is an appearance that
it withholds information, the Secretariat opens itself to suspicions
that it is working behind the backs of some or all member states.
UNVIE's suggestion is that the UNCITRAL Secretariat should
distribute to member states a list of participating NGOs for each
working group and plenary meeting. The list should be distributed
well in advance of the meetings, to allow time for member states to
review the list and raise any formal objections or propose
additional NGOs who may be invited to participate. On the language
parity issue, it is UNVIE's view this remains the lowest priority of
France's four areas of reform. The U.S. should keep a low profile,
because regardless of how strongly the principle of parity is
stressed, there will be little or no substantive changes to current
language practice given the current budget constraints of UNOV
conference services. End Comment.

SCHULTE