This record is a partial extract of the original cable. The full text of the original cable is not available.

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