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Lucia A Keegan  08/22/2006 10:18:51 AM  From  DB/Inbox:  Lucia A Keegan

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UNCLAS        PARIS 05594

SIPDIS
cxparis:
    ACTION: UNESCO
    INFO:   ECON AMBU AMB AMBO DCM SCI POL

DISSEMINATION: UNESCOX
CHARGE: PROG

APPROVED: DCM: AKOSS
DRAFTED: LEGALADV: TPEAY
CLEARED: POLADV: DOSTROFF

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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