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### Viewing cable 05PARIS329, UNESCO "CULTURAL DIVERSITY" CONVENTION

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Reference ID | Created | Released | Classification | Origin
--- | --- | --- | --- | ---
05PARIS329 | 2005-01-18 18:19 | 2011-08-24 00:00 | UNCLASSIFIED | Embassy Paris

`

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

` `

    UNCLAS SECTION 01 OF 16 PARIS 000329

    SIPDIS

    USMISSION UNESCO PARIS

    E.O. 12958: N/A
    TAGS: SCUL PGOV PREL EU ETRD UN
    SUBJECT:  UNESCO "CULTURAL DIVERSITY" CONVENTION
    NEGOTIATIONS:  FULL STEAM AHEAD FOR SOME, DESPITE LACK OF
    AGREEMENT ON BASICS

    REF:  2004 July Draft Convention Prepared by Expert

    Committee (July 2004 Draft Convention)

    ¶1.  Summary.  Adopting a Convention on Cultural Diversity at
    the October 2005 UNESCO General Conference remains the
    apparent goal for some key UNESCO members, despite the sharp
    differences on fundamentals shown during 14-17 December
    Meetings of Working Group ("Drafting Commission") charged
    with suggesting revisions to the July 2004 Draft Convention.
    Under UNESCO rules, this timetable seems to require
    distribution of the final UNESCO Secretariat report to
    Member States by 3 March 2005.  (Paragraphs 1-14.)

    Interventions at Drafting Commission meetings showed
    disagreement about the scope of the Convention, whether it
    should focus on the commercial aspects of culture; whether
    it should take precedence over current international
    obligations, including WTO obligations; and the proper ambit
    of intellectual property law.  (Paragraphs 15 to 53.)

    Interventions also expressed equally sharp differences on
    basic procedural matters, including modalities for
    representation of EU Member States, the scope of the
    Drafting Commission's mandate and the format of its report.
    (Paragrpahs 54 to 69.)
    End summary.

    Background
    ------------

    ¶2.   The UNESCO-sponsored negotiations concerning a possible
    Cultural Diversity Convention are based on a formal
    Resolution (Reso. 32C/34) adopted at the Thirty-Second
    Session of the UNESCO General Conference, held in October
    ¶2003.  (Note.  The General Conference, which includes
    representatives of all 190 UNESCO Member States, meets
    biennially and is the highest policy-making authority in
    UNESCO.  End note.)   By Resolution 32C/34, the General
    Conference:

         Invites the Director General to submit to the General
         Conference at its Thirty-Third Session a preliminary
         report setting forth the situation to be regulated and
         the possible scope of regulation action proposed,
         accompanied by a preliminary draft of a convention on
         the protection of the diversity of cultural contents
         and artistic expressions.

    (Note.  General Conference Reso 32C/34 was preceded by many
    other official UNESCO statements generally concerning
    Cultural Diversity (e.g., the November 2001 declaration on
    Cultural Diversity, an 11-12 December Ministerial
    Declaration following a UNESCO-sponsored Meeting of Culture
    Ministers; a 14-15 June 1999 Statement of an Expert Group
    (organized in collaboration with the French UNESCO
    Commission and supported by the Canadian and French
    Governments) and a March-April 1998 Intergovernmental
    Conference on Culture and Development.  End note.)

    ¶3.  Pursuant to normal UNESCO procedures, an Expert
    Committee, comprised of fourteen experts from different
    Member States, was convened.  It submitted the July 2004
    Draft Convention (Ref ), which was followed by a 20-24
    September Intergovernmental meeting of UNESCO Member State
    representatives ("First Intergovernmental Meeting").

    ¶4.  At the First Intergovernmental Meeting, UNESCO Member
    State representatives elected Kader Asmal, a respected South
    African jurist and long-time law professor at Dublin's
    Trinity College, as Chair of the process to assist the
    UNESCO Director General compile a report to submit to the 3-
    21 October 2005 General Conference per Reso. 32C/34.   Artur
    Wilczynski, a Canadian diplomat based in Quebec, was elected
    as the Rapporteur.

    ¶5.  Per Asmal's guidelines, representatives were allowed to
    make only a limited number of interventions, each generally
    no more than five minutes long.   These interventions
    revealed disagreement on fundamental matters, such as: the
    scope of the Convention (e.g., whether "cultural content"
    such as matters touching on language and religion should be
    included), definition of terms (e.g., whether "cultural
    diversity" and "cultural goods and services" should be
    defined at all, and, if so, how), the role of government in
    settling policy affecting cultural matters, and whether
    obligations in this convention would supercede those in
    current international law.

    ¶6.  The First Intergovernmental Meeting also established a
    November 15 deadline for submission of Member State formal
    comments on the July 2004 Draft Convention.  A second
    Intergovernmental meeting was scheduled for 31 January-12
    February 2005 (Second Intergovernmental Meeting.)   Despite
    the lack of agreement on essential components of a
    convention, a Drafting Commission was appointed and
    instructed to begin work on 14-17 December.

    ¶7.  The Drafting Commission is made up of representatives
    from 24 countries.  UNESCO's six geographically-based
    electoral groups each selected four representatives to serve
    on the Drafting Commission.

    Group 1:  Finland, France, Switzerland, USA
    Group 2:  Armenia, Croatia, Hungary, Russia
    Group 3:  Barbados, Brazil, Costa Rica, Ecuador
    Group 4:  China, India, Japan, Korea
    Group 5a: Benin, Nigeria, Madagascar, Senegal
    Group 5b:  Algeria, Lebanon, Saudi Arabia, United Arab
    Emirates

    The Timing Conumdrum, or Why Drafting a Convention Comes
    Before Agreement on What Should Go Into It
    --------------------------------------------- --------------

    ¶8.  The timetable for the Drafting Commission's work seems
    driven by the expressed desire of some influential UNESCO
    Member States to adopt a Convention on Cultural Diversity at
    the 3-20 October 2005 General Conference.  To do this under
    UNESCO Rules, the Director-General's final report be sent to
    Member States seven months in advance of the opening of the
    General Conference, or by 3 March 2005.

    UNESCO rules, Section E, Article 10, Rule 3 provides:

         On the basis of the comments and observations
         transmitted, the Director-General shall prepare a final
         report containing one or more texts, which shall be
         communicated to Member States at least seven months
         before the opening of the session of the General
         Conference.

    Introductory Niceties, Election of Chairman and Rappateur
    --------------------------------------------- -------------

    ¶9.  UNESCO Director General Koichiro Matsuura's 14 December
    opening remarks urged the Drafting Commission to express its
    work in "clear legal language" and to identify choices where
    irreconcilable differences appear.  He said that the revised
    Convention and invitations to the Second Intergovernmental
    Meeting would be sent out to Member-States just before
    Christmas.

    ¶10.  In his introductory speech, Chair Kader Asmal said that
    the Drafting Commission had before it a three-pronged
    challenge: refining the concept and definitions of the
    Convention; meeting the political challenge of articulating
    the rights and obligations set forth in the Convention, and
    transforming the conceptual and political ideas into legally
    sufficient language.

    ¶11.  Mounir Bouchenaki, the Assistant Director General for
    Culture (the top culture official in UNESCO) spoke briefly,
    explaining that under UNESCO rules, a Category 2
    Intergovernmental meeting, such as the September 2004
    meeting, may create Working Groups, such as the Drafting
    Commission.   The Drafting Commission did not need to adopt
    rules, but it should elect a Chairman and Rappateur,
    Bouchenaki concluded.

    ¶12.  The Swiss delegate then nominated a Finn, Jukka Liedes,
    whose name had first been circulated in connection with the
    Drafting Commission Chairmanship in the lead up to the First
    Intergovernmental Meeting.   The Senegalese Ambassador
    objected to the Liedes nomination, saying that his country
    should have been consulted, and proposed the name of a
    candidate from Benin.  (Comment. This seemed to come as a
    surprise, as the Finn had been regarded as the only
    candidate.  End Comment.)  After a coffee break, the Finn
    was accepted by general consent as the Chair and the
    Beninese as the Rappateur.

    ¶13.  Wilczynski, the Quebec-based Canadian diplomat who was
    selected as Overall Rappateur at the First Intergovernmental
    Meeting, sat by the side of the Beninese Rappateur reporter
    during all sessions, made interventions on issues of
    process, and took copious notes.  He seemed largely
    responsible for drafting the text of the alternate options
    discussed by the Drafting Commission 15-17 December and
    helped write the Secretariat's report of the proceedings of
    the Drafting Commission.

    ¶14.  Liedes announced a proposed schedule that anticipated a
    review of the entire July 2004 Draft Convention by the end
    of the 14-17 December meetings.  He noted that the Drafting
    Commission could be "reactivated" during the Second
    Intergovernmental Meeting.   He ruled that observers from
    Intergovernmental Organizations (IGOs) and Non-Governmental
    Organizations (NGOs) would be given the floor only if time
    allowed.  (Note.  The Drafting Commission's pace fell behind
    the Chair's proposed schedule and observers from NGOs and
    IGOs, which had submitted several hundred pages of comments,
    did not speak at all.  Member States who attended as
    observers were also not allowed to speak, contrary to
    expectations, which caused some bad feelings on the part of
    these States about the work of the Drafting Commission.  End
    note.)

    Second Part of First Day:  Title, A Few Other Items
    Discussed
    --------------------------------------------- --------------

    ¶15.  After a skirmish about representation of EU Drafting
    Commission members (see paragraphs 54-57), the Chair turned
    the discussions to the title, noting that Member States had
    submitted some twenty proposals and that this would be the
    Commission's first exercise in streamlining. (Note.  Most of
    the proposals in the formal written submissions contained
    one or more elements of the July 2004 Draft Convention
    title, which follows the wording of Reso. 32C/34 and reads:
    "A Convention on the Protection of the Diversity of Cultural
    Contents and Artistic Expressions." End note.)

    ¶16.  The USG explained its view that the word "protection"
    was ambiguous in that it could refer either to traditional
    trade protectionism, quotas, etc.  Therefore, the USG
    advocated substituting the more affirmative concept of
    "promotion."  Others (e.g., Saudi Arabia, Brazil,
    Switzerland, Magadascar, Benin, India, Yemen and the United
    Arab Emirates) suggested leaving "protection," but adding
    "promotion."  The French rep referred to the suggestion in
    Canada's written submission to substitute "preservation" for
    "protection."  This suggestion was included several times in
    "options" for discussion at the Drafting Commission.

    ¶17.  There was also disagreement about "cultural contents
    and artistic expressions."

         France maintained that "cultural expressions" was a
         more precise and manageable concept and should be used
         in the title and throughout the document.   China and
         India supported the French view.

         The United Arab Emirates opposed this formulation and
         pointed out that "cultural expressions" resulted in an
         exclusive focus on commercial matters.

         Brazil insisted that the idea of cultural contents be
         included in the title.

         Saudi Arabia and Switzerland advocated "cultural
         contents and expressions," but the Saudi added that the
         October 2005 General Conference would have to approve
         the elimination of "artistic," since the October 2003
         General Conference Resolution specified "cultural
         contents and artistic expressions."

    ¶18.  Magadascar suggested "cultural diversity," noting that,
    in common parlance, one referred to the "cultural diversity"
    convention.  Japan, Ecuador and the United States also
    supported "cultural diversity."  (Note.  Ecuador later
    offered "preservation and promotion of cultural diversity in
    all its expressions."  End note.)  In an apparent reference
    to the October 2003 General Conference discussions, however,
    the Saudi noted that the General Conference had already
    rejected the "cultural diversity" formulation for the title.

    ¶19.  The Chair suggested that the final report should
    articulate three possible formulations.  However, when he
    attempted to say what those were, he produced five, then
    realized he could not limit it.  The final report included
    16 options.  (Note.  Intertwined and contentious issues
    appear repeatedly in the July 2004 Draft Convention.  Thus,
    as the Drafting Commission representatives moved through the
    text, they often took up an already-much-discussed topic,
    albeit perhaps from a slightly different angle. During the
    third day, 16 December, the Chair adopted a suggestion that
    the Drafting Commission make up a list of "horizontal"
    issues for presentation to the Second Intergovernmental
    Session.  That way, States would not have to repeat the same
    objection every time a particular issue appeared in the
    text.  At the conclusion of the Drafting Commission meetings
    on 17 December, however, the Chair withdrew the list after
    Drafting Commission members could not reach agreement on its
    components.  See paragraphs 65-69.  End note.)

    ¶20.  Upon resumption of the session after lunch break,
    Member State reps agreed to leave the title to the end of
    the sessions, after contents of the draft Convention itself
    would have become clearer.  This was followed by an
    abbreviated discussion of whether the annexes should be
    dropped, per the many written comments that generally
    recommended eliminating the annexes.  After it became clear
    that would be no quick agreement, the Chair moved the
    discussion to Articles 1 (Objectives) and 2 (Guiding
    Principles).

    Disagreements Continue-About "Cultural Expressions"
    --------------------------------------------- --------

    ¶21.  During the afternoon session of the first day, the
    Saudi delegate reiterated his objection to the phrase
    "cultural expressions," which is used throughout Article 1,
    again saying that it was as an impermissible narrowing of
    the "cultural-contents-and-artistic-expressions" mandate of
    Reso. 32C/34, as it constituted the directions of the
    General Conference.  (Note.  In response to a later Saudi
    objection along the same lines, Assistant Legal Advisor Tom
    Donaldson said that Legal Advisor Yusuf, after reviewing the
    matter, had opined that the report of the Drafting
    Commission's need not track the terms of the October 2003
    General Conference Resolution.  End note.)

    About "Cultural Goods and Services" (Article 1b)
    --------------------------------------------- ------

    ¶22.   France, appearing to quote the EU Member States' joint
    written comments, said "recognition of the specific dual
    (cultural and economic) nature of specificity of cultural
    goods and services" was a critical part of the Convention.
    Lebanon, Senegal, Brazil, Barbados, Croatia and Switzerland
    concurred.  Croatia referred to the long history of the term
    "cultural goods and services" in UNESCO documents.

    ¶23.   The USG explained that its formulations used the terms
    "culture" and "cultural diversity," thereby emphasizing the
    importance of cultural vehicles in daily life in broad
    terms.  The USG formulation did not employ the term
    "cultural goods and services," which, in the USG view, is an
    unworkable concept, since every human product reflects the
    culture of its creator.  The Algerian and Japanese
    representatives supported the USG formulation.   When the
    Chair asked for a show of hands, the USG, Japan, India, UAE
    Saudi Arabia, China and Benin supported the USG formulation,
    while fourteen supported the original text, which employs
    the "cultural goods and services" terminology.  (Note.
    Beginning the second morning, per the Chair's request, the
    Secretariat distributed "options," which it drew from the

    SIPDIS
    formal Comments submitted by Member States.  The Chair
    solicited a show of hands at the conclusion of the
    discussion of a particular section, and counted the votes,
    saying that this was in order to "gauge support" for the
    various options.  At this stage of the proceedings,
    countries were voting for more than one option.  Discussions
    about working methods reported paragraphs 54 to 69 below.
    End note.)

    ¶24.   The Japanese rep introduced a new phrase into the
    debate: "cultural activities," which, like the USG
    formulation, focused on the process whereby culture is
    integrated into daily life.  The GOJ rep said that this term
    did not overlap with trade law terminology and emphasized
    that it would permit a Cultural Diversity Convention to
    develop in harmony with other international obligations.

    ¶25.  The Japanese delegation did not have the opportunity to
    explain the idea at any length, however.  The Japanese had
    missed the deadline set for formal written comments and
    therefore the Secretariat had not included the Japanese
    suggestions in the "options" set forth on the materials it
    distributed.   Apparently motivated in part by this
    practical consideration, the Chair ruled that the GOJ
    suggestion would not be considered.  (Note.  Japan has since
    distributed widely written and electronic copies of its
    suggestions.  End note.)

    ¶26.  Throughout the remainder of the sessions, the Japanese
    interventions almost invariably referred to the GOJ "regret"
    at not being able to explain the concept of "cultural
    activities" further and to the GOJ intention to re-introduce
    the concept of "cultural activities" at the Second
    Intergovernmental Session.

    About "Cultural Policies" (Article 1c)
    -----------------------------------------

    ¶27.  Saudi Arabia, citing its position in favor of
    strengthening the sovereign rights of states, supported the
    third option which "reaffirmed the sovereign rights of
    States" to maintain and adopt "policies and measures" that
    the State "deems appropriate" to protect cultural diversity.
    (Note.  Saudi Arabia and the United Arab Emirates
    consistently advocated strengthening the role of the State
    in setting cultural policy.  From time to time, they
    articulated this position as an "Arab" position, and Egypt's
    formal written comments emphasize a strong State role.  End
    note.)  China and Korea's interventions cited notions of
    state sovereignty in supporting the primacy of the State in
    settling cultural policy.

    ¶28.   The USG stated its support for Option Six, but with
    the reservation that it should not include the word
    "protect." The Secretariat later issued a revised draft,
    which removed the word "protect" from the Option Six.

    ¶29.   France, saying it spoke on behalf of EU States, said
    that affirming the state's role in maintaining, adopting and
    implementing cultural policies was at the core of the
    Convention.  France then moved to amend the third option,
    which it also apparently viewed as the most forceful
    statement, to include the word "implement" and stated its
    support for the version as amended.  Strong support for the
    French amendment was expressed by Benin and Senegal.  (Note.
    The Chair's gauging of the measure of support at the end of
    the debate on this section showed 15 countries in support of
    Option Three.  End note.)

    ¶30.  The USG said that `sovereign rights" would not need to
    be reaffirmed, a position that Ecuador supported, noting
    that UNESCO Member States, as sovereign countries, already
    possessed the rights set forth in option three and that it
    would support option one, which "recommended and encouraged"
    states to take certain measures.   (Note. Interventions
    questioning whether the wording of certain provisions was
    fully compatible with the concept of sovereign states
    characterized later interventions concerning Article 2
    (Principles).  End note.)

    And so on
    ----------

    ¶31.  Article 1 (d), concerning government's role in
    encouraging cultural exchanges, brought forth a discussion
    on whether government should "create conditions" that would
    lead to such exchanges (USG; Russia) or "establish a
    framework."  At the end of the discussion, the Chair's
    measurement of support revealed that both formulations
    received about the same amount of support.

    ¶32.  Article 1(e), which calls for a "wider and more
    balanced" exchange between "cultures and civilizations,"
    drew interventions focused on the possible trade
    connotations of "more balanced."  The USG and Senegal, among
    others, wanted to omit "more balanced" so as to remove the
    trade/commercial implications; France said "more balanced"
    was part of the point; while Costa Rica and others favored
    diluting the trade flavor by adding references to a culture
    of peace.   Saudi Arabia urged the deletion of
    "civilizations."  The Chair, again counting hands, said that
    omitting "civilizations" and the adding "culture of peace"
    received "widespread" support, while the elimination of
    "more balanced" received limited support.

    ¶33.  Article 1(f), which requires signatories to "foster
    respect" for diversity of cultural expressions "at the
    national and global levels," occasioned some discussion
    about the term "foster," with some advocating "affirm."
    Introducing a theme that would be sounded several times over
    the next few days, some intervenors pointed out that local
    government plays an important role, especially in federal
    systems of government.  The original language of Article 1
    (f) received  "widespread" support, per the Chair's count,
    after the addition of "local" to the latter phrase.

    ¶34.  Article 1(g), concerning "global partnerships.
    fostering the capacity of developing societies" to support
    cultural diversity, drew a detailed intervention from the
    Brazilian rep, who emphasized the connections between
    cultural and economic development. The Indian Ambassador
    suggestion to change "societies" to "countries" was
    accepted, but her suggestion that capacities in both
    developed and developing countries should be strengthened
    was not.   Others noted with approval the "partnership"
    element.  The Chair counted a show of hands and concluded
    the original text with the substitution of "countries", had
    "widespread" support.   (Note.  The USG made an intervention
    about the word "protect," which was used in several of the
    options, but agreed to forebear from raising the issue
    again, in view of the growing sentiment to compile a list of
    "horizontal issues" at the end of the Drafting Commission
    sessions.  End note.)

    More of the Same in Discussions of Articles 2 (Principles),
    3 (Scope) and 4 (Definitions)
    --------------------------------------------- --------------

    ¶35. After lunch break on the second day, 15 December, the
    Chair turned the discussions to Article 2 (Principles).
    The interventions generally repeated points made earlier,
    with some additions.  The words "free access" (Principle
    Three) generated discussion about Intellectual Property
    Rights (IPR) implications.  There was strong agreement in
    the room that the convention should not be used to create a
    "right of access" to specific cultural expressions, given
    the possible IPR implications (Ecuador, France, Japan,
    Senegal, USG, Switzerland) though India pointed out that
    this convention could be used to create this right.  (Note.
    India's formal written comments, however, take the position
    that this Convention should not affects its rights and
    obligations under existing international obligations. End
    note.)

    ¶36.  Concerning Principle Five, the Chair agreed with the
    USG position, noting that that the word "right" should not
    be used to describe a concept that has not yet been
    established as a "right."  (Comment.  This was one of the
    few substantive comments the Chair made, but it did not seem
    to deter many reps from approving new applications of the
    word "right."  End comment.)

    ¶37.  Regarding Principle Six (Principle of International
    Solidarity and Cooperation),, there was some discussion of
    the US comment that a principle should not be written with
    mandatory language ("shall) but Costa Rica, India and France
    insisted strongly that this principle should be written as a
    mandatory obligation.  The GOJ noted that the term
    "industries" required clarification, but Brazil strongly
    argued that "industries should be referenced because they
    are the very entities in need of assistance in Brazil.
    According to the Chair's count, 17 States voted in favor of
    retaining "shall" and "industries.")

    ¶38.  Elimination of a contentious comparison between bio-
    diversity and cultural diversity (Principle Seven) received
    general support.

    ¶38.  The third day, 16 December, began with discussions on
    Articles 3 (Scope) and 4 (Definitions, including: "culture,"
    "cultural diversity," "cultural expression" "cultural goods
    and services" "cultural industries" and "cultural policy").
    Interventions generally repeated points previously made, but
    there were some notable or new points.   In the discussion
    of "cultural goods and services" and "cultural industries,"
    reps:

         Generally took the view that the terms could be
         defined.  (Note.  The USG and Japan were exceptions.
         End note.)

         Favored eliminating "have or may generate intellectual
         property rights" from the definition.

         There was strong support for elimination of Annex 1, a
         "non-exhaustive" list of "cultural goods and services."
         Brazil, France and Senegal argued, however, that the
         Drafting Commission did not have the authority to
         delete any text (though in substance France agreed it
         should be deleted).  The Chair agreed and announced
         that none of the annexes would be deleted in his
         report.

    ¶40.  In the discussion of "cultural policies:"

         The Chair pointed out that one option specified that
         the policy must have cultural matters "as its
         predominant aim," while all other options read "address
         or affect any aspect of cultural expressions."  The
         Chair noted that the broader formulation would likely
         be difficult to interpret and apply.  Drafting
         Commission members, not including the USG, nonetheless
         generally indicated preference for the broader
         language, however.
         Japan expressed "great concern" about possible overlap
         between this Convention and the 2003 Intangible
         Heritage Convention (IHC). (Note.  Devising procedures
         to sort out the overlap between the 1973 World Heritage
         Convention and later UNESCO documents, in particular
         the IHC, was an important agenda item during the just-
         concluded 6-11 December 2004 World Heritage Committee
         (WHC) meeting.  The Japanese, who play an important
         role in activities across UNESCO's spectrum, are both
         members of the WHC and vigorous supporters of the IHC
         and have consistently expressed concern about fitting
         the IHC into the panoply of UNESCO normative documents.
         End note.)

         Drafting Commission members generally (but not
         unanimously) favored eliminating Annex II, the "non-
         exhaustive" list of cultural policies.

    ¶41.  In discussions on other definitional terms, some
    favored eliminating as unnecessary terms not used in the
    operative sections of the July 2004 Draft Convention
    ("culture," "cultural capital" and "cultural diversity").
    India, supported by others, noted that "cultural heritage"
    was more appropriate than "cultural capital," which had an
    overly commercial connotation.   That line of analysis,
    however, resuscitated Japanese concerns about possible
    confusion between this Convention and the Intangible
    Heritage Convention and 13 members voted to delete the
    definition of cultural capital.

    ¶42.  In the discussion of "cultural expressions," the Chair
    recognized "substantial support" for both the original text
    and Option 4, the USG proposal.  There was no support for
    Option 2, Canada's written submission.  Nonetheless, the
    remarks from the Drafting Commission Report note limited
    support for Option 2, "some" support of Option 4, and
    "strong" support for the original.

    ¶43.  The Chair's firm announcement that the Drafting
    Commission would create a list of "horizontal" terms for
    presentation to the Second Intergovernmental Sessions came
    during the discussions on definitions.   (Comment.
    Thereafter, it seemed that many reps, including the USG,
    tried to focus on new points, on the apparent understanding
    that concerns already expressed would be included on the
    list of "horizontal" terms. End comment.)

    Questions About Nature of Rights and Obligations (Articles 5
    through 10) and Consistency with Existing International Law
    --------------------------------------------- --------------
    ¶44.  USG interventions and its formal written comments
    requested that the phrase "consistent with other
    international agreements" be inserted at various points in
    the statement of rights and obligations so as to clarify
    that the Convention would not run contrary to current
    international law.  Several other intevenors (e.g., Japan,
    Russia, India and Barbados) noted the importance of this
    issue.

    ¶45.  Russian interventions at several points emphasized the
    ambiguity of the phrase "existing" legal obligations.
    Existing when?  At the time the General Conference adopts
    it?  Or when individual States ratify it?  Or when the
    document of accession is filed?  If either of the latter
    two, then the reference to "existing" would be different for
    each signatory, which would make application of the
    Convention very difficult indeed.  Moreover, what about
    future obligations, including future obligations in the WTO,
    the Russians wondered.

    ¶46. The problem about consistency with current international
    obligations was especially apparent in discussions of
    "measures which in an appropriate manner reserve a certain
    space for domestic cultural goods and services"  (July 2004
    Draft Convention Article 6.2 (a)) and "public financial aid"
    (July 2004 Draft Convention, Article 6.2 (c)).   The Chair
    appeared to indicate that consistency with international law
    would be treated as a "horizontal" issue.

    ¶47.  In other matters concerning Articles 5 and 6:

         China and South Korea advocated changes that would
         emphasize the sovereign power of the Member-States.
         (July 2004 draft Convention Article 5)

         Russia objected to the reference "both within their
         territory and at the global level" (July 2004 Draft
         Convention Art. 5.1), pointing out that the obligations
         of a state are necessarily different within its borders
         than outside them.

    ¶48.  The final day, 17 December, began with interventions
    concerning Article 7 ("Obligation to Promote the Diversity
    of Cultural Expressions").  The wording ("States Parties
    shall provide...) sparked concern about the addition of
    substantial legal obligations, especially when combined with
    seemingly expansive phases, such as: "access to (domestic)
    cultural expressions" and "cultural .goods and services
    representing cultural diversity."  Ecuador and Japan
    concurred with the USG suggestion to replace "shall provide"
    with softer terms, perhaps "undertaking" or "endeavoring to
    create conducive environments."

    ¶49.  Others, such as the EC Commission rep who took France's
    chair for this discussion, voiced concern about possible
    inconsistency with Intellectual Property Rights (IPR) Law.
    He later noted to poloff privately that IPR Law was
    "delicate" and "complex" and that IPR references in
    "operative" statements were therefore "risky." He told
    poloff that the EC would prefer that any reference to IPR
    law be moved to a hortatory section, where it would clearly
    be without operational effect.  This was the position of
    most Drafting Commission members.  Only a few voted for the
    current text of Article 7.2.
    ¶50.  Intervening from his position as Rappateur, Benin's
    representative referred to concerns about the protection IPR
    afforded to cultures in which creativity was often a
    collective process, sometimes spread out over many decades.
    He, along with several other African and Caribbean
    intervenors, also stressed the importance of this section to
    developing countries and asked that counterfeiting be added
    to the language "strengthening of measures against piracy"
    now set forth in Article 7.2(b).

    ¶51.  Interventions concerning Article 8 ("Obligation to
    Protect Vulnerable Forms of Cultural Expression") re-ignited
    concerns earlier expressed by Japan and others about how to
    define vulnerability and the creation of a potentially
    unnecessary new institution.  Ecuador, France and Japan
    noted that this matter was of central importance and should
    be referred to the Second Intergovernmental Meeting for
    determination.  India said that the protection of vulnerable
    cultures was a national issue, not appropriate for
    international bodies.

    ¶52.  Interventions on Article 9 ("Obligation of Information
    and Transparency") and 10 ("Obligation of Public Awareness
    and Education") generally supported the goals, but some
    (e.g., Japan) renewed objections the creation of
    obligations.  Barbados, apparently aiming to soften overly
    preemptory terms  "competent authorities in charge" in
    Article 9, suggested substitution of "point of contact
    responsible for information sharing," which seemed to be met
    with general approval, as did a suggestion to soften the
    terminology of the notification and record-keeping
    requirements in Article 9(d).   The discussion of Article 10
    included well-received suggestions to substitute "awareness
    building" for "public relations" and to include "regional"
    organizations.

    ¶53.  Interventions on the last article to be discussed,
    Article 11 ("Responsibility and Participation of Civil
    Society") generally emphasized the importance of civil
    society, but noted that the word "responsibility" is
    somewhat inapt, given that civil society was independent of
    government and would not be a signatory to this Convention.

    PROCEDURAL DISAGREEMENTS
    Representation of EU Member States in the Drafting
    Commission
    --------------------------------------------- ------

    ¶54.  During his first intervention, on 14 December, the
    representative of France stated that he represented the
    European Union Member States who were also members of the
    Drafting Commission (Finland, Hungary and France).  (Note.
    Croatia, a EU applicant, was initially included in the group
    of EU Member States, the French representative having
    explained that "the single homogenous voice of the EU now
    extends to Croatia and Romania," but Croatia began to make
    interventions in its own name shortly after the meetings
    began.  End note.)  Because of the internal distribution of
    competence, the French representative explained, the
    European Commission representative would also speak when
    some areas were discussed.

    ¶55. Brazil, Benin, Japan and Costa Rica responded that it
    was inappropriate to take up the modalities of
    representation of EU Member States in the Drafting
    Commission, but that they did not want the matter to hold up
    the work of the Drafting Commission.  Senegal and
    Switzerland took a different view, saying that the entire
    matter was an internal issue among the twenty-five EU member
    countries and would not jeopardize the work of the Drafting
    Commission.

    ¶56.  During his first intervention on substance, the
    delegate from France responded to the Chair's invitation to
    speak by asserting that the EU had the floor.  The USG, in
    its next intervention, noted its respect for the right of
    the French delegation to take guidance from the European
    Union, but said that this was a meeting of Member States
    selected to be on the Drafting Commission, and therefore the
    European Union could not take the floor.  The Chair agreed,
    and for the remainder of the meeting, France spoke as
    France, though it was clear they purported to represent the
    European Union.  Neither Finland nor Hungary made any
    interventions.

    ¶57.  EU Participation also became a problem during the
    "voting" on language.  Each participant was asked to raise
    his or her hand to indicate which "option" (see below) his
    or her delegation preferred.  On several occasions, the
    delegate from France would raise both hands (and on one
    occasion even indicated three hands) because Hungary,
    Finland or both were not in the room when the voting was
    held.    As this first happened in the evening, after many
    hours of difficult negotiations and little progress, it
    seemed that most delegates considered this as a joke.  At
    the end of the third day, however, the USDel realized the
    Chair was counting these as votes.  USDel immediately called
    a point or order and asked the Chair if he was counting
    France's vote twice.  When the Chair admitted that he was,
    since France was voting on behalf of Hungary who was not in
    the room at the time, USDel objected.   For the remainder of
    the meeting, Hungary and Finland were consistently in the
    room for voting, and the problem did not arise again.

    Working Methods
    Should Interventions Reflect National Interests?  Or
    Technical Drafting Issues?
    --------------------------------------------- ------------
    ¶58. Throughout the Drafting Commission meetings, some
    representatives (e.g., Ecuador, Barbados) noted with regret
    that many interventions seemed to embody exclusively
    national interests, not technical drafting ones.  This, they
    said, was not fair to the approximately 150 Member States
    not represented on the Drafting Commission.  Drafting
    Commission reps also cited the lack of fairness when
    recommending that all policy questions be referred to the
    Second Intergovernmental Meeting.

    Should Disagreement Be Shown By Brackets (USG Preference) or
    By Variant Texts?
    --------------------------------------------- --------------

    ¶59.  At several points, the Chair talked about finding
    methods to reflect the disagreement.  USDel made several
    interventions stating a preference for the use of brackets
    instead of options, and stating the understanding that the
    entire text and each option would be bracketed.  On several
    occasions, the Chair stated that the entire text and every
    option was understood to be bracketed.

    Chair Settles on Variant Texts
    -------------------------------

    ¶60. Beginning with the second day, the Secretariat compiled
    written comments into 6 or 7 options, grouping and combining
    those written comments that were similar.  However, the
    Drafting Commission was not allowed to either revise the
    options that were suggested, nor provide new text (this was
    a problem for Japan, who had brought along substantial
    changes to the text, to be submitted to the drafting group).

    ¶61. The Drafting Commission reps were asked to limit
    comments to preferences between the suggested options, but
    some offered comments on every option.  In order to speed
    things up, the Chair suggested a show of hands for which
    options delegations "could live with."   For the first day
    of this technique (Day 2 of the meeting) members would
    "vote" for any option they could live with - sometimes two
    or three of the suggested options.  By the third day of the
    meeting, the group had fallen into the practice of "voting"
    for only 1 option, thereby indicating their preference.
    Some participants commented that they could support one of
    several, but then voted in favor of only one.

    ¶62. Many delegations, including the US, objected repeatedly
    early on to this process, pointing out that the Drafting
    Commission had been selected to refine language, not to vote
    on policy matters, and that voting was not fair to the
    Member States not represented on the Drafting Commission.
    As the sessions wore on, however, it seemed that Drafting
    Commission members generally accepted the "voting"
    procedure.

    Language of Drafting Commission's Report
    ------------------------------------------
    ¶63. On the third day, the Chair produced sample language
    that he planned to use to summarize the discussion.  Despite
    previous USG complaints about the use of voting, and a clear
    statement of our preference for bracketing unagreed
    language, the sample language included terms such as "the
    majority of those present supported Option 3" and there were
    no brackets.

    ¶64. In response to objections, the Chair later introduced
    language that did not include any references to the level of
    support expressed for any one option, only references to
    comments made during discussion.  Of the 24 member states on
    the drafting group, only Japan, Saudi Arabia and USA
    supported this text - nine other delegations complained that
    it did not include the results of the voting.  If the voting
    was not counted, then what was the point of the drafting
    group, as the options themselves could be compiled just as
    easily by the Secretariat without the drafting group.
    (Note.  The format the Chair eventually used adjectives,
    such as "some," "considerable," "limited" to identify levels
    of support.  No brackets are used.  End Note.)

    Identifying "Horizontal" Issues
    ---------------------------------

    ¶65. During the third day, in which discussions were still
    focused on definitions, the Chair adopted the suggestion
    that the Chair adopted a suggestion to make up a list of
    "horizontal" issues for presentation to the Second
    Intergovernmental Session, thereby obviating identical
    objections every time a particular issue appeared in the
    text.

    ¶66.  In connection with the discussion about reflecting the
    format of the "voting" procedure, Saudi Arabia and USDel
    both made the statement that the success of the drafting
    group was in highlighting the key issues, the so-called
    "horizontal" issues, to be considered by the Second
    Intergovernmental Meeting.

    ¶67. On the fourth and final day, 17 December, the Chair
    introduced his draft of a list of horizontal issues."  The
    list:

         Included terms such as "cultural contents;" "cultural
         diversity" "cultural goods and services" and
         "protection, preservation and safeguarding."
         Referred to the choice between "States-Parties" and
         "Contracting Parties," the latter formulation suggested
         by France and also set forth in the EU Comments (Ref
         C).

         Noted that questions had arisen concerning the content
         and placement of provisions concerning intellectual
         property.

         Set forth in general terms the question of whether
         "shall" or "should" was the better term to use in
         describing obligations under the Convention.

    ¶68.  Drafting Commission reps, seemingly testy after three
    full days of what seemed repetitive and not fruitful talks,
    raised many objections.
         France, said that "cultural diversity" was not a
         horizontal issue, as it was only once in the July 2004
         Draft Convention and had no "operational" function.
         The USG response noted that the USG had tailored its
         interventions on the assumption that "cultural
         diversity," a key term in the USG vision, would be
         submitted to the Second Intergovernmental meeting.
         (Note.  As the USG envisions it, "culture" and
         "cultural diversity" would substitute for "cultural
         goods and services," "cultural expressions" and other
         problematic terms.  End note.)

         Brazil and Costa Rica objected to the inclusion of
         intellectual property law.

         Many reps pointed out that the use of "shall" versus
         "should" was a policy choice, with different outcomes
         depending on the particular provision under discussion.

    ¶69.  In apparent response to the rapid-fire interventions,
    virtually all of which found fault with the list, the Chair
    withdrew the list.

    ¶70.  USDel's last intervention expressed serious
    reservations about the process used during the meeting and
    the value of the product that would result.  Senegal
    concurred with USDEL and expressed appreciation that the US
    had flagged these concerns.  Benin added that the African
    states had had high hopes for this meting, but that the
    meeting had not achieved what they had hoped.

    ¶71.  The sessions came to an end shortly thereafter, after
    reps praised the Chair's hard work and his professional,
    evenhanded and calm demeanor.
    Oliver

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