US embassy cable - 05PARIS3061

UNCLAS SECTION 01 OF 03 PARIS 003061 
 
SIPDIS 
 
FROM USMISSION UNESCO PARIS 
 
SENSITIVE 
 
STATE FOR IO, IO/T, EUR/ERA, L/EUR, L/UNA, EB/TPP/MTA/MST 
 
E.O. 12958: N/A 
TAGS: SCUL, ETRD, UNESCO 
SUBJECT:  USUNESCO:  OUTCOME OF EXECUTIVE BOARD DECISION ON 
EUROPEAN COMMISSION PARTICIPATION IN CULTURAL DIVERSITY 
NEGOTIATIONS 
 
REF:  PARIS 02231 (NOTAL) 
 
1. (SBU) Summary:  The EU continues to focus on UNESCO as a 
place to enhance its influence and stature in United Nations 
organizations.  Following the rebuff at last fall's 
Executive Board of the EU's attempt to gain "full 
participant" status and the February round of negotiations 
on a cultural diversity convention, the EU made another run 
at it during UNESCO's most recent Executive Board meeting 
which ended April 29.  While the Board's resolution gave the 
EU much less than they wanted, they still succeeded in 
gaining more than they had before.  The resolution says that 
during the next round of negotiations (May 25-June 4) the EC 
"while maintaining its observer status" will remain seated 
at the back of the hall with other observers but will not be 
subject to the same rules observers must follow on when and 
how much they can address the meeting.  End Summary. 
 
2. (SBU) Negotiations on the Draft Convention on the 
Protection of the Diversity of Cultural Contents and 
Artistic Expressions (also known as the cultural diversity 
convention) began in the fall of 2004.  A second round of 
talks was held in February and there will be another later 
this month. 
 
3. (SBU) During last fall's meeting of UNESCO's biannual 
Executive Board, European Union members on the board 
submitted a draft resolution seeking enhanced observer 
status at future negotiations.  Claiming that EU member 
states had transferred competency in several areas-trade, 
free movement of people, and intellectual property rights-to 
the European Community, they asserted a need for a "full" 
seat at the negotiations table.  The EU members had not done 
their homework and ended up withdrawing their proposed 
resolution in the face of a maelstrom of negative reactions. 
 
4. (SBU) As a result of the resolution's failure to pass, 
European Commission representatives were "embedded" in the 
delegation of the EU presidency (Luxembourg) during the 
February round of negotiations.  Most non-EU member states 
felt that this approach worked well in logistical terms, 
that the EC was able to present fully its positions without 
a problem, and that this arrangement was consistent with the 
normal rules of procedure. 
 
5. (SBU) Since the beginning of this year, the EU member 
states on the Board have vigorously and strongly renewed 
their goals on the participation issue.  They prepared 
another draft Executive Board decision for adoption at the 
spring Executive Board meeting and began intense lobbying of 
national delegations at UNESCO and in capitals.  We cited 
one example of their efforts reftel where the Jamaican 
ambassador received new instructions to support the EU after 
lobbying in her capital. 
 
6. (SBU) The Executive Board's Special Committee was the 
first to look at the EU's draft resolution.  When the 
Committee was unable to reach consensus, it referred the 
matter to a working group headed by the Indian ambassador to 
UNESCO.  The Indian Ambassador, working with Uruguay and 
Brazil, came up with a revised draft decision text, which, 
from the U.S. point of view was highly objectionable in 
several respects.  That text, however, was readily embraced 
by EU states.   A key operative paragraph of that text 
stated that "the European Community, while maintaining its 
observer status, may actively participate in the same manner 
as full participants in the work of the Intergovernmental 
Meeting of Experts, excluding the right to vote."  Adoption 
of such a text would have provided the EC everything it had 
fought to obtain since last fall. 
 
7. (SBU) With sentiment seeming to coalesce around this 
version and the likelihood that the EU would prevail in a 
vote, the US delegation, assisted by US Mission Geneva Legal 
Adviser Michael Peay, engaged in intensive negotiations with 
the EU over a 4-day period.  The operative language of the 
final version of the resolution (cleared by IO and EUR) 
reads: (para 3) (The Executive Board) invites, on an 
exceptional basis, the European Community, while maintaining 
its observer status, to participate actively and as fully as 
appropriate in the work of the Intergovernmental Meeting of 
Experts (May 25 - 4 June 2005). 
 
(para 4) Recommends that the General Conference, at its 33rd 
session, take this decision into account with respect to its 
consideration of the item related to the Preliminary Draft 
Convention on the Protection of the Diversity of Cultural 
Contents and Artistic Expressions. 
 
8. (SBU) This version was introduced to the plenary by the 
Indian ambassador as a consensus text.  After adoption, the 
UK ambassador read a clarifying statement: 
(begin quote)The Decision refers to active participation of 
the European Community as fully as appropriate. 
 
The European Union considers that this active participation 
shall consist, within negotiation of the convention, of the 
ability to speak as other participants.  Such active 
participation shall also consist of the ability to reply, to 
put forward proposals and amendments on issues for which it 
has competence at the formal meetings.  It shall also 
include the ability to take part in the discussion of 
procedural issues within the context of the Draft Cultural 
Diversity Convention and the ability to take part in the 
committees, working groups, formal or informal meetings set 
up in the course of the work relating to negotiation of this 
Convention.  The European Community shall have its own 
nameplate. 
 
The European Community may not chair committees or sub- 
committees or serve as Rapporteur unless there is full 
consensus.  The European Community shall not have the right 
vote nor break or block consensus. 
 
Furthermore, European Community participation does not mean 
an additional voice.  Indeed, the European Community decides 
in internal coordination whether the Presidency of the 
Council will speak on an issue on behalf of the Community 
and its member states.  During this process, we have been 
open to providing further explanations concerning 
competences of the Community as regards the draft Convention 
whenever it speaks and we will continue to do so. (end 
quote) 
 
9. (SBU) The Australian Ambassador asked that the UK 
Ambassador's statement be put verbatim in the records of the 
meeting and added that Australia would welcome greater 
clarification of EC competences.  The Japanese Ambassador 
intervened to underscore the point that EC participation 
does not include the right to vote, which is a "crucial 
point" for Japan and a "premise of Japan's acceptance" of 
this outcome.  The Russian Ambassador also asked for a clear 
articulation of EU competencies and linked the competency 
issue to the unresolved question of who will determine the 
applicable legal principles that will govern EC 
participation in the Convention's implementation, once 
adopted.   The UNESCO Legal Adviser provided a non- 
responsive reply, and the Russian Ambassador again took the 
floor to express concern about the restricted negotiation of 
this decision text, noting that this is a "new and unique 
development."  The Chair promised to reproduce the texts of 
statements made and also promised to forward the EU 
statement to the chairman of the Inter-Governmental Working 
Group of Experts (the South African chairman) for reference 
during the next round of negotiations. 
 
10. (SBU) Comment.  Most delegations at UNESCO told us they 
were really pleased with the outcome.  They dreaded a vote 
and many told us they hated being caught between the US and 
the EU.  We repeatedly made the point that this was not 
about the US vs. the EU, that this was about broader 
principles of UNESCO and UN governance.  We were 
disappointed that so few states were willing to confront the 
EU's egregious over reaching.  Most of the responses to IO's 
demarche cable on this subject showed support in capitals 
for the US position, but that did not translate into support 
on the ground.  We also were disappointed with the 
unwillingness of countries like Australia and Russia to 
address the issue until after the US delegation had finished 
with all the heavy lifting. 
 
11. (SBU) Comment continued.  While we avoided a vote that 
many believe would have been a clear win for the EU, we are 
not entirely satisfied with the outcome.  Though their 
participation remains heavily circumscribed, the EU gained 
more than they had going into the meeting, and no matter how 
many times they deny this will be a precedent, it will be a 
precedent. 
 
12. (SBU) Comment continued.  Still it should be remembered 
that the EC's exceptional and unique (vis--vis other 
observers) ability to speak and present proposals, in the CD 
negotiations context, while seated with other observers, and 
its ability to be recognized to speak, like States, in the 
chronological order of requests for the floor, is 
substantially similar to an ability that the EC enjoyed 
during the initial round of WHO negotiations on the revised 
International Health Regulations in Geneva in the fall 
2004." 
 
13. (SBU) Comment continued.  An interesting source of quiet 
support during this period has come from EU delegations that 
indicated they were so tired of EC bullying and over- 
reaching on this issue that they hoped the resolution would 
be voted down.  The message came over as save us from 
ourselves.  We were told that many EU members also did not 
want a vote and resisted a strong French push for a vote. 
 
14. (SBU) Comment continued.  This will not be the last time 
the EU will come knocking on the door.  We see this as one 
more in a series of attempts by the EU to gain the same 
rights as member states in UN organizations.  UNESCO is a 
great place to start because so many delegations operate 
without instructions from their capital, leave decision 
making to their National Commission representatives who 
often do not reflect their countries' official foreign 
policy line or (as in the case of Morocco) leave decision 
making to the Permanent Delegate in Paris.  The language in 
the resolution about referring this matter to the General 
Conference in October will likely lead to a reprise of this 
debate when the issue of who can sign the cultural diversity 
convention will probably be raised.  End comment. 
 
OLIVER