US embassy cable - 05PARIS4145

UNCLAS SECTION 01 OF 03 PARIS 004145 
 
SIPDIS 
 
FROM USMISSION UNESCO PARIS 
SENSITIVE BUT UNCLASSIFIED 
STATE PLS PASS TO USTR 
GENEVA ALSO PLS PASS FOR USTR 
 
E.O. 12958: N/A 
TAGS: OTRA, AORC, SCUL, FR, UNESCO, USTR 
SUBJECT: UNESCO: UNESCO Draft Cultural Diversity Convention: 
EC/EU isolates USG; talks produce draft convention that 
threaten to undermine the WTO and WIPO Legal Regimes 
 
1. (SBU) Begin Summary.  The draft convention adopted (over 
U.S. objections) at the conclusion of the May 25-June 3 
UNESCO cultural diversity negotiations, turned out to be 
about anything but culture.  In proceedings marred by 
unveiled, anti-US hostility, France and the European 
Commission (EC), several European Union (EU) countries, 
Brazil, and Canada, worked in concert with the Chair of the 
talks -to isolate the US positions and prevailed on all key 
issues.  French and Canadian media are already reporting 
that the final document will enshrine the "cultural 
exception" in international law by providing a permanent 
exemption from trade law for audiovisual materials and other 
"cultural goods and services." End summary. 
 
2. (SBU) Despite strenuous US delegation efforts to have the 
draft convention conform to existing international treaty 
obligations and customary international law, the document 
approved by the delegates June 3 at the conclusion of the 
talks creates vague new substantive rights related to 
cultural goods and services, and could undermine 
international trade and intellectual property law.  Again, 
over US objections, the delegates also recommended it for 
adoption by the full UNESCO membership at the biennial 
UNESCO General Conference in October 2005 
 
3. (SBU) The Major Problems with the June 2005 Preliminary 
Draft Convention text: 
 
--It threatens to undermine international trade law through 
a vague definition of "cultural goods and services", " 
cultural industries", "cultural activities" and "cultural 
policies" and operative provisions, such as language 
arguably allows parties to enact culture-related 
protectionist measures, including quotas and subsidies, that 
would be legitimized by the draft convention. In other 
words, its overall effect will be to establish and enshrine 
the "cultural exception" as a dominant principle in 
international law. 
 
--Language (in Article 20) on relationship of this 
convention to other treaties is deliberately ambiguous and 
open to being interpreted as overriding WTO, IPR, and any 
other conflicting treaty obligations. (Comment: It should be 
noted that the EC's DG Trade used as one of its rationales 
for participating in these negotiations, not only its trade 
competence per se but the fact that Article 20 deals with 
the relationship of this convention and other international 
agreements, specifically identifying WTO and trade 
agreements.) 
 
--Despite Usdel pleas to avoid interference with ongoing 
talks at the World Intellectual Property Organization, 
Brazil led those determined to promote and protect 
"traditional knowledge." At the same time, Brazil 
successfully ensured that the document contains scant 
mention of the role of IPR in promoting culture. 
 
--The document clearly intends to create new individual 
rights, as well as new State obligations.  It contains 
language giving "individuals and peoples" a "fundamental 
right to participate in and enjoy" economic aspects of 
development.  Other language might be read to give a right 
to "equitable access" to means of "expression and 
dissemination." 
 
4. (SBU) France, Brazil and Canada spearheaded the movement 
to bulldoze this draft convention to completion and 
aggressively lobbied other delegations to isolate the US and 
create an atmosphere of hostility to our positions. Numerous 
delegates even told Usdel that they supported our positions 
but feared ostracism if they spoke in favor of them. 
 
5. (SBU) This convention has been a top French foreign 
policy goal.  In a May 2 speech, President Chirac said, 
"France will make every effort to ensure that the convention 
is signed next autumn (by UNESCO's General Conference)." 
Though the EU presidency spoke for all EU States on the 
cultural aspects of the convention, given the active role 
played by the French delegation, a casual observer might 
have thought France was in charge. (Note:  We even observed 
the head of the French delegation sharply telling the 
Hungarian UNESCO ambassador to put down his nameplate during 
a vote to strengthen human rights language.) 
 
6. (SBU) The European Commission claimed competency on 
several aspects of the convention but essentially was most 
concerned about trade.  As a result member states were 
prohibited from speaking either in the meeting.  The EC's 
participation was carefully negotiated during the April 2005 
UNESCO Executive Board.  The EC was supposed to delineate 
the area of competence they were addressing in their 
interventions, which they never did, and on at least two 
occasions the EC violated the agreement by breaking 
consensus.  Despite earlier promises, it was never really 
made clear where the EC's competencies ended and those of 
the EU began.  They both seemed to address the same issues. 
The Chair refused to enforce the Executive Board agreement. 
The Chair Sets Anti-USG Tone and Ignores Usual UNESCO 
Consensus-Seeking Practices 
--------------------------------------------- -------- 
 
7. (SBU) The anti-US tone of the negotiations was set by the 
Chair, Kader Asmal, a South African law professor, who 
betrayed his bias in his rude and internally inconsistent 
responses to Usdel interventions.  Asmal also repeatedly 
called for votes, which he generally termed 
"significations," especially in the opening days. At one 
point the US delegation objected to his characterizing of 
the lopsided votes (against the US) as consensus. Asmal 
refused to give ground on the "consensus" issue until 
confronted with a 2002 ruling by the UN legal advisor. 
(Note: Voting is unusual in UNESCO, given well-established 
traditions of seeking consensus. End note.) The atmosphere 
was so negative that a couple of US interventions were met 
with jeers in the meeting room. 
 
8. (U) On 3 June, delegates voted overwhelmingly in favor of 
a resolution forwarding the June 2005 Preliminary Draft 
Convention to the Director General and recommending it for 
adoption by the full UNESCO membership at the biennial 
UNESCO General Conference in October 2005.  The US and seven 
other countries (Argentina, Australia, Chile, Israel, Japan, 
Turkey and New Zealand) expressed formal objections or 
reservations to the murky language in Article 20, which 
concerns the Convention's relationship to other 
international instruments. 
 
9. (U) At the final session, in addition to reiterating its 
specific objections to the text, the US made a strong 
statement criticizing the proceedings and the document (see 
http://france.usembassy.gov/usunesco/ ). 
 
10. (U) The UNESCO secretariat is aware that they have a 
serious problem on their hands.  At a June 7 meeting of 
European and Asian cultural ministers, UNESCO Secretary 
General Matsuura said, "On certain key clauses, it has not 
been possible to reach a consensus."  He also expressed hope 
that, "In the months between now and the time of the General 
Conference, these differences can be ironed out so that 
satisfactory wording can be found for all articles." 
 
11. (SBU) Comment. 
 
This is what happens when culture ministers are allowed to 
make foreign and trade policy.  Since UNESCO's work is often 
wrapped in the lofty language of culture and education, we 
fear that too many capitals have not paid attention to what 
is going on here and thus allowed their delegations to be 
guided by "cultural" experts who have no knowledge of trade 
law or even to operate without instructions. 
 
For UNESCO the results of these negotiations are a problem: 
the US was badly treated at the most important major 
negotiations since our return in the fall of 2003. 
 
It is also unfortunate that France used the EC as a cudgel 
to promote its trade interests. The same week that Secretary 
Rice was meeting in Washington with the EU leadership, the 
EC was firing a shot across our bow in Paris on the trade 
front. It is ironic that the US brought its WTO case against 
Europe over Airbus subsidies, at exactly the same time the 
EC was actively manipulating these negotiations in order to 
close markets to audiovisual products, one of the largest US 
exports by value. 
 
Because of the strict discipline imposed by the Commission, 
our usual friends in Central Europe, the Baltics, the Dutch 
and the UK were forced to remain silent and take positions 
opposed to ours.  A few were carried away with EU fervor but 
a couple made it clear to us that they were very unhappy to 
be used as pawns in this game. 
 
We also see the EC trying to use their gains at UNESCO to 
set precedent for additionality in other future UN meetings. 
While we thought we had an agreement that circumscribed 
their participation, they took an active role that far 
exceeded their "observer" status.  Despite our pleas to 
leave the issue for the General Conference, they also 
succeeded in inserting language that would allow the EC to 
join the convention. 
We will be working in coming weeks to devise a U.S. strategy 
and an external strategy to signal to capitals what is at 
stake in this document.  It is possible that the positions 
they expressed in Paris might not pass full interagency 
review at home. 
 
A cable will follow with USTR's analysis of the convention 
and talking points. 
 
Oliver