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UNESCO intergovernmental session II, Day 8: Monday, February 7, 2005

Summary: First, it was announced that the drafting committee made very little progress over the weekend, so time in plenary this week will be kept for the most part to half days to allow the drafting committee more time. Today's plenary discussed articles 13 and 19, on "international consultation and coordination," and "relationship to other instruments," respectively.

This issue, especially, as laid out in Article 19, is one of the keys of the entire convention. There has been a move by some countries to subordinate the convention to the existing body of international law, in effect, rendering it useless. If one of the main points of the original convention was to give states legal recourse to defend their cultural policies in the face of the trade regime, then obviously adopting option B of article 19, which reads "Nothing in this Convention shall affect the rights and obligations of the States Parties under any other existing international instruments," would undermine that possibility and make an extremely weak convention. The other main option under discussion, Option A, would give the convention slightly more force . . . except when it comes to intellectual property. Option A has two clauses, 1: "Nothing in this Convention may be interpreted as affecting the rights and obligations of the States Parties under any existing international instrument relating to intellectual property rights to which they are parties;" and 2. "The provisions of this Convention shall not affect the rights and obligations of any State Party deriving from any existing international instrument, except where the exercise of those rights and obligations would cause serious damage or threat to the diversity of cultural expressions." Clause two sounds exactly like the language on relationship to other instruments contained in the Convention on Biological Diversity, which is the exact kind of balanced language that would make sense in that it places the convention on equal footing with other bodies of law without superseding them. However, the first clause would make it impossible to challenge existing IP law on the grounds that it limits cultural diversity - not a good outcome, since it's not hard to argue that this is exactly what is taking place. For more on this argument read the CRIS+ comments on Article 19, published at www.mediatrademonitor.org.

The positions of the governments can be summarized as follows: there was general consensus that neither article 13 nor article 19 should be deleted, i.e., that it is important to spell out the relationship to other agreements. On 13, the main debate is over whether it will specifically mention UNESCO as the most appropriate forum for states to discuss measures that impact cultural diversity, whether it will not mention any preferred forum, or a compromise suggested by India: mention UNESCO, but make it clear that states can choose the forum they prefer.

On 19, there is a serious split: some states (US, Japan, Jordan, Ethiopia, Uruguay, maybe Australia and India, Bangladesh, and some others) support option B pretty much as written or with minor modification. Others (Brazil, Vietnam, Andora) support option A but deleting paragraph 1 on IPR; this also is the CRIS+ position supported by progressive NGOs. Many (South Africa, Venezuela, Benin, Peru, Haiti, Mail, Barbados, others) supported option A as written, while still others suggested a 'third way' or option C, but no specific language was mentioned. Finally, a few support alternative wording that attempts to place the convention on equal footing with other bodies of int'l law.

Needless to say, there is no clear mandate to the drafting group on the relationship to other instruments, and this will be one of the most heated political battles, probably to be fought first in the drafting committee (if they ever get to it!) and again in plenary when it comes back to plenary.

The plenary adjourned until tomorrow, so that the drafting committee could work all afternoon and into the evening. We'll hear how that went tomorrow morning when we return.

Blow by blow:

First, the reportback from the weekend's drafting group activities: the drafting group discussed procedural matters until 9:30pm on Saturday. The chair reasserted that procedure was clarified in plenary, and should not be discussed in drafting group. If a member state is unhappy with the approach of the drafting committee, then they can raise a point at the plenary, and plenary will clarify. National delegates are asserting their positions within the drafting committee, rather than trying to follow the consensus emerging within the plenary.

Therefore, the chair announced the following schedule for the week, which it turns out will involve a lot of time in drafting group and not as much time in plenary as last week:

Tomorrow, 8-11am, informal working group on articles 8-12
Wednesday, drafting until 1pm.
Thursday, 8-11am drafting, 2:30-9pm, drafting again

12-18 excluding 13 are under discussion by the working group. Articles 13 & 19 are under discussion today in plenary. There is some interest by states in merging these two articles, but there has also been a request to keep them separate. The chair is interested in merging them. Chair asks the plenary to discuss whether these articles should be merged, remain separate, be discussed together.

Article 13 is on "international consultation and coordination," while article 19 is on "relationship to other instruments."

This issue, especially, as laid out in Article 19, is one of the keys of the entire convention; there has been a move by some countries to subordinate the convention to the existing body of international law. In effect, this would make it useless. If one of the main points of the original convention was to give states legal recourse to defend their cultural policies in the face of the trade regime, then obviously adopting option B of article 19, which reads "Nothing in this Convention shall affect the rights and obligations of the States Parties under any other existing international instruments," would undermine that possibility and make an extremely weak convention. The other main option under discussion, option A, would give the convention slightly more force . . . except when it comes to intellectual property.

Option A has two clauses, 1: "Nothing in this Convention may be interpreted as affecting the rights and obligations of the States Parties under any existing international instrument relating to intellectual property rights to which they are parties;" and 2. "The provisions of this Convention shall not affect the rights and obligations of any State Party deriving from any existing international instrument, except where the exercise of those rights and obligations would cause serious damage or threat to the diversity of cultural expressions."

Clause two sounds exactly like the language on relationship to other instruments contained in the Convention on Biological Diversity, which is the exact kind of balanced language that would make sense in that it places the convention on equal footing with other bodies of law without superseding them. However, the first clause would make it impossible to challenge existing IP law on the grounds that it limits cultural diversity - not a good outcome, since it's not hard to argue that this is exactly what is taking place. For more on this argument read the CRIS+ comments on Article 19, published at www.mediatrademonitor.org.

The plenary session opened with a statement by Luxembourg (as usual representing the EU): would discuss article 13 and 19 one by one. As for 13, states parties should be able to decide what venues they want to use to discuss conflicts regarding cultural diversity, either UNESCO, other forums, bilaterally, regionally etc. They support the original wording of 13 since it would give more leeway to states parties to choose forum. On 19, they will wait to make a statement.

USA: will address 19, then 13. 19 raises fundamental principles of treaty law. "every treaty in force is binding to the parties, and must be performed in good faith." When two or more legal instruments appear to be in conflict, each should be construed so as to render the fullest possible continuing validity of each. Options A and B should be examined according to these rules. They prefer, therefore, option B. They argued that para 1 of option A singles out IPR for special adherence without a good rationale (very true.) para 2 is in conflict with para 1 (also true!) This is why they prefer Option B. (Ummm...however, option B subordinates the convention to the entire existing body of law, thereby undermining a large part of its purpose. We'd agree with most of the delegation's logic, which is why we want to delete para 1 of option A and keep para 2 as it is.) Another flaw in Option A, they argued, is that it is inevitable that the convention will have SOME impact on other conventions. So the question is how to find the legal space for this convention to have its appropriate impact. They also pointed out that a majority of delegates at the WTO prefer option B over option A (...) As for article 13, they argue that it is superfluous, since states parties would naturally take account of treaties they've signed. Are also already aware that UNESCO exists as a forum; but they should not be restricted to just UNESCO as a forum for consultation. It's truisms, and should be deleted as an 'unnecessary appendage.'

Yemen: prefers A 1 (?)

Japan: We have to think about how to make government positions in future international instruments consistent. Article 13 is useless and redundant, should be deleted. With regard to 19, they prefer option B.

Morocco: regarding article 13, in favor of maintaining it, but willing to go along with consensus. Regarding 19, option A gives primacy to this convention IF obligations under other agreement would harm or threaten cultural diversity. It's founded in 1969 Vienna convention on treaty law.

Brasil: 13 and 19 address two different aspects of relationship to other law. Article 13, Brasil generally supports it. Delete paragraph 1 and maintain paragraph 2 with small changes. (This is exactly the CRIS+ position, by the way).

[Here Manon Ress-Love started taking notes while Sasha negotiated with other NGOs over speaking slots on Article 13/19]

South Africa: keep 13 and 19. support notion in 13 and propose keeping original text as in p.76. Re 19 favor option A.

China: art 13 and 19 touch validity of convention. 13 promote principles we favor original text. text ensure future instrument will be compatible. GATTS. further examination of 19 neither options is satisfactory. convention has to be consistent. open to further discussions. very important issue.

Switzerland 13 support Luxembourg suggestion on deleting "within unesco" bec of bilateral and multilateral negotiations. so important for better coordination. to promote AND protect. Against deleting 19.

Australia: fundamental clauses in convention. must be clear. cultural devel. and economical no hierarchy between the 2. option A of 19 places not in complementary but superior level. option a allows to have other agreement to be over. option B is prefer in our view but not satisfactory (like Jap) in B "existing" suggests in future agreement might not be able to be placed in complementary. We 'd be pleased to examine other proposals like 5. re 13 the first sentence how to regard objectives. but the states that signed have already signed on the obligations. Obligation of info sharing could be other place support for deletion.

Peru: important to keep 13. can be changed but must remain. re 19 prefer option A of 19 in particular .2 it is important. support Morocco, important developing countries. must be priorities

India: dr youssouf paragraph 6 this is important and would reassure about compatibility. as far as re 13, share US reservation. This art is idealistic which we respect but not possible. re 19 support option B like australie The word "existing" should be deleted to include future agreements.

Jordan: no specific comments. re 19 delete article . option B of 19

Rep of Korea re 13 understand philosophy but too onerous. re 19 either overriding or inferior. neither good
proposal 4 keep balance bet conv and other instruments. proposal 4 is better.
cartagena protocol should be considered.

Indonesia: On art 13 support India. delete article. art may override effort of developing countries to have international agreement on Traditional Knowledge. para 2 option 2. Option 2 is simpler.

Egypt: 13 strongly support option 1, which is to delete article, since it is a tautology. re 19, delete. We think VIenna convention will prevail for B we prefer original text. if cult diversity is threaten, conv will be respected.

Ethiopia: 13 is important re consultation. keep original. Option B original text for B

Canada: important discussion. Your questions. there is a link both are vital. we want to restrict our intervention to article 13, comments on 19 later. The relationship between this conv and other fora should respect this convention. support Luxembourg. the first 2 sentences more coherent but for 3rd sentence issues there.

Benin: we can bring these 2 art together. 13: there is a demand between ths conv and other. vital art and against deletion. re 19 as in Dec option A. A.2 we could let .1 go but not 2

Venezuela: art 13 and 19 are linked but different aspects of same issue. intern consultation and future agreement while 19 is about compatibility of existing instruments. re 13, agree with original text. Regarding article 19, the venezuelans support A of 19.

Haiti: propose delete article 13, prefer option A of article 19, proposal 1, with modification to 'promoted and protected.' Including additional clause that UNESCO is the appropriate forum.

[sasha taking notes again]

Argentina: Neither of the two variants under article 19 satisfies principles of harmonization, so they have proposed an alternative (option 1, the same proposed by Haiti. Cultural diversity shall be appropriately protected and promoted in international negotiations. etc.'

Mali: option A.

Another country (?) said option A needs to be modified for developing countries.

Uruguay: favors the principle of complementarity and harmonization. Article 13 is not superfluous. They support luxembourg delegation regarding the reference to UNESCO. They can't support option A because it creates a hierarchy between intl agreements. Option B would be the one they would support, but it has some defects that have been pointed out by Australia. They would therefore support option 5.

Tunisia: ?

Jamaica: On 13, replace term 'within UNESCO' with 'within the appropriate forum.' On B, they think that paragraph B is much too vague, so they support option B. 'threat' in option A is much too vague.

Bangladesh: 19, supports option B, with deletion of the word 'existing.'

Turkey: 13 and 19 shouldn't be merged. Supports original text of 13, with deletion of the last sentence. 19, they support option A original text, but thinks that 'damage or threat' needs to be unambiguously defined.

Andora: Article 13 quite important. They support Luxembourg position, to delete 'within UNESCO' in order to leave states free to use whatever venue they wish. Article 19, prefer option A, but open to a new form of words that would delete the first paragraph.

Ecuador: Article 19 proposal 3.

Burkina Faso: on 13, supports luxembourg and switzerland. On 19, they support A, but open to rewording.

Vietnam: Support original text of article 13, with deletion of 'within UNESCO.' Article 19, support option A, paragraph 2.

Croatia: speaking for now only on 13; they believe the two articles should not be merged and that 13 should be kept with deletion of 'within UNESCO.'

Barbados: retention of 13. Barbados supports option A on 19.

Switzerland: Article 19, they suggest a third option, option C, which would be based on a positive approach rather than negative measures, a new description compatible with other instruments. This variant could be like option 5.

Senegal: "The states parties shall refer to the general rule of interpretation of treaties (Vienna convention) and shall bear in mind objectives of this convention when undertaking any new committment."

*At this point the chair left his mike on and muttered "This is nonsense" (!) to general laughter in the room.

EU: wants a third way, wants the drafting committee to work on a 'third way,' but didn't suggest exact language.

Canada: don't support option A or B, would like a third 'C' option.

Norway: they don't like the current options, but would also like a new wording stressing complimentarity and mutual support of this convention and other instruments.


NGOs were then called on.

INCD: Convention shouldn't be subordinated to other international law.

CRIS: read the statement supporting option A of 19, with deletion of para 1 on IPRs.

FEM (musicians) supports option A, including the retention of option A paragraph 1. But they would take out 'existing.'

Liaison Committee for cutlural diversity: on 13, prefers to keep it, article 19 wants to keep option A. Thinks there needs to be a clear mandate for states to defend the principles of this convention. We think that member states of UNESCO should respect culture... but if B was adopted, there would be a two tier system. Countries that respect the convention, and those that move into liberalization committments freely.

Chair clarified that Option B was submitted by Louise Oliver, the US ambassador. Then he summarized:

Plenary had consensus that Article 13 and 19 should be looked at seperately. Also, that both should be maintained, but also substantially reworded and redrafted. Also, future instruments need to be taken into account. On 13, a number of delegates said 'delete the reference to UNESCO.' 13 should be kept but should be an aspirational provision.

Article 19 is much more difficult. Chair invites Luxembourg and Canada, and other social democrats with 'third ways,' to give us a proposal for a third way. There's a sharp division on this article, but chair is happy that some states have said they're open to suggestions. It would not be helpful to have the same debate in the drafting committee. So in order to move forward on this issue, we have to find a provision that takes account of the special nature of the subject of culture. A clear majority have expressed the view that we need an article of this nature. We can't be silent on relationship to other bodies of law. Try to avoid contradiction and conflict with other conventions, and also try to avoid hierarchy between bodies of law. Drafting committee should try to find a formulation that includes principles of complimentarity and nonhierarchy. For example examine option 5 on page 88.

drafting committee meeting in room 2 at 2:30
NGOs meeting in room 8 at 2pm.
Tomorrow we'll hear the report on articles 12-18, at 11am.

New Zealand: regarding article 13, many delegations agreed that the last part should be deleted, but many delegations said that there SHOULD be a reference to UNESCO. Proposal made by Jamaica was a comprimise, that states could negotiate in any forum, including UNESCO.

New Zealand: we thought that debate on 13 and 19 would continue tomorrow. We wanted to make an intervention on the topic.

Peru: We support New Zealand that we can take up these articles if we choose.

Morocco: We want to know when the drafting committee will meet on these articles, we need time to consult our capitals.

Chair: it's impossible to say when the drafting committee will look at these articles, it would be "easier to divine the intention of the Gods."

Ass't to the secretary general: At the request of several African ambassadors, would ask for a moment of silence for the Togo president.

*This moment of silence was about 5 times longer than the moment of silence on day 1, for the hundreds of thousands of victims of the Tsunami.

Plenary then ended for the day.

--

Contact:

Sasha Costanza-Chock
global@mediatrademonitor.org
www.mediatrademonitor.org
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