[WSIS CS-Plenary] Report from UNESCO intergovernmental day 8, Monday, February 7, 2005

[Sasha Costanza-Chock]

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.

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Full text available at www.mediatrademonitor.org