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Cablegate: Unesco: Report On Negotiation of Draft Principles Relating

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Lucia A Keegan 08/22/2006 10:18:51 AM From DB/Inbox: Lucia A Keegan

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UNCLAS PARIS 05594

SIPDIS
cxparis:
ACTION: UNESCO
INFO: ECON AMBU AMB AMBO DCM SCI POL

DISSEMINATION: UNESCOX
CHARGE: PROG

APPROVED: DCM: AKOSS
DRAFTED: LEGALADV: TPEAY
CLEARED: POLADV: DOSTROFF

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ZNR UUUUU ZZH
R 210955Z AUG 06
FM AMEMBASSY PARIS
TO RUEHC/SECSTATE WASHDC 0513
INFO RUEHLO/AMEMBASSY LONDON 6205
RUEHTC/AMEMBASSY THE HAGUE 2569
RUEHRL/AMEMBASSY BERLIN 6286
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RUEHOT/AMEMBASSY OTTAWA 1956

UNCLAS SECTION 01 OF 04 PARIS 005594

SIPDIS

FROM USMISSION UNESCO PARIS
PASS TO L (LAHNE) AND EUR (BECKER)

TAGS: KNAR PHUM SCUL UN
SUBJECT: UNESCO: REPORT ON NEGOTIATION OF DRAFT PRINCIPLES RELATING
TO CULTURAL OBJECTS DISPLACED IN RELATION TO THE SECOND WORLD WAR

Ref: State 108279

1. Begin Summary. The UNESCO Intergovernmental Meeting on the
Preparation of a Declaration of Principles Relating to Cultural
Objects Displaced in Connection with the Second World War took place
in Paris on July 19-21, 2006. The United States delegation
consisted of the Permanent Representative, Ambassador Louise Oliver;
USUNESCO Legal Adviser T. Michael Peay; and Department
Attorney-Adviser Richard Lahne. The United States achieved
virtually all the goals outlined in reftel, with a high level of
consensus and cooperation from a group of like-minded States
including Canada, Germany, Japan, the Netherlands, and the United
Kingdom.

2. (Summary continued). A first reading was completed of all
substantive draft Principles. However, the Preamble, which it was
agreed should be deferred until the substantive Principles had been
discussed, did not get a first reading. (The text as it stood at
the end of the meeting appears in paragraph 8 below.) There was
consensus that a second reading would be required, to review both
the substantive Principles and the Preamble, before the draft could
be recommended to the General Conference (scheduled to take place in
October 2007). If funding is secured for a second Intergovernmental
Meeting (not a foregone conclusion), the next negotiating session is
likely to take place early in 2007. End Summary.

3. On day one, Romania agreed to serve as Chair (at the last
minute). At the request of Western European States (Group I), the
U.S. agreed to be one of four Vice Chairs during this session of
these negotiations. The Mission Legal Adviser assumed the Vice
Chair duties on behalf of the United States.

4. During the opening plenary, many governments made initial
statements setting forth their general views and concerns. The U.S.
statement drew substantially from the introductory text in the
demarche non-paper (see reftel). Japan intervened early to lay out
a fairly strident political position (as explained to us privately,
largely for domestic political consumption). Japan challenged the
need for these principles, forcefully questioned several concepts
contained in the draft, and generally urged a "go-slow" approach.
Russia was represented intermittently by a member of its permanent
delegation who appeared to be primarily a note-taker, and who spoke
only once, late on the last day. Greece and South Korea were the
strongest proponents for retaining the draft text of 13 principles
in un-amended form.

5. Over a handful of objections, it was decided to use the draft
text of 13 principles as a working text on which to base
deliberations (although many countries, including the U.S., had
served notice in their opening statements that the draft would
require substantial revision). The debate concerning the first
several principles went slowly because they contained key concepts
that would shape the remainder of the principles. However, the pace
quickened on the second day, and a late-night session that day
enabled the meeting to complete a first reading of all principles by
the end of the third day.

6. The U.S. succeeded in winning support for most of its key
substantive goals. It was quickly established that prescriptive
language was inconsistent with the non-binding nature of these
guidelines, and that words such as "shall," and "obligation" would
be replaced by other, less directive terms. Most significantly, the
U.S. and its allies succeeded in eliminating all text that expressly
or implicitly contemplated compensation or reparations for loss of
use of cultural objects prior to their return, or resorting either
to compensation or to "equivalent" cultural objects as replacements,
in the case of destroyed or vanished objects. The U.S. argued that
these concepts went far beyond the appropriate scope of the
Principles, were impractical, and were likely to complicate and
delay, rather than promote, returns. Though our red line issues
were hotly debated, a broad consensus was ultimately reached to
accommodate the U.S. positions.

7. Text Adopted on First Reading. The text as adopted on first
reading is set out below. Because of insufficient time, the
Preamble was not discussed or adopted and will be taken up during a
second reading of the principles. The text agreed to after a first
reading appears below verbatim. (However, see the explanatory
comments that follow regarding issues of particular interest).

8. Begin text:

DRAFT
18H00 21July 2006 at end of session
DECLARATION OF PRINCIPLES RELATING TO CULTURAL OBJECTS DISPLACED IN
RELATION TO THE SECOND WORLD WAR
PREAMBLE (The Preamble has not had a first reading)
Noting with appreciation the growing number of voluntary returns of
cultural objects displaced in relation to the Second World War, and
that such voluntary return should be further encouraged;
Noting with concern, nevertheless, that a number of issues related
to cultural objects displaced in relation to the Second World War
has not been settled;
Acknowledging that only some countries have adopted national
legislation to regulate or solve these issues;
Encouraging States to develop national processes to implement the
following Principles, particularly as they relate to alternative
dispute resolution mechanisms for resolving these issues;
Calls upon every State concerned to enter into intensive
negotiations on the reciprocal return of cultural objects displaced
in relation to the Second World War, on the basis of the following
Principles.

(The following Principles have been adopted pursuant to a
first reading only)

Principle I
Scope of Application: These Principles are of a non-binding
character and are intended to provide general guidance for bilateral
or multilateral interstate negotiations in order to facilitate the
conclusion of agreements related to Cultural Objects. Under these
Principles "Cultural Objects" mean objects, which:

i) are defined by Article 1 of the 1970 UNESCO Convention on the
Means of Prohibiting and Preventing the Illicit Import, Export and
Transfer of Ownership of Cultural Property; and
ii) have been removed from, or the possession of which has been
lost within, a territory during or in connection with hostilities or
occupation related to the Second World War, even if such occupation
was total or partial or had met with no armed resistance.
PRINCIPLE II
Meaning of Loss of Possession or Removal:
These Principles apply to any loss of possession or removal where
there are reasonable grounds to conclude that the Cultural Objects
concerned:
(i) were looted or plundered; or

(ii) were otherwise appropriated in a manner contrary to the law
in force in the territory where they were located at the time, even
if appropriated in a manner in conformity with a law or a judicial
or
administrative measure, the recognition of which would be offensive
to the principles of humanity and dictates of public conscience; or

(iii) were transferred pursuant to a transaction
apparently, but not actually legal
or vitiated for whatever reason, even when
the transaction purports to have been
voluntarily effected; or

(iv) had otherwise left the possession of a person or an
entity in circumstances deemed offensive to principles of humanity
and dictates of public conscience.

PRINCIPLE III
Measures that should be taken by the State of Location or Depositary
State:
States, other than responsible States within the meaning of these
Principles, within whose territory the Cultural Objects are
currently located for reasons other than deposit, should take
appropriate steps to promote and facilitate their return to the
competent authorities of the territory from which they were removed
or where their possession was lost.
(ii) States that are recipients of Cultural Objects deposited in
their care by another State for the purpose of protecting the
objects against the dangers of the events referred to in Principle I
should secure their return to the competent authorities of the
territory from which they were removed or where their possession was
lost and, should, within the limits of their domestic law, prohibit
their export until such return.


PRINCIPLE IV

Measures that should be taken by the Responsible State:

(i) A State, being also the State of location, that
was responsible for the loss of possession
or removal of Cultural Objects should return such
objects to the competent authorities of
the territory from which they were removed or
where their possession was lost.
(ii) A State, not being the State of location that was responsible
for the loss of possession or removal of Cultural Objects should
participate in the search for and in negotiations to secure the
return of such objects.
PRINCIPLE V
Multiple Responsible States:
Where more than one State is responsible for the same or successive
acts of removal or loss (es) of possession of a Cultural Object,
each of these States shall be considered as a responsible State
within the meaning of these Principles.
PRINCIPLE VI
Measures that should be taken by the Recipient State:
The competent authorities of the territory to which the Cultural
Objects have been returned, should exercise due diligence to seek
out and identify the person or the entity, if any, which was
entitled to the Cultural Objects at the time the loss of possession
occurred, or the successor to that person or entity, and to return
these objects to such a person or entity.

PRINCIPLE VII
Successive Displacements:
Where there have been successive displacements, the Cultural Objects
should be returned to the competent authorities of the territory
where they were located immediately before the first removal or loss
of possession as referred to in Principle I.
(To be reconsidered in second reading: In exceptional cases, where
cultural objects were temporarily in another State at the time of
loss of possession or removal, objects could be returned to a State
different from the State or the territory from which they were
(Netherlands: originally) removed.)

PRINCIPLE VIII
Documentation:
Cultural Objects being returned should be accompanied by the
relevant scientific, technical and legal documentation available.

PRINCIPLE IX

Exclusion of War Reparations:

Cultural Objects referred to in Principle I, shall never be retained
as war reparations.
PRINCIPLE X
Time Limit:
No time limits apply to the above Principles.
PRINCIPLE XI
Relationship to International Law:
Nothing in these Principles shall be interpreted as amending,
abrogating or replacing relevant international law.

(PRINCIPLE XII?)
These Principles are without prejudice to issues relating to
Cultural Objects no longer available to be returned because they
have been destroyed or lost.

End Text

9. (U) Explanatory Comments:

(N.B.: The original draft text is set out in reftel. Where
provisions in the original draft text of 13 principles were deleted
as a result of these negotiations, explanatory comments relating to
them appear in brackets below.)

Principle I: The first phrase was deleted, and a new first sentence
substituted ("These Principles are of a non-binding character and
are intended to provide general guidance for bilateral or
multilateral interstate negotiations in order to facilitate the
conclusion of agreements related to Cultural Objects."), to
underscore the non-binding character of the Principles, and to
clarify that they are not intended to undercut private restitution
procedures.

Principle II: The language of sub-paragraph (iii) was simplified,
but not changed substantively. In sub-paragraph (iv), many
delegations found the phrase "grossly offensive" too vague and
broad, and there was a strong movement to delete the provision
altogether. A compromise substituted the phrase "offensive to
principles of humanity and dictates of public conscience," which
parallels the language of (ii) and is not intended to effect any
substantive change.

Principle III: The adopted text was proposed by the UK, supported
and amended by Canada and the U.S., to eliminate prescriptive
language and clarify the different roles that should be expected of
"states of location" and "depositary states."

Principle IV: The adopted text was proposed by the UK, supported
and amended by the U.S., Canada, France, Japan, and the Netherlands.
It clarifies the role of a "responsible state" when it is, or is
not, also the "state of location." Most significantly, all
references to compensation are eliminated, as are attempts to
dictate the means by which a "responsible state" should effect or
facilitate returns of cultural objects.

Principle V: The concept of "joint and several liability" was
eliminated, and a substitute text proposed by the UK (with slight
amendment) was adopted.

[Original draft Principle VI: Deleted as unnecessary in light of
Principles III and IV. There was also broad consensus that this
provision was unhelpful, because it attempted to prejudge relative
equities between "responsible state" and "state of location," and
attempted to dictate the resolution of issues between them. Canada
proposed deletion, supported by the U.S., U.K., France and Japan,
among others.]

Principle VI (formerly VII): In addition to eliminating
prescriptive language, the U.S. proposed simplified language that
left room in appropriate cases for objects to be returned to a State
other than the one from which they originally were removed; the U.S.
also proposed elimination of the qualifier "in accordance with the
law of the Recipient State." Both proposals received consensus
support.

Principle VII (formerly VIII): Bracketed text represents a proposal
by Italy for an additional clause, covering a case in which objects
might be returned to a State different from the one from which they
were originally removed. The U.S. conceded that such cases might
arise, but objected to the singling out of one small subset of a
potentially much larger category of cases. Moreover, the U.S.
considered that attempting to "legislate" for specific contingencies
is unnecessary, because these Principles are merely guidelines, and
States faced with such cases remain free to reach different
resolutions whenever dictated by justice and common sense. No
consensus was reached, and the proposal was held over for a second
reading.

[Original draft Principle IX: Deleted on a proposal by Germany,
supported by a large number of delegations, including the U.S. The
replacement of destroyed or vanished objects with other,
"equivalent," objects was deemed incompatible with these principles
and thus rejected as a form of war reparations that was, in any
event, unworkable and likely to prolong rather than resolve
disputes.]

[Original draft Principle X: Deleted on a proposal by the U.S.,
supported by a large number of delegations. The idea of
compensation for destroyed or vanished objects was broadly rejected.
However, see new Principle XII.]

Principle IX (formerly XII): The U.S. argued for substitution of
"should" for "shall", on the ground that "shall" is inappropriate
for a non-binding instrument. However, an overwhelming number of
delegations were in favor of retaining the original language, as a
statement of established international law. A U.S. proposal to
refer to this principle in preambular language was likewise
rejected.

Principle X (formerly XIII): Substitute text proposed by Greece,
supported by a large number of delegations, including the U.S.

Principle XI: Not in the original draft Principles. Proposed by
Canada in its written comments, and supported by many delegations.
The U.S. preferred less specific preambular language (believing that
such a "savings clause" was unnecessary and inappropriate in a
non-binding instrument) but was prepared to accept the adopted text.


New Principle XII: This new text was proposed in response to the
deletion of original draft Principle X. (The parenthesis and
question mark are part of the provisional text as adopted).
Although most delegations rejected the idea of compensation for
destroyed or vanished objects, a substantial minority believed that
in such cases the "responsible state" should consider increased
cooperation in areas of cultural cooperation or cultural
development. The U.S. and Mexico proposed a compromise preambular
text, which drew some support, but a majority of delegations
preferred to have something in the body of the document. This text
is based largely upon a U.S. proposed text that had two components
and that drew substantial but not universal support. A compromise
proposed by Italy, to jettison the second half of the U.S.-proposed
text and retain the remainder, resulted in the text as adopted. The
U.S. considered this unobjectionable.

KOSS

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