Palestinian Membership In UNESCO Could Raise Questions For US At WIPO

Members of the Paris-based United Nations Educational, Scientific and Cultural Organisation (UNESCO) are preparing to allow Palestine to become a member, according to sources. If this happens, it could create uncertainty about United States membership in UN agencies, including the World Intellectual Property Organization.

Palestinian membership is not expected to have a significant impact on WIPO per se – as WIPO is not heavily dependent on government contributions like other UN agencies – but it could have ramifications for the United States, which according to reports has laws that may prevent the US from making contributions to a UN agency if Palestine is a member.

Under Article 5.1.i. of the WIPO Convention, any state that is a member of a UN specialised agency (such as UNESCO) is eligible for membership at WIPO. So if Palestine is recognised by UNESCO, it would be eligible to take the unilateral steps to become a WIPO member too. It would have to deposit an instrument of accession. There does not appear to be an approval process such as a vote by existing membership or a committee.

Article 5 of the WIPO Convention states:

Membership
(1) Membership in the Organization shall be open to any State which is a member of any of the Unions as defined in Article 2(vii).
(2) Membership in the Organization shall be equally open to any State not a member of any of the Unions, provided that:
(i) it is a member of the United Nations, any of the Specialized Agencies brought into relationship with the United Nations, or the International Atomic Energy Agency, or is a party to the Statute of the International Court of Justice, or
(ii) it is invited by the General Assembly to become a party to this Convention.

And Article 14 states:

Becoming Party to the Convention
(1) States referred to in Article 5 may become party to this Convention and Member of the Organization by:
(i) signature without reservation as to ratification, or
(ii) signature subject to ratification followed by the deposit of an instrument of ratification, or
(iii) deposit of an instrument of accession.
(2) Notwithstanding any other provision of this Convention, a State party to the Paris Convention, the Berne Convention, or both Conventions, may become party to this Convention only if it concurrently ratifies or accedes to, or only after it has ratified or acceded to:
either the Stockholm Act of the Paris Convention in its entirety or with only the limitation set forth in Article 20(1)(b)(i) thereof,
or the Stockholm Act of the Berne Convention in its entirety or with only the limitation set forth in Article 28(1)(b)(i) thereof.
(3) Instruments of ratification or accession shall be deposited with the Director General.

The WIPO director general likely would be the recipient of the deposit of the instrument of accession. It is not clear what else the DG’s role might entail.

WIPO declined to comment on the issue of Palestinian membership.

WIPO is funded differently than other UN agencies, because instead of receiving direct government support (less than 10 percent of its budget), the vast majority of its funding comes from fees paid by users of its services – mainly international patent filing, and mainly private sector. Only about 1 percent of WIPO funding is from US government contributions, according to sources.

UNESCO, by contrast receives some 22 percent of its funding – or about $80 million by one account – from the US government.

Even if this happens, it is unlikely that the United States would have to pull out of WIPO quickly, and so would continue to participate in committees and with staff working at WIPO (in influential posts). There are several WIPO members who have not paid their membership contributions for years and they have not had to leave.

But if in fact the United States did not amend its law and eventually did have to pull out of WIPO, this would be an enormous change for the UN agency in which the US plays a powerful and often leadership role.

The United States was not a member of UNESCO for years, and only recently rejoined. Shortly after rejoining in 2003 after a 19 year hiatus, it met with a slap in the face as UNESCO members voted overwhelmingly to pass a cultural diversity treaty that was seen in essence as a vote against US cultural hegemony and which the US vigorously opposed (IPW, United Nations, 17 October 2005). The final commission vote was 151 in favour, 2 opposed. Those opposed? The US and Israel.

It is also worth noting that the US is the biggest source of patent fees for WIPO, which earns the majority of its revenue from patent fees. There were occasional calls in recent years from the US IP industry (which pays those fees) for the US to pull out of WIPO if it could not achieve breakthroughs in advancing global IP policy such as harmonisation of national patent laws. But in order to use the Patent Cooperation Treaty, WIPO’s leading fee-generator, it is not necessary to be a member of WIPO, just a member of the PCT.

It is true that WIPO members have had to work hard to reach agreement on normative issues. But for many, it would probably be inconceivable for the US to pull out of WIPO.

An article in a publication called the UN Dispatch, supported by the UN Foundation, asserts that US law would require the US to stop providing funding to the UN or its specialised agencies if Palestine joins them.

The article states: “At issue here are two strict laws passed by the United States congress in 1994 which stipulate that ‘the United States shall not make any voluntary or assessed contribution to any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood.’ And if that were not clear enough, a second clause clearly states that the United States may not ‘provide funds [to] the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.’ The law authorizes no ‘waiver authority’ by the executive branch, meaning that there is no way for President Obama to end run around this prohibition.”

Intellectual Property Watch could not confirm this information by deadline, as questions to US press officers were not answered in time.

The article also raises concern that a US celebrity could not use the Uniform Dispute Resolution Procedures (UDRP) at WIPO to settle cases of alleged squatting on internet domain names (of celebrities or anyone else). But WIPO is not the only organisation that administers the UDRP, and it is not necessary to be from a WIPO member country to use it.

The article calls for the US content industry, a group with increased influence in Washington under the Obama administration, to pressure Congress to amend the laws. That is just one of many questions that remain to be seen.

[Note: another article on the issue is here.]