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Cablegate: Vietnam: Meeting with Justice Ministry On Adoptions

This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 03 HANOI 001233

SIPDIS

DEPT FOR CA/OCS/CI, CA/OCS/ACS/EAP, CA/OCS/PRI, CA/VO/F/P
EAP/BCLTV, L/EAP
Bangkok for INS/DD
Ho Chi Minh City for CONS and INS OIC

E.O. 12958: N/A
TAGS: KOCI CVIS CASC PREL VM
SUBJECT: VIETNAM: MEETING WITH JUSTICE MINISTRY ON ADOPTIONS

REFS: A) STATE 72446, B) Savage-Vann telcon May 7, 2002, C)

O-I May 19, 2003

1. (U) Summary. The GVN has indicated that the content of
the draft MOU provided is generally quite good and close to
their draft framework. However, the GVN is backtracking
from earlier assurances by the former Vice Minister of
Justice that Vietnam would be willing to go forward with an
MOU as "the format and title" of the document were "not
important." However, the GVN is now raising concerns
regarding format and title of the document. Adoption,
citizenship and children's rights are governed in Vietnam at
the central (federal) level. The GVN is questioning an
MOU's applicability beyond the ministry-to-ministry level
(in Vietnam, the title MOU is given to ministry-to-ministry
level documents) as well as the authority of ministry level
employees (Embassy staff) to reach agreement and sign a
document with broader applicability (GVN officials are
rarely given such authority.) The GVN is interested in
reaching a compromise, but would like to see a more formal
title and format as well as written indications that the
document will have broader applicability and that Embassy
staff will have the authority to work towards consensus on
such a document. Action request para 10. End summary.

2. (U) On May 7, 2003, Consular Chief met with Mr. Nguyen
Van Binh, Vice Director of the Department for International
Treaty and International Cooperation, Ministry of Justice
(MOJ.)

3. (U) Binh stated that the overall content of the draft
MOU submitted is "good," and quite close to their draft
framework. He repeated this several times throughout the
meeting. He added the disclaimer that he had not had time to
review the document word-for-word, but he commented that
there would be a lot of time to discuss on words and terms
used in the MOU.

Questions of Applicability and Authority
----------------------------------------

4. (U) Binh said that the problems perceived at this early
stage are with the title and the format of the MOU. The
term "MOU" is used in Vietnam only for documents signed at
the ministry-to-ministry level. Because of its larger legal
implications, an adoption "agreement" must be signed at the
government-to-government level, even if the negotiating and
signing authority is delegated to the ministry level. He
stated that recently, President Luong invited the Minister
of Justice and the Minister of Foreign Affairs to a meeting
to discuss international treaties and asked the two
Ministries to standardize the titles of documents signed
with foreign countries and ratified by the GVN.

5. (U) The GVN makes a clear distinction between the State
and the Government. Binh explained that the GVN enters into
international "treaties" at three levels: International
treaties involving multiple governments are signed at the
State-to-State level (i.e., by the President); bilateral
treaties signed at Government-to-Government level (i.e., by
the Prime Minister); and treaties signed at ministry-to-
ministry level. The GVN wants adoption "agreements" to be
signed at the `bilateral' (Government-to-Government) level
because adoption involves two legal fields (the rights of
children and nationality law) which are the responsibility
of the Prime Minister, not the Ministries. (Note: Given
the tendency of GVN Ministries to ignore MOUs and
commitments made by other Ministries, we are encouraged by
MOJ's desire to arrive at an agreement that would ensure
compliance by all the relevant GVN players. This has been a
point of contention regarding the Agreed Consular Minute,
which was signed by the State Department and the Foreign
Ministry. The Ministry of Public Security's position is
that it is not bound by the Minute, and this results in
consular notification delays, impediments to prison visits,
etc. Despite the greater effort the we will have to make on
our part to satisfy the GVN's concerns, in the end we should
have a document that is enforceable in Vietnam, which is the
whole point.) End note.)

6. (U) Regarding negotiations, Binh said that the
Vietnamese delegation taking part in formal discussions is
an interagency delegation which includes representatives of
Ministry of Justice, Ministry of Foreign Affairs, Ministry
of Public Security, Ministry of Labor, Invalids and Social
Affairs, the Office of the Government, and the Committee for
Population and Family Planning. The discussions can be
carried out in several rounds. Initially, specialists or
experts can begin talks (round one) without a specific
"delegation of authority" from the Prime Minister. For
subsequent discussions (round two-three), a delegation of
authority from the Prime Minister to the negotiating team is
required in order to finalize the agreements and sign the
documents. The Minister of Justice will similarly be
delegated the authority to sign in the name of the
President. France was not able to reach agreement in the
first round - three rounds were ultimately needed. However,
Italy and Denmark (who negotiated more recently), reached
agreement in the first round and the formal delegation of
authority was not required. (Comment: Although Binh did
not mention it, obtaining such a "delegation of authority"
can be time consuming. Even if not, it appears to raise the
discussion to a more formal level that the U.S. would prefer
to avoid. It is in our best interests to prepare to
complete discussions in the first round. End comment.)

7. (U) Following the meeting, MOJ sent a dipnote
reiterating the GVN's motivation for seeking a bi-lateral
agreement and requesting a formal written explanation of the
US position why such an agreement is not possible. While it
may seem that the GVN is repeating previously covered
material, we see this as a positive sign that the GVN is
ready to move forward (although the direction of that
progress is unknown). In Vietnam, no decision is made or
recommendation made based on discussions alone. Until the
issue or response is put into writing, it cannot be
presented to higher authorities for decision. (We also note
that they do not use the term MOU or agreement in their
first paragraph.)

8. (U) Text of MOJ dipnote follows.

Begin Text.

The Ministry of Justice of the Socialist Republic of Vietnam
presents its compliments to the Embassy of the United States
of America in Hanoi and has the honor to mention preparation
for the negotiations on adoption cooperation between the two
countries.

The Ministry of Justice welcomes efforts made by the U.S.
Embassy in advancing relations between the two countries
regarding international adoptions. At the meeting between
the Deputy Chief of Mission with ministerial level
representative of MOJ and the Chief of the Consular Section
with department level representative of MOJ, the Vietnam
side provided information on Vietnamese law and practice
regarding adoption. Currently, Vietnam is conducting
negotiations with an aim to signing bilateral adoption
agreements with foreign countries in order to provide the
best protection of the rights of children adopted by
foreigners. Under Vietnamese law, an international treaty
regarding adoptions is of the kind that Vietnam signs in the
name of the State - the highest level of international
treaty with Vietnam. At the same time, according to
agreement with other countries and Vietnamese convention,
the name of this kind of international treaty is an
"Agreement".

The Ministry of Justice highly values the content of "The
Memorandum of Understanding Between the United States of
America and the Socialist Republic of Vietnam Regarding
Adoptions" prepared by the U.S. side. The content of the
MOU is not much different from Vietnam's Framework that has
been used as a foundation to negotiate with other countries.
However, through the meetings, MOJ also understand the U.S.
side's difficulties in selecting a name for the document
regarding adoptions between the two countries. Therefore,
the use of another name for the document (not MOU) this is
in conformity with the desire of the two sides currently is
still an open problem.

In order to have a foundation to report to the competent
state agencies of Vietnam to consider and reach a decision
on the issue of adoption negotiations between the two
countries, the MOJ has the honor to request the Embassy to
officially explain the U.S. legal stipulations relating to
the U.S. authority for signing and formalities of U.S.
international treaties; and at the same time, to confirm the
difficulties on the U.S. side in selecting a name for the
document regarding adoption between the two countries.

The MOJ appreciates the Embassy's efforts on this issue and
hopes to receive the Embassy's response soon.

The Ministry of Justice of the Socialist Republic of Vietnam
avails itself of this opportunity to renew to the Embassy of
the United State of American the assurances of its highest
consideration.

End text.

Which Draft and Legal References
--------------------------------

9. (U) Since the US draft and the GVN framework are so
close in content, Binh stated that the question remains open
as to which document to use as a basis for negotiation and
stated that either is fine. (Post will indicate to Binh
that we prefer to work from our draft.) Noting our
reference to relevant US laws and the GVN circular and
decree, he requested copies of the referenced US laws and
indicated that there may be additional legal references on
the GVN side (copies of any referenced laws will be
provided).

U.S. Response
-------------

10. (U) Consular Chief reminded Binh of Vice Minister
Cuong's earlier commitment to work towards an MOU instead of
an agreement. (Comment: Former VM Cuong was a close and
cooperative Embassy contact. However, Cuong is no longer at
the Ministry of Justice and Binh may not feel compelled to
fulfill commitments made by Cuong. End Comment.) Consular
Chief reiterated US policy that no bilateral agreement is
signed where a multilateral convention is available and
reminded Binh of the time-consuming procedures required for
obtaining Congressional ratification of a bilateral
agreement. She explained that for the USG, bi-lateral
treaties make law, from which policies are made; while an
MOU is an equally significant document which goes straight
to the policy making end-result. She also repeated the USG
interest in moving forward quickly and corrected Binh's
statement (para 3) that there is plenty of time for
discussions.

Action Request
--------------

11. (U) The GVN request for written confirmation of
negotiating authority is a common one as they rarely empower
anyone below a Deputy Prime Minister level to make
commitments on behalf of the GVN. In order to satisfy the
GVN that the State Department has been delegated this
authority by law or regulation and to address the concerns
outlined in paras 5 and 6, please provide written
confirmation/documentation that by U.S. law the State
Department is assigned the role as central authority on
international adoptions and the Ambassador/Embassy's
authority to negotiate and sign on behalf of the USG. A
second option would be to confirm that as the representative
of the President, the Ambassador already has the authority
to "negotiate" and sign an agreement at higher levels than
ministry-to-ministry, and to document his delegation of that
authority to our "team". Also, please provide a copy of:
"United States Public Law 106-295, October 30, 2000 - The
Child Citizenship Act of 2000" as per para 8.
BURGHARDT

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