Search

 

Cablegate: Vietnam: Negotiations with the Gvn On an 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 02 HANOI 001023

SIPDIS

DEPARTMENT FOR CA/OCS, CA/OCS/CI, CA/OCS/ACS/EAP,
CA/OCS/PRI, DEPARTMENT ALSO FOR CA/VO/F/P, EAP/BCLTV, AND
L/EAP
BANGKOK FOR DHS/DD
HO CHI MINH CITY FOR CONS AND DHS OIC

E.O. 12958: N/A
TAGS: KOCI CVIS CASC PREL VM
SUBJECT: Vietnam: Negotiations with the GVN on an Adoptions
Protocol in Hanoi
1. (SBU) Summary. Negotiations on an adoptions Protocol on
March 11 and 12 made progress, but final agreement was not
reached. Despite repeated USG assertions prior to the talks

that the USG would not negotiate a new treaty, the largest
sticking point for the GVN was their insistence on a treaty
that creates new legal rights and obligations for the USG
and American citizens. The GVN believes that they have
"treaties" with the five countries that have signed
agreements already, but L/CA's initial analysis of some of
those agreements indicates they fall short of treaty status
as that term is now interpreted by GVN. During
negotiations, the U.S. delegation repeatedly explained that
there is no need to create new legal obligations because the
necessary obligations are already in place under existing
Vietnamese and U.S. law. When asked what new obligations
the GVN would like to create in this Protocol, the GVN
delegation could not articulate anything specific, but
pointed instead to the requirement in the GVN's Decree
68/2002 that both countries sign an "international treaty"
before adoptions can take place. The GVN ended the talks on
March 12. Both sides agreed on "minutes," which included a
clear statement that the next step would be GVN submission
of written revisions to the amended draft submitted by the
U.S. team on the morning of March 12. Neither side
mentioned a date certain to continue discussions. See paras
11 and 12 for summary of agreed points and unresolved
issues. End Summary.
2. (SBU) Negotiations opened in a cooperative atmosphere on
March 11, but were immediately stymied by questions
regarding the title and the corresponding legal impact of
the document. Dr. Vu Duc Long, Acting Director of the
Department of International Adoptions and the head of the
GVN negotiating team, made repeated reference to the lengths
he had gone to within the GVN to gain acceptance for the
term "Protocol", and was staunch in his position that the
title must be either "Protocol" or "Agreement". The U.S.
side indicated flexibility, offering "Executive Agreement"
or inclusion of the term "Protocol" in the title, but this
only raised questions about the legal impact of the use of
such terms, and the GVN became entrenched in their position
that this document must create new legal rights and
obligations.
3. (SBU) Both sides agreed to set aside these questions for
later and to work from the draft text submitted under cover
of A/S Harty's November 20, 2003 letter, and turn to the
list of concerns provided by the GVN in response to that
draft in its diplomatic note dated January 15, 2004. Both
sides immediately agreed to the inclusion of additional
references to relevant Vietnamese law, and easily agreed to
incorporate those references (Article 3), along with Article
2, into the preamble.
4. (SBU) The afternoon's discussion continued through the
list of GVN comments, but again became bogged down -- this
time over the term "jurisdiction" and the applicability of
the document under discussion to Amcits living outside of
both the U.S. and Vietnam. The GVN was greatly concerned
with the inability to convey U.S. citizenship and welfare
protections on a child living in a third country and
insisted on applicability based on citizenship and
residence, terms that have little direct relevance to
adoption laws in the U.S. The U.S. team suggested that this
item (Article 4) be set aside, as discussion was not
progressing.
5. (SBU) Long highlighted one item in this article to be
addressed before moving on. He noted the unspecified
reference to "individuals" and requested that this be
changed to "legally married couples" to reflect this
requirement in Vietnamese law. U.S. negotiators pointed out
that the change is unnecessary because the unspecified
reference continues "eligible under applicable law". U.S.
negotiators also cited the Federal Defense of Marriage Act,
which defines "marriage" for Federal purposes consistent
with GVN's requirements. Nevertheless, at Vietnam's
insistence, we agreed to the change.
GVN Seeks to Add New Provisions
6. (SBU) The Vietnamese then proposed adding a provision on
exemption from consular legalization of documents in
adoption cases, in what they described as an attempt to
simplify the process for American parents. The Vietnamese
team agreed to draft and suggest language on the proposed
exemption from "Consular legalization". This proposed
language was not discussed further.
7. (SBU) Negotiations turned to the GVN's desire to
include language in the Protocol referring to Vietnamese
rules regarding the transparency of fees levied in adoption
cases, and the GVN's requirement that foreign adoption
service providers (ASPs) make charitable contributions to
institutions in Vietnam. Dr. Long referred to the "Chinese
model" where the Central Authority "controls how all the
money is spent." The U.S. team applauded the GVN's desire
to address the issue of transparency, and requested sample
language from previous agreements reached with other states.
The GVN promised to provide those provisions, but indicated
that previous agreements had not achieved the level of
transparency they truly wished. The U.S. team noted that
such language appeared to relate more to ASP licensing
rules, which would normally have no place in a Protocol, as
the licensing rules should be uniform and apply to all
foreign ASPs seeking to operate in Vietnam, not just U.S.
ones. The U.S. team also noted, apparently to the surprise
of the GVN team, that the U.S does not have an adoption
treaty or agreement with China.
8. (SBU) The GVN delegation expressed continuing concern
over final recognition of adoptions and the question of an
adopted child's nationality. Various language was proposed
by both sides to reflect that each agreed to recognize
adoption decrees issued by the other's competent
authorities, unless contrary to public policy, and taking
into account the best interests of the child. No final
agreement on this language was reached; however, language
proposed by the U.S. side was included in a revised draft of
the Protocol submitted by the U.S. for further consideration
by the GVN.
9. (SBU) The second day of negotiations on March 12 again
quickly foundered on the question of the document's legal
impact. Both sides agreed to the title "Protocol between
the United States of America and the Socialist Republic of
Vietnam Regarding Cooperation in the Adoption of Children in
Furtherance of the Principles and Provisions of the Hague
Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption ". The GVN delegation then
returned to the previous day's discussion of whether the
U.S. side viewed the Protocol as a document creating new
legal rights and obligations affecting all levels of U.S.
government and all citizens. The U.S. team again asked what
the GVN wanted to enforce that did not already exist under
the respective laws of the two states, and challenged the
idea that this document would create new law that would be
binding on the provinces of Vietnam. The Vietnamese side
halted negotiations at this point, insisting that any final
document must create new (unspecified) legal obligations.
The GVN then proposed that, since the two sides could not
reach agreement on the legal impact issue, that the talks be
suspended without addressing other outstanding issues.
Formal negotiations thus concluded mid-morning March 12.
10. (SBU) The Vietnamese team drafted "minutes"
highlighting the accomplishments of the discussions, and the
morning session ended cordially, but with some frustration
on both sides. While both sides held to their respective
positions on the issue re: creating a treaty with new legal
obligations versus a statement of understanding of existing
laws, both sides also indicated that this issue is not
insurmountable and their strong interest in continuing
discussions after consultation with respective capitals.
Included in the "minutes" was a clear statement that the
next step would be GVN submission of written revisions to
the amended draft submitted by the U.S. team on the morning
of March 12th. The U.S. delegation made clear that the
existing draft text was acceptable to the U.S. side and the
USG awaited GVN revisions to that document. Neither side
mentioned a date certain to continue discussions.
What We Agreed On
11. (SBU) Despite the lack of a final document, several
items were agreed upon during the discussions: a title was
found that suited both parties' needs; we agreed upon the
inclusion of several additional GVN legal citations in
Article 2 of the Preamble; Article 3 was moved to the
Preamble; Article 4 was changed to read "legally married
couples", in lieu of "individuals"; the GVN team agreed to
propose language regarding transparency of fees; the GVN
team agreed to draft language on exemption from "Consular
legalization"; both parties agreed to work from the amended
draft submitted by the U.S. team on the morning of March 12;
and both parties committed to continuing discussions after
consultation in capitals.
What Still Needs to Be Addressed:
12. (SBU) The sticking point for the GVN is clearly the
intent of the document and the legal obligations it creates,
while the U.S. side cannot agree to a "bilateral treaty, as
has been repeatedly mentioned to them. The GVN also would
like to restrict "jurisdiction" of the document to citizens
residing in either country, but not including U.S. or
Vietnamese citizens in a third country. The GVN would like
to exempt all related documentation from "Consular
legalization", which might be difficult for the U.S., as we
could not guarantee an individual State would not require
such documents. The GVN wished to include several
provisions already present in Vietnamese decrees or laws,
such as transparency of fees and required humanitarian
donations from ASPs. These items seem more appropriately
confined to licensing regulations for those organizations.
Comment
13. (SBU) It seemed very clear that the GVN was
uncomfortable with any document that could not be considered
a bilateral treaty, creating new obligations between the
parties. This position was unacceptable to the U.S.
delegation, a position that had been explained to the GVN
repeatedly in the lead up to these discussions. Many of the
provisions the GVN proposed including already exist in GVN
decrees establishing and implementing regulations on
adoptions within Vietnam. Despite USG assurances that U.S.
citizens who wished to adopt in Vietnam were subject to all
GVN laws and regulations within Vietnam, they appear to want
to restate many of those regulations within the text of the
Protocol. It appears the Vietnamese want a "bilateral
treaty" to reiterate many provisions of GVN law, in order to
assist them with implementation enforcement at the local
level in Vietnam.
14. (SBU) Ironically, many of the issues raised by the GVN
negotiators were issues of implementation of adoption
regulations, a concern shared by the U.S. side. The U.S.
delegation handed a non-paper on implementation issues to
the Vietnamese side at the end of the first day. It listed
continuing concerns over implementation guidelines contained
in current Vietnamese adoption regulations and a request for
clarification of several issues. Given the lack of progress
on the text of the Protocol, however, there was no further
discussion of these items. These concerns about
implementation remain a priority for the Mission, as a
return to the status quo ante would offset the best
intentions of any agreement, and not be in keeping with the
best interests of the children, birth parents and adopting
parents involved.
PORTER

before adoptions can take place. The GVN ended the talks on
March 12. Both sides agreed on "minutes," which included a
clear statement that the next step would be GVN submission
of written revisions to the amended draft submitted by the
U.S. team on the morning of March 12. Neither side
mentioned a date certain to continue discussions. See paras
11 and 12 for summary of agreed points and unresolved
issues. End Summary.
2. (SBU) Negotiations opened in a cooperative atmosphere on
March 11, but were immediately stymied by questions
regarding the title and the corresponding legal impact of
the document. Dr. Vu Duc Long, Acting Director of the
Department of International Adoptions and the head of the
GVN negotiating team, made repeated reference to the lengths
he had gone to within the GVN to gain acceptance for the
term "Protocol", and was staunch in his position that the
title must be either "Protocol" or "Agreement". The U.S.
side indicated flexibility, offering "Executive Agreement"
or inclusion of the term "Protocol" in the title, but this
only raised questions about the legal impact of the use of
such terms, and the GVN became entrenched in their position
that this document must create new legal rights and
obligations.
3. (SBU) Both sides agreed to set aside these questions for
later and to work from the draft text submitted under cover
of A/S Harty's November 20, 2003 letter, and turn to the
list of concerns provided by the GVN in response to that
draft in its diplomatic note dated January 15, 2004. Both
sides immediately agreed to the inclusion of additional
references to relevant Vietnamese law, and easily agreed to
incorporate those references (Article 3), along with Article
2, into the preamble.
4. (SBU) The afternoon's discussion continued through the
list of GVN comments, but again became bogged down -- this
time over the term "jurisdiction" and the applicability of
the document under discussion to Amcits living outside of
both the U.S. and Vietnam. The GVN was greatly concerned
with the inability to convey U.S. citizenship and welfare
protections on a child living in a third country and
insisted on applicability based on citizenship and
residence, terms that have little direct relevance to
adoption laws in the U.S. The U.S. team suggested that this
item (Article 4) be set aside, as discussion was not
progressing.
5. (SBU) Long highlighted one item in this article to be
addressed before moving on. He noted the unspecified
reference to "individuals" and requested that this be
changed to "legally married couples" to reflect this
requirement in Vietnamese law. U.S. negotiators pointed out
that the change is unnecessary because the unspecified
reference continues "eligible under applicable law". U.S.
negotiators also cited the Federal Defense of Marriage Act,
which defines "marriage" for Federal purposes consistent
with GVN's requirements. Nevertheless, at Vietnam's
insistence, we agreed to the change.
GVN Seeks to Add New Provisions
6. (SBU) The Vietnamese then proposed adding a provision on
exemption from consular legalization of documents in
adoption cases, in what they described as an attempt to
simplify the process for American parents. The Vietnamese
team agreed to draft and suggest language on the proposed
exemption from "Consular legalization". This proposed
language was not discussed further.
7. (SBU) Negotiations turned to the GVN's desire to
include language in the Protocol referring to Vietnamese
rules regarding the transparency of fees levied in adoption
cases, and the GVN's requirement that foreign adoption
service providers (ASPs) make charitable contributions to
institutions in Vietnam. Dr. Long referred to the "Chinese
model" where the Central Authority "controls how all the
money is spent." The U.S. team applauded the GVN's desire
to address the issue of transparency, and requested sample
language from previous agreements reached with other states.
The GVN promised to provide those provisions, but indicated
that previous agreements had not achieved the level of
transparency they truly wished. The U.S. team noted that
such language appeared to relate more to ASP licensing
rules, which would normally have no place in a Protocol, as
the licensing rules should be uniform and apply to all
foreign ASPs seeking to operate in Vietnam, not just U.S.
ones. The U.S. team also noted, apparently to the surprise
of the GVN team, that the U.S does not have an adoption
treaty or agreement with China.
8. (SBU) The GVN delegation expressed continuing concern
over final recognition of adoptions and the question of an
adopted child's nationality. Various language was proposed
by both sides to reflect that each agreed to recognize
adoption decrees issued by the other's competent
authorities, unless contrary to public policy, and taking
into account the best interests of the child. No final
agreement on this language was reached; however, language
proposed by the U.S. side was included in a revised draft of
the Protocol submitted by the U.S. for further consideration
by the GVN.
9. (SBU) The second day of negotiations on March 12 again
quickly foundered on the question of the document's legal
impact. Both sides agreed to the title "Protocol between
the United States of America and the Socialist Republic of
Vietnam Regarding Cooperation in the Adoption of Children in
Furtherance of the Principles and Provisions of the Hague
Convention on Protection of Children and Co-operation in
Respect of Intercountry Adoption ". The GVN delegation then
returned to the previous day's discussion of whether the
U.S. side viewed the Protocol as a document creating new
legal rights and obligations affecting all levels of U.S.
government and all citizens. The U.S. team again asked what
the GVN wanted to enforce that did not already exist under
the respective laws of the two states, and challenged the
idea that this document would create new law that would be
binding on the provinces of Vietnam. The Vietnamese side
halted negotiations at this point, insisting that any final
document must create new (unspecified) legal obligations.
The GVN then proposed that, since the two sides could not
reach agreement on the legal impact issue, that the talks be
suspended without addressing other outstanding issues.
Formal negotiations thus concluded mid-morning March 12.
10. (SBU) The Vietnamese team drafted "minutes"
highlighting the accomplishments of the discussions, and the
morning session ended cordially, but with some frustration
on both sides. While both sides held to their respective
positions on the issue re: creating a treaty with new legal
obligations versus a statement of understanding of existing
laws, both sides also indicated that this issue is not
insurmountable and their strong interest in continuing
discussions after consultation with respective capitals.
Included in the "minutes" was a clear statement that the
next step would be GVN submission of written revisions to
the amended draft submitted by the U.S. team on the morning
of March 12th. The U.S. delegation made clear that the
existing draft text was acceptable to the U.S. side and the
USG awaited GVN revisions to that document. Neither side
mentioned a date certain to continue discussions.
What We Agreed On
11. (SBU) Despite the lack of a final document, several
items were agreed upon during the discussions: a title was
found that suited both parties' needs; we agreed upon the
inclusion of several additional GVN legal citations in
Article 2 of the Preamble; Article 3 was moved to the
Preamble; Article 4 was changed to read "legally married
couples", in lieu of "individuals"; the GVN team agreed to
propose language regarding transparency of fees; the GVN
team agreed to draft language on exemption from "Consular
legalization"; both parties agreed to work from the amended
draft submitted by the U.S. team on the morning of March 12;
and both parties committed to continuing discussions after
consultation in capitals.
What Still Needs to Be Addressed:
12. (SBU) The sticking point for the GVN is clearly the
intent of the document and the legal obligations it creates,
while the U.S. side cannot agree to a "bilateral treaty, as
has been repeatedly mentioned to them. The GVN also would
like to restrict "jurisdiction" of the document to citizens
residing in either country, but not including U.S. or
Vietnamese citizens in a third country. The GVN would like
to exempt all related documentation from "Consular
legalization", which might be difficult for the U.S., as we
could not guarantee an individual State would not require
such documents. The GVN wished to include several
provisions already present in Vietnamese decrees or laws,
such as transparency of fees and required humanitarian
donations from ASPs. These items seem more appropriately
confined to licensing regulations for those organizations.
Comment
13. (SBU) It seemed very clear that the GVN was
uncomfortable with any document that could not be considered
a bilateral treaty, creating new obligations between the
parties. This position was unacceptable to the U.S.
delegation, a position that had been explained to the GVN
repeatedly in the lead up to these discussions. Many of the
provisions the GVN proposed including already exist in GVN
decrees establishing and implementing regulations on
adoptions within Vietnam. Despite USG assurances that U.S.
citizens who wished to adopt in Vietnam were subject to all
GVN laws and regulations within Vietnam, they appear to want
to restate many of those regulations within the text of the
Protocol. It appears the Vietnamese want a "bilateral
treaty" to reiterate many provisions of GVN law, in order to
assist them with implementation enforcement at the local
level in Vietnam.
14. (SBU) Ironically, many of the issues raised by the GVN
negotiators were issues of implementation of adoption
regulations, a concern shared by the U.S. side. The U.S.
delegation handed a non-paper on implementation issues to
the Vietnamese side at the end of the first day. It listed
continuing concerns over implementation guidelines contained
in current Vietnamese adoption regulations and a request for
clarification of several issues. Given the lack of progress
on the text of the Protocol, however, there was no further
discussion of these items. These concerns about
implementation remain a priority for the Mission, as a
return to the status quo ante would offset the best
intentions of any agreement, and not be in keeping with the
best interests of the children, birth parents and adopting
parents involved.
PORTER

© Scoop Media

 
 
 
World Headlines

 

Assange's Hearing: Latest Observations From Court

Despite severe restrictions on observers, Reporters Without Borders (RSF) is the only NGO that has gained access to the hearing, and we’ve managed to monitor proceedings on most days. We will continue to do so whenever possible. Yesterday I was in court ... More>>

Climate Change: Record Northern Heat, Fuels Concerns Over US Wildfire Destruction

More than 78,000 acres of forest in the Sierra mountains in California has been lost due to wildfires. Photo: San Francisco Fire Department The northern hemisphere experienced its warmest August ever, the World Meteorological Organization ( WMO ... More>>

ILO: Impact On Workers Of COVID-19 Is ‘catastrophic’

COVID-19 has had a “catastrophic” impact on workers, the head of the International Labour Organization ( ILO ) said on Wednesday, with lost working hours higher than originally forecast, and equivalent to 495 million full-time jobs globally in the ... More>>

UN: WHO Warns Against Potential Ebola Spread In DR Congo And Beyond

Ebola is spreading in a western province in the Democratic Republic of the Congo (DRC), raising fears that the disease could reach neighbouring Republic of Congo and even the capital, Kinshasa, the World Health Organization (WHO) said on Friday. ... More>>