US embassy cable - 04HANOI48

UNCLAS SECTION 01 OF 02 HANOI 000048 
 
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:  Moving Ahead Towards an Adoptions 
Protocol 
 
Ref:  A) 03 Hanoi 1233 
 
1.  (U) Summary.  In a meeting with Consul, Mr. Long, the 
Acting Director of the new Department of International 
Adoptions (DIA) in the Ministry of Justice identified the 
issue of "state vs "government" as the GVN's most 
significant issue regarding completion of the draft Protocol 
on adoptions.  In addition, Long also previewed some of the 
specific GVN comments on the draft Protocol that will be 
provided to the U.S. in writing by mid January, and outlined 
a timeline of next steps on the GVN side.  End Summary. 
 
"State" vs. "Government" 
------------------------ 
 
2.  (U)  In a meeting with Consul on January 6th, the Acting 
Director of the new DIA, Vu Duc Long made it clear that the 
most significant issue with the draft Protocol is the 
concept of "state" versus "government".   The GVN places 
treaties into one of four categories:  the "state" level 
(meaning the level of the State President), the "government" 
level (meaning the office of the Prime Minister), the 
"ministerial" level, and the "agency" level.  Because inter- 
country adoption involves the rights of children, they 
believe the treaty should be at the highest level - the 
"state" level, and thus not be a statement of understandings 
between "governments".  According to Long, any indication 
that the U.S. wants this to be an understanding between 
"governments" rather than "states" is an indication that we 
give the matter less significance than it merits.  This 
echoes concerns raised earlier (ref A), concerning the type 
and title of the document.  Long does not believe questions 
over the type of document will be raised again as long as 
the text of the document reflects an understanding between 
the two countries at the "state" level. 
 
3.  (U)  Along the same lines, Long also raised questions as 
to whether the Protocol will apply at all levels of the USG. 
For example, he asked, what if the U.S. Congress has a 
problem with U.S.-Vietnam adoptions - will Congress be bound 
by this Protocol or have the authority to question it?  The 
GVN goal is a document that will apply to all levels and 
branches of the federal government. 
 
Discussion of Specific Comments 
------------------------------- 
 
4.  (U) Long indicated that our latest draft Protocol had 
been submitted to the relevant agencies within the GVN for 
comment.  The DIA had received comments from all but one 
agency, and Long committed to provide written comments on 
the draft to the U.S. before the Vietnamese New Year (Tet) 
holiday begins on January 21. In the meantime, Long 
previewed a list of what some of those comments will be. 
 
     -  The U.S. and GVN legal and adoptions structures are 
very different, but the Protocol reflects the U.S. structure 
only.  For example, the Protocol makes reference to 
Vietnamese domestic adoption service providers.  While 
Vietnam does have orphanages, it does not have any adoption 
service providers. 
 
     - Article 2 lists the laws, precedents and legal 
authorities governing inter-country adoptions.  The GVN 
wishes to add a number of Vietnamese documents to this list, 
such as their Marriage and Family Law, Nationality Law, etc. 
 
     - In Article 4, the term "jurisdiction" is troublesome. 
The term has different definitions under common law and 
civil law.  Long suggested that the legal experts will need 
to discuss this point. 
 
     - Article 7 lists several authorities over inter- 
country adoptions.  The GVN will need the Protocol to 
indicate which authority is the "decisive" authority in the 
U.S. and clarify the role played by each. 
 
     - Article 15 indicates that U.S. prospective adoptive 
parents (PAPs) must file applications with the GVN Central 
Adoption Agency.  If this means that they must file the 
application in person, it creates the requirement for PAPs 
to travel to Vietnam twice (once to file, and once to 
receive the child). 
 
     - Paragraph 3 of Article 17 highlights the transparency 
of fees exchanged between the PAPs and adoption service 
providers only.  It does not go far enough with respect to 
fees paid to orphanages, civil officials, etc.  The GVN 
feels strongly that the exchange of fees must be clearly 
defined and transparent with ALL parties.  The GVN indicated 
their interest in this matter is strong enough that they 
might be willing to waive reciprocity on this point. 
 
     - The GVN would like to include an exemption to 
legalization requirements for documents related to inter- 
country adoptions.  This is necessary because there is 
currently no Judicial Assistance Treaty between the USG and 
GVN and current legalization requirements are extensive in 
adoption cases. 
     - There is concern that the Protocol could be 
interpreted to apply to the humanitarian efforts of agencies 
involved in international adoptions. He urged that the two 
issues be treated separately. 
 
Next Steps 
---------- 
 
5.  (U)  Long provided consul with a tentative timeline for 
the remaining steps on the GVN side in achieving and putting 
into effect a Protocol: 
 
  - January: GVN provides written comment and proposes 
dates for negotiations. 
 
  - February: 1st round of negotiations. Document initialed 
and sent to the "government" (meaning Prime Minister). 
(Note:  If all issues not resolved, DIA will seek further 
comment and propose dates and location for a second round of 
negotiations in March.  If this happens, the remaining dates 
will slip.) 
 
  - March:  GVN prepares a Vietnamese translation and 
submits it for USG approval. 
 
  - Following USG approval of the translation:  Signing of 
the document by the Ambassador and someone designated by the 
office of the Prime Minister. 
 
  - Following signing:  The State President ratifies the 
Protocol.  (With adoptions Agreements signed between the GVN 
and other countries recently, this has happened quite 
quickly. 
 
  - One month following ratification:  The Protocol only 
goes into effect after publication in the Official Gazette. 
 
6.  (U)  When asked, Long indicated that negotiations would 
probably take place based on the draft provided in English. 
 
Comment 
------- 
 
7.  (U)  The meeting was quite productive.  It was good to 
see the GVN sharing so many of the USG concerns. 
Specifically, Mission would support moving away from the 
term "jurisdiction" (3rd bullet, para 4) out of fear that 
babies trafficked into Vietnam might be considered within 
Vietnam's jurisdiction, and thus adoptable under this 
Protocol.  In addition, Mission strongly echoes the GVN 
concerns with transparency of fees with ALL parties.  If the 
GVN is willing to waive reciprocity and define two different 
sets of requirements in terms of transparency of fees, this 
is an offer we should seize. 
PORTER