US embassy cable - 04HANOI891

UNCLAS SECTION 01 OF 02 HANOI 000891 
 
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