US embassy cable - 04HANOI2708

UNCLAS SECTION 01 OF 02 HANOI 002708 
 
SIPDIS 
 
DEPARTMENT FOR CA/OCS, CA/OCS/CI, CA/OCS/ACS/EAP 
DEPARTMENT ALSO FOR CA/OCS/PRI, CA/VO/F/P, EAP/BCLTV, L/EAP 
BANGKOK FOR DHS/DD 
HO CHI MINH CITY FOR CONS AND DHS OIC 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: KOCI, CVIS, CASC, PREL, VM 
SUBJECT:  Vietnam Adoptions: Meeting With Deputy Director of 
International Adoptions 
 
REF:  A) STATE 204932 and previous; B) Hanoi 2220 
 
1. (U) Summary: During two recent meetings with Post's 
Consular Section Chief, Nguyen Cong Khanh, Deputy Director 
of Vietnam's Department of International Adoptions, repeated 
the GVN position that under Vietnamese law any adoption 
agreement must meet the definition of a "treaty."  He went 
on to note that he does not think there is any point in 
continuing to negotiate a bilateral adoptions instrument if 
the document would not meet this definition.  However, he 
offered suggestions as to how the document might be changed 
to meet that definition, and noted that an upcoming new 
Vietnamese law on international treaties might offer more 
alternatives. Khanh also said that he interprets Decree 68 
as severely restricting the possibility of instituting a 
pilot program for adoptions of special needs children, but 
he agreed to give the matter further consideration, and has 
since tentatively agreed to technical talks on the issue. 
Khanh added that the Prime Minister's office has instructed 
GVN ministries to consider amending Decree 68 to make it 
more "flexible." 
2. (SBU) Khanh's views contradict in some respects earlier 
GVN positions, most especially regarding special needs 
adoptions.  His assertions may not completely reflect the 
GVN official position.  In any case, Post is encouraged that 
Khanh indicated possible flexibility and is willing to 
discuss a pilot program on special needs adoptions. End 
Summary. 
 
3. (U) On September 17 and 22, Post's Consular Section Chief 
met with Nguyen Cong Khanh, Deputy Director of the 
Department of International Adoptions (DIA) within the 
Ministry of Justice, to discuss the resumption of adoptions 
from Vietnam by Amcit prospective adoptive parents (PAPs) 
and the possibility of a pilot program to allow the adoption 
of special needs children by Amcits.  (DIA Director Vu Duc 
Long, who is Khanh's supervisor, was in The Hague, and was 
therefore not available.) 
 
4. (U) Khanh flatly stated that, in his view, if the 
proposed bilateral adoption agreement document is not a 
"treaty," it would not meet the requirements set forth in 
Decree 68. As such, he said, there is no point in continuing 
to negotiate a bilateral agreement with the United States, 
and his office should instead focus on accession to the 
Hague Convention on Intercountry Adoptions.  He confirmed 
that the GVN intends to sign and ratify the Hague Convention 
"soon," perhaps in 2005 or 2006.  (Note: the GVN has been 
inconsistent regarding the date they anticipate joining the 
Hague Convention.  Given the legal reforms necessary, Post 
anticipates that it will be three to five years, at a 
minimum, before Vietnam can join the Hague.  End Note.)  Any 
failure to reach agreement, Khanh opined, should not be seen 
as the fault of the negotiators, but rather as a result of 
incompatible laws.  He further stressed that the GVN has 
been negotiating in good faith, adding that the Vietnamese 
understanding of the USG position had been that while the 
document would not bear the title "treaty", it would meet 
the definition of a treaty. 
 
5. (U) At the Consular Section Chief's request, Khanh 
provided language that he believes would help any bilateral 
instrument meet the definition of a "treaty" for the GVN's 
purposes; this text has been faxed to CA/OCS/CI.  He told 
ConOff that any document must be signed at the appropriate 
level (state, not governmental or ministerial), must have an 
acceptable validity and be enforceable, and must spell out 
rights and obligations to protect children from trafficking. 
Khanh also mentioned that a new Vietnamese law regarding 
international treaties is expected to go into effect at the 
end of this year.  If that law is more flexible than the 
current one, he said, it might make further negotiations 
more straightforward. 
 
6.  (U) When the ConOff broached the possibility of a pilot 
program for adoption of special needs children, Khanh said 
that he interprets Article 36 (2)(b) of Decree 68 to mean 
that for an adoption of a special needs child to take place 
prior to the signing of a Treaty or Protocol, the child must 
have been living with a family -- not in an orphanage -- and 
the PAPs must have resided in Vietnam for a minimum of six 
months.  That said, Khanh showed interest in the idea, and 
agreed to look for possible ways for such a program to begin 
prior to the signing of a bilateral agreement.  (Note:  Post 
has since approached Khanh to request technical talks 
regarding the proposed pilot program to be held in the first 
week of October, and he has tentatively accepted.  End 
Note.) 
 
7. (U) Khanh also reported that the Prime Minister's office 
has instructed GVN ministries, via letter No. 4586, to 
explore options to amend Decree 68 in order to "extend" it 
to provide more "flexibility to benefit countries that have 
not yet signed [bilateral agreements]."  Khanh could provide 
no further detail on any amendments being considered. 
(Note: A translation of this letter was obtained by 
CA/OCS/CI and faxed to Hanoi and HCMC; Mission personnel 
have not seen a copy of the original document.  End Note.) 
 
8. (U) Finally, Khanh noted with concern that the Vietnamese 
Embassy in Washington had reported that A/S Harty had 
mentioned during a meeting at the Embassy that the GVN had 
"rejected" the proposed protocol after "four rounds" of 
negotiations.  ConOff concurred with Khanh's view that there 
had in fact only been one round of formal negotiations, and 
that the draft protocol had not been rejected, but was still 
under discussion. 
 
9. (SBU) Comment: Khanh's statements may not reflect 
strictly the official position of the GVN.  Some of his 
statements contradict statements made by his boss, DIA 
Director Vu Duc Long.  It is important to note that while 
Long is the boss, Khanh's role is that of "Legal Advisor." 
The fact that the Prime Minister's office sent out a letter 
encouraging "flexibility" on the matter of interpreting and 
amending Decree 68 indicates that the GVN may not be as 
bound to the letter of the Decree as Khanh believes. 
 
9. (SBU) Comment, continued:  Post is encouraged that Khanh 
is willing to discuss the proposed pilot program on special 
needs adoptions, regardless of his views on legality of 
special needs cases.  End comment. 
MARINE