US embassy cable - 05HANOI553

UNCLAS SECTION 01 OF 03 HANOI 000553 
 
SIPDIS 
 
SENSITIVE 
 
STATE ALSO FOR E, EB AND EAP/BCLTV 
STATE PASS USTR EBRYAN, GHICKS 
STATE ALSO PASS USAID 
DOC FOR 4431/MAC/AP/OPB/VLC/HPPHO 
 
E.O. 12958: N/A 
TAGS: ETRD, VM, WTO, BTA, IPROP 
SUBJECT: VIETNAM:  WTO Legislative Strategy Still Unclear 
 
SENSITIVE BUT UNCLASSIFIED - PLEASE HANDLE ACCORDINGLY. 
 
1. (SBU) Summary:  During a visit to Hanoi January 28-31, 
Deputy Assistant USTR for Southeast Asia and the Pacific, 
Elena Bryan and USPTO Attorney-Advisor Jennie Ness told key 
GVN officials and the National Assembly (NA) that timely 
passage of legislation implementing WTO obligations is a 
pressing issue for Vietnam's accession.  DAUSTR Bryan also 
reminded GVN counterparts that the GVN must submit draft 
legislation to the WTO Working Party (WP) for review before 
the NA finalizes the legislation.  Additionally, Bryan 
reminded GVN officials that a good record on implementation 
of the U.S. - Vietnam Bilateral Trade Agreement (BTA) will 
be an important element of Congressional consideration of 
Permanent Normal Trade Relations (PNTR) for Vietnam.  GVN 
officials indicated they are still debating internally how 
to complete all of the legislation required for WTO 
accession.  A Vice Chairman of the Law Committee of the NA 
said he does not think the NA has enough time to pass all 
the necessary legislation.  The NA is considering using a 
new Law on International Treaties to make some of the WTO 
obligations self-executing.  End Summary. 
 
2. (U) DAUSTR Bryan and Ms. Ness visited Hanoi January 28 to 
January 31.  The delegation, accompanied by Econoffs, met 
with officials from the Ministry of Finance (MOF), the 
National Office of Intellectual Property (NOIP), the 
Economic Police Department (under the Ministry of Public 
Security), the Ministry of Planning and Investment (MPI), 
the Office of Literary and Artistic Copyright, the Law 
Committee of the National Assembly (NA), the Ministry of 
Trade (MOT), the Office of the Government (OOG) and the 
Ministry of Justice (MOJ). 
 
3. (SBU) DAUSTR Bryan and Ms. Ness emphasized throughout the 
visit that one of the most pressing issues for Vietnam's WTO 
accession bid is timely passage of legislation implementing 
the WTO agreements.  They also reminded GVN officials that 
the WTO Working Party (WP) wants to review all draft 
legislation related to Vietnam's accession before the 
legislation is submitted to the National Assembly for 
approval.  It is important that Vietnam begin submitting 
drafts as soon as possible, DAUSTR Bryan advised.  WP 
members need sufficient time to review draft legislation and 
provide comments. Vietnam also needs time to make changes 
before any legislation is finalized. 
 
4. (SBU) It is important that WP members have legislation to 
review as soon as possible and certainly not later than the 
next WP meeting, DAUSTR Bryan said.  There are only a few 
months until the NA's next session and there is a lot to be 
done.  (Note:  There will be two NA sessions in 2005, May 
and November.  End Note.)  Vietnam needs to demonstrate that 
its goal of accession in 2005 is realistic.  The GVN can do 
this by providing draft legislation to the WTO WP for review 
soon.  This will help build WP members' confidence that 
Vietnam will be able to finalize all the necessary 
legislation by the end of the year. 
 
5. (SBU) For the United States in particular, it is 
important that progress on both bilateral market access 
negotiations and the passage of legislation proceed in 
tandem.  USTR cannot begin consultations with the U.S. 
Congress until both pieces of Vietnam's accession are ready, 
DAUSTR Bryan said.  When the Congress begins examining the 
details of Vietnam's accession agreement, it will want to 
see not only the commitments Vietnam has made on market 
access, but also the details on how Vietnam is implementing 
WTO rules. 
 
GVN Still undecided on Legislative Process 
------------------------------------------ 
 
6. (SBU) Ha Huy Tuan, Deputy Director of MOF's International 
Cooperation Department, noted the GVN is still discussing 
internally how it will meet WTO legislative requirements. 
At a meeting held after the 9th WP in December, Deputy Prime 
Minister Vu Khoan assigned MOT and MOJ to take the lead on 
drafting a legislative plan for the Prime Minister.  The DPM 
also instructed the ministries to work closely with the 
National Assembly on the legislative schedule.  According to 
Tuan, the GVN is considering two options: it will either 
closely follow the legislative action plan it has already 
submitted to the WTO or it will construct a "package deal" 
with the National Assembly (e.g. an omnibus bill that amends 
multiple laws for compliance with WTO obligations).  Tuan 
said he believes an omnibus bill is "highly possible." 
(Note:  According to MOJ, the only other ministry to mention 
use of an omnibus bill, the GVN is considering a project to 
"further study" the idea.  End note.) 
 
7. (SBU) Tuan noted that one of the difficulties the GVN 
faces in completing legislation is how to deal with details 
that are still under negotiation.  Although WTO rules are 
clear, other issues such as market access are still open, he 
said.  DAUSTR Bryan suggested that the GVN could draft its 
legislation to include authority for the Prime Minister to 
implement final tariff levels and other market access 
components based upon Vietnam's final WTO schedule.  Tuan 
responded he did not believe the GVN's system could 
accommodate this method.  Rather, he thought the GVN would 
construct the legislation to allow Vietnam's international 
agreements to supersede domestic law.  With this method, 
once the WTO agreement is in place, domestic law would be 
adjusted automatically, he said.  DAUSTR Bryan explained 
that there should not be discrepancies between Vietnam's 
international agreements and its domestic laws. 
 
National Assembly on Different Track 
------------------------------------ 
 
8. (SBU) Dr. Phan Trung Ly, Vice Chairman of the National 
Assembly Law Committee, told DAUSTR Bryan and Ms. Ness that 
the NA is still "perplexed" about how to meet the 
legislative requirements for WTO accession.  Ly noted that 
while the best method would be for the NA to pass specific 
legislation implementing all of Vietnam's WTO obligations, 
this would be a "huge job" for the NA and there is not 
enough time to do it all.  For this reason, the NA has 
formulated its legislative agenda with a two-pronged 
approach for meeting WTO obligations.  The NA will continue 
to pass new laws and revise existing laws as required for 
WTO accession.  However, Vietnam will also use its new Law 
on International Treaties to implement some of its WTO 
obligations.  According to Dr. Ly, the International 
Treaties Law, scheduled for approval by the NA in May, 
elevates Vietnam's international obligations above domestic 
law, in effect making Vietnam's international agreements 
self-executing.  The Law also contains a provision that 
requires GVN ministries to draft implementing legislation 
for any aspects of international agreements that are too 
general for direct implementation. 
 
9. (SBU) DAUSTR Bryan acknowledged the complexity of the 
legislative issues Vietnam is facing, but expressed concern 
about the National Assembly's approach to meeting WTO 
requirements.  The texts of many of the WTO agreements are 
too general for direct implementation.  For the most part, 
the WTO agreements provide guidelines that must be 
implemented in the domestic laws of the acceding countries; 
they cannot be self-executing.  WP members will want to 
review drafts of the follow-on implementing regulations 
before Vietnam can accede to the WTO.  Lack of detailed 
legislation will affect Vietnam's ability to join the WTO as 
quickly as it has said it wants to. 
 
Law on International Treaties not Primary Instrument 
--------------------------------------------- ------- 
 
10. (SBU) After the NA meeting, DAUSTR Bryan expressed her 
concerns regarding the NA's legislative plan in discussions 
with officials from MOT, MOF, OOG and MOJ.  She specifically 
called attention to the fact that Vietnam needs to implement 
specific WTO obligations in its domestic law and that use of 
the Law on International Treaties may not accomplish that. 
Mr. Hoang Phuc Hiep, Director of the International Law 
Department at MOJ, clarified that the GVN would only use the 
Law on International Treaties to implement WTO (and other 
international obligations) in cases where domestic law does 
not conflict with the WTO obligation and the WTO agreement 
is specific.  Hiep cited implementation of the WTO accession 
protocol and dispute resolution as two possible examples 
where the GVN might use this law to implement Vietnam's 
obligations.  DAUSTR Bryan cautioned Hiep that the GVN will 
need to be very clear which WTO obligations it wants to 
implement with the Law on International Treaties. 
 
11. (SBU) Responding to DAUSTR Bryan's recommendation that 
Vietnam begin submitting draft legislation to the WTO WP 
soon, Hiep noted that the GVN is on track with its WTO 
legislative action plan.  GVN drafters are working with 
international experts to prepare drafts for submission to 
the WP and the NA.  Most of the thirty laws included in the 
plan will be submitted to the NA in May.  However, Hiep 
said, he was not clear whether legislation should be 
submitted to the WP as each draft is finished or if all the 
drafts should be submitted at once.  DAUSTR Bryan advised 
Hiep to submit the drafts as they are ready to ensure WP 
members have time to review them. 
 
IP Legislation - Draft possible in April 
---------------------------------------- 
 
12. (SBU) Nguyen Dinh Chuong, Director of NOIP, told DAUSTR 
Bryan and Ms. Ness that the NA plans to pass the new IPR Law 
in November.  NOIP will submit the draft law to the 
Government for review soon.  Once the Government releases 
the draft for public comment, NOIP will send it to the WP 
and bilateral partners.  Chuong speculated the draft could 
be submitted to the WP in April.  DAUSTR Bryan noted the 
importance of IPR for WTO accession and reiterated that it 
is very important that the WP have time to review the draft 
law.  The WP will want to make sure the draft meets all WTO 
requirements, including very specific obligations such as 
protection of data exclusivity. 
 
BTA, WTO and PNTR 
----------------- 
 
13. (SBU) The delegation also emphasized that the GVN must 
remain committed to timely implementation of the BTA even as 
Vietnam moves forward with WTO accession.  Vietnam's record 
on implementation of the BTA will be part of Congress' 
consideration of Permanent Normal Trade Relations (PNTR). 
Right now there are a couple of areas where BTA 
implementation is lagging, DAUST Bryan noted.  For example, 
the GVN has not yet amended its regulations to allow U.S. 
companies to establish joint ventures in value-added 
telecommunications (this BTA obligation was due in December 
2003), valued-added Internet services (December 2004) or 
distribution services (December 2004). 
 
Comment 
------- 
 
14. (SBU) It is not yet possible to determine whether 
Vietnam will be able to meet its own ambitious legislative 
agenda in time for WTO accession in 2005.   Although Vietnam 
is receiving a great deal of technical assistance, capacity 
and consensus building remain significant problems.  Embassy 
will continue to press the GVN to step up drafting schedules 
and submit draft legislation to the WTO WP and to us for 
review over the next few months. 
 
15. (U) DAUSTR Bryan cleared this cable. 
 
MARINE