US embassy cable - 03HANOI1233

UNCLAS SECTION 01 OF 03 HANOI 001233 
 
SIPDIS 
 
DEPT FOR CA/OCS/CI, CA/OCS/ACS/EAP, CA/OCS/PRI, CA/VO/F/P 
EAP/BCLTV, L/EAP 
Bangkok for INS/DD 
Ho Chi Minh City for CONS and INS OIC 
 
E.O. 12958: N/A 
TAGS: KOCI, CVIS, CASC, PREL, VM 
SUBJECT: VIETNAM: MEETING WITH JUSTICE MINISTRY ON ADOPTIONS 
 
REFS: A) STATE 72446, B) Savage-Vann telcon May 7, 2002, C) 
 
O-I May 19, 2003 
 
1.   (U) Summary.  The GVN has indicated that the content of 
the draft MOU provided is generally quite good and close to 
their draft framework.  However, the GVN is backtracking 
from earlier assurances by the former Vice Minister of 
Justice that Vietnam would be willing to go forward with an 
MOU as "the format and title" of the document were "not 
important."  However, the GVN is now raising concerns 
regarding format and title of the document.  Adoption, 
citizenship and children's rights are governed in Vietnam at 
the central (federal) level.  The GVN is questioning an 
MOU's applicability beyond the ministry-to-ministry level 
(in Vietnam, the title MOU is given to ministry-to-ministry 
level documents) as well as the authority of ministry level 
employees (Embassy staff) to reach agreement and sign a 
document with broader applicability (GVN officials are 
rarely given such authority.)  The GVN is interested in 
reaching a compromise, but would like to see a more formal 
title and format as well as written indications that the 
document will have broader applicability and that Embassy 
staff will have the authority to work towards consensus on 
such a document. Action request para 10.  End summary. 
 
2.  (U) On May 7, 2003, Consular Chief met with Mr. Nguyen 
Van Binh, Vice Director of the Department for International 
Treaty and International Cooperation, Ministry of Justice 
(MOJ.) 
 
3.  (U) Binh stated that the overall content of the draft 
MOU submitted is "good," and quite close to their draft 
framework.  He repeated this several times throughout the 
meeting. He added the disclaimer that he had not had time to 
review the document word-for-word, but he commented that 
there would be a lot of time to discuss on words and terms 
used in the MOU. 
 
Questions of Applicability and Authority 
---------------------------------------- 
 
4.  (U) Binh said that the problems perceived at this early 
stage are with the title and the format of the MOU.  The 
term "MOU" is used in Vietnam only for documents signed at 
the ministry-to-ministry level.  Because of its larger legal 
implications, an adoption "agreement" must be signed at the 
government-to-government level, even if the negotiating and 
signing authority is delegated to the ministry level.  He 
stated that recently, President Luong invited the Minister 
of Justice and the Minister of Foreign Affairs to a meeting 
to discuss international treaties and asked the two 
Ministries to standardize the titles of documents signed 
with foreign countries and ratified by the GVN. 
 
5.  (U) The GVN makes a clear distinction between the State 
and the Government.  Binh explained that the GVN enters into 
international "treaties" at three levels: International 
treaties involving multiple governments are signed at the 
State-to-State level (i.e., by the President); bilateral 
treaties signed at Government-to-Government level (i.e., by 
the Prime Minister); and treaties signed at ministry-to- 
ministry level.  The GVN wants adoption "agreements" to be 
signed at the `bilateral' (Government-to-Government) level 
because adoption involves two legal fields (the rights of 
children and nationality law) which are the responsibility 
of the Prime Minister, not the Ministries.  (Note:  Given 
the tendency of GVN Ministries to ignore MOUs and 
commitments made by other Ministries, we are encouraged by 
MOJ's desire to arrive at an agreement that would ensure 
compliance by all the relevant GVN players.  This has been a 
point of contention regarding the Agreed Consular Minute, 
which was signed by the State Department and the Foreign 
Ministry.  The Ministry of Public Security's position is 
that it is not bound by the Minute, and this results in 
consular notification delays, impediments to prison visits, 
etc.  Despite the greater effort the we will have to make on 
our part to satisfy the GVN's concerns, in the end we should 
have a document that is enforceable in Vietnam, which is the 
whole point.)  End note.) 
 
6.  (U) Regarding negotiations, Binh said that the 
Vietnamese delegation taking part in formal discussions is 
an interagency delegation which includes representatives of 
Ministry of Justice, Ministry of Foreign Affairs, Ministry 
of Public Security, Ministry of Labor, Invalids and Social 
Affairs, the Office of the Government, and the Committee for 
Population and Family Planning.  The discussions can be 
carried out in several rounds.  Initially, specialists or 
experts can begin talks (round one) without a specific 
"delegation of authority" from the Prime Minister.  For 
subsequent discussions (round two-three), a delegation of 
authority from the Prime Minister to the negotiating team is 
required in order to finalize the agreements and sign the 
documents.  The Minister of Justice will similarly be 
delegated the authority to sign in the name of the 
President.  France was not able to reach agreement in the 
first round - three rounds were ultimately needed. However, 
Italy and Denmark (who negotiated more recently), reached 
agreement in the first round and the formal delegation of 
authority was not required.  (Comment:  Although Binh did 
not mention it, obtaining such a "delegation of authority" 
can be time consuming.  Even if not, it appears to raise the 
discussion to a more formal level that the U.S. would prefer 
to avoid.  It is in our best interests to prepare to 
complete discussions in the first round.  End comment.) 
 
7.  (U) Following the meeting, MOJ sent a dipnote 
reiterating the GVN's motivation for seeking a bi-lateral 
agreement and requesting a formal written explanation of the 
US position why such an agreement is not possible.  While it 
may seem that the GVN is repeating previously covered 
material, we see this as a positive sign that the GVN is 
ready to move forward (although the direction of that 
progress is unknown).  In Vietnam, no decision is made or 
recommendation made based on discussions alone.  Until the 
issue or response is put into writing, it cannot be 
presented to higher authorities for decision. (We also note 
that they do not use the term MOU or agreement in their 
first paragraph.) 
 
8. (U) Text of MOJ dipnote follows. 
 
Begin Text. 
 
The Ministry of Justice of the Socialist Republic of Vietnam 
presents its compliments to the Embassy of the United States 
of America in Hanoi and has the honor to mention preparation 
for the negotiations on adoption cooperation between the two 
countries. 
 
The Ministry of Justice welcomes efforts made by the U.S. 
Embassy in advancing relations between the two countries 
regarding international adoptions.  At the meeting between 
the Deputy Chief of Mission with ministerial level 
representative of MOJ and the Chief of the Consular Section 
with department level representative of MOJ, the Vietnam 
side provided information on Vietnamese law and practice 
regarding adoption.  Currently, Vietnam is conducting 
negotiations with an aim to signing bilateral adoption 
agreements with foreign countries in order to provide the 
best protection of the rights of children adopted by 
foreigners.  Under Vietnamese law, an international treaty 
regarding adoptions is of the kind that Vietnam signs in the 
name of the State - the highest level of international 
treaty with Vietnam.  At the same time, according to 
agreement with other countries and Vietnamese convention, 
the name of this kind of international treaty is an 
"Agreement". 
 
The Ministry of Justice highly values the content of "The 
Memorandum of Understanding Between the United States of 
America and the Socialist Republic of Vietnam Regarding 
Adoptions" prepared by the U.S. side.  The content of the 
MOU is not much different from Vietnam's Framework that has 
been used as a foundation to negotiate with other countries. 
However, through the meetings, MOJ also understand the U.S. 
side's difficulties in selecting a name for the document 
regarding adoptions between the two countries.  Therefore, 
the use of another name for the document (not MOU) this is 
in conformity with the desire of the two sides currently is 
still an open problem. 
 
In order to have a foundation to report to the competent 
state agencies of Vietnam to consider and reach a decision 
on the issue of adoption negotiations between the two 
countries, the MOJ has the honor to request the Embassy to 
officially explain the U.S. legal stipulations relating to 
the U.S. authority for signing and formalities of U.S. 
international treaties; and at the same time, to confirm the 
difficulties on the U.S. side in selecting a name for the 
document regarding adoption between the two countries. 
 
The MOJ appreciates the Embassy's efforts on this issue and 
hopes to receive the Embassy's response soon. 
 
The Ministry of Justice of the Socialist Republic of Vietnam 
avails itself of this opportunity to renew to the Embassy of 
the United State of American the assurances of its highest 
consideration. 
 
End text. 
 
Which Draft and Legal References 
-------------------------------- 
 
9.  (U) Since the US draft and the GVN framework are so 
close in content, Binh stated that the question remains open 
as to which document to use as a basis for negotiation and 
stated that either is fine.  (Post will indicate to Binh 
that we prefer to work from our draft.)  Noting our 
reference to relevant US laws and the GVN circular and 
decree, he requested copies of the referenced US laws and 
indicated that there may be additional legal references on 
the GVN side (copies of any referenced laws will be 
provided). 
 
U.S. Response 
------------- 
 
10.  (U)  Consular Chief reminded Binh of Vice Minister 
Cuong's earlier commitment to work towards an MOU instead of 
an agreement.  (Comment:  Former VM Cuong was a close and 
cooperative Embassy contact. However, Cuong is no longer at 
the Ministry of Justice and Binh may not feel compelled to 
fulfill commitments made by Cuong.  End Comment.)  Consular 
Chief reiterated US policy that no bilateral agreement is 
signed where a multilateral convention is available and 
reminded Binh of the time-consuming procedures required for 
obtaining Congressional ratification of a bilateral 
agreement.  She explained that for the USG, bi-lateral 
treaties make law, from which policies are made; while an 
MOU is an equally significant document which goes straight 
to the policy making end-result.  She also repeated the USG 
interest in moving forward quickly and corrected Binh's 
statement (para 3) that there is plenty of time for 
discussions. 
 
Action Request 
-------------- 
 
11.  (U) The GVN request for written confirmation of 
negotiating authority is a common one as they rarely empower 
anyone below a Deputy Prime Minister level to make 
commitments on behalf of the GVN.  In order to satisfy the 
GVN that the State Department has been delegated this 
authority by law or regulation and to address the concerns 
outlined in paras 5 and 6, please provide written 
confirmation/documentation that by U.S. law the State 
Department is assigned the role as central authority on 
international adoptions and the Ambassador/Embassy's 
authority to negotiate and sign on behalf of the USG.  A 
second option would be to confirm that as the representative 
of the President, the Ambassador already has the authority 
to "negotiate" and sign an agreement at higher levels than 
ministry-to-ministry, and to document his delegation of that 
authority to our "team".  Also, please provide a copy of: 
"United States Public Law 106-295, October 30, 2000 - The 
Child Citizenship Act of 2000" as per para 8. 
BURGHARDT