This record is a partial extract of the original cable. The full text of the original cable is not available.
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