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Abstract
As part of the mid-1990s normalization process, Vietnam and the United States negotiated a bilateral accord settling the outstanding property claims of U.S. citizens and corporations; Vietnam acceded to U.S. demands to fully compensate for expropriated properties owned by U.S. citizens in the pre-1975 years. In contrast, Vietnam granted no such concessions to Vietnamese immigrants, including Vietnamese-Americans. This article finds that the main drivers behind these divergent outcomes are: international legal norms and customs; domestic political considerations in both countries; and the broader negotiating objectives of the two governments.
ACKNOWLEDGMENTS
The author wishes to express his appreciation to the many Vietnamese, Vietnamese-Americans, and U.S. legal advisers who shared their expertise during his 2015 visit to Vietnam, including those who prefer to remain anonymous, as well as to the anonymous peer reviewers for their useful commentaries.
Notes
1. Burns Weston, Richard Lillich, and David Bederman, International Claims: Their Settlement by Lump Sum Agreements, 1975 –1995 (Ardsley, NY: Transnational Publishers, 1999).
2. Foreign Claims Settlement Commission, 2013 Annual Report (Washington, DC: U.S. Department of Justice), 2.
3. Thomas J. Lang, “Satisfaction of Claims Against Vietnam for the Expropriation of U.S. Citizens’ Property in South Vietnam in 1975,” Cornell International Law Journal 28, issue 1, article 8 (1995): 266–300.
4. Congressional Research Service, Vietnam’s Future Policies and Role in Southeast Asia, Report prepared for the Committee on Foreign Relations, United States Senate, April 1982, 65–66.
5. At the time of the U.S. –Vietnamese claims settlement, the United States had negotiated settlements with six other countries for which it had adjudicated claims prior to compensation negotiations with the offending country. Claimants in those six claims programs had received only an average of 38 percent of the value of their awards by the FCSC, as noted in Lang, “Satisfaction of Claims Against Vietnam,” 296, citing J. Jeffrey Brown, “Note: The Jurisprudence of the Foreign Claims Settlement Commission: Vietnam Claims,” Virginia Journal of International Law 27 (1986): 99, 100.
6. Author interviews in Vietnam, January–March 2015.
7. Nguyen Vu Tung, “Vietnam’s Membership of ASEAN: A Constructivist Interpretation,” Contemporary Southeast Asia 29, no.3 (December 2007): 483–505.
8. David Dollar, “Economic Reform, Openness, and Vietnam’s Entry into ASEAN,” ASEAN Economic Bulletin 13, no. 2 (November 1996): 169–84.
9. Author interview, Vietnam, January–March 2015. On disagreements on economic policy between conservatives and reformers within the 19-member Politburo during those years, see Mark E. Manyin, “The Vietnam–U.S. Bilateral Trade Agreement,” Congressional Research Service, updated September 9, 2002, 18–19, available at http://vietnam.usembassy.gov/uploads/images/LyF8aTkwwk2Jr3-pvrFMKA/bta-crsrpt020909.pdf, accessed August 19, 2015.
10. Author interview, Vietnam, February–March 2015.
11. For a full recounting, see Richard E. Feinberg, “Nicaraguan Democracy and the Post-Conflict Resolution of Property Claims,” unpublished manuscript, 2014.
12. In lobbying the U.S. Congress, the Nicaraguan-Americans enjoyed the backing of the influential Cuban-American community. Today, the Cuban-American and Vietnamese-American communities are comparable in numbers, at around 2 million each.
13. Richard H. Solomon, “Vietnam: The Road Ahead,” statement before the Subcommittee on East Asia and Pacific Affairs, Senate Foreign Relations Committee, April 25, 1991, available at U.S. Department of State Dispatch, May 6, 1991, 330
14. See Pew Research Center, The Rise of Asian Americans: Vietnamese Americans, at www.pewsocialtrends.org/asianamericans-graphics/vietnamese/, accessed August 19, 2015.
15. Author interviews with Vietnamese-Americans in southern California and Vietnam, 2015.
16. Pew Research Center, Rise of Asian Americans: Vietnamese Americans.
17. Author interviews of Vietnamese-Americans, including individuals who had been engaged in the politics of the Vietnamese-American community, in Vietnam, January–March 2015.
18. In 2005 Sanchez introduced House of Representatives Resolution 415 calling on the government of Vietnam to do more to resolve claims for confiscated properties.
19. Author interview with officials from the U.S. Embassy, Hanoi, February 2015.
20. Author interviews with lawyers and other experts specializing in real estate and property matters, Vietnam, January–March 2015. For generously sharing their time and insights, the author would especially like to thank Johan Nyvene, Pham Chi Thanh, Ha X. Trung, Luong Van Ly, Tran Duc Canh, Cal Hung Nguyen, Duong Thuy Dung, Phuc Than, David Huynh, Frederick R. Burke, and Peter R. Ryder.
21. Ibid.
22. Joe Allen, “Vietnam: The War That the U.S. Lost,” International Socialist Review, Issue 29, May–June, 2003, at http://isreview.org/issues/29/vietnam.shtml.
23. Nguyen Quang Tuyen, Land Law Reforms in Vietnam— Past and Present. Asian Law Institute, Faculty of Law, National University of Singapore, Working Paper Series, No. 015 (August 2010), 1.
24. Author interview, Vietnam, January–March 2015.
25. Decision 111/CP dated April 14, 1977 issued by the Council of Government, Hanoi, April 14, 1977. See also Dang Anh Quan (Russin and Vecchi, International Legal Counsellors), “House Ownership and Land-Use Rights for Overseas Vietnamese in Vietnam” (legal memorandum prepared for clients), current through February 2015.
26. World Bank, Compulsory Land Acquisition and Voluntary Land Conversion in Vietnam (Washington DC: World Bank, 2011), 3 (Table 1: Evolution of Laws and Policies Relating to Land).
27. Nguyen, “Land Law Reforms in Vietnam,” 2
28. World Bank, Compulsory Land Acquisition; on “Who Wins and Who Loses from Land Conversion,” see Dang Hoa Ho and Malcolm McPherson, “Land Policy for Socioeconomic Development in Vietnam,” Harvard Kennedy School, ASH Center for Democratic Governance and Innovation, May 27, 2010 (pages not numbered), http://ash.harvard.edu/links/land-policy-socioeconomic-development-vietnam, accessed August 19, 2015.
29. See note 17.
30. Author interview, Vietnam, January–March, 2015.
31. World Bank database: http://search.worldbank.org/data?qterm=vietnam+foreign+investment&language=&format=
32. For example, see the “Provincial Competitiveness Index,” jointly administered by the Vietnam Chamber of Commerce and Industry (VCCI) and USAID, at http://eng.pcivietnam.org/.
33. Author interviews with legal experts, Vietnam, January–March 2015. Also, see Mayer Brown JSM, “Guide to Doing Business in Vietnam” (April 2014), 25, at www.mayerbrown.com/publications/Guide-to-Doing-Business-in-Vietnam/. LURCs do not confer outright ownership of land but recipients are entitled to exercise the right to use, transfer, mortgage, lease, and other rights that are associated with land ownership.
34. U.S. Department of State, “2013 Investment Climate Statement—Vietnam,” www.state.gov/e/eb/rls/othr/ics/2013/204760.htm (accessed August 19, 2015). The official report refers to “inadequate and cumbersome legal and financial systems … arcane land acquisition and transfer regulations and procedures … and pervasive corruption.”
35. For example, a representative of Boat People SOS (BPSOS), a national Vietnamese-American organization based in Falls Church, Virginia, testified before the U.S. House of Representatives on June 4, 2013, urging the U.S. government to advocate on behalf of the property rights of Vietnamese-Americans. Available at: www.gpo.gov/fdsys/pkg/CHRG-113hhrg81340/html/CHRG-113hhrg81340.htm, accessed August 19, 2015.
36. Another case of successful restitution is recounted in the semi-autobiographical collection of short stories by Vietnamese-American Violet Kupersmith. “When Hanoi was bombed, the building was abandoned and five army officers and their concubines moved in. … I don’t know how my family managed to get the place back—the government was still repossessing property and evicting people left and right in the postwar years. Maybe we were lucky. Maybe the place was even too old and nasty for the communists.” In The Frangipani Hotel (New York: Spiegel & Grau, 2014), 12.
37. Dang (Russin and Vecchi,) “House Ownership and Land-Use Rights.”