H. R. 3190
IN THE HOUSE OF REPRESENTATIVES
June 30, 2005
Mr. Smith of New Jersey (for himself, Mr. Royce, Ms. Zoe Lofgren of California, Mr. Sam Johnson of Texas, Mr. Tom Davis of Virginia, Mr. Wolf, Mr. Rohrabacher, Mr. Payne, Mr. Pence, Mr. Green of Wisconsin, Ms. Ros-Lehtinen, Mr. Crowley, and Ms. Loretta Sanchez of California) introduced the following bill; which was referred to the Committee on International Relations
To promote freedom and democracy in Vietnam.
Short title; table of contents
This Act may be cited as the
Vietnam Human Rights Act of 2005.
Table of contents
The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents
Sec. 2. Findings
Sec. 3. Purpose
Title I—Prohibition on nonhumanitarian assistance to the Government of Vietnam
Sec. 101. Bilateral nonhumanitarian assistance
Title II—Assistance to support democracy in Vietnam
Sec. 201. Assistance
Title III—United States public diplomacy
Sec. 301. Radio Free Asia transmissions to Vietnam
Sec. 302. United States educational and cultural exchange programs with Vietnam
Title IV—United States refugee policy
Sec. 401. Refugee resettlement for nationals of Vietnam
Title V—Annual report on progress toward freedom and democracy in Vietnam
Sec. 501. Annual report
Congress finds the following:
The relationship between the United States and the Socialist Republic of Vietnam has grown substantially over the past 10 years, with annual trade between the two countries reaching over $6 billion per year.
The Government of Vietnam’s transition toward greater economic freedom and trade has not been matched by greater political freedom and substantial improvements in human rights.
Vietnam remains a one party state, ruled and controlled by the Communist Party of Vietnam (CPV), which continues to deny the right of citizens to change their government.
Although in recent years the National Assembly of Vietnam has played an increasingly active role as a forum for highlighting local concerns, corruption, and inefficiency, the National Assembly remains subject to the direction of the Communist Party of Vietnam and the CPV maintains control over the selection of candidates in national and local elections.
The Government of Vietnam forbids public challenge to the legitimacy of the one party state, restricts freedoms of opinion, the press, and association and tightly limits access to the Internet and telecommunication.
The Government of Vietnam continues to detain and imprison persons for the peaceful expression of dissenting religious and political views, including Pham Hong Son, Nguyen Vu Binh, Nguyen Khac Toan, Brother Nguyen Thien Phung, Reverend Than Van Truong and Pastor Nguyen Hong Quang, among others.
While the Government of Vietnam recently released a handful of political and religious prisoners, including Dr. Nguyen Dan Que, Professor Nguyen Dinh Huy, Father Nguyen Van Ly, and Venerable Thich Thien Minh, these individuals remain under close surveillance by the Government of Vietnam, which has included house detention or police surveillance.
The Government of Vietnam limits freedom of religion and restricts the operation of religious organizations, allowing only religious organizations officially approved by the Government of Vietnam, but often restricting their selection and training of religious leaders as well as their activities.
On September 15, 2004, Vietnam was declared a Country of Particular Concern by the Department of State for its severe violations of religious freedom, and despite an agreement concluded with the Department of State in May 2005 committing to greater religious freedom, the Government of Vietnam continues to commit serious human rights abuses in this area.
Unregistered ethnic minority Protestant congregations in the Northwest and Central Highlands of Vietnam suffer severe abuses because of actions by the Government of Vietnam, which have included forced renunciations of faith, the closure and destruction of churches, the arrest and harassment of pastors, and the withholding of social programs provided for the general population, and in a few cases credible reports indicate that minority religious leaders have been beaten and even killed.
The Unified Buddhist Church of Vietnam (UBCV) suffers severe persecution as the Government of Vietnam confiscated its temples and persecuted its clergy for refusing to join the state-sponsored Buddhist organizations and continually has detained and confined senior UBCV clergy, including the Most Venerable Thich Huyen Quang, the Most Venerable Thich Quang Do, the Venerable Thich Tue Sy, and others.
The Catholic Church continues to face significant restrictions on the training and ordination of priests and bishops, resulting in numbers insufficient to support the growing Catholic population in Vietnam and officials of the Government of Vietnam continue to limit the Catholic Church’s conduct of religious education classes and charitable activities.
The Government of Vietnam continues to suppress the activities of other religious adherents, including Cao Dai, Baha’i, and Hoa Hao who lack official recognition or have chosen not to affiliate with the state-sanctioned groups, including through the use of detention and imprisonment.
The Government of Vietnam controls all print and electronic media, including access to the Internet, jams the signals of some foreign radio stations, including Radio Free Asia, and has detained, convicted, and imprisoned individuals who have posted or sent democracy-related materials via the Internet.
Indigenous Montagnards in the Central Highlands of Vietnam continue to face particularly severe persecution, with numerous cases of arbitrary arrests and detentions and reports that many Montagnards have gone into hiding, fearing arrest, interrogation, or physical abuse by Government authorities.
During Easter weekend in April 2004, thousands of Montagnards gathered to protest their treatment by the Government of Vietnam, including the confiscation of tribal lands and ongoing restrictions on religious activities, and credible reports indicate that the protests were met with a violent response as many demonstrators were arrested, injured, or are in hiding, and that others were killed.
Hundreds of Montagnards continue to flee to neighboring countries, over 700 Montagnards reside in different refugee camps operated by the United Nations High Commissioner for Refugees in Cambodia, and numerous Montagnards have been involuntarily repatriated to Vietnam by the Government of Cambodia, in violation of international law.
Ethnic minority Hmong in the Northwest Highlands of Vietnam also suffer persecution by the Government of Vietnam, but as with the Central Highlands region, access to the Northwest Highlands by diplomats, nongovernmental organizations, journalists, and other foreigners is severely restricted, making it difficult to verify conditions.
People arrested in Vietnam because of their political or religious affiliations and activities often are not accorded due legal process as they lack full access to lawyers of their choice, experience closed trials, have often been detained for years without trial, and have been subjected to the use of torture to admit to crimes they did not commit or to falsely denounce their own leaders.
Members of the Mennonite Church such as Pham Ngoc Thach, Nguyen Van Phuong, Nguyen Thanh Nhan, and Nguyen Huu Nghia were repeatedly tortured prior to their sentencing and authorities have also reportedly increasingly resorted to psychiatric torture against religious prisoners such as Ms. Le Thi Hong Lien and Pastor Than Van Truong.
United States refugee resettlement programs, including the Orderly Departure Program (ODP), the Resettlement Opportunities for Returning Vietnamese (ROVR) program, general resettlement of boat people from refugee camps throughout Southeast Asia, the Amerasian Homecoming Act of 1988, and the Priority One Refugee resettlement category have helped rescue Vietnamese nationals who have suffered persecution on account of their associations with the United States as well as Vietnamese nationals who have been persecuted because of race, religion, nationality, political opinion, or membership in a particular social group.
While previous programs have served their purposes well, a significant number of eligible refugees from Vietnam were unfairly denied or excluded, including Amerasians, in some cases by vindictive or corrupt Vietnamese officials who controlled access to the programs, and in others by United States personnel who imposed unduly restrictive interpretations of program criteria. In addition, the Government of Vietnam has denied passports to persons that the United States has found eligible for refugee admission.
The Department of State has agreed to extend the September 30, 1994, registration deadline for former United States employees,
re education survivors, and surviving spouses of those who did not survive
re-education camps to sign up for United States refugee programs, as well as to resume the Vietnamese In Country Priority One Program in Vietnam to provide protection to victims of persecution on account of race, religion, nationality, political opinion, or membership in a particular social group who otherwise have no access to the Orderly Departure Program.
The former United States Immigration and Naturalization Service agreed to resume the processing of former United States employees under the U11 program, which had been unilaterally suspended by the United States Government, as well as to review the applications of Amerasians, children of American servicemen left behind in Vietnam after the war ended in April 1975, for resettlement to the United States under the Amerasian Homecoming Act of 1988.
Congress has passed numerous resolutions condemning human rights abuses in Vietnam, indicating that although there has been an expansion of relations with the Government of Vietnam, it should not be construed as approval of the ongoing and serious violations of fundamental human rights in Vietnam.
Enhancement of relations between the United States and Vietnam has provided an opportunity for a human rights dialogue and could lead to future progress on human rights issues in Vietnam.
The purpose of this Act is to promote the development of freedom and democracy in Vietnam.
Prohibition on nonhumanitarian assistance to the Government of Vietnam
Bilateral nonhumanitarian assistance
Except as provided in subsection (b), United States nonhumanitarian assistance may not be provided to the Government of Vietnam—
for fiscal year 2006 unless not later than 30 days after the date of the enactment of this Act the President determines and certifies to Congress that the requirements of subparagraphs (A) through (D) of paragraph (2) have been met during the 12-month period ending on the date of the certification; and
for each subsequent fiscal year unless the President determines and certifies to Congress in the most recent annual report submitted pursuant to section 501 that the requirements of subparagraphs (A) through (E) of paragraph (2) have been met during the 12-month period covered by the report.
The requirements of this paragraph are that—
the Government of Vietnam has made substantial progress toward releasing all political and religious prisoners from imprisonment, house arrest, and other forms of detention;
the Government of Vietnam has made substantial progress toward respecting the right to freedom of religion, including the right to participate in religious activities and institutions without interference by or involvement of the Government; and
has made substantial progress toward returning estates and properties confiscated from the churches;
the Government of Vietnam has made substantial progress toward allowing Vietnamese nationals free and open access to United States refugee programs;
the Government of Vietnam has made substantial progress toward respecting the human rights of members of ethnic minority groups in the Central Highlands or elsewhere in Vietnam; and
neither any official of the Government of Vietnam nor any agency or entity wholly or partly owned by the Government of Vietnam was complicit in a severe form of trafficking in persons; or
the Government of Vietnam took all appropriate steps to end any such complicity and hold such official, agency, or entity fully accountable for its conduct.
Subsection (a) shall not apply for any fiscal year with respect to the provision of United States nonhumanitarian assistance for any program or activity for which such assistance was provided to the Government of Vietnam for fiscal year 2005 in an amount not to exceed the amount so provided for fiscal year 2005.
Continuation of assistance in the national interest
Notwithstanding the failure of the Government of Vietnam to meet the requirements of subsection (a)(2), the President may waive the application of subsection (a) for any fiscal year if the President determines that the provision to the Government of Vietnam of increased United States nonhumanitarian assistance would promote the purposes of this Act or is otherwise in the national interest of the United States.
Exercise of waiver authority
The President may exercise the authority under paragraph (2) with respect to—
all United States nonhumanitarian assistance to Vietnam; or
one or more programs, projects, or activities of such assistance.
In this section:
Severe form of trafficking in persons
The term severe form of trafficking in persons means any activity described in section 103(8) of the Trafficking Victims Protection Act of 2000 (Public Law 106–386 (114 Stat. 1470); 22 U.S.C. 7102(8)).
United States nonhumanitarian assistance
The term United States nonhumanitarian assistance means—
any assistance under the Foreign Assistance Act of 1961 (including programs under title IV of chapter 2 of part I of that Act, relating to the Overseas Private Investment Corporation), other than—
disaster relief assistance, including any assistance under chapter 9 of part I of that Act;
assistance which involves the provision of food (including monetization of food) or medicine; and
assistance for refugees; and
sales, or financing on any terms, under the Arms Export Control Act.
Assistance to support democracy in Vietnam
The President is authorized to provide assistance, through appropriate nongovernmental organizations, for the support of individuals and organizations to promote internationally recognized human rights in Vietnam.
Authorization of appropriations
There are authorized to be appropriated to the President to carry out subsection (a) $2,000,000 for each of the fiscal years 2006 and 2007.
United States public diplomacy
Radio Free Asia transmissions to Vietnam
Policy of the United States
It is the policy of the United States to take such measures as are necessary to overcome the jamming of Radio Free Asia by the Government of Vietnam.
Authorization of appropriations
In addition to such amounts as are otherwise authorized to be appropriated for the Broadcasting Board of Governors, there are authorized to be appropriated to carry out the policy under subsection (a) $9,100,000 for the fiscal year 2006 and $1,100,000 for the fiscal year 2007.
United States educational and cultural exchange programs with Vietnam
It is the policy of the United States that programs of educational and cultural exchange with Vietnam should actively promote progress toward freedom and democracy in Vietnam by providing opportunities to Vietnamese nationals from a wide range of occupations and perspectives to see freedom and democracy in action and, also, by ensuring that Vietnamese nationals who have already demonstrated a commitment to these values are included in such programs.
United States refugee policy
Refugee resettlement for nationals of Vietnam
Policy of the United States
It is the policy of the United States to offer refugee resettlement to nationals of Vietnam (including members of the Montagnard ethnic minority groups) who were eligible for the Orderly Departure Program (ODP), Resettlement Opportunities for Vietnamese Returnees (ROVR), the Amerasian Homecoming Act of 1988, or any other United States refugee program and who were deemed ineligible due to administrative error or who for reasons beyond the control of such individuals (including insufficient or contradictory information or the inability to pay bribes demanded by officials of the Government of Vietnam) were unable or failed to apply for such programs in compliance with deadlines imposed by the Department of State.
Of the amounts authorized to be appropriated to the Department of State for Migration and Refugee Assistance for each of the fiscal years 2006, 2007, and 2008, such sums as may be necessary are authorized to be made available for the protection (including resettlement in appropriate cases) of Vietnamese refugees and asylum seekers, including Montagnards in Cambodia.
Annual report on progress toward freedom and democracy in Vietnam
Not later than 6 months after the date of the enactment of this Act and every 12 months thereafter, the Secretary of State shall submit to the Congress a report on the following:
The determination and certification of the President that the requirements of subparagraphs (A) through (D) of section 101(a)(2) have been met, if applicable.
The determination of the President under section 101(b)(2), if applicable.
Efforts by the United States Government to secure transmission sites for Radio Free Asia in countries in close geographical proximity to Vietnam in accordance with section 301(a).
Efforts to ensure that programs with Vietnam promote the policy set forth in section 302 and with section 102 of the Human Rights, Refugee, and Other Foreign Policy Provisions Act of 1996 regarding participation in programs of educational and cultural exchange.
Steps taken to carry out the policy under section 401(a).
Lists of persons believed to be imprisoned, detained, or placed under house arrest, tortured, or otherwise persecuted by the Government of Vietnam due to their pursuit of the rights described in paragraph (5). In compiling such lists, the Secretary shall exercise appropriate discretion, including concerns regarding the safety and security of, and benefit to, the persons who may be included on the lists and their families. In addition, the Secretary shall include a list of such persons and their families who may qualify for protection under United States refugee programs.
A description of the development of the rule of law in Vietnam, including, but not limited to—
progress toward the development of institutions of democratic governance;
processes by which statutes, regulations, rules, and other legal acts of the Government of Vietnam are developed and become binding within Vietnam;
the extent to which statutes, regulations, rules, administrative and judicial decisions, and other legal acts of the Government of Vietnam are published and are made accessible to the public;
the extent to which administrative and judicial decisions are supported by statements of reasons that are based upon written statutes, regulations, rules and other legal acts of the Government of Vietnam;
the extent to which individuals are treated equally under the laws of Vietnam without regard to citizenship, race, religion, political opinion, or current or former associations;
the extent to which administrative and judicial decisions are independent of political pressure or governmental interference and are reviewed by entities of appellate jurisdiction; and
the extent to which laws in Vietnam are written and administered in ways that are consistent with international human rights standards, including the requirements of the International Covenant on Civil and Political Rights.
Contacts with other organizations
In preparing the report under subsection (a), the Secretary shall, as appropriate, seek out and maintain contacts with nongovernmental organizations and human rights advocates (including Vietnamese-Americans, human rights advocates in Vietnam), including receiving reports and updates from such organizations and evaluating such reports. The Secretary shall also seek to consult with the United States Commission on Religious Freedom for appropriate sections of the report.