TO CLAIM OR NOT TO CLAIM

Several weeks after the lifting of the American embargo, many Vietnamese communities across the US initiated a vigorous campaign to ask the American government to negotiate with Hanoi for the recovery of assets confiscated after April 1975. Congressmen such as Torricelli and organizations such as the American Legion encourage and support this initiative. In Southern California's Orange County alone, in just two weeks, up to 1,285 claims were filed with the State Department in Washington.

It is easy to understand why so many Vietnamese are fired up. The prospect of recovering one's house, or land or business, however humble, is exciting indeed..There are however a number of important legal, political and practical considerations.

1. From a legal standpoint

After the fall of South Viet Nam in 1975, all accounts, deposits and assets of the South Vietnamese administration in the US (totalling up to US $270 million) were frozen. When relations are normalized between Viet Nam and the US, they will have to be surrendered to Hanoi.

Immediately after April 1975, the US administration announced that the new Vietnamese government had to return or give appropriate compensation for all assets confiscated from corporations, businesses or individuals of American citizenship at the time of the invasion of South Viet Nam. According to legislation introduced in 1980, all claims must be filed by 1983. The State Department reports that as of today, 1,300 claims have been turned down because they were found invalid, and 98 have been accepted. These claims for the most part were made by large corporations such as General Electric, Warner Bros, IBM, the World Trade Corporation, Artists Entertainment Co...and according to the latest reports to come from the State Department (April 1994), the above-mentioned $270 million are not sufficient to cover them. There are still many highly complex considerations: the present condition of the assets in question has to be assessed, as well as the extent of the wear and tear , the modalities of compensation have to be worked out, and so on.

Then there is the matter of assets belonging to Vietnamese expatriates in the US. It has not yet been looked into by the American administration and consequently, it has not yet been raised with Hanoi. Recently, Nguyen Quy Duc, a representative of Hanoi at the United Nations, announced that the Vietnamese government "does not intend to examine the claims made by those non-American citizens who fled in 1975". It must be pointed out that the wealthy were in a minority among those who did flee in 1975..

There are specific questions that need to be resolved with the American government before we can even consider raising the matter with the Vietnamese government.

l. What happens when the assets belong to an individual or a married couple who became American citizens after leaving Viet Nam.

2. What happens when the spouses arrive in the US at different times. The one who arrives first takes American citizenship and applies to be reunited with the spouse who still lives in Viet Nam and is not yet an American citizen. The assets of such a couple are confiscated by the Vietnamese government after the remaining spouse leaves the country.

3. What happens when the confiscated assets belong to someone who is or is not married and is not yet a citizen but has been given political asylum in the US.

Even if the American administration is prepared to argue with Hanoi on behalf of the above individuals, the Vietnamese administration may dismiss their cases on the ground that they abandoned their assets when they departed of their own free will, or it may argue that some of them "willingly" left or bequeathed their assets to the local authorities. This argument of course will not hold because it is precisely the oppressive nature of the Vietnamese regime that led the US to grant political asylum to those who fled.

2. From a political standpoint

The post-embargo period is a complex one and for this claims operation to be successful, the objectives, the strategy and the timing all have to be carefully worked out.

There are currently two options.

The first option would be to make the most of the current negotiations between the two countries, and to get Hanoi via the American delegation, to do the right thing and settle the claims of the Vietnamese expatriates to their satisfaction. At first, this approach seems "attractive and logical". This is a "one in a million opportunity" to "corner" Hanoi using the $270 million worth of assets Washington still has in its possession.

But the whole matter is a powder keg .Let's say that Hanoi cunningly announces its agreement in principle - and only in principle - to this scheme, are we talking about assets being recovered or about compensation being paid? A large number of expatriates proclaim that they will "fight the Communists to the very end", vowing never to recognize the Hanoi government. These very people will have to deal with Hanoi one way or another, if they want their assets back. Hanoi will be only too pleased to chalk up yet another easy victory against the "last anti-communist bastion abroad"..

There exists another option, which is to fight Hanoi's divisive ploy, to close ranks and work steadfastly and concretely for the dismantling of the communist regime. In other words, the claims campaign should only be waged when the legal and political conditions are right, and an honest implementation of the recovery process can be guaranteed. Hanoi will jump at this opportunity to play political games and thereby divide us, but it must not be allowed to do so. In this last struggle to regain democracy, let us be careful when handling fire, to paraphrase the great general Tran Hung Dao..

3. From a practical standpoint

Hanoi is at the present time directly or indirectly dealing with a number of expatriates who used to own businesses in pre-1975 Viet Nam to try and get them to return and do business at home. They are made many promises: stocks, a share of power... These individuals, among whom many of Chinese origin, quickly become disillusioned when apprised of the strict conditions that apply: bank loans taken out before 1975 must be paid in full, all management expenses and repair fees incurred by the Communist authorities must be reimbursed, all taxes due from 1975 to date must be paid off, businesses or individuals who are asked to evacuate premises must be compensated by the owners to whom they are reverting, investment and working capital must come from individuals themselves, one must reside in Viet Nam in order to conduct business there, and so on and so forth.

Added to these headaches is the corruption that goes on at all levels.

Here in the US, several associations have been distributing claims forms and model affidavits to the Vietnamese community to fill in and forward to the US government. These forms are for reporting movable and immovable assets, estimating their worth, notarizing one's own signature and those of witnesses, gathering certificates of evidence... All this activity however is useless and premature from a procedural point. It must be remembered that precious documents evidencing ownership may get mislaid and that even if the US government does decide to take up the matter with the Vietnamese, it does not need to be in possession of such dossiers at this early stage.. A decision must first be made about whether or not the American delegation should raise the matter for negotiation with the Vietnamese delegation. Even if both sides agree with the approach in principle, they still have to decide the modalities for implementation. Claims will be looked at on a case by case basis and the kind of documentary evidence needed will have to be determined. This may take months, years.

For those Vietnamese expatriates who want to go ahead with their claims, the best course of action right now would be to write up a petition, including their name, address and a brief summary of their rights to a particular claim, and send it to their senator or representative with a request that the matter be brought to the attention of the State Department and Congress with a view to instructing the American delegation to bring it up in current or future talks with the Vietnamese delegation.

It is hoped that these constructive recommendations will come to the attention of community leaders and that they will re-examine the objectives and projected outcome of a claims campaign. No-one doubts the good intentions of these leaders, but for such a course of action to be profitable to the community and to serve the interests of the common struggle, it is necessary to look at all possible angles, make all the required adjustments and act only when the time is right.

No-one among us wants to witness the spectacle of self-professed Vietnamese nationalists lining up outside the embassy or consulates of Communist Viet Nam soon to open throughout the US, in order to get back a house, a shop, a parcel of land, at the price - once again - of freedom.

As long as Articles 17 and 18 of the 1992 Constitution of Communist Viet Nam are not amended to recognize the right to private ownership, the reality of individuals owning anything is remote. As for the possibility of Vietnamese expatriates (dismissively referred to as "nguy" or traitors by Hanoi) recovering their lost assets, this will remain the subject of idle speculation for the time being..

Let us be alert to Hanoi's divisive maneuvers.

Let's save our strength for the difficult days ahead.

April 1996