Can the U.S. Legally Deny Iran’s New U.N. Ambassador a Visa to New York? Nope.

by Julian Ku

According to Reuters, the U.S. is thinking hard about denying a visa to Iran’s new U.N. Ambassador, thus preventing him from taking up his post in New York. The new ambassador, Hamid Abutalebi, apparently participated in the Iranian takeover of the U.S. embassy in Tehran back in 1979. Although nothing is official yet, it looks like the U.S. is going to invoke its “security exception” to the U.N. Headquarters Agreement to deny Abutalebi a visa.   As in the case involving President Bashir of Sudan, denying a visa to Iran’s ambassador would almost certainly violate the Headquarters Agreement.  Let’s take a look at Section 11:

The federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of (1) representatives of Members or officials of the United Nations…

Iran’s ambassador is clearly covered by this language. The only U.S. argument flows from the “security” exception attached to the Headquarters Agreement upon its approval by the U.S. Congress.

Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States….

As a matter of international law, I do not think the United Nations ever officially accepted this amendment to the original Headquarters Agreement, and certainly it has never accepted the rather broad U.S. interpretation of this provision.  A deal was struck in the past to allow the U.S. to give very limited visas that kept visitors within 15 miles of UN Headquarters.

In any event, the U.N. has battled with the U.S. several times in the past over the use of this clause to deny visas to the PLO, or even to close down PLO observer missions at the U.N.  The U.N. even sought arbitration (as provided by the Headquarters Agreement) as well as an advisory opinion from the ICJ when the US went after the PLO back in the late 1980s.

Does this mean the U.S. cannot deny the visa? I think under domestic U.S. law, there is certainly a plausible basis for denial given Abutalebi’s past connections and U.S. practice in this area.  But the U.N. would be well within its rights to claim a violation of the Headquarters Agreement and to demand an arbitration that it would have a good chance of winning.   I don’t get why the U.S. wants to pick this fight at this time. I’d prefer it hang tough on its demand that Iran eliminate its nuclear weapons program rather than deny a visa over actions taken by a guy 35 years ago.  But it looks like we are going to have this fight, so stay tuned.

http://opiniojuris.org/2014/04/09/can-u-s-deny-irans-new-u-n-ambassador-visa-new-york/

6 Responses

  1. Given that the amendment was written specifically in response to Abutalebi’s appointment, I should hope that “under domestic U.S. law, there is certainly a plausible basis for denial.”  The history of bad legislative drafting is a long one, but this seems a straightforward bill to write up.
    But on your question of why the U.S. wants to pick a fight:  it seems like domestic politics is the real issue.  As far as I can tell, Cruz initiated this, but one thing the parties can agree on is that they don’t like Iran.  At that point, Obama would be  foolish to push back too hard – what’s the upside?  The international community doesn’t vote in US elections.
    That being said, he could make a good case for not signing the bill (don’t tie the President’s hands in future cases, yada yada yada).
     
     

  2. Julian,
    You stopped quoting the ‘security exception’ midway. If quoted in full, we’d see that there is no exception to denying Aboutalebi entry into the US to get to the UN Headquarters. There is rather a basis for denying Aboutalebi the right to leave the UN district and its immediate vicinity. A very different thing.

  3. Response…hilarious  nonsense.
     
    the US has no obligation to issue a visa 

  4. Does the United States have a duty under UN art. 56 (tied to art. 55(c)) to ensure universal respect for an observance of human rights, such as those that the ICJ recognized had been violated in U.S. v. Iran.  Can the U.S. rightly claim that this Charter obligation, under Article 103 of the Charter, prevails over an inconsistent agreement such as the HQ agreement?  Can the U.S. inherent right of self-defense pertain this far down the road, or in view of new facts? [ok, a stretch]

  5.      Under proper diplomatic protocol,  Mr. Aboutalebi could be accepted by the U. N. as Iran’s representative.  That being stated, the U. S. could make clear, that if Mr. Aboutalebi steps out the recognized boundaries of the U. N. he would be subject to immediate arrest and expulsion as Persona Non Grata.  The other unanswered legal question can the U. N. supercede the U. S. sovereignty  on its own land if the U. N.’s action conflict with the basic domestic laws and security of the U. S.

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