There Is No General “Security Exception” in the UNHQ Agreement Act

by Kevin Jon Heller

I fully concur with Julian’s recent post about the United Nations Headquarters Agreement. There is no question that the US decision to deny Aboutalebi a visa violates the Agreement itself. But I’ve seen suggestions, most notably by my friend John Bellinger, that the US is not violating domestic US law because the 1947 United Nations Headquarters Agreement Act (scroll down) contains a “security exception” to the visa requirement. Here is what John said, according to Bloomberg:

President Barack Obama has authority to deny a visa to Iran’s newest choice as envoy to the UN, yet doing so would open up risks for U.S. foreign policy.

The decision in the case of Hamid Aboutalebi, who was part of the group that took over the American embassy in Tehran in 1979, is being made at a delicate point in U.S.-led negotiations over Iran’s nuclear program.

Under the United Nations Headquarters Agreement Act approved by Congress in 1947, the president has authority to deny visas to individuals deemed to pose a security threat to the U.S., said John Bellinger, a former State Department legal adviser who is now partner at Arnold and Porter LLP in Washington.

If Obama decides a person is a threat “then we’re not required to give that person a visa, and that would be consistent with our obligations under the headquarters agreement,” Bellinger said. “Whether that’s good policy or not that would be up to others to decide.”

“The short answer is, it’s complicated,” he said.

I disagree. With respect to John, nothing in the Headquarters Agreement Act permits the US to deny a visa to anyone it considers a “security threat.” The relevant provision is section 6, which Julian did not quote in full in his post (emphasis mine):

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 other than the headquarters district and its immediate vicinity, as to be defined and fixed in a supplementary agreement between the Government of the United States and the United Nations in pursuance of section 13 (3) (e) of the agreement, and such areas as it is reasonably necessary to traverse in transit between the same and foreign countries. Moreover, nothing in section 14 of the agreement with respect to facilitating entrance into the United States by persons who wish to visit the headquarters district and do not enjoy the right of entry provided in section 11 of the agreement shall be construed to amend or suspend in any way the immigration laws of the United States or to commit the United States in any way to effect any amendment or suspension of such laws.

Section 6 contains two separate provisions. Provision 1 permits the US to prohibit individuals who have a right of entry under the Headquarters Agreement but are considered a security threat from traveling anywhere other than other than “the [UN] headquarters district and its immediate vicinity.” Provision 2 then permits the US to deny entry completely to anyone who does not have a right of entry under the Headquarters Agreement. Section 6 thus does not permit the US to deny entry completely to someone who has a right of entry.

I think this is the only plausible reading of section 6. To find a general “security exception,” we have to read “safeguard its own security” (1) in isolation from the rest of the sentence in which it is placed (in which case we must still infer that the US is entitled to deny entry completely to individuals who are security threats, because Provision 1 does not specify any remedy other than limitation to the UN area), and (2) in isolation from Provision 2, which does explicitly permit denying entry completely but limits that remedy to individuals who do not have a right of entry under the Headquarters Agreement. Moreover, as Julian notes, it is extremely unlikely the UN would have accepted a general security exception if that had been Congress’s intent, because such an exception would have effectively rendered section 11 of the Headquarters Agreement moot.

Thanks to Tyler Cullis for calling the “security exception” problem to my attention.

http://opiniojuris.org/2014/04/12/us-domestic-authority-deny-aboutalebi-visa-nope/

4 Responses

  1. It seems logical that the word “and” separates two competencies of the U.S.: (1) “to safeguard its own security,” “and” (2) “completely control the entrance of aliens into” much of the U.S.

  2. The HQ Ag. was approved by the UN GA Oct. 31, 1947.  The Joint Res. of Cong. authorizing the President to engage in an Ag. (the “Act”) is dated Aug. 4, 1947.  Section 6 quoted above is in the Act, not in the Ag.
    Thus, my thoughts in response to Julian’s prior post are more useful than Bellinger’s reliance on U.S. domestic law.  My claim would be that the U.S. has a mandatory obligation under UN arts. 55(c) and 56 to take action to assure “universal respect for, and observance of” human rights and sanctions against a violator of human rights involving a denial of a visa request can be permissible.  Article 103 of the Charter requires that the U.S. human rights obligation prevail over any other international agreement.

  3. What is main reasoning by Iran in case of Mr. Aboutalebi?  Section 15 via Article V of Agreement Between the United Nations and the United States Regarding the Headquarters of the United Nations. That is: ‘Every person designated by a Member as the principal resident representative to the United Nations of such Member or as a resident representative with the rank of ambassador or minister plenipotentiary.’
     

  4. Farshad: what would Iran’s response be to the suggestions of Larry Johnson and Jordan Paust in the recent New York Times article (click on in Julian’s latest post, above)?

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.