The Not Very Persuasive International Law Arguments in Favor of the Iran Visa Denial

by Julian Ku

I think it is fair to say that when Kevin and I agree on a legal question, there is a good chance there is a lunar eclipse happening or some other rare astronomical phenomenon occurring somewhere.  But since both of us think that the U.S. has no international legal basis to deny a visa to Iran’s new UN ambassador, this “fair and balanced blog” should consider the international law arguments offered in favor of the U.S. decision, especially as Iran has signaled it is going to fight this US decision, maybe by seeking an ICJ advisory opinion or an arbitral tribunal. This NYT article outlines three international law arguments that the U.S. might invoke in descending order of persuasiveness (at least to me):

Precedent and Practice Trump: Larry D. Johnson, who served as the Deputy Legal Counsel to the U.N. in the past, suggests that the U.S. and the U.N. have come to a tacit agreement to avoid disputes on visa denials.  If a visa is denied, the country facing denial must bring this matter up with the U.S.  The U.N. will not do so.  If this past practice is followed by the U.N., it effectively undermines the legal basis for Iran’s challenge.  Absent the Headquarters Agreement with the U.N., the U.S. has no obligation to issue a visa to Iran’s UN envoy, and Iran (not being a party to the Headquarters Agreement) has no international legal basis to protest.

My take: If this is current practice, and there is some evidence for this, the U.S. is really just acting consistent with its nearly sixty year pattern of practice by denying the visa in this case.  This doesn’t exactly legalize (internationally) the US act, but it does help.  

The Iranian Hostage Crisis Trumps: John Bellinger, over at Lawfare, suggests that because Iran’s UN Envoy was involved in one of the most egregious violations of diplomatic immunity rights in the past century, there will be little sympathy from other countries for Iran.

My take: This might be right, but it is not clear to me that the past violations would meet the “security exception”, and it is not even clear that the security exception is a valid international reservation to the Headquarters Agreement.  In any event, this is not really a legal argument, but a judgment on international politics.  If Iran goes to the General Assembly, the merits of this political judgment will be tested.

The UN Charter’s Human Rights Obligations Trumps: University of Houston lawprof Jordan Paust argues that because Iran’s UN Ambassador was involved in what the ICJ called a violation of human rights, the U.S. would be justified denying him a visa in reference to its U.N. Charter obligation to “respect human rights.”

My take: With all due respect to Professor Paust, I don’t think the U.N. Charter can be fairly read to require states to “respect human rights” in violation of their other international obligations.  The language of the Charter in Article I asks states to “promot[] and encourag[]” human rights. It is far from mandatory language.

Moreover, if correct, this is the exception that swallowed the UN Headquarters Agreement.  The U.S. could deny a visa to anyone whom it believes has or is likely to undermine “respect for human rights.” Past practice suggests the U.S. has not interpreted either the Charter or the Headquarters Agreement in this way.

If Iran decides to seek a General Assembly resolution, it will not require the U.S. to change its decision, but it would probably be a good test of John Bellinger’s thesis about where countries’ sympathies lie. My guess is that we are going to see tons of absentions.

If Iran gets the U.N. to demand arbitration under the Headquarters Agreement, this would be more interesting.  The U.S. might have to follow China and Russia’s example by simply refusing to participate in the arbitration. And the U.S. would probably lose that arbitration (although enforcement is another matter).   If I were Iran’s government, that would be a pretty ideal outcome. They still will not get their ambassador, but they can cause some pretty serious soft power damage before they give up.

http://opiniojuris.org/2014/04/16/persuasive-international-law-arguments-favor-u-s-s-iran-visa-decision/

12 Responses

  1. And once again the US proves its utterly hypocritical position with respect to international law. US officials have cried from the rooftops their condemnation of Russia’s actions in Ukraine as violative of international law (even though these violations are far less severe than those the US committed in the invasion and occupation of Iraq), but when it comes to the US’s own international legal obligations, it’s “nope, not going to comply, and what are you gonna do about it?” Three cheers for the red, white and blue.

  2. Dan, thanks for your comment. I wonder whether the two kinds of international law violations are comparable, though.  In a general sense, the US is in a hypocritical position.  But it is clear that this violation is much less serious than the Russia/Crimea violation. The gravity of the violation should be taken into account. 
    But overall, I agree with you that international law is a risky platform for US policy, since US policy calls for its violation on a not infrequent basis.  To me, the solution is to de-emphasize the legal arguments and bolster the policy ones.  

  3. Julian: I have not seen the NYT article yet, but perhaps the reporter did not add my point about Article 103 of the U.N. Charter — that the unavoidable mandatory U.S. obligation under Articles 55(c) and 56 of the Charter to take action to assure universal respect for, and observance of human rights must have primacy over any other non-peremptory international agreement, e.g., the HQ Ag., in view of the unavoidable “shall” requirement in article 103.
    I also note here that the entire U.N. (and its organs) is bound under Article 55(c) and there is also a relevant Article 103 override regarding U.N. obligations.

  4. Jordan, is that a legal argument that would pass or fail most law exams?

  5. Tyler: it would surely pass.  Do you disagree that Article 103 requires the primacy of Charter-based U.S. obligations? Do you disagree that the U.S. obligation to take separate action to achieve respect for and observance of human rights does not allow the U.S. to engage in a form of sanction reponse to documented prior violations of human rights?  Do you argue that the U.N. has no obligations under Article 55 despite the mandatory “shall” language?  Do you argue that the Charter-based duty does not relate to “universal” respect for and observance of human rights?

  6. For starters, the US’s obligation is to take “separate action in cooperation with the Organization,” not to take action unilaterally on its own. Yours is a misreading of the clear language of Article 56.

    Incidentally, I believe it was the US who objected to an earlier draft of Article 56 that would have obligated “separate action” in the sense that you have erred in understanding it.

  7. I think Iran could eventually apply to the International Court of Justice for an advisory opinion.

  8. Tyler: it is well known that the 56 oblligation is to take joint or separate action even if the U.N. is unable or unwilling to act.  Furthermore, the word in “cooperation” assumes that the U.N. is taking action to assure universal respect for an observance of human rights re: the particular matter or sanctions response.

  9. Response…My take: If this is current practice, and there is some evidence for this, the U.S. is really just acting consistent with its nearly sixty year pattern of practice by denying the visa in this case.  This doesn’t exactly legalize (internationally) the US act, but it does help.

    Section 13(b)(3) explicitly allows the US government to apply its own customary procedures to ask specific representatives of UN member states to leave the country. The ICJ already ruled that taking hostages, imprisonment or other severe deprivation of physical liberty, was a violation of fundamental rules of international law, including the Vienna Convention on Diplomatic Relations. In fact, those can be considered serious crimes committed on territory subject to US jurisdiction. It’s certainly not unusual to ask for an diplomat accused of a serious crime to be recalled. The Court advised that Iran was under an obligation to the United States as a result of the injury it had caused. It also held that failing an agreement between the parties, the Court could impose a settlement, and even reserved for that purpose the subsequent procedure in the case.  

    The Security Council had adopted two resolutions which noted that taking diplomats hostage was a use of threats or force in violation of the principles and purposes of the Charter. It also called on the governments of Iran and the US to resolve the remaining issues between them “to their mutual satisfaction” and ordered the Secretary General to use his good offices to implement the resolution. So I think he is obliged to consult the wishes of the US government in that regard.
    The US has obviously issued visas to other representatives of Iran who did not personally participate in taking-over the embassy or facilitate holding the hostages unlawfully. It even intervened to overturn judgements entered in its own domestic courts, which awarded compensation to the hostages. It argued that Iran enjoys foreign sovereign immunity and that the agreement to free the hostages (which was obtained under obvious conditions of duress) did not allow for any such claims. 
    Re: I don’t think the U.N. Charter can be fairly read to require states to “respect human rights” in violation of their other international obligations.  The language of the Charter in Article I asks states to “promote and encourage” human rights. It is far from mandatory language.
     
    Nonetheless, in the Namibia case, the ICJ wouldn’t even entertain a request from South Africa to present arguments that its policy of apartheid or separate development did not prejudice the interests of the inhabitants or their well being. The Court advised that the policy violated South Africa’s obligations under Article 1 of the Charter to respect the principle of equal rights and self-determination of peoples without distinction as to race, sex, language, or religion.
     
    In the case of the hostages and certain officials of the government of Iran, the Security Council already noted in its resolution 457 (1979) that they had violated the principles and purposes of the UN Charter and the Vienna Conventions and called upon the governments of Iran and the US to solve the issues between them to their mutual satisfaction. The United States has always asked for effective redress with regard to the individuals responsible and the Security Council left it up to the satisfaction of the parties concerned in the first place. That isn’t a great case, but it is one based upon international law, the Charter, the applicable UN resolutions, the ICJ opinion, and the headquarters agreement.

  10. Jordan, 
    Let me get this straight: the US can take unilateral action that it alleges is aimed at sanctioning a past human rights abuse (a 34-year old one, by the way), claim that it was doing so as part of its obligations under UN Charter Article 56, point to the UN’s own obligation to “promote…respect for…human rights,” and then argue that these obligations take precedence over the US’s own obligations under the UN Headquarters Agreement.
    That’s the winning argument, right? Wow.

  11. The U.S. permits some civil sanctions against human rights violators in its courts and there is no S/L in customary international law.  I see no reason why a visa denial could not be a proper sanction response even if other sanctions might be more onerous.

  12. We’re not talking about what is a “proper response,” but rather what is the mandatory response. You’re not arguing that the US is permitted to sanction Aboutalebi by denying him a visa, but rather that the US is obligated, as a matter of Charter law, to do so and that this obligations overrides other legal obligations under treaty law.

    That’s a wild argument, I think.

Trackbacks and Pingbacks

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