The storming of the American embassy and the seizure of more than 50 Americans as hostages by militant protesters in Tehran in 1979 rightly provoked unanimous international opprobrium. The Iranian government’s failure to protect the embassy premises, and its more proactive complicity in the flagrant violation of international law by endorsing the militants’ actions and refusing to negotiate for the release of the hostages, remain a blight on the country’s diplomatic history. It comes as little surprise, then, that Iran’s announcement in early April that it had nominated a man implicated in the hostage-taking as its permanent representative to the United Nations in New York elicited concern in Washington.
While the State Department’s initial reaction was sober, remarking that the Obama administration found the nomination of Hamid Aboutalebi “troubling”, other law-makers were less measured. Texan Senator Ted Cruz, for example, branded Mr Aboutalebi an “acknowledged terrorist” with a “brutal disregard of the status of diplomats when they were stationed in his country”. On 7 April, the Senate unanimously voted to deny a visa to “any representative to the United Nations who has engaged in espionage activities against the United States, poses a threat to United States national security interests or has engaged in a terrorist activity against the United States”, not mentioning but certainly intending to include Mr Aboutalebi.
Had the post in question been at Iran’s embassy in Washington, a body concerned with bilateral relations, the United States’ entitlement to deny Mr Aboutalebi entrance to the country would have been uncontroversial. Article 4 of the Vienna Convention on Diplomatic Relations (“VCDR”), reflecting customary international law, provides that a sending state “must make certain that the agrément of the receiving State has been given for the person it proposes to accredit as head of the mission to that State”, and that the receiving state is not obliged to give reasons for refusing agrément. Even after agrément has been obtained, article 9 unambiguously permits a receiving state to declare the head of a diplomatic mission or any member of the mission’s diplomatic staff persona non grata. This declaration may occur before the individual has arrived in the receiving state or after they have taken up post. Upon such a declaration, the sending state must recall the individual or terminate his or her functions with the mission.
The process of appointing and approving national representatives to multilateral organisations is more contentious. Host states to such organisations typically claim that they should be entitled to reject nominees who have a criminal past, pose a threat to their security, or abuse the privileges and immunities concomitant with their status. Other states contend that such an entitlement would enable host states to exert unfair pressure within the organisation by declining or expelling national representatives, distorting the premise of sovereign equality that is at the heart of multilateral diplomacy. Instead, they are in favour of accreditation directly to the international organisation, with little or no oversight by the host state. Indeed, the intractability of this debate (between host states of UN agencies such as the United States, Switzerland, France and Italy, and sending states such as Poland, Argentina, Egypt and India) was one of the critical stumbling blocks at the 1975 negotiations of the Vienna Convention on the Representation of States in their Relations with International Organizations of a Universal Character, which was intended to become the counterpart to the VCDR for representatives to international organisations but which has failed to garner sufficient support to enter into force.
Relations between host states and national missions to international organisations are instead governed by constitutive documents and headquarters agreements for each organisation. The 1946 Convention on the Privileges and Immunities of the United Nations sets out general principles regarding the immunities and privileges of heads of national missions, but it is the 1947 Headquarters Agreement between the United Nations and the United States that defines the more precise rules and procedures for entry to and residence in the United States, and so this instrument is the subject of analysis in this post.
Section 11 of the Headquarters Agreement provides, in part, that “[t]he federal, state or local authorities of the United States shall not impose any impediments to transit to or from the headquarters district of … representatives of Members or officials of the United Nations”. Section 13(a) further provides:
Laws and regulations in force in the United States regarding the entry of aliens shall not be applied in such manner as to interfere with the privileges referred to in Section 11. When visas are required for persons referred to in that Section, they shall be granted without charge and as promptly as possible.
On their face, these provisions require the United States to grant visas to other states’ nominated representatives to the UN, in order for those nominees to travel to the UN headquarters district. They provide some justification for the statement by a spokesman for the Iranian UN mission that the United States’ decision to withhold Mr Aboutalebi’s visa was “in contravention of international law, the obligation of the host country and the inherent right of sovereign member states to designate their representatives to the United Nations”.
The remainder of this post sets out two possible grounds on which the United States may deny entry to or reject appointments to national missions to the UN, and analyses the pertinence of each in relation to Mr Aboutalebi.
I Abuse of the privileges of residence
Although section 13(a) of the Headquarters Agreement provides an a priori duty on the United States to grant visas to representatives travelling to the headquarters district, the subsequent paragraphs of section 13 qualify this duty and grant the United States some control over who is entitled to a visa. Paragraph (b) states that American laws shall not be applied “in such manner as to require any … person to leave the United States on account of any activities performed by him in his official capacity”, but continues that an individual who “abuse[s] … privileges of residence … in activities in the United States outside of his official capacity” may be expelled, providing that the Secretary of State approves of the expulsion following consultations with the member state whose representative is in question. As a further protection to national missions, section 13(b)(3) provides that certain persons falling under section 15, including heads of national missions, may only be required to leave the United States “in accordance with the customary procedure applicable to diplomatic envoys accredited to the United States”.
The United States has relied on these provisions to expel certain members of national UN missions in the past. In September 1962, it requested the withdrawal of two members of the Soviet mission accused of accepting classified naval documents from an American naval yeoman, stating that such conduct was “clearly outside the scope of the official responsibilities of the members” and “an outrageous violation of the privileges of residence”. In April 1983, two officials of the Cuban mission were similarly expelled for clandestine intelligence activities. Most notoriously, in January 1978, the United States announced the expulsion of the head of the permanent mission of North Vietnam for his involvement in an espionage operation. The government of North Vietnam declared the expulsion “unacceptable” and directed the representative to continue performing his duties. The dispute was referred to the
UN Committee on Relations with the Host State, which concludedthat the Headquarters Agreement could not be construed as denying the United States the right to expel individuals who had abused their privileges and immunities while in the United States. The Committee determined that section 13(b) required only that the United States comply with the procedures for expulsion that it would follow under the VCDR.
Mr Aboutalebi, however, is not easily captured by section 13(b). He has not abused privileges of residence in the United States outside of his official functions, having not even been admitted to those privileges or the functions of a UN permanent representative. The government has also not published any evidence that he is likely to abuse his privileges should he take up that position, instead relying on his conduct several decades ago as the rationale for his exclusion.
II A residual discretion over admission to the United States
Rather than allegations of an abuse of privileges, it is Mr Aboutalebi’s prior involvement in unlawful acts against the United States that form the basis of his rejection. The United States may rely on section 13(d) of the Headquarters Agreement, which states:
Except as provided above in this section and in the General Convention, the United States retains full control and authority over the entry of persons or property into the territory of the United States and the conditions under which persons may remain or reside there.
This broad provision appears to endow the United States with extensive discretion to accept or reject prospective national representatives. It was bolstered, in domestic law at least, by a 1947 Joint Congressional Resolution, section 6 of which states in part:
Nothing in the [Headquarters 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.
These provisions have generated controversy in the past. The United States invoked them following its decision, in November 1988, to deny Yasser Arafat a visa that would enable him to speak at the General Assembly. The United States claimed that his support for terrorism justified the denial of the visa. Not everyone will find themselves in these circumstances though. Usually, it is a lot easier for immigrants to apply for an American visa, but only if they have filled in the appropriate forms first, such as the i-751 for example. It was only due to Yasser Arafat’s support of terrorism that got his visa denied by the authorities. The General Assembly, endorsing an opinion of the UN Legal Counsel, resolved that it “[d]eplore[d] the failure by the host country to approve the granting of the requested entry visa” for Mr Arafat. The resolution stated “that this decision by the Government of the United States of America … constitutes a violation of the international legal obligations of the host country” under the Headquarters Agreement, and urged the United States to reverse its decision.
The related opinion of the UN Counsel was narrowly cast. It concluded that the denial of Mr Arafat’s visa violated the Headquarters Agreement because, specifically, it disallowed him from travelling to the UN headquarters district. The opinion explicitly left open that, under section 13(d) of that Agreement and the Joint Congressional Resolution, the United States may be entitled to deny a visa that would enable the recipient to travel beyond the headquarters district and its immediate vicinity.
Unlike Mr Arafat, whose visit was intended to be temporary, Mr Aboutalebi was nominated as Iran’s permanent representative. A visa to perform this role would grant him the right to travel beyond the headquarters district. Arguably, then, withholding this visa is consistent with the UN Counsel’s opinion. It is also undoubtedly consistent with American domestic law, which is likely to be of greater practical salience in determining whether the decision to deny Mr Aboutalebi a visa is revised.
Living up to what is seen as both the virtue and the vice of international law, Mr Aboutalebi’s acceptance as head of Iran’s UN mission will be largely determined by politics. In its opinion on Mr Arafat, the UN Legal Counsel stated that even though the UN has not acquiesced in the United States’ denial of certain nominees to national missions to the UN, its policy is to let the matter rest if a complaint is not pursued by the sending state. Iran may seek to negotiate a solution through, for example, the Secretary-General or the Committee on Host State Relations. The United States is likely to refuse to amend its decision, as it did with Mr Arafat and especially in light of last week’s Senate vote. Under section 21(a) of the Headquarters Agreement, if such avenues do not resolve the matter, the dispute may be referred to arbitration. Following the passage of an American law that sought to close the Palestinian Liberation Organization’s permanent observer mission to the UN, the ICJ confirmed in its 1988 Advisory Opinion on the Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947 that the United States was obliged to submit to arbitration. The Court also found that international law would prevail over any inconsistent domestic law in interpreting the Headquarters Agreement.
Another political dimension of this incident is the wisdom of the United States’ rejection of Mr Aboutalebi as a candidate for UN representation. Mr Aboutalebi has served as Iran’s ambassador to Australia, the European Union, Belgium and Italy without imperilling their security. He insists that his role in the 1979 hostages crisis was limited: he was not in Tehran when the embassy was first seized, and subsequently acted only as an interpreter and negotiator for the militants. He is believed to be close to the current Iranian president, Hassan Rouhani, widely welcomed as a moderate reformist.The United States should ensure that it exerts its contested power over appointments to national missions not only sparingly but also judiciously.