The Aboutalebi Visa Denial: U.S. Law and Historical Precedents

President Obama’s decision to deny a visa to Iran’s would-be Ambassador to the United Nations, Hamid Aboutalebi, is based on U.S. law dating back to 1947 and has numerous historical precedents.  Although the U.N. and other countries have occasionally criticized the U.S. for refusing to grant visas to individuals to come to the U.N., it is not clear that other countries will want to make an issue over the denial of a visa to Aboutalebi, who played at least some role, even if small, in the most egregious violation of diplomatic law and the security of diplomatic personnel in modern times. The U.S. obligation to admit foreign nationals, including representatives of U.N. member states, to the United States to come to the U.N. is set forth in the so-called U.N. Headquarters Agreement, which was signed on June 26, 1947 by then Secretary of State George Marshall and then U.N. Secretary General Trygve Lie.  Section 11 of the Headquarters Agreement prohibits the United States from imposing any restrictions on travel to the U.N. by representatives of U.N. members (and certain other persons coming to the U.N.). Although the Headquarters Agreement itself does not contain any exceptions to this prohibition, Section 6 of the Joint Resolution of Congress of August 4, 1947 (for text scroll down below the Headquarters Agreement) , which authorized President Truman to enter into the Headquarters Agreement, provides as follows:

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.

Thus, under this so-called “security reservation,” Congress limited the U.S. obligation to allow representatives of other U.N. members to enter the U.S. if necessary to “safeguard its own security.”  Some observers, including my friend Kevin Heller over at Opinio Juris, have read Section 6 as reserving the authority of the Executive branch only to control the travel of foreign nationals into areas of the United States outside the U.N. “headquarters district” and not to deny absolutely the entrance of foreign nationals into the United States.   Although this is one possible reading of Section 6, an equally plausible reading of Section 6 is that it reserves a general and absolute right for the U.S. to “safeguard its own security” as well as a more specific right to limit travel outside the U.N. district.   It is hard for me to believe that Congress in 1947 would have acceded to an unfettered obligation to allow any foreign national to come to the U.N. headquarters district, as long as they did not travel outside that district. Over the years, Administrations of both parties have relied on the Section 6 security reservation to deny visas to persons coming to the U.N., including other Iranian nationals who had been involved in the 1979 hostage crisis.  U.N. officials and other countries, however, have not always agreed that the Section 6 security reservation is consistent with the Headquarters Agreement.  The most famous and controversial case was in 1988 when the Reagan Administration invoked the security reservation to deny a visa to PLO Chairman Yasir Arafat.  At the time, a State Department official explained as follows:

United Nations practice confirms that the host country is not expected to accept the entry of every individual to the Headquarters District, but must retain the right to exclude the entry of individuals in certain limited cases. This principle was established as early as 1954, when the United States, with United Nations acquiescence, denied a visa to Eskandary, who had been convicted of conspiring to kill the Shah. We argued that "no one would expect the United States to permit such a person to come to the United States, no matter what his United Nations business." This principle has been confirmed in recent United Nations practice. In 1981, we informed the United Nations that we could not accept the designation as a representative of Iran a deputy foreign minister who had been involved in the planning and attack on our embassy in Teheran. The United Nations was again informed in 1982, 1983, 1984, 1985, 1986, and 1988 that we would not accept the presence in the United States of individuals with a prominent role in the hostage incident and other acts of aggression against United States citizens which are a clear violation of international law. There was no objection to this United States position.  (Emphasis added.)

In response to this statement, the then U.N. Legal Counsel issued a statement denying that the U.N. had ever acquiesced in the denial of visas to persons coming to the U.N. and concluding that the U.S. was required to grant a visa to Arafat. The U.N. General Assembly then adopted a nearly unanimous resolution (with only the U.S. and Israel voting against) endorsing the opinion of the U.N. Legal Counsel and concluding that the U.S. had violated its obligations under the Headquarters Agreement. Although the Arafat visa incident has been read by some observers to mean that the U.S. may never deny a visa on security grounds to an individual coming to the U.N., it is not clear that the U.N. and other countries would insist that a visa be granted to Aboutalebi.  Even if he played a minor role as interpreter, Aboutalebi still played a role in the holding of American diplomats in Tehran, which was condemned as a violation of international law by the International Court of Justice.  In this case, the U.N. and other countries may believe that the U.S. is more justified in acting to safeguard its security. Section 21 of the U.N. Headquarters Agreement provides that disputes between the U.S. and the U.N. that cannot be resolved by negotiations between the parties shall be

referred for final decision to a tribunal of three arbitrators, one to be named by the Secretary General, one to be named by the Secretary of State of the United States, and the third to be chosen by the two, or, if they should fail to agree upon a third, then by the President of the International Court of Justice.

It is hard for me to imagine that the U.N. Secretary General would insist on taking the Obama Administration to arbitration to require the U.S. to issue a visa to a person involved in the takeover of the U.S. Embassy.