Both houses of the US Congress have voted unanimously to prevent Hamid Aboutalebi from entering the United States. Iran has appointed Mr Aboutalebi as its next ambassador and permanent representative to the United Nations (UN) in New York. But the White House has indicated that Mr Aboutalebi will not be issued a US visa, even though the president has yet to sign the bill into law.
Hamid Aboutalebi has been accused of having links to the group of “students” that seized the US embassy in Iran back in 1979 for 444 days. He has claimed that he was merely serving as an interpreter at that time, nothing more.
President Barack Obama should consider all legal implications very carefully before he puts his pen and ink on this bill. A US decision to deny a visa for Mr Aboutalebi would set a dangerous precedent for world diplomacy.
It would be awkward, to say the least, for a member state to reject another member state’s choice of its ambassador to the UN. The US would also be accused of violating international law, thereby giving Iran the honour and prestige of being on the right side of the law. Here are some elements that should be considered.
The US has every right to refuse a visa for a foreign ambassador to be accredited to the United States. This does not apply to a foreign ambassador to be accredited to the UN. Here, the US, as a host country, has clear legal obligations under the 1947 Headquarters Agreement between the United States and the UN.
In Section 13 of the Headquarters Agreement, the US agreed that the “laws and regulations in force in the United States regarding the entry of aliens shall not be applied” to people appointed by other member states to represent them. The agreement requires that “when visas are required” for such people, “they shall be granted without charge and as promptly as possible”.
Iran has indicated that it will stand by its decision to nominate Mr Aboutalebi to the UN post and will “pursue the matter via legal mechanisms” at the UN. It would be hard for Iran to lose this one and it would be hard for the US to win. On the international plane, a state cannot use its domestic law to justify a violation of international law.
The US has hinted that it would withhold Mr Aboutalebi’s visa on the grounds that his presence in the United States would threaten its security. This argument is weak, since Mr Aboutalebi has served as Iran’s ambassador to Belgium, the European Union, Italy and Australia. He has also travelled to the UN in New York with no incidents.
Instead of becoming a violator of international law, the US could use a path, which does not violate international law, to send the same message to Iran.
Issue the visa for Mr Aboutalebi, with the severest travel restrictions allowed under the Headquarters Agreement. Permit him to travel only on predetermined routes with no stopping privileges other than those required by traffic — to and from JFK International Airport to the UN, his official residence and the Permanent Mission of Iran to the United Nations. Other destinations would be out of bounds for him for the duration of his stay in the United States. He would not be able to go shopping, attend any parties or functions, nor visit any restaurants, outside of the UN building.
US authorities could follow his car continuously upon his arrival at JFK International Airport. His privilege and immunity as a foreign diplomat attached to the UN would end immediately if he would venture outside of the authorised routes or make an unauthorised stop, subjecting him to an immediate arrest for violating the conditions for his stay in the United States.
What I have suggested would be allowed under Article V, Section 15 (4) of the Headquarters Agreement which states that, “in the case of members whose governments are not recognised by the United States”, which applies to the Iranian government today, “privileges and immunities need be extended to such representatives only within the headquarters district, their residences and offices outside the district, in transit between the district and such residences and offices, and in transit on official business to or from foreign countries.”
Taking this path would make the UN post highly unattractive for Mr Aboutalebi and Iran, while making it impossible for anyone to accuse the US of violating international law. It may have been this same desire of the US to not violate international law back in 1984 when Washington rejected Nicaragua’s nomination of Nora Astorga as its ambassador to Washington, but allowed her to serve as Nicaragua’s ambassador to the UN in New York in 1986.
Professor Kantathi Suphamongkhon is former Foreign Minister. He is currently a distinguished visiting professor of law and diplomacy at UCLA Anderson School of Management and a senior fellow at UCLA Burkle Centre for International Relations. He represented Thailand at the UN in New York for four years, where he encouraged the UN to engage in preventive diplomacy.