US position over Iran’s ambassador generates confrontation with UN

If the UN does not act to reject this precedent, it will contribute to an international erosion of faith in its own integrity and independence -precisely the kind of behaviour which the carefully crafted ‘headquarters agreement’ was designed to prevent.

Bob Rigg
16 April 2014

Just a few weeks ago a handful of far-right Republican Senators alleged that Hamid Aboutalebi, the senior Iranian diplomat designated to be Iran’s ambassador at the UN in New York, had been amongst the young Iranians who had occupied the US embassy in Tehran in 1979. They also held 52 US diplomats and others hostage for 444 days. Aboutalebi had, they alleged solely on the basis of unsubstantiated evidence, participated in the occupation of the embassy, and was undoubtedly a “terrorist”.

Iran steadfastly stood by its man, pointing out that he was a very competent senior diplomat with a wealth of international experience. Aboutalebi denied that he had occupied the embassy, saying that his participation had been limited to translating a few documents. He was attacked, in a process of demonization which some Americans seem to reserve for Iran’s hostage takers, amongst other things as a “terrorist mastermind.” In ideologically heated situations US congressmen can fall prey to wild generalisations mobilising latent stereotypes, as we also see with regard to Ukraine at present. Does the increasing narrowness, insularity and intolerance of US political life make it unsuitable as a home for the UN?

The hard right in Congress goes on the offensive

At first this looked like another unsuccessful attempt by a fairly predictable group of ultra-conservative senators, backed by AIPAC and Fox News, to destabilise the negotiations about Iran’s nuclear program. But barely one month later, in the week April 7 - 11, both the House of Representatives and the Senate unanimously carried resolutions aiming to prevent Aboutalebi from taking up his post.

The Iranians refrained from the inflammatory rhetoric proliferating on the American side, simply stating that if the US government prevented their designated Permanent Representative from taking up his UN post, this would contravene “the inherent right of sovereign member states to designate their representatives to the UN”. In the meantime Iran has initiated the internal UN appeals process which is open to it.

Far from intervening to stamp out this brush fire, the White House prevaricated, hoping that Iran would make the problem go away by withdrawing its nominee. However, both the Iranian and US governments are under severe pressure from ultra-conservative legislators to dig in. Withdrawing and replacing its initial candidate was accordingly ruled out as an option for Iran, while the White House was unable to ignore GOP catch-cries soon attracting a broad spectrum of congressional support, including from Democrats. Obama was being deserted by his own party. Not a single Democrat recorded a “no” vote.

Both houses of Congress adopt decisions in the absence of legal advice

US Congressmen assumed from day one that current US immigration law, “allows broad rejection of visas to foreigners and, in many cases, officials do not have to give an explicit reason why.”  There is no evidence that any congressional bodies were offered professional advice by appropriate authorities on the legal options open to them.  Why did neither the State Department nor the Attorney-General front up with legal advice?  Why did Congress not request legal advice?

Although there were subtle hints that the White House may have been aware of legal problems associated with the non-recognition of designated representatives of UN member states, any such concern was apparently not shared with Congress, which has now unanimously committed itself to non-recognition. 

The White House then saw no option other than to embrace Congress’s position, although it was well aware of its possible consequences for the nuclear negotiations involving the US, Iran, and others. In the words of Jay Carney, the White House spokesman: “We will bar Aboutalebi anyway. We have informed the UN and Iran that we will not issue a visa.”

Ban Ki-moon dives for cover

Perhaps more damagingly, Ban Ki-moon, a UN Secretary-General notorious for diving for cover whenever humanly possible, publicly declined to set the record straight by expanding on the legality of the options under consideration by members of Congress. He did, however, reserve the right to comment later, when his opinion would no longer be of any consequence.  

If Ban Ki-moon had, two or three weeks ago, circulated a formal opinion on the legal implications of the US not recognising an ambassador designated to represent his member state at UN headquarters, both Houses of Congress might well have found themselves unable to adopt their resolutions on this matter.

The die is now cast. Neither Iran nor the White House especially wants a confrontation at this point, with the nuclear negotiations now in their trickiest phase. But the abject failure of Kerry’s attempt to impose a US peace on Israel and the PLO, coupled with Obama’s health insurance debacle and the approach of end-of-year US mid-term elections, has deprived Obama of the ability to firmly shape the direction of US politics for the remainder of his presidential term. Obama is becoming a lame-duck president delivered up to a Congress increasingly dominated by a rampant Fox News GOP, with all the fatal implications of that. Even if Obama’s team can negotiate a tentative nuclear deal with Iran, will it be ratified by Congress?

Agreed legal definition of UN sovereignty and independence

Western media have, as usual, been completely absorbed in their own take on the UN controversy, and have omitted to display even the most rudimentary curiosity regarding Iran’s appeal, which is based on the Headquarters Agreement between the United States and the United Nations, initially signed by the UN Secretary-General and the US Secretary of State on 14 December 1946, and ultimately approved by the UN General Assembly and the US Congress. This agreement has defined the legal basis for interaction and cooperation between the US and the UN headquarters in New York.

A geographical district called the ‘headquarters district’ is set aside for exclusive use by the UN. While certain US laws may apply in this district the agreement explicitly states, in section 8, that “no federal, state or local law or regulation of the United States which is inconsistent with a regulation of the United Nations authorized by this section shall, to the extent of such inconsistency, be applicable within the headquarters district.”

Any dispute as to whether a regulation of the UN is authorized or as to whether a federal, state or local law or regulation is inconsistent with any regulation of the UN is to be promptly settled, through either negotiation or referral to a tribunal of three arbitrators. Either the UN Secretary-General or the US Secretary of State may ask the UN General Assembly to solicit advisory opinions from the International Court of Justice on such matters. The agreement stipulates that, until such disputes are settled, the regulations of the UN shall apply, and US law shall be inapplicable in the headquarters district to the extent that the UN claims it to be inconsistent with the regulation of the UN. Should an advisory opinion be solicited from the ICJ, the appeals process would be anything other than prompt.

Some Secretaries-General undercut the agreement, to please the US

In November 1988 the head of the US delegation to the UN stated on record that the US had, on "rare occasions", declined to issue visas to persons entering the US for UN purposes in order to protect national security. She went on to assert that UN practice confirmed that the US had the right to decline the issuance of visas and that the UN, “on a number of occasions since 1954”, had “acquiesced” in such a practice. It emerges clearly from this that at least some Secretaries-General and other senior UN staff must have cut informal deals with the US to exclude from international meetings and consultations individuals who were deemed a security risk by the US.  The US would exert political and economic pressure on the UN and their governments; their knowledge that neither the UN nor their governments were fiercely defending their right to participate would have predisposed them to subside quietly, without any fuss and bother. 

Dag Hammarskjold was one Secretary-General who forcefully intervened to address and resolve such issues. The US formally undertook to consult closely with him about such cases and then, according to the UN Legal Counsel, simply bypassed him.

The US exclusion of Yasser Arafat from the work of the forty-third session of the General Assembly in November 1988 blew up into a major but short-lived controversy highlighting the US view that, in contravention of the headquarters agreement, it was entitled to deny visas to persons who, in its estimation, were a risk to national security.

In denying a visa to the designated Permanent Representative of a demonised state, the US is shifting up a gear, and is seeking to establish a precedent striking at the heart of the sovereignty of the UN and the independence of its member states. If the UN does not act to reject this precedent, it will contribute to an international erosion of faith in its own integrity and independence.

This was precisely the kind of behaviour which the carefully crafted headquarters agreement was designed to prevent. Perhaps the UN General Assembly should instruct the current Secretary-General, in conjunction with the Office of Internal Oversight, to submit a comprehensive and detailed historical report on any such practices, and on their compatibility with the headquarters agreement?

This is a complex issue which can be thoroughly debated only when the UN Secretary-General and the Office of Internal Oversight submit a detailed history of all identifiable incidents involving the refusal of visas to individuals deemed persona non grata by the US. 

Because the US was the host country, it was meticulously consulted about the content of the headquarters agreement, which was initially signed by the Secretary of State. When the UN General Assembly then unanimously approved the agreement, the host country neither expressed nor implied any reservation about it, and embraced it. This would have weighed very heavily with the General Assembly at the time. In the absence of any formal proposal by either the US or the UN Secretary-General to amend the agreement, it stands as it was in December 1946.

Iran plays it cool

By resorting to the UN appeals process Iran is able to firmly challenge the US decision in this case, while also keeping the issue out of the public eye, thus minimising the political damage. Even if the appeal is promptly pursued, it is unlikely to be resolved before the end of June – the initial deadline for agreement on the Iranian nuclear issue. In the view of this author Iran will almost certainly win its appeal, for reasons outlined elsewhere in this article. The US will be publicly humiliated, either by eating humble pie and backing down, or as a consequence of a ruling by UN arbitrators.

Section 11 of the agreement specifies that US authorities “shall not impose any impediments to transit to or from the headquarters district of representatives of Members …”. Fascinatingly, under the present circumstances, section 12 states: “The provisions of Section 11 shall be applicable irrespective of the relations existing between the Governments of the persons referred to in that section and the Government of the United States.” Section 13(a) continues: “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.”

UN has right to exclude US from UN headquarters district

Interestingly, if the UN objected strongly to the US decision to nullify Iran’s right, under the headquarters agreement, to designate its Permanent Representative to the UN, it could exercise its exclusive power, under section 13(f), to bar designated representatives of the US government from entering the headquarters district. The US would in this way discover at first hand what it means to be excluded from UN decision-making processes. Such an approach might encourage the US to rethink its position on non-recognition of Permanent Representatives to the UN.

The essence of the headquarters agreement is to guarantee the inviolability and sovereignty of the UN and its proceedings from attempts by the host government to inappropriately influence representational and decision-making processes. When Congress and the White House empowered themselves to exclude a person designated as the Permanent Representative of Iran to the UN in New York, they were unthinkingly challenging the very sovereignty and independence of the UN, and were buying into a fight with the General Assembly. Even governments that normally kowtow to the US will be compelled to align themselves against the US on this issue of fundamental importance to the UN.  The many members of the UN who are sick and tired of American exceptionalism will support Iran because, if this precedent goes unchallenged, it can later be invoked to inhibit or block their right to choose their own diplomatic representatives. 

Has the US bitten off more than it can chew?

The thoughtlessness of the US government and its absolute lack of concern for legal and political propriety have propelled it into a confrontation with the normally disunited nations. However attractive the prospect of a UN populated by ambassadors hand-picked by the US might be to the US, the sovereign member states of the UN will unite in opposition to this medieval concept of power-sharing and control. Many are already unsettled enough by the knowledge that every whisper, conversation and keystroke of classified diplomatic communication in New York is being routinely intercepted by the NSA, an agency of the US government.

Once it dawns on Obama’s political advisers that he will share the fate of General Custer at Wounded Knee unless he strikes a deal with Iran, this could give Iran political leverage in the ongoing nuclear negotiations.

High time to relocate the UN headquarters to a more suitable location?

Some UN member states already feel that, if the sovereignty of the UN is to be guaranteed in future, the UN headquarters should be moved away from New York. Maybe to Geneva, Beijing, New Delhi, Brasilia or Havana?

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