Did the U.S. Even Have the Authority to Bar Iranian Leaders From U.N. Summit?

Iran’s leaders will come to United Nations headquarters after all.

In the run-up to next week’s annual United Nations summit, Tehran complained that a State Department delay in issuing U.S. visas to Iranian President Hassan Rouhani and Foreign Minister Mohammad Javad Zarif to attend the 74th session of the U.N. General Assembly might cause the leaders to cancel their visit.

U.S. Secretary of State Mike Pompeo hinted that the United States might block them from coming, citing their alleged role in mounting a sophisticated drone and missile attack on Saudi Arabia’s oil installations—an attack Iran says it played no role in. “The actions that the Iranian regime took violated the U.N. charter,” Pompeo said Wednesday during a trip to Saudi Arabia. “If you’re connected to a foreign terrorist organization, it seems to me it would be a reasonable thing to think about whether they ought to be prevented to attend a meeting which is about peace.”

But U.S. President Donald Trump, who has sought unsuccessfully to arrange a meeting with Rouhani on the sidelines of the General Assembly debate, made it clear he had no objections to the Iranian leader visiting U.N. headquarters. “If it was up to me, I would let them come. I’ve always felt the United Nations is very important,” he said Wednesday. “I would certainly not want to keep people out if they want to come.”

Zarif is scheduled to arrive in New York Friday afternoon, and Rouhani will join him on Monday, according to an Iranian source.

Still, the visa dispute resurfaced a perennial question about the rights and obligations the United States has to allow foreign delegations, even those from enemy countries, to visit U.N. headquarters in New York. In June 1947, the United States signed a host country agreement with the United Nations, which committed Washington not to impede the entry of foreign delegations, regardless of the state of their relations, and that necessary visas “shall be granted … as promptly as possible.”

The U.S. Congress, however, in August 1947 passed Public Law 80-357, which granted the U.S. government the authority to bar foreign individuals invited by the United Nations to attend meetings at its New York City headquarters if they are deemed to pose a threat to U.S. national security. “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 … and such areas as it is reasonably necessary to travel in transit between the same and foreign countries.”

The Reagan administration invoked the law as justification for barring foreign delegates, including in the case of the late Palestine Liberation Organization leader Yasser Arafat, who was barred from entering the U.N. to address the 1988 U.N. General Assembly because of his organization’s terrorist activities. The United States—according to Patricia M. Byrne, the U.S. representative in the host country committee at the time—“reserves to us … the right to bar the entry of those who represent a threat to our security.”

But the U.N. has never accepted the U.S. argument.

As part of our Document of the Week series, we are publishing a rare 1988 U.N. legal ruling that was delivered in response to the decision to bar Arafat from addressing the U.N. General Assembly. The host agreement, the U.N.’s legal counsel, Carl-August Fleischhauer noted, “does not contain a reservation of the right to bar the entry of those who represent, in the view of the host country, a threat to its security.” Fleischhauer, a German national, added that the U.N. differed with the United States over its interpretation of the U.S. law. He also recalled that the late U.N. Secretary-General Dag Hammarskjold had previously stated “that the right to transit to and from the [U.N.] Headquarters district had not been made the subject of any reservation.”

But Hammarskjold recognized that the United States had reasonable grounds to prevent bad actors from entering the U.N., and he established an informal understanding—known as the “modus vivendi”—under which the United States would privately make the case to the U.N. chief to block the entry of an individual suspected of plotting to do America harm.

Larry Johnson, a former deputy U.N. legal council  and adjunct professor at Columbia University Law School, said that the United States could reasonably make the case that U.S. law would allow barring a member of a designated terrorist organization from entering the country. “But the U.N. is going say, ‘No, you have an obligation to let any designated person into the country.’ If the U.S. has a problem, it can invoke the ‘modus vivendi’” arrangement and try to persuade the U.N. secretary-general that it has a reasonable basis for preventing their entry.

In Arafat’s case, the United States ignored the U.N.’s position and barred him from speaking at the U.N. General Assembly. In response, the U.N. General Assembly traveled to Geneva to hear Arafat’s speech.