US Mistreatment towards Iran’s Representatives to the UN: Is Iran Initiating the Third Case against the US at the ICJ?

In recent years, some visa applications for Iran’s representatives to the UN have been rejected by the US. Also, Iran’s representatives to the UN may only travel between the Iranian U.N. mission, the Iranian U.N. ambassador’s residence, John F. Kennedy airport, and the UN, and they would need authorization to go beyond a 25-mile (40-kilometer) radius (see here). This restriction was even reduced to a 3-mile radius during Trump’s Administration (see here). US mistreatment towards Iran’s representatives to the UN caused Iran’s Foreign Ministry, on 17 January 2021, to officially warn  the US that it will bring a lawsuit with the ICJ against that country if it continues its illegal actions against Iranian diplomats, by the issuance of an official memorandum and the submission of it through the Tehran embassy of Switzerland, which represents US interests in Iran.

The US, as the UN’s host state, has obligations towards representatives of UN member states under the UN Charter, Convention on the Privileges and Immunities of the United Nations 1946 (hereinafter “General Convention”) and Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations 1947 (hereinafter “Headquarters Agreement”). The imposition of certain restrictions raises the issue of violation of these obligations. As can be seen in statements of US officials, its conduct in this area is related to the level of its political relations with the relevant member state. For example:

“U.S. diplomats don’t roam around Tehran, so we don’t see any reason for Iranian diplomats to roam freely around New York City, either,” Pompeo said.

I. US mistreatment towards Iran’s representatives to the UN: Refusal to issue visas and travel restrictions

Among the most notable cases of refusal to issue visas for Iran’s representatives is the refusal to issue a visa for Iran’s Foreign Minister Zarif to attend the Security Council meeting and the refusal of 58 visa applications for delegates accompanying the President of Iran to attend the General Assembly meeting (see here, here). Moreover, the US issues single-entry visas to some of Iran’s representatives, which can impose restrictions – especially on the staff of the Permanent Mission of Iran – on the independent exercise of their functions in connection with the UN. With a single-entry visa, Iranian diplomats were forced, before leaving the host state, to apply for a visa for their return. The procedures for re-applying for a US visa might take two or three months, thus effectively preventing an Iranian diplomat from returning to Headquarters without delay when the diplomat needed to depart New York owing to an emergency situation, whether of a formal or private nature.

According to Article 105(2) of the UN Charter, Representatives of the Members of the UN shall enjoy the privileges and immunities as are necessary for the independent exercise of their functions in connection with the organization. These privileges and immunities are mentioned in the General Convention and the Headquarters Agreement. According to section 11 of Article IV of the General Convention, representatives of Members to the principal and subsidiary organs of the UN and to conferences convened by the UN, shall, while exercising their functions and during their journey to and from the place of meeting, enjoy the following privileges and immunities: …

(d) exemption from immigration restrictions, alien registration or national service obligations in the state they are visiting or through which they are passing in the exercise of their functions; …

(g) such other privileges, immunities, and facilities not inconsistent with the foregoing as diplomatic envoys enjoy … .

Also, according to section 15 of Article V and section 13(a) of Article IV of the Headquarters Agreement, these representatives shall, whether residing inside or outside the headquarters district, be entitled in the territory of the US to the same privileges and immunities, subject to corresponding conditions and obligations, as it accords to diplomatic envoys accredited to it, and the visas which are required for these representatives shall be granted without charge and as promptly as possible.

These Articles indicate that visa applications for these representatives are not subject to the legal and practical restrictions concerning the issuance of visas in the US. In a 1985 note to the permanent representative of a member state, the Legal Counsel of the UN specified that an exemption from immigration restrictions as mentioned in section 11(d) of Article IV does not mean that no travel documents may be required, but rather that their issuance may not lead to restrictions that affect exercising the office, and the UN does not accept that reciprocity conditions are applied in the context of the issuance of visas (see here, p. 148). The UN Secretary-General, in a case in which Pakistan had not issued the visa for Israel’s representative to attend the sixteenth session of ECAFE which had been arranged to open in Karachi on 17 February 1960, stated that the principles which were at stake, namely the right of the UN to determine which states shall be represented at meetings of its organs and the right of members of the UN to be present at meetings they are entitled to attend, are of crucial importance. In another case concerning the Economic Commission for Africa’s draft resolution inviting all African states to refuse to grant visas to representatives of South Africa and Portugal, the UN Secretary-General declared that such resolution would invite action in violation of Article 105 of the Charter and Article IV of the General Convention and such action would also be contrary to the established practice of the UN, based on the Charter principle of sovereign equality of all its members, that all members of the UN are entitled to attend meetings of its organs wherever they may be held. Any derogation from this fundamental principle and from the universally recognized practice would not only be legally unacceptable but would create a dangerous precedent which might be copied by other host states (see here, p. 189).

Travel restrictions that have deprived Iran’s diplomats and their families of access to their doctors and medical records and have amounted to the denial of their access to basic public services and facilities violate the heading of section 11 of Article IV of the General Convention and paragraph “g” of it. The heading of section 11 specifies that representatives of members to the principal and subsidiary organs of the UN and to conferences convened by the UN, shall, while exercising their functions and during their journey to and from the place of meeting, enjoy the stated privileges and immunities. On the one hand, it recognizes the privileges and immunities of representatives only when exercising their functions related to the organization, and on the other hand, it extends the privileges and immunities during the journey to and from the place of meeting. Since any interference or restriction may affect the functions of the representatives and organization, the heading should be interpreted so that the privileges and immunities extend throughout the duration of the presence of the representatives in the host state. In 1961, the Legal Counsel replied to an inquiry made by one of the specialized agencies as to the interpretation to be given to this phrase and said that it was the broad interpretation that was intended by the authors of the Convention, and that this must follow from the fact that the expression “while exercising their functions” is contained in the opening paragraph and qualified each and all of the privileges and immunities provided in the sub-paragraphs (a) through (g) that follow. A glance at those sub-paragraphs will clearly show that the privileges and immunities provided by any of them would become meaningless if it is applicable only when the representative is actually doing something as a part of his functions, e.g., is present in the room or building where the meeting is being held, and if such a narrow interpretation prevail the basic purpose of the Convention, which is to assure the representatives the independent exercise of their functions, would clearly be totally defeated. In addition, the broader interpretation is also borne out by the fact that the phrase “while exercising their functions” is immediately accompanied and complemented by the phrase “and during their journey to and from the place of meeting”. In other words, “while exercising” means during the entire period of presence in the state -not city- for reasons of the conference in question, and this is logical because the “journey” necessarily is that to and from the state, not the conference hall (see here, p. 176). This interpretation is in accordance with the principle that a treaty shall be interpreted in the light of its object and purpose. The Headquarters Agreement, while emphasizing the need for such an interpretation, specifies its purpose (Section 27 of Article IX):

“This agreement shall be construed in the light of its primary purpose to enable the United Nations at its headquarters in the US, fully and efficiently, to discharge its responsibilities and fulfill its purposes”.

Moreover, according to section 11(g), representatives of Member states enjoy the privileges and immunities of diplomatic envoys which are not inconsistent with the foregoing paragraphs (paragraphs (a) to (f)). Paragraphs (a) to (f) do not provide any specific restrictions, and hence, paragraph (g) extends the scope of the representative’s privileges and immunities. In fact, the freedom of movement and travel in the territory of the host state, which is recognized for diplomats, does not conflict with those set forth in paragraphs (a) to (f). The scope of this freedom of movement is determined by international customary law, not in accordance with Article 26 of the Vienna Convention on Diplomatic Relations 1961 because this convention is created after the General Convention. The UN Secretary-General has confirmed that section 11(g) in fact confers diplomatic privileges and immunities to the representatives of Member states, except for the exemptions just mentioned (exemption from customs duties on goods imported or from excise duties or sales taxes) (see here, p. 227). The Headquarters Agreement considers a high position for this obligation. Section 13(a) of Article IV of the Agreement specifies that laws and regulations in force in the US regarding the residence of aliens shall not be applied in such manner as to interfere with these privileges. The Appeal Court of US in the Tachiona case stated that, in the ratification process of the General Convention, both the State Department and the Senate Committee on Foreign Relations were of the opinion that the section 11 of Article IV of General Convention conferred full diplomatic privileges and immunities upon permanent as well as non-resident state representatives.

II. Is Iran initiating the third Case against the US at the ICJ?

The US has violated its international obligations under the General Convention and the Headquarters Agreement, and Iran and the US disagree on the implementation of the obligations set forth in these documents. Each of these documents has its own dispute settlement mechanism. According to section 30 of Article VIII of the General Convention, all differences arising out of the interpretation or application of the present convention shall be referred to the ICJ, unless in any case it is agreed by the parties to have recourse to another mode of settlement. Therefore, Iran can initiate a case against the US in the ICJ by declaring its dissatisfaction with the settlement of the dispute through another mode of settlement. Also, according to section 21 of Article VIII of the Headquarters Agreement, any dispute between the UN and the US concerning the interpretation or application of this agreement, which is not settled by negotiation or other agreed mode of settlement, shall be referred for final decision to a tribunal of three arbitrators. The Secretary-General or the US may ask the General Assembly to request of the ICJ an advisory opinion on any legal question arising in the course of such proceedings. Pending the receipt of the opinion of the ICJ, an interim decision of the arbitral tribunal shall be observed by both parties, and thereafter, the arbitral tribunal shall render a final decision, having regard to the opinion of the Court.

The Headquarters Agreement, contrary to the General Convention which is an international multilateral convention, is a bilateral agreement between the UN and the US. Due to the separation of the international legal personality of the UN from its member states, including Iran, the obligations of US under this agreement should be generally towards the UN. Therefore, if Iran intends to seek recourse to the Agreement’s dispute settlement mechanism, it must, as in Applicability of the Obligation to Arbitrate under Section 21 of the UN Headquarters Agreement of 26 June 1947 case, request the UN Secretary-General to act. Of course, the obligations contained in the General Convention and the Headquarters Agreement are so interrelated that, if the mechanism envisaged in any of these instruments is used, the obligations set forth in the other instrument will also be discussed. However, it is more appropriate for Iran to pursue the General Convention’s mechanism. According to the official memorandum that Iran issued and submitted to the US through the Tehran embassy of Switzerland, it seems that it intended to have recourse to the General Convention’s mechanism. On 18 February 2021, the Biden Administration informed Iran’s UN Mission in New York that it had removed Trump’s travel restrictions on Iranian diplomats and they now can move anywhere within a 25-mile radius. However, we will have to wait and see whether the reduction in restrictions will prevent Iran from initiating the third case against the US at the ICJ after Certain Iranian Assets and Alleged Violations of the 1955 Treaty of Amity, Economic Relations, and Consular Rights.