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Appeals But No Apologies for Iran's United Nations Envoy: The Show Will Go On

Iranian President Hassan Rohani and UN Secretary General Ban Ki-moon

The controversy over Washington's refusal to grant a visa to Iran's designated United Nations envoy has provoked protests from Tehran and anxieties from supporters of the ongoing nuclear negotiations between the two countries along with Europe, Russia, and China.

Fortunately, both the objections and the apprehensions are overblown. As a fellow Brookings blog explains, the Obama administration's refusal to grant a visa to veteran diplomat Hamid Aboutalebi is consistent with American law and past precedent.

As for fears that the controversy will disrupt the fragile diplomacy underway, in fact just the opposite is true. The Aboutalebi affair offers a fortuitous test of the resilience of bilateral diplomacy between the two old adversaries, one that U.S officials rightly believe it can withstand. If they are wrong, and if the nuclear negotiations cannot weather a spat over a largely symbolic appointment, then they were doomed from the start. Any long-term nuclear accord must be durable enough to face far more serious challenges in its implementation.

First, a bit more detail on the complex legal aspects of the dispute. Today, Iranian representatives in New York formally requested a meeting of the UN Committee on Relations with the Host Country, and met with the legal advisor to Secretary General Ban Ki Moon to discuss their complaint. The Iranian request argued that "negative implications for multilateral diplomacy and will create a dangerous precedence [sic] and affect adversely the work of intergovernmental organizations and activities of their Member-States."

The Iranian response parallels a claim that has been included in much of the commentary on this issue – that the U.S. decision violates its obligations under its 1947 host-country agreement with the UN. However, former State Department Legal Advisor John Bellinger, countered this assertion in a short essay posted on Lawfare, a blog affiliated with the Brookings Institution that was co-founded by Governance Studies Senior Fellow Benjamin Wittes, who remains its editor-in-chief, and several fellow legal scholars.

In his essay entitled "The Aboutalebi Visa Denial: U.S. Law and Historical Precedents," Bellinger argues that while the 1947 Headquarters Agreement includes language requiring Washington to permit travel by all UN representatives, U.S. law sets exceptions to this blanket authorization. Specifically, Section 6 of the Joint Resolution of Congress of August 4, 1947 incorporates a "security reservation" that incorporates limits on the requirements of the US under the agreement "to safeguard its own security." Bellinger acknowledges that there are dissenting readings of this provision, but his argument is compelling. 

The case includes the previous use of the security reservation by various American administration. In particular, Bellinger cites a State Department spokesman’s explanation for the 1988 denial of a visa to then-PLO Chairman Yasir Arafat; in those remarks, the State Department acknowledged that Washington had informed the United Nations on at least 7 occasions in the 1980s that individuals who had participated in the Embassy siege and/or other illegal violence against American citizens would not be accepted to this country — and, notably, that the UN offered no objections to those decisions. Former UN officials have

Finally, Bellinger questions the presumption that the United Nations will take the Iranian side, pointing out that:

"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."

Bellinger does not cite the case of Iran's former president Mahmoud Ahmadinejad, but it should be noted that he was also accused by several former hostages of having participated in their abuse during the Embassy siege. Ahmadinejad and others in Iran denied the claim; however, in 2005, the Bush administration found the then-newly inaugurated president ineligible for a U.S. visa. The State Department requested and received a waiver from the Department of Homeland Security, enabling the visa and facilitating Ahmadinejad's annual, infamous trips to New York.

Beyond the legal questions, the Aboutalebi affair offers an instructive decision point for U.S. policy toward Iran at a moment fraught with both possibility and uncertainty. Resolving the world's concerns about Iran's nuclear program necessarily ranks at the top of the list of U.S. priorities vis-a-vis Tehran, but the Obama administration's investment in the negotiating process cannot eclipse all our other interests.

Insulating the talks without sacrificing other American interests is an inherently tricky balancing act. And as the administration's other Middle East diplomatic gamble demonstrates, the prospect — however remote — of achieving a historic breakthrough to an enduring crisis tends to induce myopia. In dealing with Iran, this tendency is exacerbated by dated and oversimplified interpretations of Iranian political dynamics that presume far greater fragility to the constituency for diplomacy than has been evident over the past nine months.

In fact, Tehran is at least as invested in a diplomatic resolution to the nuclear impasse as Washington and its partners. For all the hand-wringing about the potential for hard-liner backlash, every evidence suggests that the June 2013 election of moderate president Hassan Rouhani empowered newly serious and sustained Iranian diplomacy. This is why White House Press Secretary Jay Carney insisted that the administration does not expect the disagreement over Aboutalebi to impact the nuclear talks.

So let the objections and invective fly. If diplomacy collapses under the weight of the Aboutalebi rejection, then there probably wasn't much there to begin with. A process so vulnerable to disruption could hardly be expected to produce a durable deal. Conversely, if the administration's calculation proves correct, then both sides can take away a strengthened sense of confidence surrounding the momentum that appears to have been achieved in the early bargaining sessions.

Rejecting Aboutalebi was the right decision on multiple grounds; as Lawfare's expert analysis suggests, there is solid legal justification. And it was politically right, given the unanimous Congressional opposition to his entrance to the United States. It happens to be morally right, since a man who remains unapologetic about his participation in an act of aggression against the U.S. government and the long-term mistreatment of American citizens is indeed undeserving of a U.S. visa. And because it will provide a useful gauge of the viability of diplomacy with Tehran, the visa denial was the right move for advancing a negotiated outcome to the Iranian nuclear program as well.