Both houses of the U.S. Congress have voted unanimously to prevent Hamid Aboutalebi from entering the United States.
The White House has indicated that Aboutalebi would not be issued a U.S. visa and the president has signed the bill into law.
Iran has appointed Aboutalebi as its next ambassador and permanent representative to the United Nations in New York.
Hamid Aboutalebi has been accused of having links to the group of "students" that seized the U.S. 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.
A U.S. decision to deny a visa for Aboutalebi is setting 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 United Nations.
The U.S. would also be accused of violating international law, thereby giving Iran the honor and prestige of being on the right side of the law. Here are some elements that should be considered.
The U.S. 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 United Nations.
Here, the U.S., as a host country, has clear legal obligations under the 1947 Headquarters Agreement between the United States and the United Nations.
In Section 13 of the Headquarters Agreement, the U.S. agreed that the "laws and regulations in force in the United States regarding the entry of aliens shall not be applied" to persons appointed by other member states to represent them.
The agreement requires that "when visas are required" for such persons, "they shall be granted without charge and as promptly as possible."
Iran has indicated that it will stand by its decision to nominate Hamid Aboutalebi to the U.N. post and will "pursue the matter via legal mechanisms" at the United Nations.
It would be hard for Iran to lose this one and it would be hard for the U.S. to win. A state cannot use its domestic law to justify a violation of international law.
The U.S. has hinted that it would withhold Aboutalebi's visa on the grounds that his presence in the United States would threaten its security.
This argument is weak, since Aboutalebi has served as Iran's ambassador to Belgium, the European Union, Italy and Australia. He has also traveled to the United Nations in New York with no incidents.
Instead of becoming a violator of international law, the U.S. could use a path, which does not violate international law, to send the same message to Iran.
Issue the visa for 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 United Nations, 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.
U.S. authorities could follow his car continuously upon his arrival at JFK International Airport. His privilege and immunity as a foreign diplomat attached to the United Nations would end immediately if he would venture outside of the authorized routes or make an unauthorized 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 recognized 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 U.N. post highly unattractive for Hamid Aboutalebi and Iran, while making it impossible for anyone to accuse the U.S. of violating international law.
It may have been this same desire of the U.S. 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 United Nations in New York in 1986.
Professor Kantathi Suphamongkhon was a former foreign minister of Thailand and represented Thailand at the United Nations in New York for four years. He is a visiting professor of law and diplomacy at UCLA Anderson School of Management.