Secretary of State Marco Rubio denied visas to, and revoked the visas of, members of the Palestinian delegation who were invited to attend the general debate opening the eightieth session of the United Nations (UN) General Assembly in New York City.Footnote ¹ The move prevented Mahmoud Abbas, the Palestinian Authority (PA) president, from addressing the Assembly in person, though he was able to do so by video link.Footnote ² President Abbas had also been expected to attend a high-level General Assembly conference on a two-state solution during which Australia, Belgium, Canada, France, the United Kingdom, and other countries were to recognize the State of Palestine.Footnote ³ Secretary Rubio’s decision was reminiscent of the Reagan administration’s refusal to grant Yasser Arafat a visa to attend the 1988 General Assembly meetings,Footnote ⁴ though the breadth of the visa denials—inclusive of the entire delegation, estimated to include around eighty officials—makes it unique.Footnote ⁵ The denials were widely condemned as a breach of U.S. obligations under the UN Headquarters Agreement.Footnote ⁶

Section 11 of the UN Headquarters Agreement, which was approved by a joint resolution of Congress and is codified in the U.S. Code,Footnote ⁷ restricts the “federal, state or local authorities of the United States” from “impos[ing] any impediments to transit to or from the [United Nations] headquarters district of[,] [among others,] … persons invited to the headquarters district by the United Nations.”Footnote ⁸ The U.S. obligation to permit transit to the headquarters district of those covered by Section 11 is, according to the Agreement, “applicable irrespective of the relations existing between the Governments of the persons referred to in that section and the Government of the United States.”Footnote ⁹ The Agreement further provides that the “[l]aws 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.”Footnote ¹⁰ Section 27 stipulates that the agreement “shall be construed in the light of its primary purpose to enable the United Nations at its headquarters in the United States, fully and efficiently, to discharge its responsibilities and fulfill its purposes.”Footnote ¹¹

When the United States and the United Nations exchanged notes to bring the Headquarters Agreement into effect, the United States specified that it was “prepared to apply … [the Agreement] subject to the provisions of” the joint resolution.Footnote ¹² Section 6 of the resolution states that “[n]othing in the [Headquarters] [A]greement 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 traverse in transit between the same and foreign countries.”Footnote ¹³ The United States has long interpreted the italicized text as “reserv[ing] to [the United States] the right to bar the entry of those who represent a threat to [U.S.] security.”Footnote ¹⁴ In recent practice, the United States denied a visa in 2014 to Iran’s ambassador-designate to the United Nations, Hamid AboutalebiFootnote ¹⁵ and in 2020 to Iran’s foreign minister, Mohammad Javad Zarif.Footnote ¹⁶ The full number of visa denials is unknown, however, as most are not made public by those involved and some are effectuated informally through delays in approval that obviate the visa’s use.Footnote ¹⁷

The State Department indicated that the denial and revocation of visas for the Palestinian delegation was done “[i]n accordance with U.S. law,” but it did not explicate the legal basis for the decision or address how the decision was reconcilable with U.S. obligations under the Headquarters Agreement.Footnote ¹⁸ The State Department’s spokesperson only declared that “it is in our national security interests to hold the [Palestinian Liberation Organization (PLO)] and PA accountable for not complying with their commitments, and for undermining the prospects for peace.”Footnote ¹⁹ That statement was nearly identical to one the State Department made a month earlierFootnote ²⁰ when it announced the denial of visas to unspecified PLO members and PA officials following a report to Congress that the PLO and the PA were not in compliance with their commitments under the PLO Commitments Compliance Act of 1989Footnote ²¹ and the Middle East Peace Commitments Act of 2002 (MEPCA).Footnote ²² The latter statute requires the imposition of visa restrictions on PLO and PA officials if the president determines that the PLO or the PA has not complied with the commitments made by the PLO in the exchange of letters that preceded the first of the Oslo Accords.Footnote ²³ The secretary of state’s decision to withhold visas may have been based on the requirements of the MEPCA. His decision may also have been founded on the United States’ claimed “right” under the joint resolution to bar entry on grounds of security regardless of the provisions of the Headquarters Agreement.Footnote ²⁴

Each of these possible legal justifications for the secretary’s action is contestable. Regarding the effect of the MEPCA, as Judge Edmund L. Palmieri explained in United States v. Palestine Liberation Organization, which involved the claim that the Anti-Terrorism Act of 1987 compelled the government’s closure of the PLO mission to the United Nations despite the Headquarters Agreement, “[o]nly where a treaty is irreconcilable with a later enacted statute and Congress has clearly evinced an intent to supersede a treaty by enacting a statute does the later enacted statute take precedence.”Footnote ²⁵ Congress did not clearly do so in that case, Judge Palmieri concluded, and similarly Congress did not clearly preempt the Headquarters Agreement when it enacted the MEPCA. The United States’ longstanding claim that Section 6 of the Joint Resolution provides it with a right not to grant visas for security reasons, has been disputed by the United NationsFootnote ²⁶ and commentators.Footnote ²⁷ Even if such an exception existed, it is not clear how the admission of the Palestinian delegation would in fact impinge on U.S. security. Palestinian Authority Prime Minister Mohammed Mustafa had visited UN headquarters only a month earlier, at the end of July.Footnote ²⁸ The timing of the visa actions suggest, instead, that the administration was not concerned with security but instead was seeking to undermine the meeting where Canada, France, and the United Kingdom were to recognize Palestine, the first Group of 7 countries to do so.

The U.S. decision was roundly criticized. The Palestinian Authority “expressed its deep regret and astonishment” at the visa decision, which it said “contravene[d] international law and the Headquarters Agreement”Footnote ²⁹ and constituted “an abuse of authority and a punishment for the State of Palestine.”Footnote ³⁰ Kaja Kallas, High Representative of the European Union for Foreign Affairs and Security Policy, stated, diplomatically, that “[i]n the light of the existing agreements between the UN and its host state, we all urge for this decision to be reconsidered, considering the international law and the way United Nations has been built up.”Footnote ³¹ French Foreign Minister Jean-Noël Barrot added that “a UN General Assembly meeting … should not be subject to any restrictions on access.”Footnote ³² The Netherlands stressed “that the responsibility of all host countries to international organizations was to facilitate their proper functioning” and “that host countries must guarantee the independence of the international organizations that they hosted and facilitate their smooth and efficient functioning, particularly their needs with regard to all persons required to be present.”Footnote ³³ China stated emphatically that Palestine had a right to “full and effective participation in UN conferences, international conferences and meetings convened under the auspices of the General Assembly” and that the United States’ “action is unacceptable, a blatant violation of its international obligations, and a ruthless suppression of Palestinian peace efforts.”Footnote ³⁴ Many other states also took issue with the U.S. decision.Footnote ³⁵

UN spokesperson Stéphane Dujarric responded to Secretary Rubio’s announcement by remarking that the United Nations “obviously hope[s] that this will be resolved. It is important that all Member States, permanent observers, be able to be represented.”Footnote ³⁶ Later he added: “we were very clear [with the United States] on expressing our concern about [its] decision, which we feel goes against the host country treaty.”Footnote ³⁷ Subsequently, at a meeting of the Committee on Relations with the Host Country, the UN legal counsel stated that she had raised the issue of “entry visas for representatives of the State of Palestine” in a meeting with the legal adviser to the secretary of state and “that this was a serious matter which directly concerned the obligations accepted by the host country in the Headquarters Agreement.”Footnote ³⁸ She further explained that “she had raised [with the legal adviser] the legal obligations of the host country and that the legal position of the Secretariat regarding the host country’s obligations with respect to the issuance of visas, or the application of travel restrictions, to persons covered by the Headquarters Agreement remained unchanged from those provided by her predecessors.”Footnote ³⁹

Despite the entreaties of the legal counsel and many states, the United States refused to alter its decision and the Palestinian delegation led by President Abbas was not permitted to attend the General Assembly meetings in person.