Maryam Jamshidi reflects on the U.S. government’s latest attack on the UN through its sanctioning of UN Special Rapporteur Francesca Albanese, and argues that the sanctions violate international treaties on immunities and should be challenged in U.S. courts.
TWAILR: Reflections ~ 73/2025
The U.S. government’s decision to sanction Francesca Albanese—which was announced on July 9, 2025—is the latest salvo in a long-standing effort by Israel and the United States to discredit and silence the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967. It also represents another effort by both the Trump administration and Israel’s other political allies to attack the UN and use the U.S. legal system to strip or otherwise violate the immunity accorded to the United Nations, as well as a range of UN entities and actors, under international law.
As several experts have noted, the sanctions against Albanese—which ban her from traveling to the United States and impose various economic sanctions on her—violate several treaties that are binding on the United States, including the Convention on the Privileges and Immunities of the UN (“Convention on UN Immunities” or “Convention”), as well the UN Headquarters Agreement Between the United States and the UN (“UN Headquarters Agreement”). In protest against the United States’s unlawful actions, some have called for the International Court of Justice (ICJ) to weigh in on the immunity issues raised by the U.S. sanctions.
There is, however, also a way of challenging the sanctions against Albanese through the U.S. judicial system. Subject to certain limitations, the U.S. government has issued a general license that would permit U.S. lawyers to represent Albanese and confront the sanctions against her in U.S. court. [31 C.F.R. §§ 528.506-528.507]. While foreign persons generally have little hope of successfully challenging the government’s sanctions orders, Albanese’s treaty-based rights could bring her some relief. Though the UN Headquarters Agreement—which has been codified into U.S. law—could also serve as a basis for her claim, this post discusses how the Convention on UN Immunities—specifically, the immunity it gives to UN experts—could be used to overturn the economic sanctions against Albanese in the United States.1
Immunity for Special Rapporteurs under the Convention on UN Immunities
To invoke the Convention on UN Immunities in U.S. court, Albanese will need to show that the sanctions against her violate the Convention’s immunity scheme; the Convention is a self-executing treaty binding on U.S. courts; and that she has an individual right to immunity under the Convention. In my view and as demonstrated below, Albanese has a good chance of establishing all these elements. As I will also discuss in this reflection, in order to enforce her treaty-based immunity rights, she will need to rely on a federal statute that creates what is known as a “private right of action.” In this case, the Administrative Procedures Act (APA)—which is used to judicially challenge the actions of Executive branch agencies—indirectly and effectively provides Albanese with a private right of action for her claims under the Convention on UN Immunities.
The Sanctions Against Albanese Violate the Convention on UN Immunities
Article VI, Section 22 of the Convention on UN Immunities expressly bestows upon “experts … performing missions for the United Nations” those “privileges and immunities” that are “necessary for the independent exercise of their functions during the period of their missions”. As reflected in multiple ICJ advisory opinions, as well as the Code of Conduct for Procedures Mandate-Holders of the Human Rights Council, this immunity applies to UN Special Rapporteurs, like Albanese.
Under Article VI, section 22, the immunity accorded to Special Rapporteurs includes “immunity from legal process of every kind” with respect to “words spoken or written and acts done by them in the course of the performance of their mission.” This immunity from “legal process of every kind” is construed “very broad[ly].” In accordance with that breadth, this immunity must and should include immunity from any legal action that impinges on the independent exercise of a Special Rapporteur’s duties, even if that action does not involve judicial process. To conclude otherwise would allow Special Rapporteurs to be penalized for “words spoken or written and acts done by them in the course” of their mission through legal measures—like sanctions—that are personally devastating and “open up a route through which control of the UN might occur,” but do not involve the domestic judicial system.
The U.S. sanctions order against Albanese is quite clearly aimed at the “words spoken or written and acts done” by her as Special Rapporteur, in violation of the Convention’s immunity scheme. In a public statement, U.S. Secretary of State Marco Rubio, who was primarily responsible for Albanese’s designation, specifically referred to her status and work as Special Rapporteur in sanctioning her under the government’s February 2025 Executive Order imposing sanctions on the International Criminal Court (ICC).
In his statement, Rubio accused Albanese of violating the ICC sanctions by “recommending” the court issue arrest warrants against Israeli Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant. The ICC investigations, which led to the arrest warrants against the Israeli officials, as well as the arrests warrants themselves, all concern events that occurred on or after October 7, 2023. This means they necessarily post-date Albanese’s appointment as Special Rapporteur on May 1, 2022. Absent clear evidence to the contrary, any “recommendations” Albanese made to the ICC about the arrest warrants would have presumptively occurred in her capacity as Special Rapporteur. Those recommendations would also be consistent with her specific mandate to “investigate Israel’s violations of the principles and bases of international law. . . in the Palestinian territories occupied by Israel since 1967,” as well as with the general role of Special Rapporteurs to “alert … the international community … to the need to address specific situations and issues … [including] providing ‘early warning’ and encouraging preventative measures.”
Further demonstrating U.S. intent to target her work as Special Rapporteur, Rubio’s statement pointed to Albanese’s recent efforts—again, done in her capacity as Special Rapporteur—to expose corporate complicity in Israel’s genocide and other crimes against the Palestinians, as well as her recommendation that the “the ICC pursue investigations and prosecutions of these companies and their executives.” Rubio’s reference to those efforts—which are consistent with the Special Rapporteur’s authority to hold “non-State actors” to “account for human rights violations”—provides even more evidence that the sanctions against Albanese are for “words spoken or written and acts done … in the course of the performance” of her mission.
As it recently did in U.S. litigation involving UNRWA, the United States will certainly contest any assertion that its sanctions scheme violates Albanese’s immunity. Indeed, the government previewed some of those arguments in a June 2025 letter sent to UN Secretary General Antonio Guterres by the Acting U.S. Representative to the UN, Dorothea Shea. In addition to its other thin and untenable arguments, Shea’s letter argued that Albanese’s “status as an expert on mission does not afford her immunity for speech or conduct outside of the course of performance of her mission,” a clear reference to the Convention on UN Immunities.
As this letter suggests, the United States may attempt to convince a U.S. court that its assessment—rather than the UN’s—should guide the court’s determination as to whether the sanctions against Albanese target work done in “the course of the performance of her mission.” To accept such an argument would, however, fly in the face of international law, including decisions from the ICJ, which ought to inform a U.S. court’s assessment of this issue. As those international legal rules and ICJ opinions make clear, it is the UN Secretary General—not any single state government—who is responsible for determining whether UN experts, including Special Rapporteurs, have engaged in work in the course of their missions that is entitled to immunity.
Pursuant to the UN’s Regulations Governing the Status, Basic Rights and Duties of Officials other than Secretariat Officials, and Experts on Mission, Special Rapporteurs, like other experts on mission, are “accountable to the United Nations,” not to particular states, “for the proper discharge of their functions.” [Regulation 3]. “In any case where an issue arises regarding the application of the privileges and immunities” of a Special Rapporteur, it is for the Secretary-General “alone” to decide whether immunity applies. [Regulation 1(e)]. In an advisory opinion involving a dispute over whether a Special Rapporteur’s words and actions were taken “in the course of … [their] mission,” the ICJ confirmed that the Secretary-General “has a pivotal role to play” in such determinations. The Court went on to note that the Secretary-General’s findings with respect to the immunity of a Special Rapporteur “creates a presumption which can only be set aside for the most compelling reasons and is thus to be given the greatest weight by national courts.”
While this determination will need to be formally made during litigation (as discussed below), it seems clear already that the Secretary-General will uphold Albanese’s immunity from sanctions, based on public statements made by his spokesperson as well as other UN officials.
The Convention on UN Immunities Is a Self-Executing Treaty
In order to enforce a treaty, to which the United States is a party, in U.S. courts, the treaty must generally be self-executing. As I explained in a previous reflection piece, self-executing treaties are considered part of U.S. federal law and, therefore, binding on all U.S. courts. The Convention on UN Immunities is considered to be self-executing both by those courts and by the Executive Branch. As I also discussed in my earlier piece, there is no direct conflict between the Convention and any later-in-time federal statute or provision of the U.S. constitution, which would otherwise undermine the treaty’s binding nature.
Nor can the sanctions against Albanese, which are based on the February 2025 ICC Executive Order, override or displace the Convention on UN Immunities in this case. While some might argue that a self-executing treaty should not bind U.S. courts if it directly conflicts with a later-in-time Executive Order, Executive Orders are subsidiary to earlier-in-time, self-executing U.S. treaties, just as they are subsidiary to earlier-in-time federal statutes, as other scholars have argued. For that reason, “a unilateral executive order can never supersede a prior inconsistent treaty that is the Law of the Land.”
Albanese Enjoys an Individual Right to Immunity under the Convention on UN Immunities
To enforce a treaty right in U.S. courts, it is not enough for the treaty to be self-executing. The treaty provision in question must also typically create an individual right. In a 2008 decision, the U.S. Supreme Court upended long-standing precedent and concluded that, even where self-executing, there is a “background presumption” that treaties do not create individual rights. In order to assert an individual treaty-based right in U.S. court, the enforcing party must overcome this presumption.
As one scholar has explained, a treaty does not create individual rights where it “creates only horizontal duties between states.” By contrast, a treaty provision “creates individual rights under international law if it is immediately effective and it imposes a specific, vertical duty that a state owes to an identifiable class of individuals.” As a Special Rapporteur, Albanese has precisely such an individual right to immunity under Article VI, Section 22 of the Convention. That she would invoke that immunity offensively, to challenge the sanctions against her, rather than defensively, should not alter this result.
To establish the individual nature of a treaty right requires engaging in treaty interpretation, which in turn involves examining the text, as well as the object and purpose of the treaty. Looking at the text, object, and purpose of the Convention on UN Immunities, the privileges and immunities afforded to UN experts and Special Rapporteurs are undoubtedly privileges and immunities that states “owe to an identifiable class of individuals.” In addition to according immunity from legal process with respect to the “words spoken or written and acts done” in the course of their missions, state parties to the Convention must afford UN experts other immunities as well, including from “personal arrest or detention and from seizure of their personal baggage.” These are plainly “vertical” immunities owed by states to identifiable UN experts. It would, moreover, threaten the object and purpose of the Convention if rapporteurs did not have such an individual right to immunity that could be asserted and enforced where they were criminally prosecuted or sued in a civil action. This inability to individually enforce their rights would undermine the independence of Special Rapporteurs and other UN experts on mission, which the Convention seeks to protect, as further suggested by multiple ICJ advisory opinions.
As with the immunity of diplomats, even though the immunity of UN experts benefits the entity they serve and can be waived by that entity, that does not change the individual nature of the immunity right. Under Article VI, Section 23 of the Convention, privileges and immunities “are granted to experts in the interests of the United Nations and not for the personal benefit of the individuals themselves. The Secretary-General shall have the right and the duty to waive the immunity of any expert in any case where, in his opinion, the immunity would impede the course of justice and it can be waived without prejudice to the interests of the United Nations.” Though some might suggest otherwise, that the immunity of UN experts is granted to them in the interest of the UN and can be waived by that body does not make those immunities any less individual than those accorded to diplomats, who are widely understood to have an individual right to immunity, even though that immunity is given in the interest of the sending state and can be waived by it.
The individual nature of the Convention’s immunity scheme is further reflected in international and domestic legal practice. In the past, Special Rapporteurs have directly asserted their individual right to immunity under the Convention in national courts. The ICJ has not only upheld that practice when it could have questioned it. It has also recognized the right of UN experts on mission to “invoke” their immunities against other parties, including states that attempt to violate those immunities. In the U.S. judicial system, the Convention’s immunity scheme for various UN officials—which is similar in some respects to the immunity enjoyed by UN experts—has been regularly asserted to protect those individuals from legal process. The immunity enjoyed by at least some of those UN officials is codified in a federal statute, which recognizes that the individuals themselves may raise the immunity defense.
While immunity is typically raised in a defensive manner—specifically, to obtain dismissal of civil or criminal suits or claims—there is no good reason why using immunity offensively, in order to bring a claim—as would be done in this case—should change the individual nature of the right. Indeed, such differential treatment would leave UN experts, like Albanese, without any remedy to address attacks on their immunity, unless and until they are sued in court. Again, this would defeat the very reasons for that immunity by threatening the independence of Special Rapporteurs, as well as the UN itself.
The APA Provides a Private Right of Action to Enforce Albanese’s Treaty-Based Immunity
The final key requirement Albanese will need to satisfy, in order to enforce the Convention on UN Immunities, is a private right of action. A private right of action “allows a private party to seek a remedy from a court for the violation of a private right provided by a treaty.” Where a treaty is construed to contain a private right of action, it permits private parties to seek remedies in U.S. courts for those treaty rights. Generally, U.S. courts presume that self-executing treaties, even those that directly benefit private persons by creating individual rights, do not contain private rights of action unless there is “evidence that the [treaty] provision [in question] was intended to be enforceable by private parties.” [Restatement (Fourth) of Foreign Relations § 311 (2018), cmt b].
But as scholars have suggested, this requirement—that a treaty itself contain a private right of action—does not apply in all situations. For example, where a party invokes a treaty to defend itself in civil litigation or criminal prosecution, judges regularly allow the party to invoke the treaty, even if it does not create a private right of action. Scholars have also argued that courts should not and have not required a treaty to contain a private right of action in at least some situations where it is used offensively pursuant to “some other source of law—constitutional, statutory, or common—that grants the individual a private right of action.”
The Administrative Procedure Act (APA) is one such law that indirectly and effectively creates such a right of action in U.S. courts in the form of judicial review of Executive agency actions. It is also regularly used by sanctioned parties to judicially challenge the sanctions against them.
Under the APA, a person “suffering legal wrong because of agency action … is entitled to judicial review thereof” and may seek non-monetary relief. [5 U.S.C. § 702]. In order to obtain judicial review under the APA, among other things, the agency action must be “final.” [5 U.S.C. § 704]. While a petitioner may sometimes need to exhaust available administrative remedies before pursuing a challenge under the APA, applicable regulations do not require sanctioned persons to exhaust their administrative remedies before bringing an APA challenge. [31 C.F.R. § 501.807; Cooperativa Multiactiva De Empleados De Distribuidores De Drogas v. Newcomb, No. 98-0949-LFO, 1999 U.S. Dist. LEXIS 23168, at *7 n.4 (D.D.C. Mar. 29, 1999)].
In reviewing an agency’s action, the court is confined to the factual record compiled by the agency. [5 U.S.C. § 706]. While courts assessing an agency’s factual findings will generally defer to those findings, courts typically review questions of law de novo, meaning they will make their own assessment and will not defer to the agency’s interpretation of law, including to its interpretation of ambiguous federal statutes that the agency itself administers. Under the APA, the reviewing court shall “hold unlawful and set aside agency action, findings, and conclusions found to be,” among other things, “contrary to constitutional right, power, privilege, or immunity,” “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” or “otherwise not in accordance with law.” [5 U.S.C. § 706].
Though the relevant portion of the APA does not expressly mention treaties as a basis for assessing agency action, the statute does provide a cause of action for persons suffering a “legal wrong” and allows courts to set aside agency action that is “not in accordance with law.” Self-executing treaties are part of U.S. law, whose violation can create precisely such “legal wrongs” and render agency action “not in accordance with law.” They are also co-equal with federal statutes, which are an expressly codified grounds for assessing agency action under the APA.
Moreover, various U.S. courts have allowed APA challenges to be based on asserted treaty violations, a decision one prominent scholar describes as “undoubtedly correct.” The Restatement (Fourth) of Foreign Relations—a prominent treatise relevant to this area of U.S. law—similarly notes that the APA may “afford relief for treaty violations under certain circumstances.” [Restatement (Fourth) of Foreign Relations § 311, Reporters’ Notes 5].
In light of all this, Albanese may challenge the sanctions against her in U.S. court, under the APA, without first exhausting administrative remedies. The sanctions against her also qualify as “final agency action,” as they “mark the ‘consummation’ of the agency’s decisionmaking process”—they are neither “tentative” nor “interlocutory”—and represent action in which “‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Albanese should be able to base her APA challenge on violations of the Convention on UN Immunities, which creates an individual right to immunity for Special Rapporteurs. The court’s assessment of the U.S. government’s violation of that treaty-based right will be de novo, meaning the court should not defer to the agency’s interpretation of the Convention. As part of Albanese’s challenge, it will be crucial for the UN Secretary-General to formally express his views on Albanese’s right to immunity and to ensure those views are brought to the “knowledge” of the court.
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As is often the case, none of this means Albanese has a slam dunk case. The U.S. courts are not known for their enthusiastic embrace of international law. Various domestic legal considerations, not addressed here, under the APA or otherwise may also defeat her suit.
What this does mean, though, is that there is another potential avenue for holding the United States accountable for assaulting Albanese’s international legal rights—an assault that may have begun with her, but stands a grave risk of expanding to other UN experts. All that is needed is for a U.S. lawyer to step up and help Francesca Albanese achieve that measure of justice.
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- Though not discussed here, the travel ban against Albanese could also potentially be challenged in U.S. courts under the Convention on UN Immunities or the UN Headquarters Agreement. Article VII, Section 26 of the Convention provides that experts on mission shall be provided with visas necessary to travel on UN business as speedily as possible. Under the UN Headquarters Agreement, the United States is prohibited from impeding the “transit to or from the headquarters district of … experts performing missions for the United Nations or for such specialized agencies” and is obligated to “afford any necessary protection to such persons while in transit to or from the headquarters district.” Article IV, Sec. 11, UN Headquarters Agreement, Public Law 80-357, 22 U.S.C. § 287 (note). 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 travel privileges of UN experts, and that visas for such persons “shall be granted without charge and as promptly as possible.” Article IV, Sec. 13, UN Headquarters Agreement, Public Law 80-357, 22 U.S.C. § 287 (note). Since Special Rapporteurs, like Albanese, are treated as “experts on mission” by the United Nations, they are protected by these provisions of the Convention on UN Immunities and UN Headquarters Agreement.