Mandate of the OHCHR and the Power to Intervene in Domestic Courts

June, 2020

Raghav Pandey

Guest Editor

The UN High Commissioner for Human Rights Michelle Bachelet recently undertook the unprecedented decision to file an intervention application at the Supreme Court of India.[1] The court is hearing a series of petitions which challenge the constitutional validity of the Citizenship Amendment Act (CAA). This instance raises very pertinent issues relating to the nature of functions of an entity in this case a United Nations (UN) intergovernmental body, under the aegis of public international law. It is important in this light to analyse the role, capacity of legal representation at national courts, and functions of the Office of the United Nations High Commissioner for Human Rights (OHCHR). The OHCHR functions under a mandate, which it has received under the UN General Assembly Resolution 48/141. The mandate under its Section 3 (a) mentions inter alia

“…to respect the sovereignty, territorial integrity and domestic jurisdiction of States….”[2]

Further, under Section 4 (d) of the mandate, it is mentioned:

“To provide, through the Centre for Human Rights of the Secretariat and other appropriate institutions, advisory services and technical and financial assistance, at the request of the State concerned….”[3]

Therefore, the state concerned needs to place a request to the OHCHR, only then can it offer its advisory services. The position taken by the OHCHR in its intervention application is that, it looks to intervene as an amicus curiae to the court, to render its advisory services to the court. This action of the OHCHR, however, is beyond the mandate it has received, on two grounds, even though the court can still refuse such an intervention. Firstly, the state needs to ask the OHCHR and only then an advisory can be tendered. It cannot be on a voluntary basis by the OHCHR, as per its own mandate. Secondly, such an advisory can only be provided to the executive wing of the government of a state by the virtue of Section 3 (a) of the mandate, because advising to a domestic court, even when asked for, will amount to interference with the domestic jurisdiction and sovereignty. This is also because foreign affairs are an exclusive domain of the executive branch of the government. In jurisdictions like the UK, a certificate is required to be produced before the courts, and only after that it can be taken up by the court.[4] Position in India is not very different, and is closely modelled around the British format.[5] Concerning the capacity of the OHCHR to file this intervention application, it has been established under public international law, that the capacities of international organisations like that of the UN and related bodies like the OHCHR and sovereign states differ to a great extent. Starke’s International Law mentions:

“Almost every activity is prima facie within the competence of a state under International Law, whereas practically the opposite principle applies to an international organ, namely, that any function, not within the express terms of its constitution, is prima facie outside its powers.”[6]

Starke has further quoted the International Court of Justice’s opinion in the context of the UN:

“Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice.”[7]

Therefore, this means that there will always be a very strong presumption that an international entity like the UN or the OHCHR does not have a mandate to act in a particular manner, if there is no express provision in its constituent document enabling the same. In the case of the OHCHR, it is the mandate it has received from the UNGA resolution, which does not mention that it has the authority to file applications of any nature in national courts. Hence, the OHCHR should have made an endeavour to establish its authority in the application itself. However, nothing of this sort can be found in the unauthenticated text[8] of the application. In fact, this a recurrent issue with the OHCHR’s amicus curiae briefings.[9] None of the briefs available make any argument on the locus or competence of the OHCHR with respect to the mandate it has. It can be noted that in other briefings[10] which are available by other UN High Commissioners, it is evident that such briefs were provided when the respective competent authorities had requested for the same, thereby validating such submissions. In the absence of a request, as is mostly the case with the briefings of the OHCHR, such submissions are not only without any locus but also without any legal validity. At this point it is also important to refer to Article 104 of the UN Charter. The Article points out that the UN itself will have “…such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes”.[11] This is an important position under international law about the capacity of an organisation like the UN. Even the UN itself will only have as much legal capacity as it is required for its functions and purposes. The functions and purposes can only be traced from the constitutive document. In the case of the UN it is the charter, and in the case of the OHCHR it will be the UNGA resolution. The OHCHR will naturally, therefore, have a diminished capacity, and applying the law contained in Article 104, if there is an absence of mandate which provide locus to the OHCHR, such legal capacity can never be assumed and will always be absent. Also, in case the application for intervention is allowed and upon adjudication the court decides to impose costs on the petitioners, there is no mechanism to realise cost from a UN agency, especially when the application mentions that it cannot be construed as waiving the immunities and privileges under 1946 Convention on the Privileges and Immunities of the UN.[12] This is because the rules of the Indian Supreme Court include an intervener as being within the meaning of a respondent.[13] This position is paradoxical, when an entity has claimed to be party or a similar status in front of a national court, and still claiming diplomatic immunities. The OHCHR will naturally be treated as others who approach the court, being exposed to consequences like contempt of court, imposition of costs etc. Apart from the lack of authority, this also sets a very wrong precedent. If in any one jurisdiction, like in India, the Apex Court decides to not recognise the immunities, it will open the possibilities for other national governments and courts to do the same. It is in the interest of OHCHR itself, that the integrity of its office and that of other intergovernmental bodies of the UN is not frayed by these actions, especially when the domestic process is still in motion to address the situation. The very purpose of intergovernmental cooperation stands defeated if international bodies surpass the mechanism that is respected, and start challenging the governments under municipal legal systems directly.

Raghav Pandey is an Assistant Professor of Law at Maharashtra National Law University, Mumbai.

[1] Ani, Raveesh Kumar, MEA: Our Permanent Mission in Geneva was informed yesterday evening by the UN High Commissioner for Human Rights that her Office had filed an Intervention Application in the Supreme Court of India in respect to 2019 Citizenship Amendment Act (CAA). (1/4) pic.twitter.com/HhRwBzwcwA Twitter (2020), https://twitter.com/ANI/status/1234743803417956352?s=20 (last visited May 20, 2020). [2] United Nations Official Document, United Nations (1994), http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/48/141 (last visited May 20, 2020). [3] Id. (emphasis added) [4] Foakes, J., 2020. Foreign Affairs In National Courts: The Role Of The Executive Certificate, https://www.chathamhouse.org/sites/default/files/field/field_document/20150916ForeignAffairsNationalCourtsFoakes.pdf. [5] Legalaffairs.gov.in. 2001. TREATY-MAKING POWER UNDER OUR CONSTITUTION, http://legalaffairs.gov.in/sites/default/files/Treaty-making power under our Constitution.pdf. [6] J. Starke & I. Shearer, 1996, Starke’s International Law, 547 (emphasis added). [7] Id. [8] Scribd. 2020. Draft Intervention Application On Behalf Of OHCHR. [online] Available at: <https://www.scribd.com/document/449928296/Draft-Intervention-application-on-behalf-of-OHCHR#from_embed> [Accessed 20 May 2020]. [9] Ohchr.org. n.d. OHCHR | Amicus Curiae. [online] Available at: <https://www.ohchr.org/EN/Issues/Women/WGWomen/Pages/AmicusCuriae.aspx> [Accessed 20 May 2020]. [10] Refugees, U., n.d. Refworld | Court Interventions / Amicus Curiae. [online] Refworld. Available at: <https://www.refworld.org/type,AMICUS,,,,,0.html> [Accessed 20 May 2020]. [11] Legal.un.org. 1945. Chapter XVI: Articles 104 And 105 — Charter Of The United Nations — Repertory Of Practice Of United Nations Organs — Codification Division Publications. [online] Available at: <https://legal.un.org/repertory/art104_105.shtml> [Accessed 20 May 2020]. [12] Treaties.un.org. 1946. Convention On The Privileges And Immunities Of The United Nations. [online] Available at: <https://treaties.un.org/doc/Treaties/1946/12/19461214 10-17 PM/Ch_III_1p.pdf> [Accessed 20 May 2020]. [13] Supreme Court of India Handbook Practice and Procedure and Office Procedure S. 3(xxi) (2017) The views expressed in this post represent the views of the post’s author only.