Stranded Australians take to the Human Rights Committee: Winning before losing?
By Kris van der Pas
Source: Pexels, photo by Catarina Sousa
Since the start of the COVID-19 pandemic, travel restrictions have become a normality rather than exceptional. Due to these travel restrictions, many people have been unable to return home. A strict travel regime has been adhered to by Australia, as ‘flight caps’ have been introduced. Since the start of the pandemic, 500.000 Australians abroad have returned home. Nevertheless, over 34.000 people are still outside the country and unable to return. Several blogs have already addressed the problematic aspects when it comes to COVID-19 measures and human rights in general (see for example here and here), but a few Australians have now actually lodged a complaint about these Australian flight caps with the UN Human Rights Committee (hereafter: HRC). They argue that their inability to return home is against art. 12(4) ICCPR, as ‘no one shall be arbitrarily deprived of the right to enter his own country’. Mid-April, their complaint was communicated to both parties, Australia and two individuals, and an interim measure was ordered by the HRC to the Australian authorities: to return the applicants in question home. Australia has not followed up on these interim measures, as it is confident that it is “operating in line with its international legal obligations". In a different blog, the substantive aspects of the right to enter one’s own country in COVID times have been addressed in detail. Based on this, the complaint of the Australians stands a chance before the HRC. However, several problematic procedural aspects remain.
A first problem for the applicants would be the timeframe of the case. Australia has six months to submit a written reply to the communication of the HRC to the parties, according to Rule 92 of the HRC’s Rules of Procedure. It is most likely that by the time six months have passed, the applicants have returned home, leaving the reason to file the complaint in the first place useless. It could of course be that Australia decides to move along rather swiftly and provide the reply much faster. At that point, another problem would arise for the applicants: they did not exhaust domestic remedies, but in the Australia case some argue that none are readily available. According to human rights lawyer Geoffrey Robertson, who supports the applicants of the complaint, Australia does not have a ‘bill of rights’, leading him to contend that there is no domestic remedy available. However, although Australia has not passed a national law implementing the ICCPR, there is at the national level the possibility to file a complaint with the Australian Human Rights Commission. Moreover, not having a bill of rights does not mean that national litigation cannot be started at all. As Robertson’s argument will therefore likely not fly with the HRC, the question remains why the Australians lodged the complaint at all, also given the potentially long timeline of the case.
There are several possibilities why the Australians filed their complaint with the HRC despite the low chances of winning. I would like to explore those possibilities here. They are related to the use of strategic litigation, litigation pursued as a strategy to obtain social, political or legal change beyond the individual case or individual interest. In strategic litigation, winning a case on the merits might not always be necessary to achieve the objective. This complaint to the HRC could show that. The first reason to make the complaint has been mentioned already, namely the interim measure ordered. Potentially, the idea behind the complaint was only to get the HRC to order interim measures. If Australia would have followed up on these measures, the applicants would have gotten what they wanted: a return home. Winning the case on the merits would, thereafter, no longer be relevant.
The second reason is reminiscent of an article written by NeJaime in 2010. In his article, NeJaime proposes to not only look at instances in which (strategic) litigation is won in academic scholarship, but also to take into account the effects of losing litigation. He calls this ‘winning through losing’, meaning that even though a case is lost, the overall objective why litigation was initiated could still have been achieved. An example would be generating media attention for a certain topic. A case that is lost, can still draw a lot of media attention. Building on NeJaime’s argument, the complaint of the Australians to the HRC can be regarded as an instance of potentially ‘winning before losing’. Despite the fact that the complainants did not exhaust domestic remedies - making their case extremely difficult to be admissible to the HRC - the complaint was filed anyway. Two of the potential positive effects of losing litigation described by NeJaime are relevant in the context of the complaint against Australia. These are the internal effect of mobilizing outraged constituents and the external effect of appealing to the public. Lodging the complaint has generated more media attention for all Australians abroad, as is shown by several news items (see here and here). This could have mobilized constituents, i.e. other ‘stranded Aussies’, who could have been spurred on to explore legal and other avenues to ensure their return home. Moreover, the media attention has made a broader public aware of the unfortunate situation of these Australians, which in turn could influence political pressure on the Australian government.
A last interesting observation to make is that the interim measures ordered have been used by the group Free and Open Australia to argue that the HRC has ruled that Australia must allow all stranded Australians to return home. This (incorrect) framing of the complaint and the interim measures show the potential of strategic litigation, without having to win a case on the merits.
Kris van der Pas is a PhD candidate at Radboud University Nijmegen. Her research focuses on strategic litigation, mainly in the field of asylum law. Within this topic, she is especially interested in the approach taken (by NGOs) within strategic litigation.