The Australian Year Book of International Law’s (‘AYBIL’) first hybrid ‘COVID-19 and International Law Workshop’ in December 2020 brought together leading international law scholars from Australia, New Zealand, the United States (US) and the United Kingdom. This encouraged diverse and multidisciplinary perspectives, and fostered robust discussions about the many legal ramifications of COVID-19 on a breadth of international law issues, including human rights, state responsibility, international organisations and international aviation. The workshop participants brought a valuable human-centred approach to international law that builds upon the theoretical frameworks published in the October 2020 American Journal of International Law (‘AJIL’) Agora symposium.
Fundamental inequalities have been exacerbated by the pandemic, raising questions about the fragility of international human rights law frameworks and possible solutions to these shortcomings. At the AYBIL workshop, the human rights perspectives were largely representative of the participants’ expertise in the field and these strengths were reflected throughout the papers. Dr Jessica Hambly reminded us of the profound consequences that international law failings have on people. She shared her experiences volunteering in legal aid in the Greek Island ‘hotspots’ and recalled the horrific, outright human rights violations in sites in Lesvos and Samos. Dr Hambly’s presentation was a sobering moment as it revealed how easily the state-centric approach of public international law can overlook the consequences of states’ failings on the lived experiences of everyday people across the world. The variability of human rights protections — even between the countries represented at the workshop — have been exposed by COVID-19. Dr Hambly’s presentation provoked meaningful discussion on the groups of people international law ‘protects’ and those considered as ‘others’. This highlighted that the distinction often perpetuates existing inequalities and disproportionately harms those most vulnerable.
Australia’s lived experience during COVID-19 was a parochial focus of some of the workshop papers. Domestic and international border closures have prompted Australians to become increasingly aware of the international human rights regime as a new national experience. Until COVID-19, Australia has been in a privileged position where its citizens generally have not faced widespread restrictions on movement domestically and internationally. Consequently, Australia’s attitude toward border controls has traditionally excluded those seeking protection, justified as necessary to protect Australia’s citizens.
But this is changing.
As Associate Professor Joanna Mossop raised in her paper, border closures have come as a shock to the Australian psyche. Australians have experienced a uniquely two-fold effect of border restrictions: restrictions on returning Australians and on interstate travel. Many Australians have experienced the human toll of border restrictions, including isolation from family, inability of Australian citizens to return to Australia, and a redefined conception of the Australian identity now divided by state borders. While this is incomparable to the experiences of refugees, border restrictions have invoked human rights considerations that Australia had limited previous experience of. This was reflected in Kate Ogg’s observation that as a result of the pandemic Australians had a more acute awareness of an international human rights regime, developing greater national empathy for ‘others’. As Australia continues to grapple with its handling of aged care, coupled with the border frustrations felt by all Australians, these experiences might translate into greater human rights consciousness in public discourse.
It is pertinent to consider these papers within the developing literature in the COVID-19 and international law field. The AJIL collection is an obvious choice for a comparative enquiry. The AJIL Agora consists of various multidisciplinary approaches to addressing the questions COVID-19 raises with respect to the international legal order. For instance, the first two essays focus on the institutional failures of the World Health Organization, while others compare executive responses between states and several explore impacts on international trade and the global economy. Conversely, the AYBIL essays focus on the tangible value of human rights discourse in international law.
Discussions on the AJIL Agora paper co-authored by Professors Peter G Danchin, Jeremy Farrall, Shruti Rana and Associate Professor Imogen Saunders revealed divergences in national approaches to human rights. This was particularly relevant to understanding the ‘patriotism paradox’ that espouses suspicion of global governance within a trend toward ‘fragmentation, legal deformalisation, and norm conflict’. This has undermined international cooperation in a time of a global pandemic that needed global unity, not fragmentation. The most striking example of this divergence arose in discussions surrounding the notion of a right to health, where participants revealed that in the US there was virtually no consciousness of an international human rights legal system. Discussions evolved to understanding how this manifested in the law. For example, the US Supreme Court determined that measures imposing person-limits on places of worship in New York to control the spread of COVID-19 violated the constitutionally prescribed freedom of religion. To underscore the divergence from Australia’s approach to religion, pubs in Melbourne were opened before places of worship. These significant discrepancies that could be divided along different national approaches to international law are often overlooked in favour of an assumed ‘universal’ approach. The opportunity to engage in this collaborative exercise revealed important differences to reconcile and provided a more holistic understanding of international law that was supported by technology utilised in a hybrid setting to bridge the national divide in times of border closures.
The workshop advanced the international legal profession by developing cross-border understanding and exposure to different national approaches to international law. We were encouraged by the continuous process of communication and collaboration fostered by the Workshop. Cross-border collaboration will hopefully encourage international cooperation and a more uniform approach to human rights as ideas shared between international law experts enter into public discourse. Strengthening the international legal system through peer-to-peer connections and academic discussions have never been so relevant than in a time of a pandemic, border closures and suspicion toward global governance.