Extraterritorial rights of refugees

This chapter assesses recent jurisprudence on destination states’ extraterritorial legal obligations towards refugees and migrants who have not yet reached the state’s territorial border. The chapter begins with a discussion of the territorial foundation of basic rights protections, as traditionally conceived. It then surveys domestic legal frameworks in the United States and in Australia that, by and large, have excluded individuals outside the state’s borders from legal protection. The analysis focuses on jurisprudence involving arrivals by sea, where the two countries’ policies and caselaw converge. However, the same basic principles are implicated by governments’ attempts to prevent land crossings, whether at the border between Mexico and the United States, or between Belarus and Poland. The chapter concludes that any long-term strategy to protect vulnerable populations must focus not only on legal arguments, but also on the preconditions for states to accept and internalize more expansive obligations to non-citizens.