Introduction: State Jurisdiction and Legal Voids
International human rights law is premised on the principle that states act as guarantors of fundamental rights within their jurisdiction. These include, inter alia, the rights to life, liberty and security of the person, freedom from torture and slavery, equality before the law, and procedural guarantees such as the right to a fair trial. States that have ratified core instruments, particularly the International Covenant on Civil and Political Rights (ICCPR), undertake legally binding obligations to respect, protect, and fulfil these rights (Saldarriaga, 2014). The ICCPR, primarily overseen by the UN Human Rights Committee, commits states to ensure the enjoyment of these rights by all individuals “within its territory and subject to its jurisdiction” (ICCPR, 1966, art. 2, para. 1). This clause has frequently been interpreted cumulatively to allow for extraterritorial application where a state exercises effective control beyond its borders.
Yet, many states have developed practices designed to limit the scope of human rights protection for asylum seekers, refugees, and other migrants, often as a deterrent against irregular migration. Through physical borders (walls, fences, and militarised zones across deserts and urban areas) and what may be termed ‘metaphysical’ borders (intangible legal, political, and procedural constructs), states extrude responsibility and restrict the extraterritorial reach of positive human rights duties. Scholars have thus argued that adjudicatory tribunals, such as human rights courts and quasi-judicial bodies, have inadvertently incentivised states to militarise and construct physical barriers to achieve this aim (Paz, 2017). By doing so, countries exacerbate the consequences of crossing and effectively confine their jurisdictional obligations to within the barrier. This is accompanied by ‘externalising’ border control, whereby states rely on neighbouring countries to prevent individuals from even reaching their territory. Strategies may consist of financing and training foreign border authorities, imposing carrier sanctions of up to $2 million annually on airlines transporting individuals without visas (International Air Transport Association, 2023), and investing in extensive surveillance technologies. Most controversially, they include offshore processing arrangements with third states and ‘safe third country’ agreements, which often provide protections inferior to those available under domestic law. These practices create a layered system of exclusion in which physical and metaphysical borders operate together to displace positive obligations, producing what I term a ‘legal void’: zones of non-accountability, or jurisdictional evasion, in which migrants are left with a significantly reduced scope of rights despite the formal universality of human rights law. The result is a legal paradox, contingent upon the geopolitical discretion of states.
This essay argues that current international human rights law is inadequate to address the ways in which states manipulate territorial jurisdiction to evade their obligations. I will demonstrate this through two case studies: (1) the US-Mexico border practices, and (2) Australia’s offshore processing system on Nauru and, formerly, Manus Island, showing how migrants’ rights are circumvented in application, when in principle they should be guaranteed. The essay will conclude by considering how international legal frameworks might adapt to close these ‘legal voids’ and ensure more robust protection through strengthened state accountability.
The United States’ Extraterritorial Human Rights
The US’s policy decisions and extraterritorial jurisdiction gaps at the southern border have given rise to insufficient migrant protection. Despite ratifying the Covenant, the US attached reservations, understandings, and declarations (RUDs), including the statement that the ICCPR is “not self-executing” (American Civil Liberties Union, 2013). The United States follows a ‘dualist system’, which requires implementing Congressional legislation before rights can be directly enforced in domestic courts, meaning that much formal international law does not stand on its own. As these RUDs were accepted at the time of ratification to accommodate state sovereignty, a conflict arises from its technical international compliance and the Covenant’s practical effects – which remain sharply limited as the US courts operate under a “presumption against extraterritoriality” (Dodge, 2023). Moreover, the US has not ratified the First Optional Protocol to the ICCPR, thereby insulating itself from individual complaints before the Human Rights Committee and, by extension, the justiciable right to an effective remedy. Courts in recent decades have also been reluctant to incorporate customary international law into federal law absent explicit authorisation from Congress (Bradley, 1998). As Roth (2000) argues, the result is a form of legal superficiality in which rights are formally endorsed yet substantially dependent on domestic political will for enforcement. This enables the creation of legal voids through both physical borders and metaphysical borders, which constrain states’ jurisdictional responsibilities.
Parallel to the physical US-Mexico border, a metaphysical border was created through the 2019 Trump administration ‘Remain in Mexico’ policy, formally known as the Migrant Protection Protocols (MPP). Enacted under the Immigration and Nationality Act of 1952 (INA), the policy required non-Mexican asylum seekers to await US immigration proceedings in Mexico. Between 2019 and 2021, approximately 68,000 individuals were returned to seven Mexican border cities, such as Ciudad Juàrez and Matamoros, where they faced risks of kidnapping, extortion, and sexual assault (Human Rights Watch, 2021). The broader Mexican states of these two cities, Chihuahua and Tamaulipas, remain at extreme risk, rated Level 3 and 4 respectively on the US State Department Travel Advisory about Mexico (US Department of State, 2025), indicating that travel to these areas is strongly discouraged or advised against. Overcrowded shelters frequently lacked adequate food, sanitation, and medical care (Tellez et. al., 2022), while migrants faced severe barriers in securing US legal counsel or preparing evidence for hearings conducted in English. The MPP policy therefore severely curtailed access to asylum and fair trial rights under the ICCPR. By being sent back from the US to Mexico to await proceedings, it exposed individuals to risks contrary to the principle of non-refoulement codified Article 3 of the Convention Against Torture (CAT); no person can be returned to a country where they would face torture or ill-treatment, which is a risk particularly acute in Mexican border cities. Non-refoulement is increasingly recognised as a jus cogens norm (Allain, 2001), meaning a norm from which no exceptions are permitted under international law and which can only be modified by a subsequent norm of general international law of the same character (U.N. Doc. A/CONF.39/27, 1969). Although the US Court of Appeals for the Ninth Circuit temporarily enjoined MPP in Innovation Law Lab v. Wolf (2020), finding that it violated non-refoulement and the removal proceedings of aliens set out by the INA (Justia, 2020), the Department of Homeland Security has recently announced the resumption of similar policies under the renewed Trump administration (DHS, 2025). These measures demonstrate how the US employs borders to externalise its jurisdictional obligations and leave asylum seekers suspended in zones of diminished human rights protection.
Australia’s Offshore Externalisation
Like the United States, Australia adopts a dualist approach to international law – treaties such as the ICCPR are not self-executing and require implementing legislation. Unlike the US, however, Australia’s geographic isolation as an island continent means its borders are entirely maritime. This has facilitated a system of offshore processing in which individuals arriving by boat without visas are intercepted and transferred to ‘third’ states. These are states which are neither Australia nor their countries of origin, but where their asylum claims are determined (Refugee Council of Australia, 2022), such as Nauru and formerly Papua New Guinea (PNG). In doing so, they are outside of Australia’s formal migration zone, and the nation denies that it exercises ‘effective control’ over these sites. This means an “intentional and continuous display of power and authority” (Zeng, 2025) through state functions and jurisdiction, indicating that Australia abrogates extraterritorial human rights duties for migrants. Australia’s ability to conduct offshore processing for asylum seekers is primarily based on amendments to Section 198 of the Migration Act 1958, which empowers the government to remove “unlawful non-citizens” (Migration Act, 1958) from Australia. This includes the Migration Legislation Amendment (Excision from the Migration Zone) Act 2001, known as the ‘Pacific Solution’, which allowed the detention and transferral to offshore processing countries, and excised thousands of islands from its migration zone. The Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 further advanced the policy to explicitly allow for offshore entry persons to be taken to a “regional processing country” designated by the Minister. Similarly critiqued by human rights bodies, non-governmental organisations (NGOs) and refugee advocates, offshore processing is therefore analogous to the MPP in constructing metaphysical borders that outsource positive obligations.
The conditions in these facilities accentuate the severity of the resulting legal void. The Manus Regional Processing Centre in PNG, which operated intermittently between 2001 and 2017, detained approximately 700 men at its peak. Detainees reported frequent assaults and robberies by indigenous local residents. Prolonged confinement under inadequate medical and mental health provision, as well as a reliance on only a basic subsistence allowance, resulted in severe psychological harm for migrants (Human Rights Watch, 2017). Further, PNG authorities failed to confer refugees with regular legal status, thereby preventing them from travelling freely or accessing secure employment – rights deemed “essential for the meaningful integration of refugees” (Amnesty International, 2018). Nauru’s centre, by contrast, remains operational. Following multiple cycles of closure and reopening, it has housed about 1,200 men, women, and children since 2021, subjecting them to comparable risks and uncertainty. The Regional Processing Centre is overcrowded and humid, and many minors have suffered from self-harm and depression from the developmental and educational disruption (United Nations, 2025).
These conditions have clear legal implications in addition to humanitarian concerns. The operation of these processing centres has materially weakened the ICCPR rights to freedom from cruel, inhuman, or degrading treatment, liberty and security of the person, and protection from non-refoulement. Furthermore, the ratified International Covenant on Economic, Social and Cultural Rights (ICESCR) upholds rights to an adequate standard of living and health (Articles 11 and 12), which are severely limited by the unsanitary, overrun and poorly resourced facilities with a lack of support or recognition. The ensuing Namah v. Pato (2016) challenged the legality of the Manus Island Regional Processing Centre under the PNG Constitution. In this, the Supreme Court ruled that the detention of asylum seekers holding valid PNG visas was not justified under Section 42, which permits deprivation of liberty for unlawful entry, because these individuals had not attempted to enter PNG irregularly, and their presence on the territory was for the Australian offshore processing scheme (Spijkerboer, 2023) – essentially implying that Australia had ‘effective control’ over the client state. The Court further found that the 2014 constitutional amendment, which sought to permit the detention of foreign nationals under arrangements with another state, was itself unconstitutional because it failed to specify the rights restricted, did not justify the restriction as “reasonably necessary in a democratic society”, and lacked implementing legislation to provide a legal basis for detention (Spijkerboer, 2023). The Supreme Court judgment resulted in an end to the detention of asylum seekers in PNG in late October 2017. For Nauru, the UN Human Rights Committee has come to two landmark decisions in 2025. In M.I. et al. v. Australia and Nabhari v. Australia (UN Human Rights Committee, 2025), the Committee held that Australia bore responsibility for the arbitrary detention of asylum seekers transferred to Nauru, including 24 unaccompanied minors and an Iranian asylum seeker in the first and second case, despite the facilities being located offshore. By reaffirming that Australia exercised ‘effective control’ over the centres, the Committee rejected Australia’s attempt to displace its ICCPR obligations through outsourcing, emphasising that extraterritorial transfers do not minimise core human rights protections. These rulings expose how Australia’s use of offshore detention opens legal voids for migrants – establishing metaphysical borders to immigration claims and rights while retaining substantive control over third states.
State Jurisdictional Manipulation
Both the United States and Australia model reveal a strategy of manipulating jurisdictional clauses in international human rights law to restrict accountability. In the US, the presumption against extraterritoriality in domestic courts and the refusal to ratify the ICCPR’s First Optional Protocol have allowed policies such as MPP to externalise asylum claims into Mexican territory. Australia has pursued a similar approach through statutory excision of its migration zone and reliance on offshore processing. In both contexts, metaphysical borders have been used to insulate the states from ICCPR oversight and detain migrants indefinitely in legal voids. Judicial interventions prove the tension between domestic statute and international principle that states cannot contract out of key human rights obligations.
Potential Reforms for Legal Voids
The most feasible and impactful reforms to address legal voids in extraterritorial human rights commitments are primarily domestic in nature, though they are not without challenges, and would only facilitate human rights – not comprehensively enforce them. Strengthening judicial review through case precedent reasoning represents a practical starting point, and equipping courts with greater authority to interpret, scrutinise and enforce government adherence to international obligations. In tandem, updated independent human rights commissions with specific mandates could monitor state compliance more effectively, though this would likely be more politically contentious and harder to legislate. Crucially, reforms are necessary to allow individuals to assert their rights and allege potential violations in practice, such as making the ratification of the First Optional Protocol compulsory, which could, in itself, act as a state deterrent. This should be paired with scaled legal-aid infrastructure for such individuals, providing remote consultation and partnerships with NGOs and pro-bono lawyers which could facilitate access without imposing excessive costs. Although some may view ratification and monitoring as financially burdensome, these measures would be relatively minimal and less politically controversial for states already seeking acquiescence with the ICCPR and far less intensive than full codification of extraterritorial statutes, which would require ongoing updating of complex definitions such as ‘effective control’ and ‘extraterritoriality’. Ultimately, these incremental domestic reforms offer a viable legal pathway to begin closing legal voids, ensuring that states cannot insulate themselves behind physical and metaphysical borders, and reinstating their accountability for extraterritorial human rights commitments.
Conclusion: Restoring State Accountability
In conclusion, the cases of the United States and Australia demonstrate how physical and metaphysical borders can be manipulated by states to evade extraterritorial human rights obligations, leaving asylum seekers confined in legal voids where fundamental rights are difficult to enforce effectively. The US-Mexico border exemplifies how physical infrastructure and statutory interpretations can confine human rights obligations, whereas Australia’s offshore processing evidences how jurisdictional responsibility can be outsourced through more legal and procedural constructs. Addressing this requires incremental domestic reforms (strengthening judicial power, clarifying extraterritorial jurisdiction, providing scalable access to legal remedies) that collectively restore state accountability and affirm that international human rights standards are not constricted by mere territorial limits erected by states. Through these distinct mechanisms of jurisdictional evasion, I have maintained that guarantees of fundamental rights depend on more than international human rights law provisions. Further enforceable domestic measures are necessary to close the legal voids between state principle and execution.
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