Australia’s Extraterritorial Border Control Policies 67 enter and remain on its territory.”63 In other words, while states are entitled to build walls, these walls must have doors for refugees.64 Refoulement of Refugees One significant danger of Australia’s extraterritorial actions is the refoulement, or return, of refugees to a place where they may face persecution. This is a significant risk when Australia returns boats to refugee-producing countries directly, such as when it interdicts and returns vessels to countries of origin such as Sri Lanka and Vietnam. It also remains a risk when refugees are returned to, or are kept in, transit countries from which they may be subject to chain refoulement (the subsequent return of refugees to the original country they were fleeing). The refoulement of a refugee is prohibited under Article 33 of the Refugee Convention. If any individuals returned by Australia are at risk of torture, Australia’s actions would also violate Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Furthermore, the return of a person to inhumane, degrading treatment, punishment, or to death is a violation of Articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR). access to territory International refugee and human rights law does not explicitly grant permission for refugees to enter a state’s territory. However, there is a link between compliance with a state’s negative obligation to prevent refoulement and the positive obligation to provide refugees access to the territory of a state. This is because a state’s nonrefoulement obligations do not end at its borders. A state, such as Australia, owes a non-refoulement obligation to anyone in its effective de jure or de facto control. Put simply, any refugee that is either directly or indirectly in Australia’s control, such as individuals detained in Australia’s extraterritorial processing centers or interdicted at sea, may be owed a non-refoulement obligation. Unless Australia provides protection to everyone that it has de jure or de facto control over, it must carry out fair and effective procedures to determine who is a refugee and is thus owed non-refoulement obligations, and who can be safely returned. Hathaway argues that when there is a real risk of persecution due to a Refugee Convention ground, a duty of non-refoulement amounts to “a de facto duty to admit the refugee since admission is normally the only means of avoiding the alternative, 63 64 Gammeltoft-Hansen, Access to Asylum, pp. 12–13. V. Moreno-Lax, “Must EU Borders Have Doors for Refugees? On the Compatibility of Schengen Visas and Carriers’ Sanctions with EU Member States’ Obligations to Provide International Protection to Refugees” (2008) 10(3) European Journal of Migration and Law 315–364, https://doi.org/10.1163/157181608X338180. https://doi.org/10.1017/9781108914994 Published online by Cambridge University Press