The Gender- and Sexuality-Based Harms of Refugee Externalization: A Role for Human Rights Due Diligence

Abstract

Refugee externalization arrangements are increasingly common in refugee-receiving global North States. Such arrangements have broad-ranging and significant human rights implications, especially (but not only) for refugee women and LGBTQI refugees who may be at increased risk of gender- or sexuality-based harm. This is particularly the case where refugees are placed in situations of risk or harm as a result of a ‘sending’ State’s extraterritorial regime, or where domestic laws in receiving States outlaw certain practices such as pregnancy termination or same-sex sexual activity. There has been limited scholarly analysis of the gendered impacts of externalization policies, and States rarely take into account the gendered implications of externalization when implementing these policies. This article examines the possibilities and limits of international human rights law to protect refugees at risk of gender- and sexuality-based harms through a focus on States’ positive due diligence obligations. While there is limited jurisprudence on the scope of such obligations in the context of refugee externalization, the article emphasizes that due diligence human rights obligations require sending States to adopt effective measures to protect people from unlawful discrimination and from cruel, inhuman or degrading treatment. Due diligence obligations also offer a vital accountability mechanism for violations in extraterritorial settings through their potential preventative, remedial, and visibility functions. Using the case study of Australia’s extraterritorial asylum regime in the Pacific, the article argues that such obligations encompass identifying and addressing foreseeable risks of gender- and sexuality-based harm, both prior to forcibly transferring refugees abroad and on an ongoing basis. Further, it argues that the gender- and sexuality-based human rights impacts of Australia’s externalization regime have immediate and urgent relevance as other States consider or implement similar policies.