Asylum communication concerning FGM/FGS declared inadmissible (M.N.N. v. Denmark)

Amy Rogers summarises the 2013 decision of the Committee on the Elimination of Discrimination against Women (CEDAW Committee) in M.N.N. v. Denmark

M.N.N is from a village near Kampala, Uganda and is an ethnic Mogadishu woman.  At the time she submitted her communication to the CEDAW Committee she was awaiting deportation from Denmark after her application for asylum was rejected.   She claims she needs Denmark’s protection because she is at risk of female genital mutilation (FGM/FGS) if she is returned to Uganda.

M.N.N claims that when she was nine years old, her father, along with some other men, had come to her mother’s house to compel her to undergo FGM/FGS, and that he had visited her mother on numerous occasions since then in order to find out her location.  M.N.N claims that she had ran away from her family and lived alone in various places to avoid being found by her father.  

In November 2007, M.N.N left Uganda and entered Denmark with a valid three-month tourist visa.  In April 2008, M.N.N sought asylum after she was arrested for illegal residency after her tourist visa expired.  Her asylum claim was based on her alleged fear of her father forcing her to undergo FGM/FGS in Uganda.

In November 2008, the Immigration Service rejected her asylum application.  In March 2009, the Refugee Appeals Board sought information about FGM/FGS in Uganda from the Ministry of Foreign Affairs.  That information confirmed that the practice continued in Uganda but that a law had been enacted prohibiting it.  The law had not in fact been in force at the time of the decision, but was passed some time afterwards.

In November 2009, the Refugee Appeals Board upheld the decision of the Immigration Service and rejected M.N.N’s asylum application.  It found that she was not likely to be in genuine danger of FGM/FGS if she were retuned to Uganda.  The Board noted that M.N.N did not know of anyone who had been subjected to FGM/FGS in her family, had not had any contact with her father since she was 9 years old, and had not been threatened by him or his family since that time.  Nevertheless, the Board accepted that she did fear that she was would be threatened if her father found her.    

In May 2010, M.N.N submitted a communication to the CEDAW Committee alleging that her deportation to Uganda would constitute a violation by Denmark of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), specifically articles 1, 2(c), 2(d) and 3, read in conjunction with General Recommendation No. 19 on violence against women.  She claimed that there was a risk that, if deported to Uganda, she would face FGM/FGS.  Furthermore, she claimed the Ugandan authorities were unable to provide her effective protection due to corruption and a general unwillingness to assist unmarried women.  She also stated that Denmark should assess whether the new law in Uganda would provide an effective remedy in practice for women who fear FGM/FGS.

Pursuant to article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol) on interim measures, the CEDAW Committee asked the State Party to refrain from deporting M.N.N while it considered her communication.  The State Party agreed to suspend her deportation pending a decision by the CEDAW Committee.

State Party’s observations on admissibility

The State Party challenged the admissibility of the communication on several grounds.

Non-exhaustion of domestic remedies (art. 4(1))

The State Party claimed that the communication should be declared inadmissible under article 4(1) of the Optional Protocol because M.N.N had not exhausted domestic remedies.  Specifically, the State Party argued that M.N.N had not claimed discrimination before the Immigration Service or the Refugee Appeals Board, which meant that it had not been afforded an opportunity to remedy the alleged discrimination.

Same matter already examined by the Human Rights Committee (art. 4(2)(a))

The State Party argued that the communication should be declared inadmissible under article 4(2)(a) of the Optional Protocol because the Human Rights Committee had already considered a communication from M.N.N in which she claimed that her deportation would be a violation of the International Covenant on Civil and Political Rights (ICCPR).   

Absence of jurisdiction and extraterritoriality (art. 2)

The State Party submitted that the communication should be declared inadmissible ratione loci and ratione materie under article 2 of the Optional Protocol “because Denmark is not responsible under the Convention for the acts cited as the basis for the author’s communication.”   

The State Party accepted that, as a temporary resident, M.N.N was under its jurisdiction.  However, it argued that M.N.N.’s claim rested not “on any treatment that she [would] suffer in Denmark owing to the conduct of the State party’s authorities, but rather on consequences that she may suffer if she is returned to Uganda.”  The State Party therefore submitted that the only conduct by a Danish authority of which the author complained was its decision to deport her to Uganda, where she alleged she would suffer discrimination.  According to the State Party, this decision did not engage its responsibility under articles 1, 2(c), 2(d) or 3 of CEDAW.  In other words, it effectively argued that CEDAW does not have an extraterritorial application and that the State Party cannot be held responsible for violations of CEDAW that are expected to be committed by another State Party, except in wholly exceptional circumstances. 

Failure to substantiate claim (art. 4(2)(c))

The State Party claimed that the communication should be declared inadmissible under article 4(2)(c) of the Optional Protocol because M.N.N had failed to substantiate her claim.

CEDAW Committee’s decision on admissibility

The CEDAW Committee declared the communication inadmissible under article 4(2)(c) of the Optional Protocol on the basis that M.N.N had failed to “sufficiently substantiate, for the purposes of admissibility, the claim that her removal from Denmark to Uganda would expose her to the real, personal and foreseeable risk of serious forms of gender-based violence.”  Notably, M.N.N had failed to provide information to the CEDAW Committee to support her claim that women belonging to her ethnic group in Uganda continued to be subjected to FGM/FGS, even despite the introduction of a new law prohibiting the practice in Uganda.

The CEDAW Committee noted that the communication was not inadmissible under article 4(2)(a) of the Optional Protocol, as the communication that M.N.N. submitted to the Human Rights Committee was never registered or considered by that Committee.  The CEDAW Committee did not consider any other alleged grounds of inadmissibility. 

Although the CEDAW Committee did not consider any other alleged grounds of inadmissibility, it discussed at length the issue of the extraterritorial application of CEDAW.  It found that, in general, CEDAW can apply extraterritorially.  It explained that the treaty places a positive duty on a State Party to “protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether such consequences would take place outside the territorial boundaries of the sending State”, so long as the State Party has made a decision that would result in another country violating a woman’s rights under CEDAW.  It explained:

As to the State party’s argument that nothing in the Committee’s jurisprudence indicates that any provisions of the Convention have extraterritorial effect, the Committee recalls that, under article 2 (d) of the Convention, States parties undertake to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation.  This positive duty encompasses the obligation of States parties to protect women from being exposed to a real, personal and foreseeable risk of serious forms of gender-based violence, irrespective of whether such consequences would take place outside the territorial boundaries of the sending State party: if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Convention will be violated in another jurisdiction, the State party itself may be in violation of the Convention.  For example, a State party would itself be in violation of the Convention if it sent back a person to another State in circumstances in which it was foreseeable that serious gender-based violence would occur.  The foreseeability of the consequence would mean that there was a present violation by the State party, even though the consequence would not occur until later.  What amounts to serious forms of gender-based violence will depend on the circumstances of each case and would need to be determined by the Committee on a case-by-case basis at the merits stage, provided that the author had made a prima facie case before the Committee by sufficiently substantiating such allegations. 

Communication No. 30/2011, UN Doc. CEDAW/C/55/D/33/2011 (2013) 

Decision

Amy Rogers

Amy is a human rights advocate.  She has worked for the Australian and Mongolian Human Rights Commissions, Getup! and the Diplomacy Training Program (DTP).  She has a background in human rights law, education, policy and advocacy.

 

 

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