In 2010, Y.W., a Chinese national, sought asylum in Denmark. Y.W. claimed that, if deported to China, she would be killed or subjected to violence by organised criminals, who, as a result of a large gambling debt her former husband raised in her name, had previously threatened and raped her, burned her with hot oil and forced her to work as a prostitute. Y.W. further claimed that Chinese authorities would not protect her effectively because they do not acknowledge gender-based violence against women.
In May 2010, the Danish Immigration Service rejected Y.W.’s asylum claim as manifestly unfounded. It concluded that the acts against her were criminal offences irrelevant to asylum law and she could seek protection from the Chinese authorities.
In January 2013, Y.W. submitted an individual communication to the Committee on the Elimination of Discrimination against Women. She claimed that her deportation to China would constitute a violation by Denmark of articles 1 to 3, 12 and 15 of the Convention on the Elimination of All Forms of Discrimination against Women, read in conjunction with the Committee’s General Recommendation No. 19. Among other things, Y.W. submitted that:
- she had been discriminated against as a woman in seeking to access to justice because more females than males are denied asylum in Denmark under the “manifestly unfounded” procedure and deported, without the right to appeal
- she would be subjected to gender-based violence by organised crime elements, if deported to China, and that Chinese authorities would not protect her effectively
- the State Party, by rejecting her asylum claim, failed to protect her against discrimination against women and violence that would put her life and health at risk
- while in prison, the State Party failed to provide her treatment for the trauma she suffered as a result of the violence
- the State Party failed to provide her effective remedies for the violations she experienced.
State Party’s observations on admissibility
The State Party submitted that the Committee should declare the communication inadmissible, as Y.W. had failed to:
- exhaust domestic remedies, as required by article 4(1) of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women
- sufficiently substantiate her claim of alleged discrimination against female asylum seekers, in accordance with article 4(2)(c) of the Protocol.
The State Party further submitted that the communication should be declared inadmissible ratione loci and ratione materiae, as Denmark’s obligations under CEDAW apply only to people under its jurisdiction and do not extend to violations that another State Party is expected to commit (ie CEDAW lacks extraterritorial effect). It further claimed that, unlike other human rights treaties, CEDAW does not deal with removal to torture or other serious threats to life and the security of a person.
Committee’s decision on admissibility
The CEDAW Committee determined that Y.W. had failed to substantiate her claim sufficiently and declared the communication inadmissible under article 4(2)(c) of the Optional Protocol.
Gender-based violence / non-refoulement
The Committee recalled its General Recommendation No. 28 in which it noted that CEDAW applies both to citizens and non-citizens, including asylum seekers, within a State Party’s territory or control. It also recalled its General Recommendation No. 19, in which it noted that gender-based violence is a form of discrimination against women and violates other human rights, including the right to life and the freedom from torture and other cruel, inhuman or degrading treatment or punishment. It also re-affirmed that, under international human rights law, States Parties must refrain from returning people to a jurisdiction in which he or she may face serious rights violations, including arbitrary deprivation of life or torture or other cruel, inhuman or degrading treatment or punishment, or gender or other forms of persecution.
The Committee rejected the State Party’s claim that CEDAW does not have extraterritorial effect and recalled that article 2(d) imposes an obligation to refrain from discriminating against women and to ensure public authorities and institutions act accordingly. This positive duty, the Committee explained,
encompasses the obligation … 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.
The Committee further explained that ‘[t]he 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’. It clarified that
[w]hat 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.
Ultimately, however, the Committee concluded that Y.W. had not sufficiently substantiated her claim that she would be subjected to gender-based violence, if deported to China, and would not receive adequate protection from Chinese authorities. It also emphasised that Y.W. had never sought protection from Chinese authorities.
Access to justice in relation to asylum claim
The Committee recalled its General Recommendation No. 32, in which it affirmed that articles 1-3, 5(a) and 15 of CEDAW require States Parties to ensure women are not discriminated against during any aspect of the asylum process. It further recalled that States Parties should apply a gender-sensitive approach at every stage of the asylum process and ensure women denied asylum are subjected to dignified and non-discriminatory return processes.
Ultimately, however, the Committee concluded that Y.W. had not sufficiently substantiated her claim that she had been discriminated against in seeking access to justice. In this connection, it noted that Y.W. had not informed it of her whereabouts and whether or not she had been deported to China. It further noted the absence of any other pertinent information on file.
Communication No. 51/2013, UN Doc. CEDAW/C/60/D/51/2013 (2015)