Inquiry into access to contraception in Manila: CEDAW Committee finds that the Philippines violated CEDAW

In 2008, the Committee on the Elimination of Discrimination against Women (CEDAW Committee or Committee) received a joint submission from three non-governmental organisations requesting an inquiry into the Philippines under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. The request alleged that the implementation of Executive Order No. 003 (2000), which regulated access to contraceptives in Manila, violated the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

In 2008, the CEDAW Committee determined that the information submitted to it was reliable and indicated grave or systematic violations of CEDAW. In 2010, it decided to establish an inquiry and appointed two Committee members to conduct the inquiry. In 2012, the members visited the State Party, with its consent.

In 2015, the CEDAW Committee issued a summary of its findings and its recommendations. It concluded that the State Party had failed to fulfil its obligations under CEDAW and is responsible for grave and systematic violations of the rights under: article 12, read alone; article 12, read in conjunction with articles 2(c), 2(d), 2(f), 5 and 10(h); and article 16(1)(e), read alone.

Findings of fact

Executive Order No. 003 states that the City of Manila promotes responsible parenthood and upholds natural family planning “not just as a method but as a way of self-awareness in promoting the culture of life while discouraging the use of artificial methods of contraception like condoms, pills, intrauterine devices, surgical sterilization, and other.” Among other things, the Order declares that the City of Manila takes an “affirmative stand on pro-life issues and responsible parenthood.” The constitutionality of the order was challenged in the Osil case, but all attempts have been unsuccessful and inconclusive.

The CEDAW Committee found that although contraceptives are not explicitly prohibited by Executive Order No. 003, its implementation has led to:

  • health facilities, funded by the local government, withdrawing contraceptives
  • women being refused family planning information and counselling, unless related to so-called “natural family planning
  • misinformation about modern methods of contraception
  • the discontinuation of supplies, information and training on modern contraceptives.

This, it concluded, demonstrated a ban on modern contraception in local government-run public health facilities, which denied women access to the full range of reproductive and sexual health services, commodities and information, with devastating consequences for their lives and health. It also concluded that national policies condoned and even reinforced the order and the lack of any government response to its implementation was because order aligned with the Government’s own position on contraception.

In 2011, the Mayor adopted Executive Order No. 030, which permitted couples to “exercise full and absolute discretion in deciding on which form of family planning to use conformably with their religious beliefs and practices.” Nevertheless, it provided that the City of Manila was not to “disburse and appropriate funds or finance any program or purchase materials, medicines for artificial birth control.” It did this despite acknowledging the unavailability of reproductive services and commodities and the adverse impact of its policy on financially disadvantaged women.

The Committee found that Order No. 030 did not address the flaws and weaknesses of the health system resulting from Order No. 003. This was because women were not afforded a real choice between modern or natural family planning in practice, since the order was not accompanied by the means necessary to make those choices available and affordable. According to the Committee, the order was therefore an inadequate response to the problem.

The CEDAW Committee took the view that the implementation of both orders negatively affected economically disadvantaged women in particular and drove them further into poverty, by denying them the opportunity to control the number and spacing of children. It also recalled testimonies that revealed the pervasive impact of the orders on the lives and health of women in Manila, particularly the economic, social, physical and psychological consequences for women from low-income groups. This included risks of domestic violence, mental and physical health resulting from multiple pregnancies and increased exposure to HIV/AIDS and other STIs.

Legal findings

The CEDAW Committee found that the State Party failed to fulfil its obligations under CEDAW and is responsible for grave and systematic violations of rights under the Convention. According to the Committee, the State Party failed to address the effects of the orders’ implementation and that, between 2004 and 2010, either supported or condoned Manila’s policies. In those circumstances, it concluded, the State Party is responsible for the violations of CEDAW described below. It affirmed that “[d]ecentralization of power through devolution in no way negates or reduces the direct responsibility of the State party to fulfil its obligation to respect and ensure the rights of all women within its jurisdiction.”

Regarding the gravity of the violations, the CEDAW Committee stressed: the high number of people affected by the orders; higher rates of unwanted pregnancies and unsafe abortions; increased maternal morbidity and mortality and increased exposure to HIV and STIs; and the significant consequences for women’s health, personal development and economic security, in particular for economically disadvantaged women. It also noted the potentially life-threatening consequences of resorting to unsafe abortion as a method of contraception and recalled the direct link between high maternal mortality rates resulting from unsafe abortion and lack of access to modern methods of contraception.

Regarding the systematic nature of the violations, the CEDAW Committee noted that “the systematic character of each of the violations found is evident from the prevalent pattern of violations that occurred as a result of policies disproportionately affecting women and discriminating against them.” It further noted that the lack of access to contraception is particularly egregious in Manila “as a result of an official and deliberate policy that places a certain ideology above the well-being of women and that was designed and implemented by the local government to deny access to the full range of modern contraceptive methods, information and services.” It continued by outlining its expert view that:

the violations are not isolated cases, given that the continued implementation of Executive Order No. 003 over a decade resulted in the health system’s incapacity to deliver sexual and reproductive health services other than so-called “natural family planning” and caused women to continuously face significant barriers to gaining access to affordable sexual and reproductive health services, commodities and information. The above factual findings demonstrate that the State party condoned a situation that lasted for more than 12 years, during the successive terms of two different mayors.

Violations of articles 2(d), 2(f) and 12

In finding that the State Party had violated articles 2(d), 2(f) and 12 of CEDAW, the Committee affirmed that all levels and organs of government must refrain from discriminating against women and must abolish laws, policies or actions that have the effect or result of so discriminating. According to the Committee, the adoption and implementation of the orders by the local government of Manila were attributable to the State Party, which had failed to ensure the local government refrained from discriminating against women. It explained that the State Party was aware of the adverse effects of the orders on women in Manila, especially among economically disadvantaged women, but had failed to: take any action against local public authorities; review the orders; and take sufficient and adequate measures to address the flaws of Manila’s health system. Furthermore, the Committee concluded that the strict application of the State Party’s criminal law further intensified the harmful effects of the orders.

Violations of articles 10(h) and 12

In finding that the State Party had violated articles 10(h) and 12 of CEDAW, the Committee affirmed that lack of access to contraceptives affects women’s health disproportionately because only women can become pregnant. In its expert opinion, women in Manila were discriminated against because they were disproportionately disadvantaged by the lack of access to, and use of, the full range of reproductive and sexual health services, including contraceptives. According to the Committee, the orders severely affected women’s lives and health over a number of years and resulted in unplanned pregnancies, unsafe abortions and unnecessary and preventable maternal deaths. It also

particularly harmed disadvantaged groups of women, including poor women, adolescent girls and women in abusive relationships. For example, adolescent girls were exposed to an increased risk of unwanted pregnancies and pregnancy-related injuries or death following unprotected or coerced sex, to which they are particularly vulnerable. Furthermore, the inability of women with little or no income to control their fertility is directly linked to high poverty levels in Manila. … The Committee also stresse[d] … an increasing exposure of women to HIV/AIDS and other sexually transmitted diseases.

The Committee concluded that the State Party had failed to take appropriate and effective measures to ensure access to the full range of reproductive and sexual health services, commodities and information for women in Manila.

It further concluded that the State Party had failed to ensure that women receive appropriate information and advice about modern contraceptives to enable them to make fully informed choices about their reproductive and sexual health. In so doing, it recalled that

women in Manila, especially young women and teenage girls, have not had access to adequate information about modern methods of contraception as a result of the implementation of Executive Orders Nos. 003 and 030 and/or have been consistently misinformed about the risks, side effects and benefits of modern contraception.

It found that

women’s practical access to reproductive health services was therefore compromised by their lack of knowledge or awareness for informed decision-making, such as information on the legal permissibility of being provided with modern contraceptives in public health facilities, their effectiveness, their risks and their benefits.

It also found that “many women in Manila have been making their choices on the basis of misinformation received, for example on the adverse effects of oral contraception or of ligation procedures.”

Violations of article 16(1)(e)

The CEDAW Committee affirmed that article 16(1)(e) affords women the right to decide on the number and spacing of their children and found that the State Party had violated this right by:

  • advocating and providing only natural methods of family planning and denying women in Manila access to information and services on modern contraception
  • depriving those women of the ability and autonomy to make fundamental and intimate decisions affecting their bodies and lives in an informed and safe manner.

The Committee explained that: “[t]he rights of women to family planning and to exercise their choice and independence in making decisions with regard to the number and spacing of their children were thereby rendered futile and their denial exacerbated inequalities between men and women in marriage and family relations.”

Violations of articles 5 and 12

The CEDAW Committee found that the State Party had violated articles 5 and 12 of CEDAW, since the orders reinforced discriminatory gender stereotypes by perpetuating the view that women’s primary role is as child bearers and child rearers and making it acceptable to deny women access to contraception because of that role. In so finding, it affirmed that:

  • stereotypes can undermine women’s capacity to make free and informed decisions about healthcare, sexuality and reproduction and, in turn, their autonomy to determine their own roles in society
  • article 5, read in conjunction with articles 12 and 16, requires States Parties to eliminate gender stereotypes that impede equality in the health sector and marriage and family relations
  • articles 5(b) and 12 require States Parties to ensure that family education includes a proper understanding of maternity as a social function.

Violations of article 2(c) and 12

The CEDAW Committee found that the State Party had violated articles 2(c) and 12 of CEDAW, through its failure to ensure effective judicial action and protection. In particular, it condemned the State Party’s failure to put in place a system to ensure effective judicial protection and provide effective judicial remedies for the violations experienced by women in Manila as a result of Order No. 003, as evidenced by the failure and unwillingness of the judiciary to adjudicate without undue delay the Osil case concerning the revocation of the disputed executive order.

Recommendations

The CEDAW Committee made extensive recommendations to the State Party. Recommendations related to the institutional and legal framework included:

  • fully enforcing the Magna Carta of Women, including its rules and regulations guaranteeing women’s access to effective methods of family planning;
  • ensuring the Executive Orders are revoked, as a matter of urgency;
  • amending the Criminal Code to legalise abortion in cases of rape, incest, threats to the life and/or health of the mother or serious malformation of the foetus, and to decriminalize all other cases in which women undergo abortion;
  • establishing effective monitoring and oversight mechanisms, to ensure that reproductive health laws, strategies and policies strictly comply CEDAW
  • ensuring effective legal remedies for women seeking redress for violations of their right of access to reproductive and sexual health services
  • prioritising protection of women’s health rights over religious postulates that could discriminate against women and negatively affect their access to reproductive and sexual health services, commodities and information.

Recommendations related to the State Party’s reproductive and sexual health rights and services included:

  • addressing the unmet need for contraception, especially in Manila, by ensuring universal and affordable access to the full range of reproductive and sexual health services, commodities and related information, including the safest and most technologically advanced contraception methods
  • removing all economic and structural barriers resulting in unequal access to reproductive and sexual health services
  • ensuring non-biased, scientifically sound and rights-based counselling and information on reproductive and sexual health services are provided in all governmental, provincial and municipal health facilities
  • reintroducing emergency contraception
  • addressing the loss of institutional capacity and knowledge and the erosion of skills resulting from the enforcement of the orders, through systematic training on reproductive and sexual rights, services and commodities
  • providing women with access to high-quality post-abortion care in all public health facilities
  • integrating age-appropriate education on reproductive and sexual health into school curricula.

UN Doc. CEDAW/C/OP.8/PHL/1 (2015)

Acknowledgment 

Thanks and acknowledgement is due to photographer Allen Sarol for generously allowing use of the accompanying photo.   

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CEDAW inquiry into grave violence against Aboriginal women in Canada

This post, authored by Meghan Campbell, was first published on the Oxford Human Rights Hub on 25 March 2015 and is republished here with the permission of the author. 

On March 6, 2015 the CEDAW Committee released its second inquiry into grave and systemic violations of CEDAW under the Article 8 of the OP-CEDAW. This inquiry was initiated by the Feminist Alliance for International Action and the Native Women’s Association of Canada. These two organisations alleged grave and systematic violations of CEDAW in relation to the disproportionately high levels of violence experienced by Aboriginal women and girls in Canada. Particularly, they argued Canada was in breach of CEDAW because (i) there was no co-ordinated national action plan to address the root causes of violence; (ii) the failures of law enforcement to protect and prevent violence against Aboriginal women and (iii) there was no national public inquiry into missing and murdered Aboriginal women.

The CEDAW inquiry found a firm factual basis for these allegations. Between 1960 and 2013, 663 Aboriginal women have gone missing or being murdered (para 4). In the period 2000-2008 the murders of Aboriginal women represent 10 per cent of the total number of female homicides, despite the fact that Aboriginal women make up only 3 per cent of the total female population (para 7). Aboriginal women are 3.5 times more likely to experience domestic violence and sexual assault than non-Aboriginal women and 5 times more likely to die of violence (para 3).

Canada did not deny the factual claims but argued that its response to violence against women was sufficient to discharge its obligations under CEDAW. The government provided extensive evidence of the funding, programmes and government studies undertaken to prevent further violence against Aboriginal women (para 32-81).

The main focus of the inquiry was the appropriateness of the Canada’s response. After a country visit, the inquiry concluded that Canada’s efforts to address violence against Aboriginal women and girls were inadequate in light of the gravity of the situation. To meet the due diligence standard under Article 2 of CEDAW the formal framework established by Canada must be in practice be effective and available.

The report provides numerous examples of where Canada has failed Aboriginal women and this post highlights a just a few of the findings from the inquiry. First, the Committee concluded that the federal and provincial studies on violence against Aboriginal often had a limited mandate; the recommendations were at times general or ignored and never implemented (para 100-104). Second, the high incidence of poverty, inadequate housing, lack of education and employment opportunities increases Aboriginal women’s vulnerability to violence (para 112). Although Canada has taken step, the measures ‘have not gone far enough’ (para 117). For example, when asked for information on anti-poverty programmes, Canada it did not provide any specific reference to the needs of Aboriginal women and girls (para 118-19). Third, Aboriginal women are reluctant to report violence to the police ‘mainly due to police behaviour and bias’ (para 138). Stereotypical attitudes of Aboriginal women as prostitutes or runaways engaging in high-risk lifestyles often negatively impacted the quality of the police investigation. (para 136-37, 205). While Canada has taken steps to provide gender sensitivity training for police and has developed protocols on investigating cases of missing and murdered Aboriginal women, these are of limited efficiency due to their non-binding nature and lack of oversight and enforcement mechanisms (para 144).

The inquiry also made important contributions to the development of CEDAW. It re-emphasises the importance of substantive equality by holding that it is not sufficient for Canada to apply the same standards to Aboriginal women as have been applied to others. Aboriginal women are particularly vulnerable and Canada’s response needs to account for their disadvantaged position in society. The Committee also highlighted the importance of addressing poverty in protecting Aboriginal women from violence. While there are no substantive obligations in CEDAW on poverty, the Committee is employing a rich interpreting of the treaty to address an underlying cause of violence against Aboriginal women. The inquiry noted that achieving equality before the law (Article 15) is ‘necessarily related to positive obligations…to fulfil economic and social rights enshrined in CEDAW’ (para 199). At the same time, the full development and advancement of women (Article 3) requires Canada to take positive measures to ensure access to education, housing, transportation and support to families and children.

The inquiry offers a series of recommendations to combat violence, improve socio-economic conditions and eliminate discrimination against Aboriginal women and called for a national public inquiry and plan of action. Canada accepted 34 of the 38 recommendations, but unfortunately it still resists holding a national inquiry and plan of action. Notwithstanding this, the CEDAW inquiry is an important contribution to understanding intersectional discrimination and gender inequality. Hopefully it can form the basis for continued dialogue between government officials and the Aboriginal community so as to end violence against Aboriginal women and girls.

Committee declares asylum communication inadmissible, clarifies extraterritorial effect of CEDAW (Y.W. v. Denmark)

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:

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)

Decision

Asylum communication concerning sexual harassment and religious persecution declared inadmissible (M.S. v. Denmark)

 

M.S. is from Rawalpindi, Pakistan, and belongs to the Christian minority of Anglo-Indians.  M.S. claims she is a victim of religious discrimination and sexual harassment in Pakistan.

M.S. claims that, when she was about 16 years old, A.G. asked to date her and threatened her with reprisals when she refused his request.  According to M.S., A.G.’s brother, a high-ranking Pakistani police officer, then arrested her brother and her family had to pay a bribe to secure his release. 

M.S. subsequently moved to another location in Pakistan.  M.S. claims that A.G. verbally assaulted her at work, forcing her to resign.  M.S. took another job, but says she resigned when her boss subjected her to sexual harassment.  M.S. took another job and claims her superiors subjected her to sexual harassment.  In addition, A.G. told her boss that he was in a relationship with her and her family was involved in prostitution.  M.S. subsequently left her job because she felt humiliated.

In 2007, M.S. travelled to Denmark on an au pair visa.  M.S. claims that A.G. continued to harass her via telephone.  One day he told M.S. to contact her family in Pakistan.  She says that, upon contacting her family, she learned that Pakistani police had arrested her elder brother without grounds for doing so and beat him badly.

In March 2008, M.S. returned to Pakistan to care for her ill mother.  M.S. met her husband during this time and they married, despite threats from A.G.  M.S. claims that A.G. and his friends broke into her home several months later, verbally abused her and threatened her with imprisonment.  In October 2008, M.S. claims Pakistani police arrested her husband and younger brother, based on false allegations made by A.G.  They spent a week in prison, where they were ill treated, before relatives paid a bribe to secure their release.  M.S. claims that A.G. continued to harass her throughout this period and threatened to kidnap her newly born daughter from hospital.

In 2009, M.S. and her family travelled to Denmark on tourist visas.  After arriving in Denmark, they sought asylum, claiming that they feared persecution by A.G., life-threatening sexual assaults, and the murder of M.S.’s husband in connection with the false accusations brought against him by the authorities.  They also claimed they were not safe in Pakistan because A.G. belonged to a high-ranking family and his brother was a high-ranking police officer. 

In 2009, the Immigration Service rejected the asylum application.  In 2012, the Refugee Appeals Board upheld the decision of the Immigration Service and rejected their asylum application.  The Board found that A.G. had sexually harassed M.S and A.G., his brother and the local police had abused M.S. and her family over a number of years.  However, it concluded that it was reasonable for M.S. and her family to take up residence elsewhere in Pakistan, where they would be safe from A.G.  It further concluded that it had not been established that M.S. and her family had been subjected to religious persecution.  It subsequently ordered that M.S. and her family be deported to Pakistan.

In March 2012, M.S. submitted a communication to the Committee on the Elimination of Discrimination against Women (CEDAW Committee) on behalf of herself, her husband and their two minor children.  M.S. alleged that deporting her and her family to Pakistan would constitute a violation by Denmark of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), specifically articles 1, 2, 3, 5, 12 and 16, read in conjunction with General Recommendation No. 19.  M.S. claimed that there was a risk that, if deported to Pakistan, she would be subjected to sexual harassment by A.G.  She further claimed that Pakistan authorities were unable to provide effective protection to her and her family against such harassment.   

Acting in accordance with article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women (Optional Protocol), the CEDAW Committee granted interim measures and asked the State Party to refrain from deporting M.S. and her family while it considered her communication.   

State Party’s observations on admissibility 

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

Incompatibility / extraterritoriality (arts. 2, 4(2)(b))

The State Party claimed that the communication was incompatible with CEDAW and should be declared inadmissible ratione loci and ratione materiae under 4(2)(b), read together with article 2, of the Optional Protocol.  More specifically, it claimed M.S. sought to apply CEDAW in an extraterritorial manner and that, while the alleged violations may be imputable to Pakistan, they are not imputable to Denmark because no Danish authority had discriminated against M.S. and her family. 

While the State Party accepted that M.S. and her family were residing temporarily in Denmark, the State Party asserted that “their claims rest not on any treatment that they will suffer in Denmark, or in an area where Danish authorities are in effective control or as a result of the conduct of Danish authorities, but rather on consequences that they may suffer if they are returned to Pakistan.”  The State Party rejected M.S.’s claim that its decision to deport her and her family to a place where they will allegedly suffer discriminatory treatment engaged its legal responsibility under CEDAW.  In doing so, it argued that “the return of women who arrive in Denmark simply to escape from discriminatory treatment in their own country, however objectionable that treatment may seem, cannot constitute a violation of the Convention.”  “States parties,” it said, “cannot be obliged under the Convention to return aliens only to countries whose legal systems are compatible with the principle of non-discrimination enshrined in the Convention.”

Absence of legal standing (art. 2)

The State Party claimed that the communication should be declared inadmissible in relation to M.S.’s husband and son because they lacked legal standing under article 2 of the Optional Protocol.  It submitted that they could not claim to be victims under CEDAW because they are male: “[w]hile the term ‘women’ is not clearly defined in the Convention, it is clear that adult males and boys cannot be regarded as women and, as a consequence, cannot be considered victims of a violation of the Convention.”  

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

The State Party further claimed that the communication should be declared inadmissible under article 4(2)(c) of the Optional Protocol because M.S. had failed to substantiate her claim sufficiently.  It asserted that M.S. had not clearly identified or explained the rights under CEDAW on which she relied, but had instead simply listed several articles of the treaty.  It further asserted that it was unclear which violations M.S. claimed would occur if deported to Pakistan and that she had failed to substantiate her claim that her rights would be violated if so deported.

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.S. had failed to “sufficiently substantiate, for the purposes of admissibility, her claim that her removal to Pakistan would expose her to a real, personal and foreseeable risk of serious forms of gender-based violence.” The CEDAW Committee also concluded that the sexual harassment alleged by M.S. was of a “sporadic nature” and, as such, did not constitute systematic harassment amounting to gender-based violence.

The Committee did not make any determinations in respect of the remaining grounds of inadmissibility raised by the State Party.  It did, however refer to its views in M.N.N. v. Denmark concerning the extraterritorial application of CEDAW.

Communication No. 40/2012, UN Doc. CEDAW/C/55/D/40/2012 (2013)

Decision