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

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CEDAW Committee declares asylum communication inadmissible (Y.C. v. Denmark)

In June 2011, Y.C., a Chinese national, sought asylum in Denmark. In support of her claim for asylum, she alleged that, if deported to China, she: faced a real, personal and foreseeable risk of further domestic violence by her former partner; and would not be able to exercise her religion freely.

In August 2011, the Danish Immigration Service rejected her asylum claim, which the Refugee Appeals Board later upheld on appeal. The Board accepted Y.C. was a victim of violence, but noted that she had not reported it or the removal of her child by her former partner to Chinese authorities. It also noted that Y.C.’s relationship with her former partner was a matter of private law and that conflict between them did not mean she would ‘necessarily risk persecution or outrages of a nature set out in section 7 (2) of the Aliens Act’. It considered it relevant that the former partner had not sought out Y.C. Additionally, it found that, although Y.C. ‘had to exercise he religion discretely, she could not be considered to be specifically and individually persecuted by the Chinese authorities on religious grounds’.

In January 2013, Y.C. submitted an individual communication to the Committee on the Elimination of Discrimination against Women. She alleged that deporting her to China would constitute a violation by Denmark of the Convention on the Elimination of All Forms of Discrimination against Women, specifically articles 1 to 3 and 5, read in conjunction with General Recommendation No. 19. Y.C. claimed that:

  • Chinese authorities would not afford her adequate protection against the real, personal and foreseeable risk of domestic violence she faced, if returned to China by Denmark, or grant her access to, or custody of, her child
  • the State Party would, by deporting her, violate her freedom of religion.

Y.C. was awaiting deportation to China when she submitted her communication to the CEDAW Committee. She made a request for interim measures under article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, to stay the deportation pending the Committee’s consideration of the communication. The Committee declined her request and did not report any reasons for its decision.

State Party’s observations on admissibility

The State Party claimed that the communication was inadmissible as it was incompatible with CEDAW and manifestly ill-founded and unsubstantiated, pursuant to articles 4(2)(b) and 4(2)(c) of the Protocol, respectively. Among other things, it claimed that Y.C.:

  • sought to apply CEDAW in an extraterritorial manner
  • failed to sufficiently substantiate (for admissibility purposes) that she faced a real, personal and foreseeable risk of domestic violence, if deported
  • had not made explicit or sufficiently substantiated which CEDAW provisions would be violated, if she was deported
  • had not reported her situation to Chinese authorities or demonstrated that those authorities would not protect her adequately, if returned to China.

Committee’s decision on admissibility

The CEDAW Committee declared the communication inadmissible under article 4(2)(c) of the Optional Protocol, as both insufficiently substantiated and manifestly ill-founded. It declined to consider whether the communication was compatible with CEDAW, pursuant to article 4(2)(b) of the Protocol.

Y.C. failed to substantiate her claim sufficiently

The Committee determined that Y.C. had failed to substantiate, for the purposes of admissibility, her claim that Chinese authorities would not afford her adequate protection against violence or grant her access to, or custody of, her child. In doing so, it noted that Y.C. had not: reported her situation, including the alleged violence, to Chinese authorities; or provided an adequate explanation for her failure to seek to see, or obtain custody of, her child for several years.

Y.C.’s claim was manifestly ill-founded

In determining that the communication was manifestly ill-founded, the Committee noted that Y.C. had not provided sufficient information to support her claim of religious-based persecution and noted the State Party’s claim that Y.C. had alleged a violation of article 18 of the International Covenant on Civil and Political Rights and not CEDAW. It further noted that Y.C. had not substantiated that she was a victim of gender-based discrimination, as part of her claim that she would not be able to exercise her religious beliefs freely in China.

Communication No. 59/2013, UN Doc. CEDAW/C/59/D/59/2013 (2014)

Decision

CEDAW Committee declares domestic violence and child custody communication inadmissible (T.N. v. Denmark)

T.N., a U.S. citizen, married a Danish national and had two children with him. She claimed he subjected her to domestic violence while they were in Germany and told her she would not be allowed to see their children if she did not return to Denmark with him. She went to Denmark, where she claimed the violence continued. T.N. said she reported the violence to Danish police on several occasions, but that they failed to take appropriate action to protect her and her children. She alleged the violence continued to worsen and that her husband threatened that she would not see their children again, if she left him.

In 2010, T.N. took her children and went to a shelter, where they lived for a few months. The police confiscated their passports, at the request of her husband. She claimed that the same officers refused to make a report on the domestic violence or note her injuries. She was unable to file a domestic violence complaint at the police station because the officer did not speak good English. T.N. claimed there was no further follow-up by the police.

In 2010, T.N. filed for divorce. The Regional State Administration of Mid-Jutland decided the children were to reside with T.N. until a court decision or an agreement on residence was reached. In custody proceedings before the Aarhus District Court, T.N. claimed her husband was violent towards her and their children when they lived together and continued to beat the children when he spent time with him under the joint custody arrangement.

In 2011, the Court ruled in favour of T.N.’s husband and granted him full custody. It based its decision on the absence of proof of any domestic violence and the Court’s assessment that the father would provide the children a better environment in which to live because he would not prevent them from seeing T.N. In 2012, the High Court of Western Denmark upheld the decision.

In September 2011, T.N. submitted a communication to the Committee on the Elimination of Discrimination against Women, in which she claimed that she and her daughters were victims of violations by Denmark of articles 1, 2, 5 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women. Specifically, she claimed that: she and her daughters were victims of discrimination on the grounds of sex, nationality and race; and the State Party had failed to protect her and her children against domestic violence, by not pursuing her abusive husband through the criminal justice system and not granting her custody of their children. She further claimed that the State Party’s police and judicial authorities are biased against female foreigners married to Danish men, evidenced in their giving credence to her husband’s version of events and disregarding her own.

In July 2012, the Committee granted T.N.’s request for interim measures under article 5 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Among other things, it asked the State Party to take all measures necessary to ensure: the violence was taken into account and the rights and safety of T.N. and her children were not jeopardised, in the determination of child custody and visitation rights.

State Party’s observations on admissibility

Initially, the State Party contended that the Committee should reject the communication at the registration stage and not ask it to submit observations on the unstructured and voluminous documents submitted by T.N., which it claimed did not rely on any rights in CEDAW or specify the scope of the complaint. The State Party suggested that the communication relates mainly to ongoing litigation between T.N. and her husband.

The State Party went on to challenge the admissibility of the communication on several grounds. It contended that:

  • T.N. had made unsupported claims not raised in substance before the Danish authorities and which they therefore had not had the opportunity to address. It therefore submitted that the communication should be declared inadmissible under article 4(1) of the Protocol, for failure to exhaust domestic remedies
  • it was unclear which rights, if any, under CEDAW T.N. was relying on and that the communication was therefore incompatible with CEDAW and should be declared inadmissible under article 4(2)(b) of the Protocol. It noted that T.N. had alleged violations of a number of other international instruments
  • T.N. had failed to sufficiently substantiate her claim, in accordance with article 4(2)(c), as she had put forward unclear and generally unsupported claims and not identified or explained which CEDAW rights she was relying on or identified which state acts or omissions constituted a violation of CEDAW
  • for the reasons above, the communication should be declared inadmissible under article 4(2)(d) as an abuse of the right to submit a communication.

CEDAW Committee’s decision on admissibility

The Committee determined that T.N. had failed to substantiate her claims under articles 1, 2, 5 and 16 of CEDAW and declared the communication inadmissible under article 4(2)(c) of the Protocol.

Failure to sufficiently substantiate claim

The CEDAW Committee concluded that T.N. had not sufficiently substantiated her claim that the State Party had failed to investigate her allegations of domestic violence, for the purposes of admissibility. It explained that T.N. had submitted many unstructured documents, many without full translation, and that many of her arguments were not comprehensive, lacked consistency and were unsupported by documentation. By contrast, it explained, the State Party had provided detailed information about the police investigations it had conducted.  The Committee noted T.N.’s claim that she was a victim of gender-based discrimination during the custody proceedings, but concluded that she had also failed to substantiate that claim, for the purposes of admissibility.

Although the Committee determined that the communication had not been sufficiently substantiated, it also commented on several other grounds of inadmissibility.

No failure to exhaust domestic remedies

The CEDAW Committee concluded that although T.N. submitted her individual communication while custody proceedings were still pending in Denmark, it was not precluded from considering the communication under article 4(1) of the Optional Protocol, as the High Court of Western Denmark had since rendered a final decision. It further noted that T.N. had raised violations of article 2 of CEDAW at the domestic level and that authorities had an opportunity to consider the alleged violations.

The same matter had not been examined previously

The Committee condemned T.N. for submitting a complaint to the European Court of Human Rights while her communication was pending before it. However, it ultimately determined that the same matter had not been examined under another procedure of international investigation or settlement, in accordance with article 4(2)(a) of the Optional Protocol. According to the Committee, the Court’s decision, which declared T.N.’s complaint inadmissible, was limited to procedural grounds relating to admissibility and did not provide sufficient reasoning to allow it to consider that the Court had examined the case in the manner required by article 4(2)(a) of the Protocol.

Communication was compatible with CEDAW

The Committee concluded that since T.N. had alleged violations of CEDAW (in addition to referring to rights under other international instruments), her communication was compatible with the treaty in respect of those alleged violations, pursuant to article 4(2)(b) of the Optional Protocol.

Communication No. 37/2012, UN Doc. CEDAW/C/59/D/37/2012 (2014)

Decision

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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