CEDAW/C/60/D/51/2013
treatment or punishment, the right to liberty and security of the person and the right
to equal protection under the law.
8.6 The Committee further notes that, under international human rights law, the
principle of non-refoulement imposes a duty on States to refrain from returning a
person to a jurisdiction in which he or she may face serious violations of human
rights, notably arbitrary deprivation of life or torture or other cruel, inhuman or
degrading treatment or punishment. The principle of non-refoulement also
constitutes an essential component of asylum and international refugee protection. 8
The essence of the principle is that a State may not oblige a person to return to a
territory in which he or she may be exposed to persecution, inc luding gender-related
forms and grounds of persecution. Gender-related forms of persecution are forms of
persecution that are directed against a woman because she is a woman or that affect
women disproportionately.
8.7 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 ju risdiction, 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 i n 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. 9
8.8 The Committee takes note of the author ’s claim that she fears being subjected
to gender-based violence by organized crime elements if she is returned to China
and that the Chinese authorities will not protect her against such acts. The
Committee also notes that the State party’s authorities rejected her claim that they
would be unwilling or unable to protect her from atta cks by loan sharks, taking into
consideration that she never attempted to seek any kind of protection while in
China. The Committee observes that, while the author disagrees with the factual
conclusions of the State party’s authorities, she has never attempted to seek
protection from the Chinese authorities and has presented no prima facie evidence
__________________
8
9
14/15
See article 33 (prohibition of expulsion or return (“refoulement”) of the 1951 Convention
relating to the Status of Refugees.
See communication No. 33/2011, M.N.N. v. Denmark, decision of inadmissibility adopted on
15 July 2013 (i.e. after the registration of the present communication), para. 8.10.
15-05832
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