CEDAW/C/55/D/40/2012
and cannot be held responsible under the Convention for discrimination occurring
under the jurisdiction of another State.
6.3 Referring to two recent decisions of the Committee, 7 the State party notes that
they both were declared inadmissible on other grounds and that the issue of the
extraterritorial application of the Convention was not addressed. The State party
therefore invites the Committee to express its view on this issue.
6.4 The State party further observes that the Committee’s application of interim
measures pursuant to article 5 (1) of the Optional Protocol in both the present case
and previous cases, such as Guadalupe Herrera Rivera v. Canada (communication
No. 26/2010), cannot be interpreted as establishing that the Convention has
extraterritorial effect, as claimed by the author. This view is supported by the very
wording of article 5 (2) of the Optional Protocol, which reads: “Where the
Committee exercises its discretion under paragraph 1 of the present article, this does
not imply a determination on admissibility or on the merits of the communication.”
6.5 The State party further notes that the author also alleges a violation of article
12 of the Convention, according to paragraph 2 of which States parties must take all
appropriate measures to eliminate discrimination against women in the field of
health care. The State party submits, however, that this article, like the other articles
of the Convention, cannot be considered to have extraterritorial effect. On several
occasions, the European Court of Human Rights has considered whether health-care
considerations can warrant a finding of a breach of article 3 of the European
Convention on Human Rights in the event that a person is returned to his or her
country of origin. For example, in N. v. the United Kingdom (application
No. 26565/05, judgement of 27 May 2008) the Court found the following:
Advances in medical science, together with social and economic differences
between countries, entail that the level of treatment available in the
Contracting State and the country of origin may vary considerably. While it is
necessary, given the fundamental importance of Article 3 in the Convention
system, for the Court to retain a degree of flexibility to prevent expulsion in
very exceptional cases, Article 3 does not place an obligation on the
Contracting State to alleviate such disparities through the provision of free and
unlimited health care to all aliens without a right to stay within its jurisdiction.
A finding to the contrary would place too great a burden on the Contracting
States.
6.6 According to the State party, the risk of discrimination in the field of health
care cannot oblige States parties to return aliens only to countries where conditions
are in full compliance with each of the safeguards, rights and freedoms set out in the
Convention on the Elimination of All Forms of Discrimination against Women. This
is the case with article 3 of the European Convention on Human Rights. It is even
more the case with the Convention on the Elimination of All Forms of
Discrimination against Women, because this instrument does not address, either
directly or indirectly, the issue of removal to torture or other serious threats to the
life and the security of the person.
__________________
7
13-42833
Communication No. 25/2010, M.P.M. v. Canada, decision of 24 February 2012, and
communication No. 26/2010, Guadalupe Herrera Rivera v. Canada, decision of 18 October
2011.
11/13
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents