CMW/C/GC/2
and to free choice of residence of migrants insofar as they are lawfully within the territory
of a State party.
10.
Similarly, the International Covenant on Economic, Social and Cultural Rights also
provides for a broader range of rights, including the right to strike, the right to freely enter
marriage, the right to maternity protection, the right to special protection of children and
adolescents, the right to an adequate standard of living including adequate food and
clothing, and certain cultural rights. The Convention does not provide for such rights only
in relation to migrant workers in a regular situation. In addition, the Covenant recognizes
the rights to work, to vocational guidance and training, to form trade unions, to protection
of the family, to housing, and to participate in cultural life. The Convention recognizes
these rights in relation to migrant workers in a regular situation and members of their
families. In addition, most of the economic, social and cultural rights in Part III of the
Convention have a narrower scope than their counterparts in the Covenant.
Regional human rights treaties
11.
Regional human rights treaties protect all migrants against refoulement 3 and
collective expulsion. 4 However, the procedural safeguards in individual expulsion
proceedings in regional human rights treaties apply only to migrants who are lawfully
within the territory of a State party. 5 The rights protected in the European Social Charter
apply to “foreigners only insofar as they are nationals of other Contracting Parties lawfully
resident or working regularly within the territory of the Contracting Party concerned”, or to
migrant workers and their families “lawfully within their territories”. 6 The opinions of the
European Committee of Social Rights, however, have held that the European Social Charter
also applies to vulnerable categories of undocumented migrant children. Moreover, the
right to education is guaranteed to all migrant children, regardless of their migration status,
in all regional human rights systems. 7
International Labour Organization
12.
International labour standards adopted by the International Labour Conference of the
International Labour Organization (ILO) apply to migrant workers, including those in an
irregular situation, unless otherwise stated. The fundamental principles and rights at work
set out in the eight fundamental ILO Conventions 8 apply to all migrant workers,
3
4
5
6
7
8
See European Convention on Human Rights (ECHR), art. 3; American Convention on Human Rights
(ACHR), art. 22, para. 8; and African Charter on Human and Peoples’ Rights (ACHPR), art. 5.
See Protocol No. 4 to ECHR, art. 4; ACHR, art. 22(9); ACHPR, art. 12(5); and Arab Charter on
Human Rights (Arab Charter), art. 26(1).
See Protocol No. 7 to ECHR, art. 1; ACHR, art. 22(6); ACHPR, art. 12(4); and the Arab Charter, art.
26(2).
European Social Charter, arts. 19(4-9), and the appendix.
See Protocol No. 1 to ECHR, art. 2 (read in conjunction with art. 14 of ECHR); ACHPR, art. 17(1);
and African Charter on the Rights and Welfare of the Child, art. 11. See also the case law of the
European Committee of Social Rights on art. 17(2) of the revised European Social Charter and the
jurisprudence of the Inter-American Court of Human Rights on art. 19 of ACHR.
Conventions No. 29 (1930) concerning Forced Labour; No. 105 (1957) concerning the Abolition of
Forced Labour; No. 138 (1973), concerning Minimum Age for Admission to Employment; No. 182
(1999) concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of
Child Labour; No. 87 (1948) concerning the Freedom of Association and Protection of the Right to
Organize; No. 98 (1949) concerning the Right to Organize and Collective Bargaining; No. 100 (1951)
concerning Equal Remuneration; and No. 111 (1958) concerning Discrimination (Employment and
Occupation).
5