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 refoulement13 and collective
expulsion.14 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.15 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”.16 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.17
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 Conventions18 apply to all migrant workers, irrespective
of their nationality and migration status. The 1998 ILO Declaration on fundamental
principles and rights at work and its follow-up requires all ILO member States to promote
and realize the principles concerning the fundamental rights enshrined in these Conventions.
A number of other ILO standards of general application and those containing specific
provisions on migrant workers in the areas of employment, labour inspection, social
security, protection of wages, occupational safety and health, as well as in such sectors as
agriculture, construction, hotels and restaurants, and domestic work, are of particular
importance to migrant workers in an irregular situation.19 Lastly, in formulating national
laws and policies concerning labour migration and the protection of migrant workers in an
irregular situation, States are also guided by ILO Convention No. 97 (1949) concerning
Migration for Employment (Revised), 20Convention No. 143 (1975) concerning Migrations
13
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.
14
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).
15
See Protocol No. 7 to ECHR, art. 1; ACHR, art. 22(6); ACHPR, art. 12(4); and the Arab Charter, art. 26(2).
16
European Social Charter, arts. 19(4-9), and the appendix.
17
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.
18
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).
19
201.
20
For example, ILO Conventions Nos. 19, 81, 95, 110, 121, 129, 131, 155, 167, 172, 181, 184, 189, 200 and
While Convention No. 97 in principle only applies to migrant workers lawfully within the territory of a State, it
contains certain provisions requiring States parties to take measures that have the effect of preventing migrant
workers from falling into an irregular situation.
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