Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 263
II. The right to work
Article 6.1 ICESCR protects the right of everyone to the opportunity
to earn a living by work freely chosen or accepted. The right to work
as protected by Article 6 ICESCR is not an absolute right to obtain
employment. It consists of the right not to be unfairly deprived of
employment, and includes the prohibition of forced labour. The right
to work is also protected by Article 5(e)(i) ICERD, Article 11 CEDAW,
Article 23 UDHR, Article XIV ADRDM, Article 6 of the Protocol of San
Salvador to the ACHR, and Article 1 of the European Social Charter
(revised). 1096
States may legitimately regulate or restrict the right to work of non-citizens
or particular categories of non-citizens—those with particular types
of work or residence permits, or asylum seekers. The Committee on
the Elimination of Racial Discrimination has acknowledged that “State
Parties may refuse to offer jobs to non-citizens without a work permit”.
1097 However, different applications of the right to work of non-citizens
and citizens, as well as differences between different categories
of non-nationals, must be objectively justifiable and non-discriminatory
on other grounds, such as race or ethnicity.
As to the treatment of refugees, the Geneva Refugee Convention
provides that “Contracting States shall accord to refugees lawfully
staying in their territory the most favourable treatment accorded to
nationals of a foreign country in the same circumstances, as regards
the right to engage in wage-earning employment”. 1098 However, any
restriction on the employment of non-nationals cannot be applied to
refugees who have either completed three years’ residence in the
country; or have a spouse who is a national of the country, unless he
or she abandoned them; or has one or more children possessing the
nationality of the country. 1099 The duty to provide treatment equal
to the most favourably treated non-nationals also applies when the
refugee wishes to engage in liberal professions, agriculture, industry,
handicrafts or commerce or to establish commercial or industrial
companies. 1100
A State Party to the ILO Migration for Employment Convention (Revised)
(No. 97) of 1949 has the obligation “to maintain, or satisfy itself that
1096 See also, Article 15, EU Charter. In particular paragraph 3: “Nationals of third countries who
are authorised to work in the territories of the Member States are entitled to working conditions
equivalent to those of citizens of the Union.”
1097 CERD, General Recommendation No. 30, op. cit., fn. 18, para. 35.
1098 Article 17.1, Geneva Refugee Convention.
1099 Article 17.2, ibid.
1100 Articles 18 and 19, ibid.