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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 263II. The right to workArticle 6.1 ICESCR protects the right of everyone to the opportunityto earn a living by work freely chosen or accepted. The right to workas protected by Article 6 ICESCR is not an absolute right to obtainemployment. It consists of the right not to be unfairly deprived ofemployment, and includes the prohibition of forced labour. The rightto 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 SanSalvador to the ACHR, and Article 1 of the European Social Charter(revised). 1096States may legitimately regulate or restrict the right to work of non-citizensor particular categories of non-citizens—those with particular typesof work or residence permits, or asylum seekers. The Committee onthe Elimination of Racial Discrimination has acknowledged that “StateParties may refuse to offer jobs to non-citizens without a work permit”.1097 However, different applications of the right to work of non-citizensand citizens, as well as differences between different categoriesof non-nationals, must be objectively justifiable and non-discriminatoryon other grounds, such as race or ethnicity.As to the treatment of refugees, the Geneva Refugee Conventionprovides that “Contracting States shall accord to refugees lawfullystaying in their territory the most favourable treatment accorded tonationals of a foreign country in the same circumstances, as regardsthe right to engage in wage-earning employment”. 1098 However, anyrestriction on the employment of non-nationals cannot be applied torefugees who have either completed three years’ residence in thecountry; or have a spouse who is a national of the country, unless heor she abandoned them; or has one or more children possessing thenationality of the country. 1099 The duty to provide treatment equalto the most favourably treated non-nationals also applies when therefugee wishes to engage in liberal professions, agriculture, industry,handicrafts or commerce or to establish commercial or industrialcompanies. 1100A State Party to the ILO Migration for Employment Convention (Revised)(No. 97) of 1949 has the obligation “to maintain, or satisfy itself that1096 See also, Article 15, EU Charter. In particular paragraph 3: “Nationals of third countries whoare authorised to work in the territories of the Member States are entitled to working conditionsequivalent 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.