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

286 | PRACTITIONERS GUIDE No. 6d) PregnancyA range of international legal provisions require that women’s employmentnot be terminated due to pregnancy, that women not be subject topre-migration or pre-hiring pregnancy testing, and that pregnant womenbe afforded paid maternity leave or social security protection. TheHuman Rights Committee has held that practices such as requests byemployers of pregnancy tests before hiring violate the principle of genderequality in light of the right to privacy (Articles 3 and 17, ICCPR). 1224Article 11 of CEDAW provides, among other things, that States Partiesmust, “prohibit, subject to the imposition of sanctions, dismissal on thegrounds of pregnancy or of maternity leave” and that they must “introducematernity leave with pay or with comparable social benefits withoutloss of former employment, seniority or social allowances.” Article 10 ofthe ICESCR requires that “during a reasonable period before and afterchildbirth…working mothers should be accorded paid leave or leave withadequate social security benefits.” 1225 The Human Rights Committee hasheld that practices such as mandatory pregnancy tests before hiring arenot permissible under Articles 3 and 17 of the ICCPR. 1226 The ILO MaternityProtection Conventions provides additional protection in this context. 1227IV. Freedom of association in labour rights: theright to form and join a trade unionFreedom of association is widely protected by global and regional humanrights treaties, including by Article 22 ICCPR and Article 8 ICESCR. 1228It is also protected in instruments of the ILO, including the 1919 ILOConstitution, 1229 and the ILO Philadelphia Declaration of 1944.The right to join, not to join and to establish a trade union was recognisedby ILO Convention No. 87 of 1948. It is a directly enforceable1224 CCPR, General Comment No. 28, op. cit., fn. 22, para. 20. See also, CEDAW, General RecommendationNo. 24, op. cit., fn. 29, para. 22.1225 Article 10.2 ICESCR.1226 See, fn. 1224.1227 Maternity Protection Convention (C3), ILO, adopted on 28 November 1919 (29 Parties,5 Denounced); Maternity Protection Convention (Revised) (C103), ILO, adopted on 28 June1952 (ratified 30, denounced 11); Maternity Protection Convention (C183), ILO, Adopted on15 June 2000 (ratified 18). While these have not met with wide ratification they can be usedas a tool of interpretation of the obligations arising from CEDAW and other treaties. TheConventions apply irrespective of nationality.1228 Article 22 ICCPR; Article 8 ICESCR; Articles 20 and 23.4 UDHR; Article 10 ACHPR; Article 35ArCHR; Article XXII ADRDM; Article 16 ACHR; Article 8, Protocol of San Salvador; Article 11ECHR; Article II.19.4(b) ESC(r). See, on trade unions angle, Declaration on the HumanRights of Individuals Who are not Nationals of the Country in which They Live, Article 8.1(b);Article 5 ESC(r).1229 Preamble, ILO Constitution.