A/HRC/41/38
nationals, States must ensure that those differences are enshrined in national legislation and
serve a legitimate objective, and any action taken to achieve that objective must be
proportionate and reasonable.
18.
Under international human rights law, States are obliged to respect the right of every
person to be free from torture and ill-treatment. Linked to migration, that obligation is
embodied in the principle of non-refoulement, which is absolute and non-derogable.
1.
Convention on the Elimination of All Forms of Discrimination against Women
19.
Under the Convention on the Elimination of All Forms of Discrimination against
Women, discrimination against women is prohibited and States are obliged to eliminate
discrimination against women. There are 189 States parties to the Convention, which
includes obligations to suppress trafficking in women (art. 6); grant women equal rights
with men to acquire, change or retain nationality (art. 9); eliminate discrimination against
women in the field of employment (art. 11); eliminate discrimination against women in the
field of health care and ensure access to health-care services, including those related to
family planning and maternal care (art. 12); and accord to men and women the same rights
with regard to the law relating to the movement of persons and the freedom to choose their
residence and domicile (art. 15 (4)).
20.
In its general recommendation No. 26 (2008) on women migrant workers, the
Committee on the Elimination of Discrimination against Women addressed the issues of
women migrant workers who travel independently, those who migrate as dependants of
their spouses and those in irregular situations. It outlined a set of responsibilities that should
be assumed by States, including implementing gender-responsive and rights-based
migration policies, involving women in policymaking, safeguarding remittances sent by
women migrant workers, collecting data disaggregated by gender, and lifting
discriminatory bans on women’s freedom of movement.
2.
Convention on the Rights of the Child
21.
The principle of non-discrimination is codified in article 2 of the Convention on the
Rights of the Child. In joint general comment No. 3 (2017) of the Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families and No.
22 (2017) of the Committee on the Rights of the Child on the general principles regarding
the human rights of children in the context of international migration, both Committees
gave their interpretation of the application of the non-discrimination principle in the context
of international migration. The non-discrimination principle in the Convention on the
Rights of the Child stipulates that States parties should respect and ensure the rights set
forth in the Convention for all children, whether they are considered, inter alia, migrants in
regular or irregular situations, asylum seekers, refugees, stateless or victims of trafficking,
including in situations of return or deportation to their country of origin, irrespective of
their or their parents’ or legal guardians’ nationality, migration status or statelessness. 12
3.
International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families
22.
The International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families provides for the rights of migrant workers and
their families without discrimination based on sex. It stipulates that no migrant worker is to
be held in slavery or servitude or asked to perform compulsory labour, and provides for the
right to receive urgent medical care and access to educational services, vocational guidance,
housing, and social and health services on the basis of equality with nationals, and for the
protection of the unity of the family. It also includes parameters for States parties to
cooperate with a view to promoting sound, equitable, humane and lawful conditions for
migrant workers in relation to their labour, social, economic and cultural rights. As at
September 2017, only 51 countries had ratified the Convention.
12
6
See also Committee on the Rights of the Child, general comment No. 6 (2005) on the treatment of
unaccompanied and separated children outside their country of origin, para. 12.