34
162.
As for the gender perspective, the CEDAW Committee has written that “to understand the
specific ways in which women are impacted, female migration should be studied from the perspective of
gender inequality, traditional female roles, a gendered labour market, the universal prevalence of genderbased violence and the worldwide feminization of poverty and labour migration. The integration of a
gender perspective is, therefore, essential to the analysis of the position of female migrants and the
148
development of policies to counter the discrimination, exploitation and abuse” they suffer.
163.
observed that
On the subject of undocumented women migrant workers, the CEDAW Committee has
[r]egardless of the lack of immigration status of undocumented women migrant workers, States
parties have an obligation to protect their basic human rights. [..] If they are arrested or detained,
the States parties must ensure that undocumented women migrant workers receive humane
treatment and have access to due process of the law, including through free legal aid. In that
regard, States parties should repeal or amend laws and practices that prevent undocumented
women migrant workers from using the courts and other systems of redress. If deportation cannot
be avoided, States parties need to treat each case individually, with due consideration to the
gender-related circumstances and risks of human rights violations in the country of origin (articles 2
149
(c), (e) and (f)).
B.
Right to personal liberty (Article 7 of the American Convention), in relation to the
obligation to respect rights without discrimination (Article 1(1) of the American
Convention)
164.
Article 7 of the American Convention reads as follows:
1.
Every person has the right to personal liberty and security.
2.
No one shall be deprived of his physical liberty except for the reasons and under the
conditions established beforehand by the constitution of the State Party concerned or by a law
established pursuant thereto.
3.
No one shall be subject to arbitrary arrest or imprisonment.
4.
Anyone who is detained shall be informed of the reasons for his detention and shall be
promptly notified of the charge or charges against him.
5.
Any person detained shall be brought promptly before a judge or other officer authorized by
law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released
without prejudice to the continuation of the proceedings. His release may be subject to guarantees
to assure his appearance for trial.
6.
Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in
order that the court may decide without delay on the lawfulness of his arrest or detention and order
his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone
who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a
competent court in order that it may decide on the lawfulness of such threat, this remedy may not
be restricted or abolished. The interested party or another person in his behalf is entitled to seek
these remedies.
165.
Both the Commission and the Inter-American Court have underscored the fact that no
one may be deprived of his liberty except for the reasons or in the cases or circumstances prescribed by
law, and any deprivation of liberty must be done in strict accordance with the procedures defined
148
CEDAW, General Recommendation No. 26, paragraph 5.
149
CEDAW, General Recommendation No. 26, paragraph 26, l)