13.2.8 Discrimination based on property [ICCPR art 26] Condensed: Discrimination based on property includes discrimination based on lack of property or income - for example lack of access to services - as much as on having such property or income. Discrimination based on ownership can also arise when one group of property owners are treated differently than others, for example depending on the size of their property, without any objective and reasonable criteria to do so. Comprehensive: Discrimination based on property is prohibited in a number of international and regional human rights instruments.[1] CMW article 1 prohibits both discrimination based on property and discrimination based on economic position. ACHPR article 2 and ACHR article 1 do not include discrimination on the grounds of property but instead refer to fortune (ACHPR) and economic status (ACHR). In either case such provisions may be interpreted as that discrimination based on property includes lack of property and that thus discrimination based on lack of property or income is prohibited. Such an interpretation is supported by the CESCR Committee which has held:[2] Property status, as a prohibited ground of discrimination, is a broad concept and includes real property (e.g. land ownership or tenure) and personal property (e.g. intellectual property, goods and chattels, and income), or the lack of it. The Committee has previously commented that Covenant rights, such as access to water services and protection from forced eviction, should not be made conditional on a person’s land tenure status, such as living in an informal settlement. Taking a similar approach, the HRC held in Haraldsson v Iceland that fishing quotas pursued a legitimate aim, namely the protection of a limited resource. However, the Icelandic system of quotas according to which the original holders who no longer used their allocated quotas could sell or lease their quotas instead of these reverting to the state ‘for allocation to new quota holders in accordance with fair and equitable criteria’ was held to be discriminatory, in violation of article 26 of the ICCPR, against fishers which did not hold quotas because they had not owned and operated fishing vessels during the reference period for allocation of quotas.[3] The IACtHR has held in an advisory opinion:[4] If a person who is seeking the protection of the law in order to assert rights which the Convention guarantees finds that his economic status (in this case, his indigency), prevents him from so doing because he cannot afford either the necessary legal counsel or the costs of the proceedings, that person is being discriminated against by reason of his economic status, and hence, is not receiving equal protection before the law. However, it should be noted that not being able to do something because one does not have the financial resources to do so does not necessarily mean that there is discrimination. The ECtHR held in Johnston v Ireland that the inability to get a divorce in Ireland was not discriminatory against those who lacked the means to travel abroad, despite the fact that divorces obtained abroad were recognized by the Irish legal system.[5] Discrimination based on ownership may also arise when one group of property owners are treated differently than others, for example depending on the size of their property, without any objective and reasonable criteria to do so. In Chassagnou v France, a law required owners of small landholdings to become members of the hunting association of their municipality and to transfer to it the hunting rights over their land. The applicants were opposed to hunting on ethical grounds and therefore asked for the removal of their land from the municipal hunting grounds. Their applications at the national level were dismissed. The ECtHR held that ‘since the result of the difference in treatment between large and small landowners is to give only the former the right to use their land in accordance with their conscience, it constitutes discrimination on the ground of property’.[6] A legitimate social aim and respect for the principle of proportionality could mean that the differential treatment of one group of property owners would be justifiable. In James v United Kingdom, the ECtHR upheld as objective and reasonable a duty imposed on landlords to allow tenants with long leases to buy the property they occupied.[7] Additional references O de Schutter International human rights law (2010) W Vandenhole Non-discrimination and equality in the view of the UN human rights treaty bodies (2005)
[1] UDHR art 2, ICESCR art 2, ICCPR arts 2, 26, CRC art 2, ECHR art 14. [2]CESCR General Comment 20 para 25. [3] Communication 1306/2004 (HRC 2007) para 10.4. [4]Advisory Opinion OC-11/90 (IACtHR 1990) para 22. See also Purohit and Moore v The Gambia communication 241/2001 (ACHPR 2003) paras 53, 54. [5] Johnston and Others v Ireland application 9697/82 (EctHR (plenary) 1986) para 60. [6] Applications 25088/94, 28331/95, 28443/95 (ECtHR 1999) para 95. [7]James v United Kingdom application 8793/79 (ECtHR (plenary) 1986) para 77.
Condensed:
Discrimination based on property includes discrimination based on lack of property or income - for example lack of access to services - as much as on having such property or income. Discrimination based on ownership can also arise when one group of property owners are treated differently than others, for example depending on the size of their property, without any objective and reasonable criteria to do so.
Comprehensive:
Discrimination based on property is prohibited in a number of international and regional human rights instruments.[1] CMW article 1 prohibits both discrimination based on property and discrimination based on economic position. ACHPR article 2 and ACHR article 1 do not include discrimination on the grounds of property but instead refer to fortune (ACHPR) and economic status (ACHR). In either case such provisions may be interpreted as that discrimination based on property includes lack of property and that thus discrimination based on lack of property or income is prohibited. Such an interpretation is supported by the CESCR Committee which has held:[2]
Property status, as a prohibited ground of discrimination, is a broad concept and includes real property (e.g. land ownership or tenure) and personal property (e.g. intellectual property, goods and chattels, and income), or the lack of it. The Committee has previously commented that Covenant rights, such as access to water services and protection from forced eviction, should not be made conditional on a person’s land tenure status, such as living in an informal settlement.
Taking a similar approach, the HRC held in Haraldsson v Iceland that fishing quotas pursued a legitimate aim, namely the protection of a limited resource. However, the Icelandic system of quotas according to which the original holders who no longer used their allocated quotas could sell or lease their quotas instead of these reverting to the state ‘for allocation to new quota holders in accordance with fair and equitable criteria’ was held to be discriminatory, in violation of article 26 of the ICCPR, against fishers which did not hold quotas because they had not owned and operated fishing vessels during the reference period for allocation of quotas.[3]
The IACtHR has held in an advisory opinion:[4]
If a person who is seeking the protection of the law in order to assert rights which the Convention guarantees finds that his economic status (in this case, his indigency), prevents him from so doing because he cannot afford either the necessary legal counsel or the costs of the proceedings, that person is being discriminated against by reason of his economic status, and hence, is not receiving equal protection before the law.
However, it should be noted that not being able to do something because one does not have the financial resources to do so does not necessarily mean that there is discrimination. The ECtHR held in Johnston v Ireland that the inability to get a divorce in Ireland was not discriminatory against those who lacked the means to travel abroad, despite the fact that divorces obtained abroad were recognized by the Irish legal system.[5]
Discrimination based on ownership may also arise when one group of property owners are treated differently than others, for example depending on the size of their property, without any objective and reasonable criteria to do so.
In Chassagnou v France, a law required owners of small landholdings to become members of the hunting association of their municipality and to transfer to it the hunting rights over their land. The applicants were opposed to hunting on ethical grounds and therefore asked for the removal of their land from the municipal hunting grounds. Their applications at the national level were dismissed. The ECtHR held that ‘since the result of the difference in treatment between large and small landowners is to give only the former the right to use their land in accordance with their conscience, it constitutes discrimination on the ground of property’.[6]
A legitimate social aim and respect for the principle of proportionality could mean that the differential treatment of one group of property owners would be justifiable. In James v United Kingdom, the ECtHR upheld as objective and reasonable a duty imposed on landlords to allow tenants with long leases to buy the property they occupied.[7]
Additional references
O de Schutter International human rights law (2010)
W Vandenhole Non-discrimination and equality in the view of the UN human rights treaty bodies (2005)
[1] UDHR art 2, ICESCR art 2, ICCPR arts 2, 26, CRC art 2, ECHR art 14.
[2]CESCR General Comment 20 para 25.
[3] Communication 1306/2004 (HRC 2007) para 10.4.
[4]Advisory Opinion OC-11/90 (IACtHR 1990) para 22. See also Purohit and Moore v The Gambia communication 241/2001 (ACHPR 2003) paras 53, 54.
[5] Johnston and Others v Ireland application 9697/82 (EctHR (plenary) 1986) para 60.
[6] Applications 25088/94, 28331/95, 28443/95 (ECtHR 1999) para 95.
[7]James v United Kingdom application 8793/79 (ECtHR (plenary) 1986) para 77.