Brief Commentary by Displacement Solutions on
Article 13 (Movable and Immovable Property)
of the 1951 Refugee Convention
Article 13 (Movable and Immovable Property)
The Contracting States shall accord to a refugee treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, as regards the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.
Function of Article 13
Article 13 forms part of Chapter II of the 1951 Refugee Convention, which contains various provisions addressing the juridical status of refugees.
Article 13 entails an obligation on Contracting States to accord to refugees, a certain minimum treatment as regards the acquisition of movable and immovable property, and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property. In particular, Article 13 requires Contracting States, to accord to refugees treatment as favourable as possible and in any event, not less favourable than that accorded to aliens generally in the same circumstances.
Development and Drafting of the Right to Property in the Refugee Convention
No provisions relating to the right to property for refugees were contained in earlier arrangements and Conventions relating to the status of refugees.[1]
The Secretariat of the United Nations proposed in its preliminary draft Convention the following provision:
“The High Contracting Parties undertake to accord to refugees (and stateless persons) whose regular residence is in their territory the most favourable treatment accorded under treaty to foreigners (or the treatment accorded to foreigners generally) with regard to the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.”[2]
In supporting this position, the Secretariat noted that in certain countries foreigners are not covered by rent laws for the protection of tenants save by virtue of treaties, “if therefore, refugees, who are usually destitute, were not to enjoy the treatment accorded under treaty to foreigners, they would be debarred from the benefits of such laws, which would spell disaster for them”. The Secretariat also noted that the treatment accorded to other foreigners generally was useful to waive the condition of reciprocity which cannot be satisfied by refugees.[3]
However, all four standards of treatment existing in the Refugee Convention: treatment accorded to aliens generally, treatment as favourable as possible, the most favourable treatment accorded and the same treatment as a national were proposed during the discussions on the right to property for refugees.[4]
In addition to the “most favourable treatment accorded to foreigners” proposed in the preliminary draft Convention, the Ad Hoc Committee proposed treatment as favourable as possible and the treatment accorded to aliens and the International Refugee Organization proposed that refugees should be “granted the same property rights as nationals, subject to any special regulations excluding aliens”.[5][6] Furthermore a fifth system not adopted in the Convention was proposed by France, namely, treatment resembling as closely as possible that accorded to nationals.[7]
The Conference adopted the following Article:
“The High Contracting Parties undertake to accord to refugees (and stateless persons) whose regular residence is in their territory the treatment accorded to foreigners generally with regard to the acquisition of movable and immovable property and other rights pertaining thereto, and to leases and other contracts relating to movable and immovable property.”[8]
This article was unanimously adopted without comment, and the Drafting Committee drafted the present form of it.[9]
Reservations and Declarations made with respect to Article 13
Article 42 of the Refugee Convention provides:
1. At the time of signature, ratification or accession, any State may make reservations to articles of the Convention other than to articles 1, 3, 4, 16(1), 33, 36-46 inclusive.
2. Any State making a reservation in accordance with paragraph 1 of this article may at any time withdraw the reservation by a communication to that effect addressed to the Secretary-General of the United Nations.
The following six states have either made reservations or entered declarations with respect to Article 21 of the Refugee Convention: Angola;[10] Malawi;[11] Republic of Moldova;[12] Mozambique;[13] New Zealand[14] and Uganda.[15]
Relationship of Article 13 with other provisions in the Refugee Convention
Article 21
Article 21 of the Refugee Convention provides:
“As regards housing, the Contracting States, in so far as the matter is regulated by laws or regulations or is subject to the control of public authorities, shall accord to refugees lawfully staying in their territory treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally in the same circumstances.”
Prior to the inclusion of an explicit right of refugees to housing, the right to housing was considered to be an aspect of Article 13’s guarantee of moveable and immoveable property.[16]
There is the potential for substantial overlap between the rights of refugees to housing and the rights of refugees to movable and immovable property, particularly, as the right to property includes “leases and other contracts relating to movable and immovable property”.
Relationship of Article 21 with other provisions of international law
The Right to Property under International Law
The right to own and possess property is controversial among the internationally protected human rights.[17]
Controversy over the right to property is commonly considered to derive from the capitalist-socialist divide,[18] with the right to property being predominately championed by Western nations. [19]
The traditionally western conception of property rights has strongly influenced the ways in which the right has been formulated and interpreted at the international level. Thus, the right is not formulated as a general right of everyone to (a minimum amount of) property, but rather as a specific right which protects the institution of private property and acquired rights. However, it is notable that social responsibilities and non-discrimination have introduced other dimensions to the debate.[20]
The right to property is not considered absolute and is subject to certain permissible limitations. The permissible limitations vary considerably in different legal and economic systems and these differences lie at the heart of controversy around the protection and content of property rights.
The only universal formulation of the right to property occurs in Article 17 of the Universal Declaration of Human Rights:
(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.
As Alfreddson notes, the text of Article 17 belies the controversy it has caused both prior and subsequent to its adoption.[21]
The language of Article 17 is broad, applying to both individual and collective forms of ownership, and comprehensive, absent the limitations proposed during the drafting process.[22]
The right is, however, not absolute. It is foreseen that persons can be deprived of their property under certain circumstances; however, Article 17 protects against this deprivation being undertaken in an “arbitrary” manner. The UDHR does not contain a definition of the term “arbitrarily”, however, Alfreddson opines that, as indicated by the preparatory work, the term would seem to prohibit unreasonable interferences by States and the taking of property without compensation.[23]
Hathaway notes that Article 17 is “clearly a rudimentary formulation of the right to property” [24] that does not specifically require undisturbed enjoyment of property, nor does it take a position on the standard of confiscation that must be paid in the event of confiscation. Furthermore, it does not posit the right of every person actually to own property.[25]
The right to compensation is one of the most disputed aspects of the right to property.[26] Alfreddson notes that “in general international law, the issue of compensation for the taking of property of non-nationals has been subject to dispute. Western states have traditionally supported prompt, adequate and effective compensation, whereas developing countries have been inclined to prefer a more flexible standard of appropriate compensation”.[27]
Significantly, the right to property is one of two rights in the Universal Declaration that were not translated into binding legal form in either the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights.[28]In lengthy debates there was disagreement about virtually every aspect of the right, including such issues as the scope of property, conformity with State laws, expropriation and other allowable limitations, due process of law, compensation and indeed the very inclusion of the right.[29]
However, a number of other international and regional treaties contain property clauses of some kind.
ICERD
Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination provides:
In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:
[…]
(d) Other civil rights, in particular:
[…]
(v) The right to own property alone as well as in association with others;
(vi) The right to inherit
Hathaway notes that the guarantee of non-discrimination in ICERD is potentially of greatest relevance to the whole refugee class, so long as the asylum state is party to that Convention.[30]
CEDAW
Article 15 of the International Convention on the Elimination of All Forms of Discrimination Against Women provides:
2. States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.
Furthermore, Article 16 provides:
1. States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women:
[…]
(h) The same rights for both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property, whether free of charge or for a valuable consideration.
ILO
A number of standards established by the International Labour Organisation cover property rights of trade unions[31] and workers[32].
Migrant Workers
Article 15 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families provides:
No migrant worker or member of his or her family shall be arbitrarily deprived of property, whether owned individually or in association with others. Where, under the legislation in force in the State of employment, the assets of a migrant worker or a member of his or her family are expropriated in whole or in part, the person concerned shall have the right to fair and adequate compensation.
Non-discrimination
While the universal international human rights treaties do not set a clear right to property,[33] in addition to the specific and limited rights to property occurring in specialized conventions, property rights may be protected indirectly through the universal duty of non-discrimination.[34]
Article 26 of the ICCPR provides a universal right to equality before the law and equal protection of the law. As a free standing non-discrimination provision, it offers protection against discrimination in the enjoyment of all rights, including the right to property.[35]
Article 26 prohibits discrimination on the basis of “national origin” and “other status”. Legal distinctions between citizens and non-citizens must therefore be justifiable on the basis of real differences of capability or potentiality.[36] As interpreted by the Human Rights Committee, Article 26 presumes the illegitimacy of any rights allocation made on the basis of any form of status, specifically understood to include alien status.[37] Thus, while some exclusions on property ownership by aliens may be deemed “reasonable” under international law, others may not.[38]
The denial of some key property rights to refugees may therefore be most effectively challenged on the grounds of unreasonable differentiation against the generic class of non-citizens.[39]
Thus, the guarantee of non-discrimination can, in practice, be an important means to contest the legal validity of restrictions on property rights imposed on aliens generally, or on refugees specifically.[40]
Regional Human Rights Arrangement
The right to property also occurs in regional human rights arrangements, including in Europe,[41] Africa[42] and the Americas.[43]
Analysis
“The Contracting States”
[Addressed in a previous commentary]
“shall accord”
[Addressed in a previous commentary]
“to a refugee”
[Addressed in a previous commentary]
“treatment as favourable as possible and, in any event, not less favourable than that accorded to aliens generally”
Article 13 closely resembles the generalized standard of treatment prescribed in Article 7(1) of the Refugee Convention:
Except where this Convention contains more favourable provisions, a Contracting State shall accord to refugees the same treatment as is accorded to aliens generally.
The key difference is that Article 13 insists on “treatment as favourable as possible” (this phrase will be discussed below).
Article 7(1) is conceived in broad terms and is designed to ensure that refugees receive the benefit of all laws and policies that normally apply to aliens.[44]
Hathaway notes that the primary value of Article 7(1) is to incorporate by reference all general sources of rights for non-citizens:
“Simply put, refugees cannot be excluded from any rights which the asylum state normally grants to other foreigners.”[45]
Thus, Article 7(1) ensures that refugees may claim the range of rights set by international aliens law, as well as the benefit of any international legal obligations which govern the treatment of aliens in general.[46]
Setting the standard of treatment at “aliens generally” was also a useful means by which to meet concerns that Article 7(1) would include the obligation to grant refugees special rights reserved for preferred foreigners, for example, the citizens of countries affiliated in an economic or political union.[47]Because exceptional rights of this kind do not ordinarily inhere in “aliens generally”, the new general standard allows for them to be withheld from refugees.[48]