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experts would not yet characterize as being part of customary law. They
include: the right to freedom of association, the right to democracy (as it
is commonly termed), freedom of religion, privacy, due process rights and
various workers’ rights, including the prohibition of exploitative child
labour, etc. The list of non-customary rights is a very long one, if we
accept for example the approach reflected in the American Law Institute’s
Third Restatement of the Foreign Relations Law of the United States
(para. 702). But this argument has never been raised by the State(s) which
challenge the right to housing when they themselves have sought to insist on
the need for other States to respect these human rights, even though they
might not be bound by relevant treaty obligations or by traditional
interpretations of customary law. There is therefore no basis in law, policy
or practice for the suggestion that the absence of a right from the list of
customary norms is sufficient reason for any reference to that norm to be
excluded from United Nations documents.
13.
A third argument used was to the effect that the domestic law of certain
States has never recognized a right to housing. This may well be the case,
but there are two important qualifications to be noted. The first is that the
International Convention on the Elimination of All Forms of Racial
Discrimination, to which the great majority of States are parties, refers
explicitly to "the right to housing". While this applies only to an
obligation not to discriminate in relation to that right, it constitutes an
unequivocal recognition of the right per se. Secondly, the fact that
municipal law in one or more States does not recognize a given right as a
human right for the purposes of domestic law is no reason to oppose any
reference to it in an international document.
14.
The final argument apparently put forward was that a right to housing
would be incompatible with the "enablement" approach reflected in the
United Nations Global Strategy for Shelter to the Year 2000. This argument
could only be plausible if the right to housing were radically misinterpreted
so as to equate it with an obligation upon a Government actually to provide
every individual with housing. Such a proposition could only be advanced from
the vantage point of great ignorance of the international human rights
framework and of the views consistently expressed by the Committee on
Economic, Social and Cultural Rights.
15.
In assessing the arguments put forward against the existence of a right
to adequate housing it is necessary also to bear in mind the implications of
such a position for the overall development of international law in the human
rights field. Many States have responded in an appropriately firm and
uncompromising manner to suggestions by a few observers that some of the
rights contained in the Universal Declaration of Human Rights and in the
International Bill of Human Rights are not "really" human rights. These
assaults on the principle of universality have correctly been rebuffed, and
the Vienna Declaration and Programme of Action adopted by the World Conference
on Human Rights was clear and unequivocal in its affirmation of the principles
involved. It is extraordinary, however, that those who challenge the
existence of a right to housing seem to be engaging in precisely such an
assault, albeit in relation to a different human right. Denying the existence
of one of the long-recognized human rights is a strategy fraught with danger
and one which cannot help but undermine the international legal regime. It is
one thing for a given State to insist that it does not recognize for itself an