Abstract

The Universal Declaration of Human Rights (UDHR), 1948, is one of the International Human Rights Laws’ prime sources. In this assignment, the binding effect of UDHR discusses the implementation of human rights for women and children under the UDHR as part of International Law.

1.    Overview

The Universal Declaration of Human Rights, 1948, also known as the UDHR, is a prime source of International Human Rights Law. It has both Civil and Political Rights, also known as Negative Rights, and Economic, Social, and Cultural Rights, also known as Positive Rights. The UDHR talks about the basic fundamental human rights, which are every human being’s birthrights. Men, Women, and Children all have equal rights beyond any discrimination. There has been a dispute over whether UDHR can be considered a binding legal document in implementing International Human Rights Laws. UDHR is the source of most of the active Human Rights Laws in the present time, which ensures every human beings’ fundamental birthrights, including Women and Children.

2.    Binding Effect of the UDHR

Generally, UDHR is a declaration enacted as a non-binding legal document over the States. But over time, the Rights mentioned in the UDHR have become a matter of State Practice and Opinio Juris Sive Necessitatis[1], which are the two fundamental elements of Customary International Law which as one of the prime primary sources of International Law has binding effect.

Some legal scholars have argued that because countries have invoked continuously the

Declaration for more than 50 years, it has become binding as a part of Customary International Law. However, in the United States, the Supreme Court in Sosa v. Alvarez Machain (2004)[2] concluded that the Declaration “does not of its force impose obligations as a matter of international law.” Courts of other countries have also concluded that the Declaration is not in and of itself part of domestic law.[3]

While not a treaty itself, the Declaration was explicitly adopted to define the meaning of the words “fundamental freedoms” and “human rights” appearing in the United Nations Charter, binding on all member states. For this reason, the Universal Declaration of Human Rights is a fundamental constitutive document of the United Nations.[4]  Besides, many international lawyers believe that the Declaration forms part of customary international law and is a powerful tool in applying diplomatic and moral pressure to governments that violate any of its articles. [5]

The Declaration has served as the foundation for two binding UN human rights covenants: The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. Principles of the Declaration are present in international treaties such as the International Convention on the Elimination of All Forms of Racial Discrimination, the International Convention on the Elimination of Discrimination Against Women, the United Nations Convention on the Rights of the Child, the United Nations Convention Against Torture, and many more. 

In the 70 years since its announcement, the document has profoundly influenced the development of international human rights law. Furthermore, countries have continuously invoked the Declaration. To some legal scholars, this perpetual reliance on the UDHR has been sufficient enough to promote it to the status of (legally) binding Customary International Law.[6]

3.    Implementation of the Rights of Women and Children under the UDHR

Not only does the UDHR can be considered as a binding legal document of International Human Rights Laws as a part of Customary International Law but also, genuinely binding legal treaties and conventions on the ratifying State parties such as the International Covenant on Civil and Political Right (ICCPR), 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 which have adopted most of their Articles from the UDHR, 1948. 

The UDHR talks about the rights of every human being, which includes women and children. UDHR has guaranteed the fundamental human rights of women and children as human beings. And as UDHR can ultimately be considered a binding legal international instrument, women and children’s rights can be implemented under the UDHR both nationally and internationally.

4.    Conclusion

UDHR is one of the essential documents of International Human Rights. The Rights mentioned in the UDHR are the fundamental human rights of every human being, including women and children. And as far as the question of the binding effect of the UDHR is concerned, one can safely say that UDHR as part of Customary International Law is a binding legal document, and we can legally implement the rights of women and children under UDHR both nationally and internationally.


[1] Opinio juris sive necessitatis or simply opinio juris (“an opinion of law”) is the belief that an action was carried out as a legal obligation.

[2] 542 U.S. 692, 734 (2004).  

[3] (“Universal Declaration of Human Rights”, 2020)

[4] Ibid.

[5] Ibid.

[6] ‘Universal Declaration of Human Rights’ 

Author: Md. Shoaib-Bin-Habib (Nahin). He is a final year student of LL.B. (Honors) at Law Discipline, Law School, Khulna University, Khulna, Bangladesh. He is currently enrolled as a Research Fellow at Bangladesh Legal Aid and Services Trust (BLAST). Corresponding Email: 172818@ku.ac.bd