Universal Declarations on Human Rights 1948 (“UDHR”)

UDHR is one of the major human rights instruments adopted by the United
Nations. Being a declaration, States have been debating as to whether UDHR is
a legally binding instrument.

Malaysian courts have to date decided that UDHR is not a legally binding
instrument. In this regard, His Lordship Eusoffe Abdoolcader in the High Court
case of Merdeka University Berhad v. Government of Malaysia 1 held the status
of UDHR as follows:

“UDHR was proclaimed and adopted on 10 December 1948, by the

General Assembly of the United Nations. It is not a legally binding
instrument as such and some of its provisions depart from existing and
generally accepted rules. It is merely a statement of principles devoid of
any obligatory character and is not part of our municipal law.”

In Mohamad Ezam Mohd Noor v. Ketua Polis Negara & Other, 2 the Federal Court
held that UDHR is not legally binding. The Federal Court further held that UDHR
is a resolution of the General Assembly of the United Nations and not an
instrument that is subject to the ratification or accession. By its very title it is an
instrument which declares or sets out statement of principles of conduct with a
view to promoting universal respect for and observance of human rights and
fundamental freedoms. Since such principles are only declaratory in nature, they
are not binding on Member States. If the United Nations had wanted those
principles to be more than declaratory in nature, they could have embodied them
in a convention or a treaty to which Member States can ratify or accede to.

Therefore, the Federal Court in the case of Mohamed Ezam appears to suggest
that a binding obligation can only be created under a treaty or convention, and
not by way of a declaration.

However, despite the above decisions and the fact that at the time UDHR was
adopted in 1948 it was not intended to have treaty status, as time passes more
and more States began to accept its principles to be legally binding.
Consequently, in the international fora today, treaty bodies such as the Human
Rights Council (“HRC”), Human Rights Committee (“HR Committee”), the
Committee on the Rights of the Child (“CRC Committee”), the Committee on the
Elimination of Discrimination against Women (“CEDAW Committee”) and the
Committee against Torture have treated the principles in UDHR as customary
international law.

1
[1981] 1 CLJ 175; [1981] CLJ (Rep) 191.
2
[2002] 4 CLJ 309.