International Standardsthat Relate toDetentions, Corrections,and Prisons

INPROL Consolidated Response (10-002)

With contributions from Tomris Atabay, Claudia Baroni, Geralyn Busnardo, William Durch,Ketevan Gagnizde, Franck Gorchs-Chacou, Isabel Hight, Richard Kuuire, JohnNikita, Vivienne O’Connor, Larry Sage, William Schabas, William Sells, AndrewSolomon, Adam Stapleton, and Markus Zimmer Research assistance provided by

Shamus BrennanDrafted by Gary Hill, Scott Carlson, and Zach McKinney

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INPROL Consolidated Response (10-002)

January 2010

Submitted by:

Don Stolworthy, Senior Corrections Adviser to INL

Drafted by:

Gary Hill, INPROL Corrections Forum Facilitator; Zach McKinney, INPROLProgram Specialist; and Scott Carlson, INPROL Co-Director and Senior ROL Advisor,USIP.

With contributions from:

1. Tomris Atabay, Criminal Justice Reform Expert, UNODC2. Claudia Baroni, Organized Crime and Criminal Justice Section, UNODC3. Geralyn Busnardo, Chief of Party Afghanistan, IDLO4. William Durch, Future of Peace Operations Program Co-Director, Stimson Center 5. Ketevan Gagnizde, Child Protection Adviser, UNMIL6. Franck Gorchs-Chacou, Prison System Analyst, European CommissionMadagascar 7. Isabel Hight, International Committee of the Red Cross; INPROL ROL Council of Experts8. Richard Kuuire, Corrections Policy Officer, UN OROLSI9. John Nikita, Royal Canadian Mounted Police (ret.)10. Vivienne O’Connor, Senior ROL Advisor, USIP11. Larry Sage, Afghanistan Ministry of Defense Parliamentary Affairs Mentor, USDepartment of Defense12. William Schabas, Director, Irish Centre for Human Rights, National University of Ireland, Galway; INPROL ROL Council of Experts13. William Sells, Military Analyst, US Army Judge Advocate General's CLAMO14. Andrew Solomon, Deputy Director and Fellow, Brookings-Bern Project onInternal Displacement, Brookings Institution, INPROL ROL Council of Experts15. Adam Stapleton, Northwestern University16. Markus Zimmer, International Association of Court AdministrationThe full text of the responses provided by these INPROL members can be found athttp://www.inprol.org/node/4607. INPROL invites further comment by members.

Note:

All opinions stated in this consolidated response have been made in a personalcapacity and do not necessarily reflect the views of particular organizations. INPROLdoes not explicitly advocate policies.

January 2010 INPROL Consolidated Response (

10-002

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Query:

What are the key international standards that relate to detentions, corrections, andprisons and the international bodies that have issued them.

Background:

International standards consist of both hard and soft law. When international standardsare employed in a professional context by rule of law practitioners and others, thisdistinction is crucial to understand and apply. Both can be important, but the manner inwhich they will be viewed and applied will differ.Hard law consists of legally binding international standards that require actors toconform their behavior accordingly. Enforcement of hard law can be through legislative,executive, and/or judicial means. However, what is essential to emphasize is thatenforcement is not optional. The failure to enforce applicable hard international law is aviolation of a legally binding obligation, therefore by definition illegal.In contrast, soft law consists of non-binding normative instruments that actors maychoose to conform with. Some soft instruments, e.g. OSCE commitments and similar agreements, can be “politically binding” when adopted by consensus. Given the degreeof scholarly attention and consensus that most soft law represents, many actors chooseto implement soft law through legislative, executive, and/or judicial means. However,such implementation requires that some legal and/or constitutional acts be employed toeffectively convert these standards into hard law. As the Secretary General of theUnited Nations (UN) notes in his August 2009 Annual Report on Strengthening andCoordinating United Nations Rule of Law Activities:The [UN] has long assisted countries to develop their national laws to incorporateinternational norms and standards. The many universal, non-binding principlesand standards in most fields of international law developed jointly by Statesassist in the formulating legislation and policy reflective of good practice.

Perhaps the most preeminent example of hard law is the UN Charter. Article 1 providesin pertinent part that a core goal of the UN is to achieve international cooperation in"promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion."

Building upon thisfoundation, the United Nations concluded that additional hard law would be necessary

Report of the Secretary General of the United Nations to the United Nations Security Council, Annualreport on the strengthening and coordinating United Nations rule of law activities, U.N. SCOR, 64th Sess.,Doc. A/64/298 (17 August 2009), para. 27.

Charter of the United Nations, Article 1

, United Nations,http://www.un.org/en/documents/charter/chapter1.shtml.