140

Id.

The goals obtained within the Declaration are lofty, but their concrete application has the potential to produce real and measurable progress. One area in need of such progress is the field of education, specifically prisoner education. International law considers the Universal Declaration of Human Rights as customary international law, which means that it has been recognized as “international custom, as evidence of a general practice accepted as law” under the Statute of the International Court of Justice (“ICJ”). 144 So, with “state practice, and a sense of legal obligation, or opinio juris,” a customary norm is born. 145 [S]tandards set by the Universal Declaration of Human Rights, although initially only declaratory and non-binding, have by now, through wide acceptance and recitation by nations as having normative effect, become binding customary law. Whatever may be the weight of this argument, it is certainly true that the Declaration is in practice frequently invoked as if it were legally binding, both by nations and by private individuals and groups. While not binding, customary norms are still highly influential. International legal scholar Richard Bilder has observed that:
146

Article 26 of the Declaration speaks directly to the fundamental right to education. It succinctly states that “[e]veryone has a right to education.” 147 The purpose of this general statement is to “[develop] . . . the human personality” and promote respect, tolerance, and appreciation among all groups of people.148 This purpose aligns with the conclusion in McGee v. Aaron stressing the importance of education in improving self-esteem and contributing to a person’s successful functioning in society.149 Richard Pierre Claude, author of The Right to Education and Human Rights Education, discusses Article 26 in detail
150

Education takes on the status of a human right because it is integral to and enhances human dignity through its fruits of knowledge, wisdom, and understanding. . . . It is a social right because in the context of the community it promotes the full development of the human personality. It is an economic right because it facilitates economic selfsufficiency through employment or self-employment. It is a cultural right . . . . In short, education is a prerequisite for individuals to function as fully human being in modern society.
151

Because the Declaration of Human Rights is customary international law, it is binding on all nations, including the United States.
152

B. U.N. Standard Minimum Rules for the Treatment of Prisoners Prisoners, though restricted in some of their rights, are still citizens. The United States is obligated under customary international law to

ensure that all of its citizens, and thus its prisoners, have access to education.
Standard Minimum Rules and American Declaration The U.N. Standard Minimum Rules for the Treatment of Prisoners contains several provisions specifically targeting education.153 These standards do not wield the force of law, but they are an “authoritative guide to binding treaty standards.”154 Under Part II, the Guiding Principles for those overseeing the prison system include a command to take “the necessary steps . . . to

ensure for the prisoner a gradual return to life in society,” and to foster a sense of community inclusion.155 The U.N. Minimum Rules require “the further education of all prisoners capable of profiting thereby,” making such education compulsory for youthful and
illiterate offenders.156 Furthermore, the Rules stress the importance of aligning the prison curriculum with that of the community, so that upon release, the prisoners may resume their learning without significant difficulty.157 The American Declaration on the Rights of Man should be read in conjunction with the Standard Minimum Rules. 158 Article 25 of the American Declaration guarantees to prisoners the right to humane treatment during their custody.159 As one scholar observed, “*w+hile some aspects pertaining to the treatment of prisoners have quite clearly evolved into international customary law, others are far from the level of general acceptance, and may never achieve customary status.” 160 For example, while humane treatment may require that prisoners have access to a library, as is stated in the Standard Minimum Rules,161 the international community does not accept such a right as a binding norm. 162

. Article Five of CADE states that adhering parties to the convention agree that: Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. as its willingness to sign but not ratify the ICESCR reflects. the ICESCR. the United States takes a cautious approach to subscribing to international law.” 175 The overall right to education includes primary. tolerance and friendship among all nations.189 Article Three also forbids adhering States “to allow. while the lack of basic education among a significant proportion of the population prevents societies from addressing such problems with strength and purpose. in Articles Three. vocational.”195True comprehension of this concept by those involved in the prison system could lead to a better understanding of the paramount importance of supporting rehabilitation programs politically and fiscally.”178 A nation that ratifies an international treaty must submit reports to the U. As an empowerment right. 174 The Council identified the right to education as “*reflecting+ the fundamental purposes and principles of the United Nations.”192 Finally. 188 Article Three bans administrative discrimination in education in statutory matters and scholarships—especially important for prisoners. according to the U. Council on Economic. 179 Once ratified by the United States. racial or religious groups.173In a general comment on the implementation of this article.” and higher education similarly accessible to those capable of pursuing it. the Economic and Social Council stated: Education is both a human right in itself and an indispensable means of realizing other human rights. but did not ratify. it shall promote understanding. and to promote societal harmony. . until it [has] made its intention clear not to become a party.180 Ratifying the ICESCR would aid the United States in setting clear standards to which prison administration could conform. universal access to education. Constitution. It would also provide a model for scholars and educators to develop programs and serve as a measure against which researchers could test the success rates of rehabilitation programs. and Five.172 Article 13 of the ICESCR acknowledges that the right to education belongs to “everyone. 191 Article Four also calls for States “*t+o encourage and intensify by appropriate methods the education of persons who have not received any primary education or who have not completed the entire primary education course and the continuation of their education on the basis of individual capacity. to develop each person’s potential. and Cultural Rights (“ICESCR”). and shall further the activities of the United Nations for the maintenance of peace. 177 Generally.171 The United States signed. any restrictions or preference based solely on the ground that pupils belong to a particular group. and it includes crime among the “problems [that] constrain efforts to meet basic learning needs. and the force and application of an international treaty depends on whether a nation by signing or ratifying it ascribes to its provisions. a treaty becomes a covenant and consequently the supreme law of the land. technical. education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.The Universal Declaration of Human Rights was codified in the International Covenant on Civil and Political Rights (“ICCPR”)170 and the International Covenant on Economic. secondary.176 An international declaration is not technically binding. As a signatory. More education warrants The Convention Against Discrimination in Education (“CADE”). Four. 193 The World Declaration on Education for All provides another noteworthy international document on education.” and that such a right serves to strengthen human dignity. the United States’ obligations include “refrain[ing] from acts which would defeat the object and purpose of [the] treaty. . binds its members to promote nondiscriminatory. Social and Cultural Rights regarding the measures adopted and the success met in light of the treaty’s goals.N. Social. and higher education.S. 194 This declaration identifies the struggle that all nations face in dealing with crime.” 190 Article Four discusses a national policy of free primary education. secondary education “generally available and accessible to all. in any form of assistance granted by the public authorities to educational institutions.

and that efforts to hold the U. Since international norms recognize a universal right to education for free citizens and prisoners alike.VII. the fact that the United States declines to ratify human rights treaties may negatively impact foreign policy. [C]onstitution and justice system can’t be improved upon.200 Not only does the U. advocates of prisoner rehabilitation and education seek to convince the United States to embrace and adopt such standards at a federal level. the United States. it also diminishes the United States’ effectiveness in persuading other nations to adopt human rights practices. financial. art. 5.S. sec. . foreign policy are undermined both by Washington’s reluctance to criticize the practices of commercially or strategically important countries and by a strong sense of exceptionalism—that the U. (1)(a).S. 201By collaborating with other countries on ideas of prisoner rehabilitation and experimenting with the latest programs advocated by researchers.197 Numerous reservations cling to the international treaties the United States does ratify. could prove a powerful engine in enacting global change. and other resources. the credibility of the United States’ own human rights policy suffers. government’s refusal to embrace international standards “preclude the United States from participating in” the development of human rights internationally. with its vast intellectual. 198 and the government precludes self-executing treaties.S. 196 The United States is perceived as talking Human Rights Watch: Assertions that human rights are central to U. AND NOW: THE INCORPORATION OF INTERNATIONAL K2 human rights influence 193 Id. Several policy rationales exist for the United States to adopt and ratify international treaties.199 Because of its soft treatment of other industrialized countries’ human rights abuses. accountable to international standards are unacceptable infringements on sovereignty.S. From a global perspective.

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