Along with the United States Constitution, your state constitution, and federal and state laws, another potential source of protection for prisoners is international law.

Using international law in United States courts can be complicated and controversial so you may not want to attempt it without a lawyer. This section will outline some basic facts about international law, and provide you with resources in case you want to explore the area further.

It is extremely difficult to bring a successful international claim in a United States court. However, some prisoners have found it useful to discuss international standards in suits based on more established domestic law. For example, one state court referred to standards set out in the International Covenant on Civil and Political Rights when deciding that searches of prisoners by guards of the opposite sex violated their rights under the Eighth Amendment. Sterling v. Cupp, 625 P.2d 123, 131 n.21 (Or. 1981).

In Atkins v. Virgnia, 536 U.S. 304 (2002), the Court struck down the death penalty for the intellectually disabled, noting that the practice was “overwhelmingly disapproved” in the world community. Later, in Roper v. Simmons, 125 S. Ct. 1183 (2005), the court relied even more heavily on international law and practice when it struck down the death penalty for juvenile offenders. In fact, even in her dissent from the Court’s ruling in Roper, Justice O’Connor acknowledged that international law and practice was relevant to the Court’s analysis when she observed: “Over the course of nearly half a century, the Court has consistently referred to foreign and international law as relevant to its assessment of evolving standards of decency. . . . At least, the existence of an international consensus of this nature can serve to confirm the reasonableness of a consonant and genuine American consensus.”

There are two main sources of international law: “customary international law” and treaties. Customary international law is unwritten law based on certain principles that are generally accepted worldwide. Treaties are written agreements between countries that set international legal standards. Under Article VI, section 2 of the United States Constitution treaties are part of the “supreme law” of the land. Customary and treaty-based international law are both supposed to be enforceable in the United States, but this is often controversial.

Customary international law prohibits several practices, such as slavery, state-sponsored murders and kidnappings, torture, arbitrary detention, systematic racial discrimination, and violation of generally accepted human rights standards. Restatement (Third) of Foreign Relations Law, Section 702 (1987). United States’ courts have recognized that some of these practices violate customary international law. For example, in Filartiga v. Pena-Irala 630 F.2d 876 (2d Cir. 1980), the court recognized that torture violates customary international law. Some American courts have been reluctant to accept the argument that a certain practice violates international law. For example, you learned earlier that the United States Supreme Court has ruled that in certain situations the death penalty is unconstitutional based in part on its survey of international law and practice. But the Court has failed to get rid of the death penalty altogether, even though a large majority of countries have abolished the death penalty in law or practice.

The United States is a “party” to several treaties that explain how prisoners should be treated. There are two stages to becoming a “party” to a treaty: signing the treaty and ratifying the treaty. By signing a treaty, a country agrees to its general principles. But only by ratifying a treaty does a nation incorporate the treaty’s provisions and standards into domestic law and become bound by them. The United States has ratified three human rights treaties that address the rights of prisoners: the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights; and the International Convention on the Elimination of All Forms of Racial Discrimination.

However, the United States has limited the ability of individuals to use the rights created by these treaties. First, when ratifying these treaties, Congress specifically stated that the United States government is not bound by certain provisions and that the United States government understands certain rights and protections to be severely restricted. Second, Congress has declared that many provisions of the treaties are not “self-executing,” meaning that individuals cannot sue in U.S. courts to enforce those provisions unless Congress has also passed “implementing legislation.” Foster v. Neilson, 27 U.S. 253 (1829).

While you will probably be unable to sue directly under these treaties, each treaty has a treaty body that monitors whether the United States is following the rules set out in the treaties. You can contact a human rights group, like Human Rights Watch, and ask for help sending a letter to one of those bodies.

Human Rights Watch is an organization that monitors the conditions in prisons and publishes reports on prisons. They answer mail from prisoners, and they also send free reports that you can use to support your legal claims.

U.S. Program Associate
Human Rights Watch
350 5th Avenue, 34th Floor
New York, New York 10118

Another important source of international law is the Universal Declaration of Human Rights, or UDHR. The UDHR was adopted by the UN General Assembly on December 10, 1948. It was the first time the fundamental freedoms and rights of all persons were set forth in detail by the international community. The UDHR is reprinted in Appendix G. It embodies the right to life, liberty and security of person, the right to be free from torture, arbitrary arrest and detention and the right to a fair and public hearing. It also enshrines the right to an adequate standard of living for health and well-being, the right to work, education, medical care and other essential social services, as well as the right to freedom of opinion, expression and peaceful assembly and association, among others. These are inherent rights belonging to all persons that cannot be granted or withdrawn by anyone or any government.

Finally, the United States is a member of the Organization of American States (OAS), and is bound to the provisions of the American Declaration on the Rights and Duties of Man. The Inter-American Commission on Human Rights is an independent part of the OAS that looks at possible human rights violations in the Americas. Individuals can present petitions to the Commission once available remedies have been pursued and exhausted in domestic courts.

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