The Legal Empowerment Toolkit Series is a project of the Jailhouse Lawyers Initiative (JLI). Please write to us at the address below if you are interested in receiving detailed legal education and empowerment curriculum. We will add you to the JLI network and send modules and newsletters on a regular basis.
JLI works to ensure Jailhouse Lawyers have access to effective and relevant training that equips them to meet the diverse legal needs of incarcerated people. JLI is rooted in the legal empowerment of jailhouse lawyers and advocates for leadership, peer support and trauma responsive skills as a part of the jailhouse lawyer training. JLI is a national project of the Legal Empowerment Advocacy Hub (LEAH) and is supported by the Bernstein Institute for Human Rights at NYU School of Law. JLI has partnered with NLG’s Guild Notes to engage and empower NLG jailhouse lawyer members nationwide.
Learning Objectives
- Identify the 5 important sources of human rights law
- Identify 9 protected rights of people who are incarcerated
- Learn 5 ways to use human rights to advance the rights of incarcerated people
Introduction
Human rights are inherent to all human beings, regardless of race, sex, nationality, ethnicity, language, religion, or any other status. Everyone is entitled to these rights, anywhere in the world without discrimination, just for being a human being. This includes people who are incarcerated.
There are human rights frameworks, guidelines and rules that establish protections and standards for the rights of incarcerated individuals. Jailhouse lawyers can use the language, standards, and mechanisms of human rights to hold the government accountable. Although the United States government typically follows and approach of American Exceptionalism, the idea that the United States and its laws take priority over international law and global consensus, international human rights can still be used as a tool for advocacy. Incarcerated individuals have an opportunity to raise awareness of the injustices they suffer and seek accountability for violations of prisoners’ rights through a range of community-driven strategies. Too often, those most directly impacted by human rights violations are not engaged in the human rights process. Your voices, experiences and demands should be central to human rights protections, monitoring and accountability work.
Sources of Human Rights
There are many sources to find human rights law. The majority of human rights law is found in binding treaties or non-binding declarations that countries sign onto. While many of these rights also exist under U.S. law, international human rights law provides another foundation for these rights, and in some cases, expands upon them. Friends or families on the outside can retrieve the text of the treaties freely online. You can also write to the Office of the High Commissioner on Human Rights to receive a physical copy of The Core International Human Rights Treaties (ISBN 92-1-154166-2). In this toolkit, we will discuss 5 key sources for international human rights law:
The Universal Declaration of Human Rights (UDHR)
The UDHR was written at the beginning of the modern human rights movement after World War II. It is a milestone document in the history of human rights. It was drafted by representatives from many parts of the world with different legal and cultural backgrounds and was presented by the United Nations General Assembly in Paris in 1948. It sets out, for the first time, the fundamental human rights that need to be protected everywhere. Since 1948, the UDHR has been translated into more than 500 languages – making it the most translated document in the world – and has inspired the Constitutions of many newly independent countries and many new democracies.
International Covenant on Economic, Social and Cultural Rights (ICESCR)
One of the most important human rights treaties is the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR covers many things that affect your daily life, from protecting your right to an education, a safe home, adequate food, a job that supports you and treats you with respect, and the right to medical care.
The ICESCR recognizes that it takes time and resources for governments to fulfill these rights, and instead of immediate compliance, calls for the progressive realization of rights. This means that countries take active and deliberate steps as part of a long term plan to achieve full compliance. This also means that no matter what level of resources they have, countries must take immediate steps within their means. If a country takes a step backwards from their obligations, then that’s considered a violation of the ICESCR.
The International Covenant on Civil and Political Rights (ICCPR)
Another important human rights treaty is the International Covenant on Civil and Political Rights (ICCPR). Many things that affect you in your daily life are covered by the ICCPR. Your right to life, to be free from torture, privacy, a fair trial, freedom of speech, press, movement, religion, assembly, and association, are all fundamental rights protected by the ICCPR. Countries that sign onto the ICCPR must comply with it immediately.
Nelson Mandela Rules
The Nelson Mandela rules lay out agreed minimum standards for how countries should treat all people they detain, whether pre- or post-trial with the 122 rules covering all aspects of prison management. The Standard Minimum Rules for the Treatment of Prisoners (its original name) were first adopted in 1957, and in 2015 were revised and adopted as the Nelson Mandela Rules. The Mandela Rules are the key framework used by the United Nations to assess the treatment of prisoners, its protections include the right to a clean and adequate sleeping area, healthy food, enough ventilation and sunlight, and procedural fairness in the administration of prisons.
Bangkok Rules
The Bangkok Rules supplement existing international standards on the treatment of prisoners to be specifically tailored to the treatment of women prisoners including admission procedures, healthcare, search procedures, and children who accompany their mothers into prison.
Core Human Rights of Incarcerated Persons
Below is a list of some specific rights that are protected by international law including the source of the right. This is not an exhaustive list, but it includes many of the rights that jailhouse lawyers can use in litigation and advocacy efforts.
| Right | Description | Sources of the Right in IHRL |
| Right to access information | Incarcerated individuals must be given information about the rules of their institution and information about any disciplinary action that is taken against them. The right to access information also establishes the right to access newspapers, periodicals, lectures, and other sources of information to be able to keep up with the news. | UDHRICCPRMandela Rules |
| Right to access justice | No one can be subjected to arbitrary arrest or detention, everyone is entitled to a full, fair, and public trial, and everyone has the right to access the courts. | UDHRICCPRMandela Rules |
| Right to adequate living conditions | Adequate living conditions include: *the right to occupy a cell or room by oneself at night (unless due to temporary overcrowding), *the right to one’s own bed and clean bedding, windows for light, *clean and adequate clothing, and *sufficient food and water. | UDHRMandela Rules |
| Right to sanitation | Incarcerated individuals are able to comply with the needs of nature in a clean and decent manner – this includes adequate bathing and shower installations so that individuals can shower at a minimum once a week and free menstrual hygiene products. | UDHRICESCRMandela RulesBangkok Rules |
| Right to medical care | Incarcerated individuals should receive the same level of health care as is available in the community, and individuals should have access to necessary health care services for free, without discrimination on the grounds of their legal status. | UDHRICESCRMandela RulesBangkok Rules |
| Right to contact with the outside world | Incarcerated individuals must be allowed to communicate with friends and family through letters (and emails where available) and visits, and that prisons must house incarcerated individuals close to their homes or places of social rehabilitation to the extent possible. | UDHRICCPRMandela Rules |
| Right to access education, programming, and training | Incarcerated individuals must have access to education, recreational and cultural activities, and vocational training and work. | UDHRICESCRMandela Rules |
| Right to property | This includes the right to have one’s belongings kept in safe custody during incarceration and returned upon release. | UDHRMandela Rules |
| Right to be free from torture and other cruel, inhuman, or degrading treatment or punishment | An act is considered torture if it: causes severe pain or suffering; is intentionally inflicted to obtain information, punish, intimidate, coerce, or discriminate; and is committed by or with the permission of a government official or anyone acting in an official capacity | UDHRICCPRMandela Rules |
How Jailhouse Lawyers Can Use International Human Rights Law
When and how to use human rights law is a strategic choice. Some methods like submitting a complaint to a regional body may require “exhaustion” of your own country’s courts, but others–like writing a complaint to a special rapporteur (an independent UN official who reports on whether or not countries are properly protecting human rights) –do not. Here are some ideas on how you can use human rights law:
- Using Human Rights in Community-Led Campaigns
- Citing to Human Rights Law as Persuasive Authority in Lawsuits
- Campaigns to Raise Awareness Around Ratification/Recognition of International Human Rights in the United States
- Naming and Shaming Campaigns
- Filing Complaints With International Bodies
Become part of the conversation. Write to JLI at:
Attn: Tyler Walton
Jailhouse Lawyers Initiative
Bernstein Institute for Human Rights at NYU Law
139 MacDougal Street, B23
New York, NY 10012