*2.3. International Detention Standards*

Although various international human rights law instruments govern immigration detention, they are not all legally binding on the United States. This article will therefore focus on the two main binding legal instruments that address the rights of migrants in detention: the International Covenant on Civil and Political Rights (ICCPR)<sup>20</sup> and the United Nations Convention Against Torture and Cruel, Inhuman or Degrading Treatment (UNCAT).<sup>21</sup> These standards apply to all governmen<sup>t</sup> entities and agencies, as well as private contractors that carry out governmen<sup>t</sup> functions, such as running immigration detention centers.

The U.S. ratified the ICCPR in 1992. It applies to governmen<sup>t</sup> entities and agents, but it provides no enforceable rights for individuals in U.S. courts. However, the U.S. must report to the United Nations (UN) Human Rights Committee to demonstrate its compliance with the Convention. The U.S. is therefore obligated to ensure that all governmen<sup>t</sup> officials are complying with the Convention's obligations with respect to detained persons (Skinner 2008, p. 292). Article 6 ICCPR guarantees the right to life to "every human being". The UN Human Rights Committee has explained that this requires states to "take special measures of protection towards persons in situation [sic] of vulnerability", including refugees and asylum seekers, and that a "heightened duty of care" applies to those "deprived of their liberty by the State" (United Nations Human Rights Committee 2018, para. 23). Article 7 of the ICCPR provides that, "No one shall be subjected to torture or to cruel, inhuman or

degrading treatment or punishment". This means that governments are required to provide "adequate medical care during detention", (United Nations Human Rights Committee 1990, p. 69) including "prompt and regular access be given to doctors and lawyers" to prevent "physical and mental suffering".<sup>22</sup>

The U.S. ratified the UNCAT in 1994 and has enacted a number of domestic laws to implement its provisions (Garcia 2009).<sup>23</sup> As with the ICCPR, the U.S. must report periodically on its compliance with the UNCAT to the Committee Against Torture. UNCAT includes a general prohibition on torture and other inhuman and degrading treatment. Together, Articles 10 and 11 make clear that parties to the Convention must comply with its provisions with respect to individuals held in custody (Skinner 2008, p. 292). The Committee has found that the UNCAT may be violated if a state fails to provide adequate medical care (Amon 2020).

Although this article focuses on the two legal instruments just described, it is worth highlighting the UN Standard Rules for the Treatment of Prisoners (also known as the Nelson Mandela Rules). Although not legally binding, the Nelson Mandela Rules go beyond the standards set forth in the two instruments above (United Nations General Assembly 2016). For example, they provide detailed standards regarding accommodation, hygiene, clothing and bedding, food, and healthcare services, including the rule that detainees "should enjoy the same standards of health care that are available in the community, and should have access to necessary health-care services free of charge without discrimination on the grounds of their legal status" (United Nations General Assembly 2016, Rule 24).
