Making the Mandela Rules: Evidence, Expertise, and Politics in the Development of Soft Law International Prison Standards
34 Pages Posted: 16 May 2018
Date Written: Spring 2018
In 2015, the United Nations adopted the Revised Standard Minimum Rules for the Treatment of Prisoners, known as the Mandela Rules. These new soft law standards are a significant normative reference for national legislators, courts, correctional administrators, and advocates on a range of prison conditions issues. The Mandela Rules include restrictions on solitary confinement that are far more stringent than longstanding Canadian law and practice and have already begun to inform the resolution of contemporary constitutional litigation.
Despite their use in constitutional litigation, there is little empirical work done on how international standards, such as the Mandela Rules, are generated—what evidence is relied upon, what compromises are made, and what pragmatic realities shape the final content. This article provides a window into the socio-legal aspects of developing soft law on a topic that is gaining prominence in international and domestic arenas. Drawing from both original interviews and official accounts, this article traces the formation of the UN Mandela Rules and examines how the preparatory and negotiation processes included an unusual degree of involvement of subject matter experts, with both advocates and correctional administrators working to generate evidence-based, pragmatic recommendations. The author argues that the process behind the Mandela Rules challenges assumptions about “correctional expertise” being opposed to restrictions on solitary confinement. Furthermore, this account of the making of the Mandela Rules suggests that these new international norms are not aspirational or foreign, as some have assumed. Rather, they are the product of thoughtful grappling with both normative and operational principles across varying prison settings. The author concludes that judges and policy-makers should consider the broader context of the development of international standards when determining how to rely on international norms as a source of evidence in the resolution of domestic legal issues.
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