International Perspective on Right to Counsel in Civil Cases


A Right Recognized Elsewhere in the World


Elsewhere in the world, it is widely accepted that a litigant who is unable to afford counsel in a civil case should get a lawyer at public expense. To give one example: Canada, Australia, New Zealand, Brazil, Madagascar, and South Africa have statutes or a constitutional provision providing for free civil counsel for the indigent. In contrast, the United States ranked 65th out of 99 countries in terms of providing access to justice.


In 1979, the European Court of Human Rights ruled in Airey v. Ireland that low-income people's access to the courts through free counsel was a human right. Following that ruling, the Council of Europe required its members (which now include 47 different countries) to provide free civil counsel. The right does have limits: each country has developed its own eligibility standards, which most often include income limits and a merits test.


A basis for a civil right to counsel is also found in international human rights law. Article 10 of the International Declaration of Human Rights says a person "is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations … ."  While this does not create a legal obligation,  the U.S. has ratified treaties that do create binding legal obligations and that incorporate International Declaration of Human Rights principles.


Enforcement of Human Rights by the United Nations


Advocates have worked with the United Nation's Human Rights Council regarding enforcement in the United States of general human rights principles. In 2014, there was a Civil Society Consultation with the U.S. Government on Access to Justice, in preparation for the United States' response to recommendations made to the U.S. by the Human Rights Council in the 2010 Universal Periodic Review. Numerous people, including NCCRC participants, spoke at the Consultation and urged the U.S. Government to do more to support the right to counsel in civil cases.


Treaties Incorporating Civil Right to Counsel Concepts


International Covenant on Civil and Political Rights


While the International Covenant on Civil and Political Rights (ICCPR) only explicitly recognizes a right to counsel in criminal cases, the Human Rights Committee (the entity that interprets the treaty) has found the availability of civil legal assistance to be relevant to compliance with the treaty. In 2011, the United States issued its latest ICCPR compliance report, and in 2013, a network of organizations, including the NCCRC, issued a shadow report detailing how the compliance report filed by the United States demonstrates how the U.S. has failed to comply with its ICCPR obligations. Such shadow reports can be an excellent resource for advocacy.


International Convention on the Elimination of All Forms of Racial Discrimination


Another treaty which the U.S. has ratified as binding law is the International Convention on the Elimination of All Forms of Racial Discrimination, or CERD. Several of its provisions address fair judicial procedures and require signatories to take positive steps to ensure access to the courts. In 2014, various advocacy groups will be issuing a shadow report on CERD compliance.


Charter of the Organization of American States


The Charter of the Organization of American States (Article 45) calls for "all persons to have due legal aid in order to secure their rights", and the Inter-American Court of Human Rights recognized the right to counsel in 2003.