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Cyrus Dugger

Human Rights & the Right to Counsel in Civil Cases

Often, in the United States, the scope of debates about legal issues, or in fact any issue, are artificially limited. That limitation is their confinement to the domestic sphere. The United States does not only operate within its own borders, but exists within a global community. One area where we definitively lag behind the developed nations we most often compare ourselves to is within the provision of a right to civil counsel. This right, or civil Gideon as it is often called here, has recently been endorsed by the American Bar Association regarding adversarial proceedings in which basic human needs are at stake.

The following report lays out the case for a right to civil counsel (in some form) as a potential emerging right under international law. As the report concludes:


The international law discussed here supports the conclusion that the Civil Gideon right is an emerging right in international jurisprudence.

From the Northeastern University School of Law Program on Human Rights and the Global Economy:

HUMAN RIGHTS AND THE RIGHT TO COUNSEL IN CIVIL CASES
DECEMBER 2006
Northeastern University School of Law
Program on Human Rights and the Global Economy

Introduction

Article 10 of the Universal Declaration of Human Rights provides that [e]veryone is entitle in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Completed in 1948, the Universal Declaration was intended to give “substance to the term 'human rights' used in the United Nations Charter.” While it is simply a declaration, without the legal force of a treaty, the Universal Declaration is widely acknowledged as a fundamental statement of human rights principles, setting out a “universally recognized minimum standard.

The rights articulated in the Universal Declaration span procedural and substantive rights, including a basic right to a fair trial. Importantly, without dictating specific requirements beyond equality of treatment and an impartial tribunal, Article 10 of the Universal Declaration extends its statement of procedural fairness to civil as well as criminal matters. Earlier drafts of the Universal Declaration went farther and specifically stated that everyone, in both civil and criminal matters, “shall have the right to consult and to be represented by counsel.” However, because the national delegations on the drafting committee agreed that such specific language belonged in a treaty rather than in the Declaration, the General Assembly of the United Nations ultimately adopted the more succinct final version of Article 10.5.

Nevertheless, the issue of a right to counsel in civil cases has remained a matter of significant concern under international human rights law. Indeed, the right to counsel in civil matters is well-established as a general principle of law in the international community. The European Court of Human Rights has construed the European
Convention for the Protection of Human Rights and Fundamental Freedoms to require a right to civil counsel. The Inter-American Court of Human Rights has also recognized the right. Nations from Ireland to Madagascar provide broad rights to counsel in civil matters, while others such as South Africa provide a right to counsel in certain matters involving fundamental rights such as housing. Finally, the Human Rights Committee of the United Nations has also addressed the right to counsel in civil matters, as have other United Nations bodies.

The United States, however, lags behind much of the international community in implementing this right. Despite the nation's reputation for setting high standards of procedural fairness, its record of providing counsel in civil matters is poor. As described below, the federal government has generally left the issue to the states or individual judges, with a resulting patchwork of approaches. Few would argue that the United States is providing leadership internationally in dealing with this issue.

Our purpose in examining international law relevant to the right to counsel in civil cases is so that others may use the international framework to illuminate and critique United States' practices. Because of this purpose, we examine primarily “universal” standards set by the United Nations or through U.N.-sponsored conferences, and regional human rights law directly relevant to the Americas. In addition to the material covered here, the European Convention on Human Rights also provides an instructive example to the United States, as do individual nations' approaches to the right to counsel in civil cases. But our goal is to fill a gap in the existing knowledge by examining the international human rights law most directly relevant to the United States. As detailed below, these materials lend additional weight to the proposition that a right to counsel in civil cases is an emerging right necessary to the “interests of justice,” and gaining procedural fairness, its record of providing counsel in civil matters is poor. As described below, the federal government has generally left the issue to the states or individual judges, with a resulting patchwork of approaches. Few would argue that the
United States is providing leadership internationally in dealing with this issue. (read full report)

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