Elsewhere in the world, the notion that a litigant who is unable to afford counsel should receive representation at public expense is widely accepted. Canada, Australia, New Zealand, Brazil, Madagascar, and South Africa have statutes or a constitutional provision providing for free civil counsel for the indigent.
The European Court of Human Rights ruled in 1979 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 number 47) to provide free civil counsel. The right does have limits, however; each country has developed its own eligibility standards, which most often include a means test for the client and a merits test for the case.
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 provides that 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 … .”
The declaration is an aspirational document that does not create legal obligations. However, the U.S. has ratified treaties that do create binding legal obligations and that incorporate International Declaration of Human Rights principles.
One of these is the International Covenant on Civil and Political Rights; it explicitly recognizes a right to counsel in criminal but not civil cases. However, the Human Rights Committee, which is the treaty’s principal interpretive body, has found the availability of civil legal assistance to be relevant to countries’ compliance with the treaty.
Another treaty which the U.S. has ratified and which therefore constitutes 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.
The Charter of the Organization of American States explicitly recognizes a right to counsel in civil cases, and the Inter-American Court of Human Rights recognized the right in 2003.
For more information see:
Martha F. Davis, In the Interests of Justice: Human Rights and the Right to Counsel in Civil Cases, 25 Touro Law Review 147 (2009)
Raven Lidman, Civil Gideon: A Human Right Elsewhere in the World, 40 Clearinghouse Review 288 (July-Aug. 2006)