The convergence of domestic anti-poverty advocacy and international human rights law is apparent in a report released in August by an independent expert appointed by the United Nations Human Rights Council. In the report, Magdelena Sepúlveda, the Special Rapporteur, calls access to justice not only a “fundamental right in itself” but also “essential for the protection and promotion of all other civil, cultural, economic, political, and social rights.” Sepúlveda will present her report to the U.N. General Assembly in October.
Prepared at the direction of the Human Rights Council, the report comes at the midpoint of the Second United Nations Decade for the Eradication of Poverty (2008-2017). Although it analyzes obstacles to access to justice through an international lens, legal aid lawyers and other anti-poverty advocates in the U.S. will find much that is familiar.
For example, the report notes the insufficiency of mere “de jure access”; to ensure “de facto access” states must eliminate conditions that perpetuate discrimination or have a disparate impact on vulnerable groups. Other obstacles recounted will be familiar to any U.S. anti-poverty advocate, e.g., domestic and sexual violence; criminalization of actions that stem from poverty, like sleeping in public places; and a legal system’s failure to be accessible to people who do not speak the predominant language.
Growing numbers of anti-poverty advocates in the U.S. are finding that international human rights norms can enhance their practice. Clearinghouse Review highlighted anti-poverty work using this framework in its 2011 special issue, Human Rights: A New (and Old) Way to Secure Justice. Legal aid advocates’ work has always promoted human rights, and more now realize that claiming the label offers additional tools in representing clients..
Advocates are not alone in finding a new appreciation for the human rights perspective; the U.S. government, after years of mostly ignoring or resisting international human rights bodies, has begun to engage. In Geneva this month, at the U.N. High Level Meeting on the Rule of Law, the U.S. submitted pledges to, among other promises, act to strengthen the rule of law in two arenas: women’s access to justice and access to legal aid. Regarding domestic violence, the U.S. stated its intent to develop best practices and performance measures in family court structures, sexual assault evidence collection and police response, and reduce domestic violence homicides. Regarding access to legal aid, the U.S. stated its intent to celebrate the 50th anniversary of the Supreme Court’s Gideon v. Wainwright decision finding a constitutional right to council in felony cases for defendants who cannot afford counsel. The U.S. also pledged to “strengthen safety-net programs for low-income and vulnerable Americans by strategically incorporating civil legal assistance” and “to improve training opportunities for United States civil legal aid lawyers.”
Special Rapporteur Sepúlveda’s report highlighted “non-existent or inadequate legal assistance” as a major barrier to accessing justice, and noted the potential harm that lack of legal aid in civil cases caused to people living in poverty. Her recounting of kinds of cases in which lack of counsel can be devastating—“tenancy disputes, eviction decisions, immigration or asylum proceedings, eligibility for social security benefits, abusive working conditions, discrimination in the workplace, or child custody decisions”—closely tracks the American Bar Association’s 2006 resolution supporting “legal counsel as a matter of right at public expense to low income persons … where basic human needs are at stake, such as those involving shelter, sustenance, safety, health, or child custody ….”
Coinciding with that ABA resolution, the burgeoning civil right to counsel movement in the United States was the focus of Clearinghouse Review’s 2006 special issue, A Right to a Lawyer? Momentum Grows. Activity has only increased since then, led by the National Coalition for a Civil Right to Counsel. Across the country, civil right to counsel pilot projects are under way, bar associations are strategizing about how best to promote the right, and New York’s chief judge Jonathan Lippmann has announced a bar admission requirement for new lawyers of 50 pro bono hours.
On this issue too, anti-poverty advocacy and international human rights law are converging. Will governments respond to the U.N. Special Rapporteur’s call to shatter the barriers that prevent people from accessing justice systems? Will the U.S. follow up on the pledges made in Geneva? Perhaps the answers depend on the determination and creativity of advocates. But for those who want to seize the opportunity, international human rights law offers new handles for attacking poverty.