From Nairobi to Havana - the Initiatives of the International Pro Bono Committee

Posted on July 9, 2018 by James Bruen

A real world impact of the ACOEL comes, in part, from its international pro bono initiatives. The International Pro Bono Committee reports here on the status of these initiatives. They are generally driven by the 28 members of this committee. Geographically-oriented initiatives are managed by Committee vice chair David Farer (Cuba), Tracy Hester (India) and Jim Bruen (Africa).

Africa 

ACOEL has executed a Memorandum of Understanding (MOU) with the African Wildlife Foundation (AWF) to provide legal support to a series of wildlife and other natural resource protection initiatives. By mutual agreement, we have begun our collaboration with work in three of the eight areas of AWF-proposed collaboration. 

Through our standard staffing process (described in the “Reminder…” at the end of this blog), ACOEL Fellows Virginia Robbins and James Bruen have entered into individual pro bono engagement agreements with the AWF. To date, these engagement agreements provide for us (a) to participate in practical “on-the-job” training in Nairobi for prosecutors selected from Kenya, Tanzania, Uganda, Zimbabwe, Mozambique and South Africa; and (b) to assist AWF in setting up a new cooperative mutual-assistance association between these Prosecutors. Tracy Hester may also participate in a third task of providing advice and training on a new canine wildlife crime detection program.  Ginny Robbins and Jim Bruen may travel to Nairobi for the on-the-job training program as early as the end of July or early August 2018.  This schedule may slip further as it has done repeatedly in the past because of election unrest and scheduling issues controlled by the Kenyan government, but AWF seems ready to go. 

Cuba 

After 2016 and 2017 trips to Cuba, involving meetings with Cuban environmental and other officials involving Eileen Millett, David Farer, Mary Ellen Ternes and me, as well as speeches by David Farer and Mary Ellen Ternes at the prestigious annual scientific and technical forum, ACOEL and the University of Havana are now in the process of executing the College’s standard MOU to open opportunities for Fellows to teach US environmental law and related topics at the law faculty of the University of Havana.  ACOEL is also revising a proposed MOU to open opportunities for collaboration (to be negotiated) between individual Fellows and the Institute of Ecology, a part of CITMA, the Cuban equivalent of the US EPA. 

India

Through the efforts of Tracy Hester, he and I – on behalf of ACOEL -- have begun discussions with retired India Supreme Court Justice (and retired India Green Tribunal Chairperson) Swatanter Kumar to open pro bono opportunities for Fellows to work in India and, eventually, perhaps Pakistan, Bangladesh and Bhutan. The ACOEL Executive Committee has approved our selection of, and proposing MOUs with, qualified and underserved Indian environmental clients.  These discussions are ongoing.

Haiti

Through the efforts of Jimmy May, Tracy Hester and others, ACOEL has traveled to Haiti and completed discussions with Aristide University to allow interested Fellows to provide lectures on US environmental law to university law students.  The committee has not yet finalized arrangements for these lectures or posted these opportunities for review by the Fellows, because continuing civil unrest may compromise the safety of our participating Fellows and because governmental instability has fostered conditions which make the vitality of the rule of law uncertain. 

China

Through the contacts of Robert Percival (and after I joined Bob and his students on a great trip to China), ACOEL entered into a MOU with NRDC/Beijing. With a good number of  Fellows participating, we thereafter implemented a very effective pro bono program in China during 2014 and 2015. In 2016, China established a new law discouraging organizations like ours from conducting pro bono or other NGO work in China. Conditions may have improved just a bit since then. We are in communication with Bob and with Fellow Scott Fulton (who is also President of the Environmental Law Institute), to ascertain whether now is the time to attempt a renewal of our China pro bono work.

Peru

The National Judicial College contacted John Cruden and me last month to ask whether our Fellows would be interested in joining the faculty of a summer 2018 program in Peru to speak about “lessons learned” in the US about the practical enforcement of environmental laws. We reported this inquiry to the our committee and to the College’s Executive Committee and received enthusiastic interest. However, our follow-up communications to the Peruvians, through the National Judicial College, revealed that the judiciary there had run low on funding for the time being. But the Peruvians and the National Judicial College promised to come back to us on this when the initiative revives in the future.

A Reminder of How the We Open Opportunities for Fellows

Our committee actively (a) pursues and identifies qualified international pro bono clients, (b) negotiates standard form Memoranda of Understanding with them, (c) obtains a list of desired pro bono projects from each client, (d) advertises those projects to the ACOEL membership, (e) obtains the curricula vitae of interested Fellows, (f) sends those CVs to the prospective international pro bono client and (g) allows that client to select the Fellow(s) with whom it wants to work. The client and the individual Fellow then enter into individual pro bono engagement agreements. The ACOEL is NOT a party to any of those engagements. The ACOEL is solely a clearinghouse to match underserved clients with interested ACOEL Fellows.  The ACOEL does not practice law or provide legal advice to the international clients. The ACOEL does not contribute funds or provide loans or any other form of financial assistance to international clients. The ACOEL does not monitor the work of its Fellows in undertaking the work agreed to in their individual engagements with the international clients. But the ACOEL is delighted to receive reports of Fellows who have raved about the fun they have had, and the satisfaction they have received, in participating in these “give back” efforts.

Haiti on the Frontiers of Environmental Law

Posted on July 7, 2016 by Tracy Hester

Jeff Thaler’s and Jim May’s blog posts about our recent ACOEL delegation visit to Haiti captured the vibrant spirit of Haiti’s legal community and its enthusiasm to build new programs in environmental law. Haiti offered a different insight as well:  dire environmental conditions have spurred strikingly innovative and creative legal thinking.  In one sense, Haiti’s challenges are a frontier that can test and forge new environmental laws and concepts.

*****

After our delegation visit finished, my wife and I visited an abandoned United Nations outpost on a dirt road over an hour north from Port-Au-Prince.  Hidden behind encroaching trees and weeds, a blue-trimmed UN guard tower watched over empty concrete foundations and open gates behind a decaying chain-link fence and tangled razor wire.

This fading post is a flashpoint in history.  In 2013, sewage from the UN outpost’s battalion of Nepalese peacekeepers contaminated a nearby tributary and led to an outbreak of cholera that has killed over 9,000 people and sickened over 800,000 so far.  The United Nations has rejected petitions that it should fund and establish a comprehensive sanitation, medical treatment and potable water program to halt the epidemic.  In response, a group of Haitians and Haitian-Americans filed a class action lawsuit in the federal Southern District of New York court for damages and injunctive relief.

The United Nations stoutly rejected any argument that the U.S. court has jurisdiction over its operations.  The United States vigorously urged the trial court to dismiss the lawsuit, and the court agreed on January 9, 2015 by denying jurisdiction.  The district court found that the UN had not expressly waived its immunity under the Convention on Privileges and Immunities of the United Nations of 1946 (despite the UN’s failure to satisfy other important obligations under the Convention).

The case took a dramatic turn when the Second Circuit decided to hold oral argument on the Haitians’ appeal of the trial court’s dismissal.  In a packed courthouse in Manhattan on March 1, 2016, the three-judge panel seemed sympathetic to the claims of Haitians who will likely have no possible relief or compensation if the court upholds the United States’ assertions of strong immunity on behalf of the UN.  The court will probably issue its decision in the next few months.

If the court finds that the UN lacks absolute immunity for environmental or health damages caused by its actions, the decision could have a sweeping impact on the UN’s liability for other humanitarian actions that cause environmental harm.  The UN plays a central role in multinational efforts to fight climate change, protect oceanic resources, and preserve endangered species and ecosystems, and the spectre of liability could hamper its activities.  Depending on the scope of the court’s ruling, this case might also affect the liability of other multinational organizations whose actions to protect the environment unexpectedly injure human health or natural resources.

 

Haiti’s enormous environmental and public health challenges sparked this important case, and the legal creativity guiding the lawsuit arose there as well.  Our delegation had the opportunity to meet Me. Mario Joseph, who directs the L'Association Haïtienne de Droit de l'Environnement which filed the lawsuit (along with several other groups).  As lead counsel he guides the team of attorneys handling the case, and he strongly believes that legal creativity and ingenuity can overcome the procedural and jurisdictional barriers to reach a just environmental outcome.

If it desires, ACOEL can help monitor and, where appropriate, contribute to the development of these types of innovative environmental legal approaches in Haiti.  The Second Circuit’s ultimate decision may offer an opportunity to discuss these issues with the Haitian environmental bar and with other lawyers who want to help build Haiti’s environmental laws and enforcement options. 

In the meantime, change still comes slowly.  When we visited the abandoned outpost, families had moved into the vacant buildings and children were bathing in a nearby stream – directly by the unused outfall pipe where the UN peacekeepers had previously discharged their sewage wastes.  Whatever decisions come from U.S. courts, Haiti will have a pressing need for innovative and effective environmental laws for many years ahead.

ACOEL “Lawyers Without Borders” Group in Port-au-Prince Pati De (Part 2)

Posted on June 14, 2016 by Jeff Thaler

About 10 years ago, when Steve Herrmann began calling 22 other environmental lawyers around the country about starting a new College, I don’t think he or any of us envisioned the College’s reach extending overseas. Yet, thanks to the vision and efforts of Jim Bruen, Bob Percival, and now Jimmy May, in recent years the College has explored possible connections with China, Kenya, and just weeks ago—Haiti.

Six College members, dubbed by one as “Lawyers Without Borders,” spent four whirlwind days in Port-au-Prince Memorial Day and early June. Our key liaison was Widener Law Professor and former Dean Erin Daly, Jimmy’s colleague, who has spent some of her sabbatical year working at the Université de la Fondation Dr. Aristede (UNIFA) begun just a few years ago by former President Jean-Bertrand Aristede and his wife Mildred Aristede, an American-trained attorney. UNIFA was our wonderful host sponsor for the trip. Specifics on the ACOEL delegation and with whom we met can be found in the separate blog post of Jimmy May.

In brief, I arrived a day early with Erin Daly, and our guide, Junior St. Vil, took us to Sakala, a community center in one of the poorest sections of the city. It was Mother’s Day in Haiti, so there was a celebration going on that we witnessed, as well as touring a community garden used to teach children how to grow food—with recycled tires as planters.

On Memorial Day I briefly met Mme. Aristede at UNIFA, then went with Junior to “tour” the city. Port-au-Prince was hit hard by the major 2010 earthquake, and most roads are still in poor shape, clogged with motor vehicles and pedestrians. I saw very few traffic lights or cross walks; everyone shares the road. It thus takes a long time to get from one part of the city (3.5 million people) to another, so most of my morning was spent getting a feel for the street scene, and talking with Junior.

Haiti is the poorest country in the Western Hemisphere. While one College member (who will remain nameless) said that Haiti ranks higher than the U.S. in the Happiness Index, my back-home research found Haitians much less happy than Americans. However, I suspect that may be explained in part by facts such as 1) 70% of the 10 million Haitians have no electricity and are illiterate, 2) most water and sewer infrastructure is in disrepair or worse, 3) only 2% of Haiti’s forest is left, with families reluctantly forced to cut remaining trees for charcoal to cook with, and 4) there are significant “rule of law” challenges from lack of enforcement or viable legal remedies.

Haiti presents lots of opportunities as well as challenges. Our visit focused in large part on the desire of UNIFA and local lawyers to develop a 1-year environmental law LLM program. Currently, “law school” in Haiti is a prescribed, 4-year college curriculum with little focus on environmental, energy or land use issues. During our visit, we met with large groups of students and of lawyers, as well as in smaller sessions with leading environmental, energy and sustainability practitioners. For me, it was clear that everyone wanted to develop, with assistance, initiatives to improve the quality of life for Haitian people. They were well aware of the many damaging pollution and climate change forces hurting the populace and economy; but a key question is how best to create home-designed programs similar to what we began to do in the U.S. in the early 1970s. 

The challenge for us as College members, and for me personally, is how best to assist and collaborate with UNIFA and others in Haiti, to make a difference. Now that personal connections have been made, hopefully our Haitian hosts will be better able to propose to us possible measure to develop a sustained (not one-time) menu of actions that we can work on together with them. I hope to be able, someday soon, to work on environmental or renewable energy education or project-specific initiatives with the great people with whom we met.

ACOEL Delegation Visits Haiti

Posted on June 14, 2016 by James May

A delegation of ACOEL Fellows visited Haiti, May 30-June 2, to share ideas about ways to advance environmental law and justice with leading members of the bar, academia, civil society, and the business community.

This visit takes place at a transformative time for the environment in Haiti. Deforestation hovers at around 95% as people are forced to burn charcoal for fuel or income, rivers and streams are choked by trash and runoff, motor vehicles are largely unregulated, and the public health system is overwhelmed. And of course, Haiti still suffers from the introduction of cholera in October 2010, resulting in more than 9,000 deaths thus far.

The visit was at the invitation of host institution Universite de la Fondation Aristide (UNIFA)(http://unifa-edu.info/contenu/). The delegation -- Alexander Dunn, Lee DeHihns, Tracy Hester, Dennis Krumholz, Jeff Thaler, and Jimmy May – had a transformative experience. Professor Erin Daly (Vice President for Institutional Development) served as the local liaison, with ACOEL Fellow and Professor James R. May serving as coordinator on behalf of the College's Committee on International and Pro Bono Programs, which he co-chairs with Professor Robert Percival.

The delegation met with many of Haiti’s leading policymakers, thinkers and advocates, former President Jean Bertrand and Mme. Mildred Aristide, Me. Fabrice Fievre (Co-Dean of UNIFA Law School), Me. Mario Joseph (director of the nation’s leading human right law firm, Bureau des Avocats Internationaux, http://www.ijdh.org), Me. Jean Andre Victor (director of Haiti’s leading environmental rights firm, L'Association Haïtienne de Droit de l'Environnement), Me. Stanley Gaston, (President of the Port-au-Prince Bar Association), Me. Leslie Voltaire (Haitian architect and urban planner), and Me. Cedric Chauvet (a leading business-person). The delegation also enjoyed various cultural opportunities, including in Port Au Prince, Petionville, and Cite Soleil.

The delegation also visited SAKALA (a leading community center serving among Haiti’s poorest children, http://www.sakala-haiti.org), and the 'uncommon' artists’ community of Noailles, Haiti (http://www.uncommoncaribbean.com/2015/03/10/visiting-the-uncommon-artists-enclave-of-noailles-haiti/).

UNIFA is a leading private university in Haiti, and focuses on promoting dignity and social justice, including by advancing environmental sustainability. Earlier this year it hosted conferences dedicated to environmental human rights issues and their relationship to health, engineering, and law in Haiti (“Environmental Concerns: Today and Tomorrow”) (brochure available at: http://unifa-edu.info/contenu/wp-content/uploads/2016/05/programmation-semaine-scientifique-2016.pdf), as well as to the environmental and social consequences of mining in Haiti (https://www.facebook.com/Aristide-Foundation-for-Democracy-306681307454/?fref=nf)."

ACOEL looks forward to continuing conversations about ways to coordinate and collaborate going forward.