Thursday, June 30, 2011

June 29-30

Two more quiet days, preparing for and anticipating the big training program on Friday. Wednesday, I made my weekly presentation: on non-litigation tactics. I talked about Corporate Campaigns, including Ray Rogers' current campaigns against Coca-Cola, use of publicity, and my experiences in Herkimer twenty years ago.

The students were in high spirits throughout the day, before the presentation, during a lunch break and afterwards. There was an extended discussion in Mongolian, with much laughter, which Chimge said involved me, but that I wasn't supposed to know what it was about.

Tuesday night, I returned to the square to play chess, where I was instantly recognized and played two games with no monetary stakes. Thursday, the students watched the chess videos: apparently nothing was being said about me, but everyone in the video was trying to help my opponent with advice.

Thursday was a quiet day in the office, reviewing my notes for Friday, discussing the conference with Chimge, and meeting with a law firm that is making a presentation.

Late in the afternoon, we had a meeting with two lawyers from a large local firm that will do a case for CHRD challenging air pollution in Ulan Bataar. They were focusing on getting data proving that there are adverse health impacts: I tried to encourage them to focus on developing a legal theory holding the City legally responsible. I suggested a possible claim under the Constitution which guarantees citizens a safe environment.
I also want to meet with them next week to talk about what they can do to investigate the coal plants. I hope to talk to them about ways of measuring pollution from plants, getting relevant information, pollution control technology and air dispersion modeling; standard concepts for environmental lawyers in the U.S., but new concepts for lawyers here. I also promised to do some Westlaw research about anti-smoking cases in the U.S. which they think might be relevant, and will review clean air cases against coal plants (hopefully I can a find a few that raised non-statutory claims.  


I have also met another neighbor in my apartment building: a former Buddhist monk who went to an American university who is going to Harvard to study theology in the fall. He is familiar, but has not yet met Hugh, who has two Master's degrees in Buddhist studies.  I am looking forward to having a few drinks with both of them: we should have some interesting talks.

Tuesday, June 28, 2011

June 27-28

Two quiet days in the office, preparing for the lawyers training program on Friday. Monday, I prepared PowerPoint slides, in English, to be translated into Mongolian. I prepared  presentations on: 1) public interest law in general, including a segment on the experience of public interest law in the civil rights movement in the South,  2) possible uses of international law, 3) Mongolian law in public interest litigation, and 4) standing and justiciability (editing my presentation to the student clinic down to a 30 minute lecture).

Tuesday, I went for what has become my standard morning run,  in a nearby riverbed, avoiding the hard cement and tile street surfaces. 

At the office, I prepared the last two presentations, on nonlitigation strategies to promote the public interest, and on the law of evidence, with special emphasis on the use of expert testimony in litigation. Chimge, who was translating my presentation from yesterday, was a little taken aback by my references to “Freedom Riders”, “Jail, No Bail” and the Ku Klux Klan in my presentation, but thinks they are references that the participants in the training program will enjoy having explained. 
My home for the weekend






Relaxing on my front porch after the afternoon hike

I hiked up to the ridgeline, the eastern border of the Terelj Valley, and most of the ridge that is visible.

Home.

I am attaching the pictures I took during my hikes in Terelj. As previously stated, these pictures do not do justice to the spectacular nature of the terrain.

Monday, June 27, 2011

June 25-26 - visit to Terelj

Hugh had persuaded me that I should stay over in the Terelj, rather than come back the same day (it is only about an hour drive), and I am very glad. It was  very nice waking up in the country, going for a morning run on Sunday, and going for a two-hour horse ride in the afternoon.

My big surprise on Saturday was to learn that the Terelj was the same area where the conference was held two weeks ago, and the ger camp where I stayed was only a few kilometers from the site of the conference. Had I known that, I would have stayed at the same camp as the conference.

Still, where I stayed was comfortable enough, and even though it rained hard early Saturday and early Sunday, I was able to do two fantastic hikes on Saturday and avoided the rain on Sunday. The landscape pictures that I took do not do the area justice (included in next post).

Gaala drove me there and back. Upon arrival home on Sunday, the key broke off in the lock, and I was forced to wait two hours before I could get in to my apartment. Hugh came by, invited me over for dinner, and we had another great talk. It turns out he is also a second degree black belt in Tae Kwon Do, and we compared notes on martial arts.

June 23-24

Thursday morning I met my neighbor Hugh from across the hall coming back from jogging.  A truly fascinating and amazing guy: a former Peace Corps volunteer in western Mongolia, with master's degrees in Buddhist studies from Harvard and Columbia who is here studying Mongolian and doing his PhD thesis on Peace Corps volunteers.
 
Thursday night, we drank up the airag that my hosts gave me to take home and had a wide ranging discussion of the world's issues, including memories of Morningside Heights (where I grew up). Friday night, we had another long discussion, over vodka.

Friday was a quiet, uneventful day in the office. Chimge made the arrangements for me to stay at a ger camp in the Terelj that I wanted to visit, which has some of the best hiking in Mongolia, and also some rock climbing. 

Thursday, June 23, 2011

June 20 - 23

Monday, June 20  According to the workplan, one of my principal tasks is to conduct a  training program on public interest law for Mongolia lawyers . Chimge and I worked on the agenda for this program for about two hours today. In working on the agenda, I used the voice recognition program in the office for the first time: Chimge, Baigali and Amraa were impressed.

I also reviewed the transcript of the psychologist ‘s testimony that I had presented in a trial 10 years ago, which Marilyn had sent to me, and I forwarded it to Amraa and Urna as promised. 


Tuesday, June 21  We met with one student group that had been considering  a case pertaining to uranium mining and a case pertaining to the grant of a mining exploration permit in a sacred area. Neither of those cases are viable: the exploration permit because there are no grounds likely to succeed and the prospective client does not want our assistance, and, in the case of the uranium mining case, the company decided not to proceed with the mining. 


However, one member of the group became aware of another uranium mine, which has been in operation for several years, and there are anecdotal reports of public health problems because of the mine's pollution of a water source and of an association of  local people who are concerned about the mine. The group is looking for a new project, and if everything worked out, this could be an interesting and important toxic tort case. I gave assignments to the group with respect to researching the applicable facts and law. I asked the student who had done excellent work on the exploration permit, and who had shown special persistence in not wanting to give up the case, to undertake the hardest task: contacting the association and getting information from them. 


We also met with the student who was researching the case involving the major coal mine that should have been included in the strategic reserve, and discussed his research with him.


Wednesday June 22  Wednesdays, we conduct seminars with the entire student group, which had been down to  seven students (from original 10), and we now added one more. I spent most of the early morning, from 6 AM to about 10 AM, with an hour and a quarter off for breakfast and a bath, writing up my notes for the presentation.


The subject of the presentation was standing and justiciability. I tried to present it using models from the United States, to illustrate problems that are likely to arise in Mongolia as the law pertaining to standing evolves. Without providing case citations, which would have been meaningless to the Mongolian students,  I talked about the cases of  Baker v. Carr, SCRAP, Sierra Club v. Morton, Society of Plastics v. Suffolk County, and Save the Pine Bush cases.  Generally, my efforts to involve the students in the discussion were unsuccessful: the concepts were apparently too foreign. The students found the fact pattern in SCRAP, where the Court found standing on a very attenuated line of causation unbelievable.

Although the presentation was not as well received as past presentations (I noted that many of the students seemed bored at times), there were some lively discussions: the liveliest discussion at the conclusion of the presentation, was where we should have a party. See pictures below



Chimge I also met with the student who was researching the hydropower case. Although I find it offensive that a country develops an environmentally destructive hydroelectric facility, which would not be economically viable, only to obtain the financial benefit of credits for pollution reduction under Kyoto, I do not think there is much that we will be able to do with respect to this case, especially since I learned that there has already been litigation which was unsuccessful. We asked the student to find out more about the past litigation, and discussed the possibility of addressing the global issue of a developing country pursuing environmentally destructive projects simply to get pollution credits. 


After work, I tried to find out information about the Terelj area, like a hiking trail map. Such things don’t appear to exist: there may be trails, but no maps, even in a tourist area. After walking to various places in town (in the rain, dodging flooded streets), I returned home to cook dinner – except that a power outage stopped me – it was 2 ½ hours before power was restored.


Thursday, June 23 I was surprised to have internet this morning in apartment! After updating blog and trying to Skype Nancy, I finally went for a run (my second of the week). For the most part, I run in the river bed, to avoid the hard tile pavement.

At the office, I worked on preparing for the training program until the afternoon, when Chimge and I met with the students to review all cases. The students will finish up some minor matters, they will plan to go forward with three cases: the case of the coal mine that should be part of the country’s strategic reserve, the possible toxic tort case against the uranium mine, and possibly the metal mine in the South Gobi. 

Making a point, Chimge is at my right.


Wednesday, June 22, 2011

Karakorum trip

After the meeting on Friday morning, Chimge told me that Baigali had decided to join Gaala and me for the weekend trip.  Baigali understands spoken English pretty well, but is unable to speak it. So generally I can say something to her, and she can translate it into Mongolian, but unless the communication is very simple, she cannot translate the response.  We left the CHRD office about 3:30 PM, and it took us about an hour to drive another CHRD staffer the approximately 3/4 of a mile home (traffic in Ulan Baatar is that bad).  Between construction and traffic, it took us another hour or so to get to the outskirts of the city before we had the first of three flat tires.

Given the quality of the roads, flat tires are a way of life in Mongolia. So too are small shops, generally open 24 hours in even small municipalities that fix flat tires. Most of the time, they do the job right. Sometimes as we learned when one of the flat tires which we thought had been fixed became flat a second time, they do not.
I had thought the drive was about four hours to Karakorum, in actuality, it is probably closer to five, and, in our case, we did not arrive until about 11:15 PM. 

I decided that my priority should be to get out of Ulan Baatar on weekends. Although I at first thought to ask Gaala  to drive me to a popular hiking destination less than an hour from the city, he had always seemed particularly anxious to take me to Karakorum. It would not have been my first choice. Even though it was the site of the capital of Mongolia during the 13th century empire, the guidebook indicates that there is little there to see and it is a long drive. Nevertheless, Gaala is the designated driver for CHRD, and is known for taking both CHRD staffers and visiting attorneys on trips out of town. He is someone who is completely trusted by CHRD, and I thought that a trip with Gaala would be an excellent way to experience the country, in a way that I would not be able to do either on my own or with a tourist group. 

And in truth, as described below,  it was exactly that. Nevertheless, there was a hidden agenda: Gaala has extensive family in the Karakorum area, and it was not lost on me that the trip was an excellent way for Gaala to get his gas paid for a trip to visit relatives. If I had known someone like Gaala  who had relatives who lived significantly closer to Ulan Baatar, perhaps I could have  had the same experience without the necessity of 12 hours of driving over the weekend. 

Upon arrival, we went to the home of Gaala's sister and her husband, who greeted us warmly, fed us both various sweets as well as a meal of noodles and mutton. We also drank shots of vodka; I would have stopped at three at the most, but it was not socially acceptable. Perhaps it was a gender thing; Baigali was not expected to drink more than one or two. 

The next morning, Gaala took us to a memorial which was constructed about six years ago to the Mongol Empire. From the memorial, we had a lovely hike along a ridge, which gave us a spectacular view of the Omron valley.  Gaala introduced a boy selling souvenirs  as one of his younger brothers. After returning to the house, where we were fed a sumptuous breakfast, we headed out and stopped at a ger a few miles out of town, which was the home of another sister, where we were served another cup of milk tea.  I also met another man who was described as one of Gaala’s brothers . When I asked him, through Baigali,  how many brothers and sisters he had, he only answered "many.” In a neighboring Ger, we were joined by a man who directed us on a series of four-wheel-drive roads and jeep tracks to a ger which had apparently been set up fairly recently, where we met the two nomad families with whom we would spend the next 20 hours or so.

I was told to personally hand the gifts that we had brought to the two women who were identified as the wives. I then spent a fair amount of time joining Gaala, Julya and Choka, drinking glass after glass of vodka. Finally,  I was asked if I wanted to ride a horse, which was one of the stated attractions of the trip. Baigali and I rode horses, guided by two of the children, about 11 or 12. I was feeling comfortable enough on the horse that I might have tried, if given the chance, to ride the horse without a guide, but was unable to communicate such a request. The horse riding ended when the boy who was guiding Baigali’s horse told me that horse that I was riding was his horse, and he needed it for work. I then watched him ride off to round up livestock.  

During the rest of the afternoon, I spent a fair amount of time playing with the children (about six in all), teaching them how to spike in volleyball. At one point Choka commented that “Mongolian children love you.” Julya and Choka also pressed more vodka upon me, (including their home brewed vodka after we finished off two bottles of store-bought stuff).  I also had  my first taste of airag (fermented mare's milk, which tastes like particularly strong yogurt, but does not taste alcoholic). 

We traveled, by car over the roadless steppe, about a kilometer to the other ger, where I participated or tried to participate, in the milking of the goats. Baigali walked back with the young girl who had basically adopted us (she is featured in the photographs, wearing a green top – she told me her name, but I can’t pronounce it, let alone spell it).  At some point, it became him clear that the car, with all of our stuff, needed to be moved back to the original ger, but Gaala was passed out on the driver’s seat.

I walked over to the original ger, explained the situation to Baigali, assured her that I could drive the car back if necessary, but that we probably needed to do something about Gaala. We walked back, and were able, with considerable difficulty, to rouse Gaala. What I did not know was that Gaala had arranged to purchase a sheep.  After he had been roused,  an adult sheep was picked up and unceremoniously dumped in the trunk of the car for the trip back. 

Upon our return, a sheep’s head was cooked: this is considered a delicacy, and our hosts ensured that I had an opportunity to sample the choicest parts of the food: it was delicious.

After removal from the car, the live sheep was never given a chance to move, but was tied on a very short rope. It was then led to a secluded area behind the ger, where it was placed on its back. Since I have been eating a lot of meat since I have been in Mongolia, I felt it was an important part of my education to see how the sheep was to be slaughtered. I had expected that Julya would kill the sheep by slitting its throat: instead, he stabbed it in the chest, and proceeded to remove the heart, and then the other internal organs. During the approximately two minutes that it took before the sheep was undoubtedly dead, it occasionally went into convulsions, and I was obliged to hold its hind legs.

In the evening, the girl in green amused herself by ordering me to “sing a song” and then ordering me to stop. I also helped her with the roundup of the livestock: all of the baby animals, both calves and baby goats, were placed in the corral, while the adults were left outside. This meant that we grabbed the babies, sometimes while they were nursing, and either dragged or carried them to the corral. 

I had thought that the sheep's head was dinner: in actuality, we were served an additional dinner at about 9 PM, consisting of boiled mutton and rice. 

After dinner, I placed my sleeping bag out on the ground, intending to sleep outside on the open steppe. I was emphatically told not to do this, first by one of our women hosts, and then by Baigali. Since it rained all night, it was probably a good thing that I slept in the ger. Baigali slept in the car, along with the girl. 

When I awoke at 5:15, no one else was awake, and I went for a walk and jog for about an hour. When I came back, Julya was butchering the sheep. For about an hour and a half, we hung out, drank some more vodka, and various other individuals wandered in until everyone was awake.  We were served milk tea and biscuits and it was, so I thought, time to leave. 

Choka spoke a few words of English, and was able to communicate to me that Barack Obama was good. The restrictions of the language being what they are, I did not want to try to engage in a nuanced conversation about Obama: I simply agreed that he was good, and to Choka’s delight , used sign language to make it abundantly clear that I thought that George Bush was bad.

When we tried to leave, we discovered that the battery in Gaala’s car was dead. Although nobody had cables, our hosts were able to figure out some way of transferring the charge from the battery in their pickup truck to get the car started. We then all drove back to the other ger, where, in addition to milk tea, we also had several bowls of airag and were offered more home brewed vodka. 

Choka joined us for a drive across the steppe to Khar Balgas, the ruins of the 8th century capital of the Uighur Khaganate. All that is left of the city are the exterior walls, a line of stupas outside, and one high stupa inside, which we climbed.  Then we went to the home of Choka’s parents, where we stayed for about an hour and a half while his mother cooked us a meal of noodles and mutton, and, once again, vodka was urged upon us. 

Finally, we said our final goodbyes, and went to tour the monastery of Erdene Zuu Khiid, which was the first Buddhist monastery in Mongolia, founded in 1586. The monastery is immediately adjacent to the site of Karakorum, the capital of the Mongolian Empire in the 13th century, which was destroyed in 1388. Many of the remnants of the buildings were apparently used for the construction of the monastery.  Most of the monastery was destroyed in 1937, as part of the Stalinist purge of Buddhism, but several buildings survived, and a considerable amount of artwork was preserved. We also walked over to Karakorum. 

The long drive home was broken up for a camel ride. When we were almost home, we had another flat tire, this time on a bridge just outside of Ulan Baatar and we had to change the tire in heavy traffic.
For some reason, I did not have a lot of energy after getting home about 7:45 PM, and after a light dinner, was soon asleep.

Tuesday, June 21, 2011

Karakorum trip pictures

I will finish a long post on the trip to Karakorum tonight (Tuesday morning EDT) and will post it tonight if I can, otherwise tomorrow.

Meanwhile, here are some pictures of the trip, with captions where useful. I may add other pictures later

Panoramic view of Omron Valley




on ridge hike near monument

Baigali

Calf on back seat of disabled vehicle


I spent a lot of time entertaining children at camp...

...when they weren't working

or trying to teach me something - like how to milk goats





our hosts Choka and Julya

unknown, Choka, me, Choka's wife, Baigali and Julya


at stupa at ruins of 8th century Turkish city, Gaala, me and Choka

Baigali at stupa

in front of monastery complex at Erdene Zuu Khiid

Lavrin Sum: Tibetan-style addition to monastery

petting the 13th century stone turtle, at the site of the ancient capital of Karakorum



I am getting the knack of camel riding

Friday, June 17, 2011

Dan Werner

Several recent blog posts have mentioned Daniel Werner, whom I was fortunate to meet last week. Dan came to Ulan Baatar, on behalf of the American Bar Association, to make a presentation at the CHRD-ABA conference to combat human trafficking.

Dan is an amazing lawyer with a fascinating background.  He went to high school in Colombia, and spent a fair amount of time wandering around the backcountry in South America, before coming back to the United States for college and law school. We knew a lot of the same people because he and his wife, also a lawyer, worked on farmworker organizing issues in New York state, particularly in the Hudson Valley, before he accepted his present position, as the Deputy Director of the Southern Poverty Law Center in Atlanta. He has extensive experience in litigation combating labor trafficking, including international labor trafficking.

In talking to him, I discovered we had a variety of common interests and experiences, both recreationally (as rock climbers and hikers) as well as politically. Not surprisingly, we have some common acquaintances, if not friends, in New York State. 
Dan at our home for three nights

It was a true pleasure to work and hang out with him during the conference and meeting him was one of the highlights of this trip.

Strategic Litigation for Trafficking Cases Conference June 9-12

From Thursday evening through Sunday afternoon, I attended this conference, co-sponsored by CHRD and the American Bar Association at a resort, approximately 40 miles east of Ulan Bataar. The majority of the attendees were lawyers from all over Mongolia who have been active in cases opposing human trafficking.  The conference was led by Dan Werner of the ABA and Ms. Amarjargal, or Amraa, the CHRD lawyer who directs the program combating human trafficking. Amraa speaks fluent English, and, in addition to directing the conference, played an active role in translating many of the social activities for Dan and myself.

The conference was particularly useful for me because it gave me significant insight into the actual litigation practices in Mongolian courts, and the difficulties that Mongolian lawyers face in obtaining justice, not just in trafficking cases, but in general. The Mongolian legal system has several advantages for public interest lawyers over the United States system: cases are resolved much more quickly. 

The Mongolian system does not have a discovery practice managed entirely by lawyers; instead courts have the authority to order parties to produce relevant information on the request of a party. I believe that American discovery practices have become major obstacles to justice, by dramatically increasing the cost of litigation, and encouraging lawyers, especially large firm lawyers, to spend inordinate amounts of time addressing trivial points of minimal importance to the case. So I see the absence of discovery as a potential advantage for Mongolian lawyers. 

In Mongolia, civil cases are frequently prosecuted simultaneously with criminal cases against wrongdoers. This also enables civil litigators to rely upon information obtained in the criminal prosecution, and, more importantly, the power of the criminal prosecution can be used to promote a settlement of the civil claims as well. However, there is some concern that a criminal defendant can sometimes minimize the criminal penalty by paying restitution to the victim.

During the conference, Dan and I were fortunate to have the assistance of Luke, whose full name I never did get, as a translator and bon vivant. Luke is a local lawyer, who is fluent in English, with an excellent sense of humor, and a connoisseur of fine alcoholic beverages. Obviously, he also translated Dan and my statements and presentations from English to Mongolian. Translating from Mongolian into English was very difficult because it was necessary to translate what had just been said while the speaker was continuing to speak, and Luke also needed to be aware of what was being said while he was translating. Nevertheless, Luke enabled us to follow the proceedings, even when the speaker was speaking particularly quickly. 

Thursday June 9. The agenda described activities to get to know each other after dinner on Thursday. After presentation of awards to two lawyers for their litigation efforts, Dan and I were challenged to play basketball with two CHRD interns. It was a rough-and-tumble game with an underinflated ball: no one kept score. We returned to the main lounge, where an impromptu party continued until about midnight. We were invited, and could hardly refuse, to sample various vodkas from all over Mongolia. Mongolian vodka has become my drink of choice here:  the most popular brand in Ulan Baatar is “Chinggis”.

Friday June 10 During the first day of the conference, Dan presented an overview of the American legal system, followed by presentations describing how "non-material” or what we would call compensatory  damages are handled in various jurisdictions. We heard presentations from Amraa on practices in European countries, a victims rights lawyer who described approaches that be tried under Mongolian law, and a psychologist. 

In Mongolia, there are horrible stories of traffickers luring young girls from poor backgrounds with the promises of a job, and then trafficking them abroad, frequently to China, where they are forced to work as prostitutes, and sometimes subjected to other atrocities, such as forced cosmetic surgery. When these girls return home to Mongolia, they attempt to pursue legal remedies against the traffickers. The concept is somewhat amazing to me: the United States certainly has its problems with pimps and sometimes organized sex trafficking, but I have never heard of a civil case brought in the United States against the trafficker, usually because traffickers cannot be readily located and it is practically impossible to civilly prosecute them. 
However, the amount of damages that are customarily obtained in civil prosecutions in Mongolia is ridiculously small. Damages are usually limited to economic damages, such as loss of earnings and medical expenses, and it does not appear that any trafficking victim has ever received a significant monetary award. Several cases were cited where the victim received 1 million tugrugs, about $800.  

We found time to enjoy ourselves on Friday as well. I managed to get up by 6:30 AM , so that I could do a hike of about an hour and a quarter in the spectacular backcountry near the camp. In the evening, I played a number of games of chess, and there was karaoke, in both English and Mongolian.  Dan and I sang the old Beatles tune Obladi Oblada, to the delight of the crowd.

Saturday June 11 On Friday, I had asked the psychologist how psychological damages in general, and post-traumatic stress disorder in particular, could be proved in Mongolia, specifically as to whether or not there was some recognized diagnostic criteria and whether Mongolian psychologist used anything similar to the Minnesota Multiphasic Personality Inventory. She acted as if she did not understand my question.
Dan and I offered to present an example of how psychological damages are proved in the United States. We reenacted the testimony of a psychologist that I used in a trial 10 years ago, to the effect that a victim of sexual-harassment suffered post-traumatic stress disorder. Playing the role of the psychologist, I gave "testimony” describing my clinical analysis of the plaintiff, the use of the MMPI in diagnosis, the criteria of the DSM-IV, in support of my “professional” conclusion that the plaintiff suffered damages. The presentation was enthusiastically received, and the Mongolian judge who presented after us commented that such testimony would be useful in a Mongolian setting as well.  

We heard from two judges, one describing the legal procedures that could be used in Mongolian courts to establish nonmaterial damages and one describing other statutes that might be appropriate, and from a social worker, describing the problems in obtaining evidence of such damages. 

In the afternoon, and continuing until well past the dinner hour, the participants divided into groups to prepare an analysis of cases, which they then presented to the assembly. The presentations indicated a thorough analysis, and that the participants had learned new legal strategies and new methods of presenting evidence in the two days of the seminar. After dinner, with a fair amount of humor and stage presence, orchestrated by Amraa, everyone, including myself, was awarded a certificate of attendance. When I return to the United States, I will see if I can get CLE credit for this program: it was, after all, co-sponsored by the ABA, which I am sure is a certified CLE provider. 

Recreationally, I had gone for a trail run and hike early Saturday morning. Dinner was late, and both Dan and I were somewhat tired. Nevertheless, after talking in the ger for about an hour, we had the thought of going down to the lounge for one glass of vodka before going to sleep. I finally got to sleep at about 3 AM, Dan told me on Sunday that he had been up till about 4:30 AM. We had considerably more than one glass of vodka, joined the dancing (Dan and his partner, a CHRD staffer were declared the winner of a dance contest), participated in a variety of drunken games, and were required to sing at one point for our failure to participate in a particular dance (I sang "If you ain't got the do re mi”, Dan sang "the Sloop John B”).

Sunday June 12 For some strange reason, breakfast was very late on Sunday. After breakfast, I started up the hill for a hike, and ran into Baigala and two other conference participants. We did a leisurely hike to a high point: unfortunately, since I had not been expecting to hike with anyone else and did not even plan to go for very long, I did not have my camera, and could not record any of the posed pictures that everyone else took of each other on the mountain. 

There was some work on Sunday: the conference participants discussed their various cases, the problems they had had and the cases won and lost. This was extremely interesting for me, to hear practical experiences of what actually has occurred in litigation.

After lunch, Dan and I had hoped to go for a walk up the hill (Dan had had relatively little opportunity to explore the backcountry. Dan, like me, is a former rock climber who was very excited about the number of potential climbing routes on the rocks and mountains in the area), but there were a series of thunderstorms, and it was not entirely clear that we would be able to get a ride back to Ulan Baatar after the bus took all the conference participants home.
The Baigal camp

view from a high point

another view of terrain

dancing on the first night

Dan, me and Luke, after our presentation

responding to a question as a Harvard trained shrink

my favorite summit - also the one climbed with Baigala et. al.

Ger sweet Ger

The ubiquitous Gaala was also at the conference: is a serious ping-pong player and we  played a fair amount. Although his official role seems to be a CHRD driver,  he is an artist by profession. He seems to be at all CHRD events; and is frequently at the CHRD office. We assumed that he would have been our source for a ride home, if we had wanted to stay to do a hike.

Thursday, June 16, 2011

June 13-17

This week has been exciting for me, because I have been involved in discussions of several possible cases that CHRD may bring, in addition to the student cases. Although by next week I hope to be able to finally start doing daily blog posts, for this week, I will simply provide a diary of events for the week.

Monday June 13 I was a little worn out from the weekend, and had also hoped to get together with Dan to share in some tourist activities on his last day in town. Since I had not heard from him, I went to the office around 11:30 in the morning, and had a brief discussion with Chimge, regarding various matters and the events of the weekend (Chimge did not go to the conference).

I suggested that we advertise the student law clinic by means of a press release, in addition to the advertising that had been done. Chimge asked me to draft the press release,  which I did. 

In the afternoon, a lawyer with another environmental NGO came to talk to us about a prospective case, involving mining in the South Gobi desert. Apparently, a large Chinese company, possibly affiliated with the Chinese government, has formed a Mongolian subsidiary to mine for precious metals. The mine has created serious environmental problems, particularly with respect to "Strictly Protected Areas," excess use of water, arsenic tailings, and failure to construct a proper road for transportation. There are also economic issues regarding the company's liability for the government's expenditure of monies for exploration. The local community would like to see the mine shut down. This is an interesting case; we discussed what types of expert assistance we might need, and scheduled a meeting, which we will have on Friday morning, June 17.

Tuesday June 14. The office did not have power for most of the day. Chimge and I devoted the day to meeting with the students, in small groups, to discuss the cases that they were researching.
1.       One group was researching a case involving the question of whether the grant of a mining license in a sacred area impacted freedom of religion. I believe this is a hard case, because the destruction of a sacred area does not necessarily impact the ability to practice religion. I provided some examples of cases that might be suitable for research, but think this case probably will not be able to go anywhere. 

2.       Another group had been researching the question of whether uranium mining was being illegally conducted and had determined that no such mining was actually occurring, and that the license had not actually been issued. Nevertheless, the group had attempted to obtain information and had been denied, because the government is claiming that information pertaining to uranium mining is not publicly available. The group is going to continue to research the possibility of litigating the denial to governmental information.

3.       A member of that group stated that she was aware of another uranium mine, where there may be serious public health impacts. She is going to research the issue further.

4.      The student who was researching the question of whether the coal mine should be considered part of the strategic reserve reported that he had found documents indicating the gross domestic product of Mongolia, and it appears that the revenue from the coal mine will be more than 5% of that amount, thus entitling the government to a share of the mining proceeds. He is going to research procedural issues pertaining to this case, since it appears that this could be a very important case for the country as a whole. 

5.       Another student reported on a case involving another mining license, again in area that might be deemed sacred. He is going to research other issues, including the possibility of revoking the permit because the company has failed to actually spend the money required under the minerals law to conduct explorations.

Wednesday, June 15. Today was dedicated to a meeting of the full student clinic. I presented a program on client counseling. In particular, I wanted the students to focus on what you want to achieve and can achieve in the initial consultation, and addressed the issue of difficult clients. I then divided the students into two groups, with one group playing clients, and one group playing lawyers. One case involved an electrician who would been fired and wanted the lawyer to help him get redress, another involved a man who wanted to bring a lawsuit against his new landlord after the landlord canceled his lease, and one involved a loan agreement. The students did an excellent job of playing the role of difficult client, and I think all of the students appreciated the difficulties that attorneys face in counseling and advising such clients.

The student who is responsible for the hydropower case, where a hydroelectric facility has caused serious environmental damages, had to leave the meeting to meet with a representative of the community opposing the power plant. After the student meeting, I met with this representative, with Chimge translating. I was able to explain to him that the project was only built so that the government could qualify for pollution reduction credits under the Kyoto accords: he had heard that the project had some relationship to Kyoto, but did not understand the relationship until I explained to him. I assured him that we would look at the issue there and see what we can do, but I have to admit that I am not optimistic.

A large Mongolian law firm has expressed interest in doing one pro bono case for CHRD. I have cautioned CHRD that there are limits to what we can expect from pro bono representation from large law firms that typically represent commercial interests; nevertheless, it is encouraging that they are willing to handle a case for us. They would like to do a case involving "air pollution in Ulan Baatar". This is a wide topic, it could include issues pertaining to the city’s antiquated and polluting coal power plants, issues pertaining to the lack of any pollution control on vehicles, or issues pertaining to the biggest issue, the unrestricted burning of whatever can be burned for heat by the hundreds of thousands of ger residents during the winter.  We met with two representatives of the firm, and they did not know what type of air pollution issue they wanted to work on. Chimge and the lawyers from the firm worked on the details of the retainer agreement for about an hour. 

Thursday June 16 A relatively slow day. Chimge was out in the morning because her seven-month-old son has a fever. Our meeting with the NGO regarding the South Gobi mine had been put off until Friday. Thursday afternoon, we met with another lawyer, who has achieved a significant legal victory, and may want to work with CHRD in following up.

Apparently, it is a common practice in Mongolia for political officials to remove heads of administrative agencies, who hold the equivalent of civil service positions. This lawyer has won a case, on behalf of the head of the standards and measurements agency, ordering his reinstatement after he was removed by order of the Deputy Prime Minister. The decision was upheld by the intermediate level appellate court and by the Supreme Court of Mongolia. There are now two questions:  1) how to implement the decision, because the government is still refusing to reinstate the fired employee, and 2) whether the employee can assert a claim for damages, including nonmaterial and psychological damages for his removal. 

I think these are both important questions. However, I think it would be a major victory for the rule of law in Mongolia to win the enforcement of a Supreme Court decision requiring the government to reinstate an employee who was removed for political reasons. Furthermore, I pointed out that the enforcement of a court decree does not require the filing of a new lawsuit, but simply requires a court to follow its normal procedures for enforcement of any judgment, even though in this case, the judgment is against the government itself. Everyone laughed when I suggested the possibility that the court could order the Prime Minister himself to be put in jail. 

Friday June 17 (Frank Wills Memorial day) Today we had our meeting regarding the mining case in the South Gobi.  It is a perfect example of everything that is wrong with mining in Mongolia. The company got its permit as a result of excessive coziness between is representatives and governmental officials. The environmental assessment is a disgrace even by Mongolian standards, which barely require any assessment compared to U.S. requirements. The company wants to build a road right through the  protected area to the Chinese border, because it is the most direct route.  It could be an ideal case to bring, but obviously, CHRD’s resources are limited. 

In the afternoon, Gaala  is taking me on a weekend trip to the Omron Valley, the site of Karakorum, the Mongol capital in the 13th century and the Erdene Zuu monastery, the first Buddhist monastery in Mongolia. 

For those unfamiliar with Frank Wills – do a google search on “Watergate.” 

Wednesday, June 15, 2011

June 6-9

Monday, June 6   This was Nancy's last full day in Ulan Baatar and I wanted to spend as much time with her as I could. I met with Chimge about the student law clinic, and particularly about case selection criteria. I drafted a short memorandum on the form of the case report that the students were to prepare, and then Nancy and I went to the National Museum, before going out to dinner with the CHRD staff, two representatives of the NGO Forum on the Asian Development Bank and Dan Werner, who, on behalf of the American Bar Association, will be co-presenting a seminar with CHRD at the end of the week.
At dinner, I had a long talk with Avilash Roul, the Executive Director  of the NGO Forum, about economic development issues and privatization. The main purpose of his organization is to ensure that the Asian Development Bank acts responsibly with respect to economic development loans in developing countries. Avilash and his colleague Maya were in Ulan Baatar for a two day conference regarding development issues associated with foreign aid. 

Tuesday, June 7  I went to the airport to see Nancy off in the morning, and then came back to the apartment, before putting on a business suit to attend the last session of the foreign aid conference. In theory, we were going to have simultaneous translation, with a translator speaking into a sound system for the three of us who only understood English and did not speak Mongolian (Avilash, who is originally from India, and is now based in the Philippines, a representative of the United Nations permanently stationed in Ulan Baatar, and myself). However, the sound system did not work, and we had to huddle around the translator to hear as best we could.

The focus of the discussion was the lack of information regarding foreign aid proposals. CHRD's representative made a presentation regarding the issue, identifying the question of what information is needed, and the need for continuing dialogue with the government. A number of questions were directed to a representative of the Ministry of Finance regarding the availability of information from the government and, for the most part, his responses were what one would expect of a government bureaucrat.
In the evening, I was invited to “go out drinking” with CHRD staffers, Avilash and Dan. It was my first experience drinking Chinggis beer - which I would recommend, both light and dark. 

Wednesday, June 8 I had promised Chimge a variety of memoranda, on the use of the Freedom of Information Law in the United States, the concept of a law of evidence (in Mongolia, where the judge is the trier of fact, the judge apparently decides what evidence will be accepted and how it should be weighed on an ad hoc basis ) and on miscellaneous legal issues. I did these memoranda on Wednesday morning.

 The student clinic meets on Wednesday, and we had scheduled a training session from an Australian lawyer with extensive experience in negotiating settlements with mining companies. What I did not know was that her presentation was scheduled for the morning, rather than the afternoon when we had previously done student clinic meetings. As a result,  I only saw the end of the training session, which I had been looking forward to seeing, since I was very curious about the experience of communities negotiating settlements with international mining companies. 

After the meeting, I went back to the office and did various research for the afternoon, before going to the square in the evening to play chess, which as noted elsewhere on the blog, was videotaped by Dan, and the videos are on youtube.

Thursday, June 9  Dan and I had both wanted to see a Mongolian court session, and Chimge took us to the civil court, where we observed a case. The trustee of the bank that had filed for bankruptcy itself was suing to collect an outstanding debt, plus interest. The defendant appeared pro se.  Before the case began he said that he did not need a lawyer; after the case was over and he lost, he angrily declared that the Mongolian courts protect the banks.

The amount of the loan, 6 million tugrugs, or about $2400, + 5 million tugrugs  in interest, would be a small claim in the United States. Nevertheless, this claim was taken very seriously by all parties, and for court proceedings were fairly formal, but were concluded in about 50 minutes.  The court considered the pleadings, formal evidence, statements of witnesses, possible cross examination and requests for additional information, and then rendered a decision. The judge, noting two Westerners in the empty courtroom, called us up to the bench after the proceedings to ask for our impressions. I told her truthfully that I was impressed by the efficiency of the proceeding. 

The courthouse was somewhat rundown, but the courtroom itself, although somewhat threadbare, seemed appropriate for the conduct of a judicial proceeding. I also noted that there was no bailiff or court security: although there was a court clerk and the judge’s secretary in the courtroom.

Gobi photographs

I couldn't do my long delayed update on my activities since last Monday because of a power outage and no internet yesterday. When I do the update (Wednesday morning NY time - I will post this if the internet is working at my apartment - otherwise I will post it Wednesday evening NY time or Thursday morning here. It has been an exciting week, from the conference last weekend (including my presentation of a psychologist's testimony), to two new major environmental cases, and a seminar on client counseling for the students, including role playing.

Boarding the plane from Ulan Bataar to the Gobi
Bactrian camels grazing

View from desert mountain where petroglyphs are

Camels are real kvetches

Dune photo

on top of the Flaming Cliffs ridge

The Flaming Cliffs

Flaming Cliffs panaroma

Dinosaur eggs in museum

Going down to ice filled ravine

Ice in ravine

Cool place in summer

Coming back up ravine on ice

Luxury ger accomodation

Petroglyphs

wolf chasing sheep - note archer above

Cute kids - daughters of camel owners


Nomad ger - note solar panel and satellite dish

Flaming Cliffs

Gazebo on volcano near our tourist ger camp

going to ice ravine

Ice filled ravine
In the meantime - I am posting photographs from the trip to the Gobi.