The Disaster Law Project

Disasters ● Displacement ● Human Rights

The Jones Act Waiver for Puerto Rico Expires Today – Now What?

Show of hands: who here knew about the Jones Act before Vox ran a headline after Hurricane Maria?

Image result for puerto rico shipping port imagesIf you said yes, then you’re probably a maritime lawyer or shipping magnate – in which case, welcome!

If you said no, then you’re more like me – and I’m a lawyer who cut my teeth on a pretty major catastrophe in the Caribbean.  So don’t sweat it.

Anyway, I won’t belabor the details of the Jones Act now that we’re all arm-chair experts.  Besides, the purpose of this post is to explain proposed legislation that aims to reform or repeal the Act in the wake of Hurricane Maria.

But first we need to highlight some basics for friends who just climbed on board.  So let’s dive in.

The Jones Act is THIS bad

By most accounts, the Jones Act is a disaster for Puerto Rico that helped plunge the island into debt, and push the cost of living higher than most major metro areas in the US.  According to one study, it has drained $17 billion from the island economy over 20 years.

Related imageEverything from apples to i-phones are more expensive because of the Act.  Basic necessities are about to get even pricier now that Hurricane Maria destroyed the supply chain but accelerated demand.  That’s an incalculable burden for most Puerto Rico consumers whose annual income averages $18,000 per year.

Here’s how it works

The Jones Act stipulates

Continue reading “The Jones Act Waiver for Puerto Rico Expires Today – Now What?”

Rossello and Cruz sing different tunes on Puerto Rico recovery. It’s all stagecraft – and it make perfect sense.

A question posted on a FB Disaster group I belong to asked why #PuertoRico governor Ricardo Rossello and San Juan Mayor Carmen Yulin Cruz are sending different messages on the federal recovery effort after Hurricane Maria.  Rossello’s praising FEMA and chumming up with Trump, while Cruz is using the word “genocide” to describe the administration’s incompetence and neglect that is ratcheting up the death toll with each passing day.

Image result for carmen yulin cruz hurricane imagesRossello and Cruz sound worlds apart, but they’re living through the same catastrophe, and I guarantee they’re actually on the same page.  The rest is political stage-craft, and it makes sense.

Here’s an edit of my FB post:


Folks here surely know more about Puerto Rico than I do, but the visuals of Rossello v Cruz right now are a mirror image of Louisiana Gov Kathleen Blanco and NOLA Mayor Ray Nagin post-Katrina.

It’s about two things: money and politics.

Image result for rossello trump hurricane imagesRossello and Cruz have different roles under the Stafford Act, 43 USC 5121, which governs how disaster declarations are made, how much Washington will bill PR for the costs of recovery, and how the money is distributed.

They also have different political constituencies. Rossello represents a mix of urban and rural voters spread across the island. Cruz represents voters in San Juan. His base is broader, both geographically and politically. Her’s is more cohesive.

So Rossello has to dance more closely with the feds than Cruz because he’s the one who makes requests to Washington. He needs to stay in Trump’s good graces to get more money and resources.

Politically, he also wants credit for rescue and recovery efforts that might be taking place in certain areas, in order to maintain voter support in those regions. He wants those voters focused on the progress happening right in front of them, not the lack of progress elsewhere – and certainly not asking why *more* isn’t getting done in their own neighborhoods. If he starts complaining loudly, his constituents might grow impatient and start to change their perspective -folks who are *ok* might start to demand more from the government, and if he can’t deliver he’ll lose their support. He’s already getting hit on social media for everything that’s going wrong, so this is a real risk.

So for Rossello, it’s is all about playing nice and managing expectations.

Cruz on the other hand is one additional step removed from Washington. The money will go to PR first in terms of loans and grants, then trickle down to San Juan. So she has to be nice to Rossello, not Trump, DHS, or FEMA. And as I alluded to above, her constituents are more or less all in the same boat – she doesn’t have to play both sides of the recovery coin.

And in all likelihood, I’d bet their scripts are coordinated. Cruz has been sleeping on a cot for 8 days. Rossello doesn’t want to take the blame for that. He wants Trump to take the hit as much as Cruz does.





Turkey and the Death Penalty: Why International Law Prohibits Capital Punishment Even After the Failed Coup

Turkey’s President Recep Tayyip Erdogan threatened to reinstate the death penalty in response to the failed coup on July 15.  It’s been over 30 years since Turkey lawfully executed anyone, and in 2004, pursuant to a constitutional overhaul predicated on Turkey’s hopes of joining the EU, capital punishment was officially taken off the books. flag_of_turkey-svg

But the coup attempt emboldened Erdogan and other hardliners in the AKP, Turkey’s ruling political party that has origins in religious fundamentalism, and which at times seems increasingly ambivalent to the EU.  Despite monetary reforms that opened the economy, reduced national debt and increased personal spending, the AKP has dragged its feet on human rights.  It has blocked social media sites, curbed the sale and consumption of alcohol, and flirted with the idea of criminalizing adultery.  It sacked judges and detained journalists.  It tortures prisoners.

The accession process nonetheless plodded along, showing that enough members of the EU, tentatively at least, believed Turkey would eventually come around.  That bet was risky from the start, and the AKP gave Europe few assurances after the coup attempt when it summarily removed or detained more than 80,000 people from government, military and civic institutions – including relatives of individuals the AKP suspected of sympathizing with coup supporters.  That number continues to grow.

Turkey declared a state of emergency on July 20, followed by an announcement that it would suspend both the International Covenant on Civil and Political Rights [ICCPR] and the European Convention for the Protection of Human Rights and Fundamental Freedoms [ECHR].  So what does all of this mean for the death penalty?

It’s hard to know whether Erdogan is serious or saber-rattling (though my bet is on the latter).  But even if he is sincere and Turkey lawfully suspended the ECHR and ICCPR, it can’t reinstate the death penalty without violating international law.  Here’s why:

  1. Human Rights Commitments. Turkey is a party to both the ICCPR and the ECHR.  The substantive rights protected by these instruments overlap to some extent.  The ECHR defines a narrower set of rights than the ICCPR, however, but is somewhat easier to enforce.  Neither instrument expressly prohibits the death penalty, though both recognize a fundamental “right to life,” and prohibit “inhumane or degrading” punishment.  Continue reading “Turkey and the Death Penalty: Why International Law Prohibits Capital Punishment Even After the Failed Coup”

Cholera in Haiti: UN Accountability Under The Guiding Principles on Internal Displacement

Uncontrolled vomiting hits first, along with profuse, watery diarrhea.  Within minutes, your body begins to dehydrate, your muscles will clench and cripple.  Your kidneys will fail next.  Then your brain goes into a coma, and your body goes into shock.  You’ll come out of it though, eventually, if you find treatment right away.  But if you can’t find treatment, you could die.  If treatment comes too late, you could die.  If the symptoms strike so fast that you have no idea what hit, it’s likely you will die.cholera - 5

This is cholera, a disease that has infected close to a million people in Haiti, and depending on which numbers you credit, has killed between 10,000 and 30,000.  Though easily prevented and treated, its onset is sometimes so sudden and severe that victims can die of systemic shock within an hour of the first stomach cramp.
Not a trace of cholera in Haiti had been reported in more than a century worth of health data.  But it exploded upon arrival in October, 2010.  One hospital near the epicenter of the outbreak admitted more than 400 cholera patients in a single day – just three days after the first reported fatality.  Forty-four of those patients were dead by nightfall.

It took only a few weeks for cholera to reach every corner of the country.  It seeped into neighboring Dominican Republic almost as fast, and eventually sickened people in the US, Mexico, Venezuela, Cuba, and a long list of other countries across the Caribbean.  Haiti has become ground zero for the world’s deadliest cholera outbreak.

cholera - 3How did this happen?  Continue reading “Cholera in Haiti: UN Accountability Under The Guiding Principles on Internal Displacement”

How To Topple A Building

How to topple a building: mix extra sand into the concrete so the cinder blocks are more filler than stone, and skip the rebar all together.

That’s how buildings were constructed in Kathmandu, Port au Prince, Izmir, and any of a dozen cities like them, and why earthquakes there were so deadly.

It’s not for lack of knowledge or building codes. These places had both. What they didn’t have was political or social stability, which made it easy to ignore the lives of poor people whenever money could be made.

Greedy contractors and corrupt public officials are certainly to blame. But look deeper and the fault lines start to blur. Maybe the building inspector took a bribe because he didn’t earn enough money to feed his own family. Or the migrant who came looking for work entered the lease even after hearing that the building next door collapsed a few nights before seemingly out of no-where. But really, what choice is there when all the buildings are the same? When this is all you can afford because the little money you make goes back to the family you left behind in the village stricken by drought.  “Structural defects” describe more than the buildings in some of these places.

So, when the earthquake hits, the buildings fall down. Hard and fast. And lots of people die. In a moment.


This is what I fell asleep thinking about last night. So you can imagine my surprise when the boys and I happened upon an “earthquake exhibit” at the Science Center this morning. No kidding! The exhibit lets you construct a building out of little blocks on top of a platform that shakes when you turn it on. So here’s a clip of the two buildings we made. We used plastic spokes as rebar in the building on the left, and no rebar in the one on the right. See if you can count how long the one without rebar remained standing after we turned the machine on at the 4 second mark.
-Kathy Bergin

Party Rape: A Survival Guide (pardon the diversion, but #StanfordSurvivor)

1. You are not the only one. There were others. Or there will be. It’s only a matter of time.

2. Find them. It won’t be hard. Three degrees of separation at best.

3. These are your allies. Your new BFFs. They’ll get it even before you finish telling them. Close ranks around each other when you need to.

4. You will lose friends. Sorry. Because someone who says “I really don’t want to choose sides,” just did.

5. Cut ’em loose. I regret not doing this much earlier. Seeing “them” forced me to remember “him” every time, and took me back to the night he raped me at the lake. But I couldn’t keep bringing it up all the time, because they’d say I was crazy or obsessed.  That’s how victim blaming works.  Don’t give anyone that much power over you, or your healing.

6. “I can’t believe I just did that.” That’s what he said when I was still pinned to the floor of the car with him on top of me. Damn, he was heavy. But sure, maybe he felt bad. So what. Didn’t stop him from raping someone else.

7. When your therapist asks at your first meeting, “have you ever thought about forgiving him?” NO. NO motherfucker. The answer is NO. Then immediately run for the door. Because if that’s the first go-to question, your therapist is either a rapist, or a rape apologist. Get out before it does more damage.

PS: see a *she.*  Lesson learned.

8. But don’t give up on therapy. I cycled through 4 therapists before finding my life saver – what up Dr. Fowler! You’ll find yours. Give it time.  Take breaks when you need them.

9. Forgive him if you want, though. And bring it up at therapy if you need to. But do it on your own terms. Personally, I don’t really think about “forgiveness” – it’s just not a thing for me either way. You might be different.

10. Same with naming. Only you will know if and when it’s the right thing, for YOU. If you do it, though, prepare yourself as well as you can for the backlash. You won’t know exactly what form it will take, or what it will cost you. But it will come. It will suck. And you’ll get through it. I promise.

11. Flashbacks. They’ll knock you down. Like, physically, they knock you down. But it’s a flashback, that’s all. OK? Look where you are. Put your hand on the desk. Hard surface, cold to the touch, probably. Look at your shoes. A little scuffed, right? Reach for that book, and leaf through the pages. Hear that soft muffle? Smell your coffee. That’s how you get through a flashback. Which is all it is. And it will pass.

12. They’re like a sucker-punch though, flashbacks – because you don’t always know when they’re going to hit. There was a time as a Law Prof when I was the target of what fancy-thinkers like to call “contra-power harassment” by a group of student I’m pretty sure would have raped me given the chance. They didn’t, but I remember walking into the student lounge one day seeing them circled around the ring leader. One of them spotted me and nodded to the others. One by one they pulled back just enough to let me pass, but close enough to give me goose bumps. A stronger woman might have just rolled her eyes and kept walking, but I went straight to the bathroom and had a full out panic attack on the floor. Like I said, flashbacks knock you down.

13. That scene in the student lounge was the same thing I happened upon 20 years earlier when I walked into the high school cafeteria the morning after he raped me. He was surrounded by teammates, eager and attentively soaking up the lurid detail.  One of them saw me and nodded to the others. One by one they pulled back just enough to let me pass, but close enough to give me goose bumps.  He stepped forward and yelled, “Hey, I had to wash my car. Remember – you got out and puked all over the place. You owe me $2.50.”

14. Those two snapshots in time were close enough to trigger a flashback after 20 years. But they weren’t the same thing. It’s never the same thing. It’s not that place. And it’s not that time. It’s here. It’s now. And it’s different. Remember that. Thank you, Janet Bell, for reminding me.

15. Don’t trouble yourself with thinking you should be where I am now, because it took 25 years for me to get here. Just know that I was once where you are, sometimes angry, sometimes sad, sometimes self-loathing, and sometimes dismissing what happened, all the while shaking my head in disbelief at women I thought had found a way to get over being raped. “What the fuck is wrong with them – why aren’t they still mad?!?”

16. My anger has shifted away from the man who raped me, towards the men who are still raping other people, and the sycophants who keep making excuses for them. And I’ve learned that I was wrong about the women who found peace. They didn’t get over it, but they did move through it. You will too. Eventually.

17. He raped you. And that was about him. What happens now is about you.

18. I believe you.
19. We believe you.
20. We believe in you.

NYC Passes New Disaster Legislation After Hurricane Sandy. Now The Hard Part.

Property owners and other qualifying individuals in New York City will be given additional time following a disaster to repair and clear their property, without incurring penalties for certain municipal code violations.  New disaster legislation passed by the City Council takes effect August 8, 2016, and applies retroactively to fines imposed after Hurricane Sandy.

Sandy - homes destroyedI’ve posted a detailed summary of new developments here.  In this post, I’ll explain why the scope of protection under one of those laws, Int. 1037, depends on how quickly and effectively the City implements a recovery program following the next major disaster.  The record from Hurricane Sandy is not encouraging, but perhaps the benefit of that experience will produce better results in the future.



A Quick Review of Int. 1037

Continue reading “NYC Passes New Disaster Legislation After Hurricane Sandy. Now The Hard Part.”

After Hurricane Sandy: Disaster Recovery Laws Shield NYC Property Owners From Municipal Penalties

Property owners and other qualifying individuals will be given additional time following a disaster to make repairs and clear their property, without incurring penalties for certain municipal violations.  Two new disaster recovery laws adopted by the New York City Council take effect August 8, 2016, and apply retroactively to situations that arose following Hurricane Sandy.

Building Code Violations: Exceptions

Int. 1037-A adds provisions to the city’s Construction and Sanitation Codes that apply for a period of time following a disaster, or while property is covered by a city disaster recovery program.

For 90 days following a “natural or man-made disaster,” penalties arising from a Construction Code violation will not be enforced against covered individuals, provided the violation is corrected within 40 days of the disaster period.  Penalties are waived for 6 months following a “major” disaster, also provided that the violation is corrected within the next 40 days.  The Building Commissioner may grant additional time on a case by case basis.

The law does not create a blanket exception to violations issued during the disaster period, however.  The exception applies only to violations connected to the disaster.  For example, Continue reading “After Hurricane Sandy: Disaster Recovery Laws Shield NYC Property Owners From Municipal Penalties”

What is a Disaster Lawyer, Anyway?

I get this question a lot.  For me, it’s someone who uses the law to empower people whose rights are overlooked or outright violated in a disaster.  We advocate for people who were socially vulnerable and politically marginalized even before the disaster, and therefore especially susceptible to human rights abuse after a disaster.

Hurricane Katrina was my first direct experience with a mega-disaster, and it’s important to be clear about what happened. The strength of the storm and where it landed are accepted as reasons so many people died, or struggled to stay afloat in the drawn-out aftermath. But life was fated for people across the Gulf Coast long before Katrina, by government policies that determined who lived where; whether and when they could escape; and if those who made it out were encouraged to return home.  I saw the same thing play out in Haiti, and witnessed it from a distance in the Philippines, Nepal, and virtually everywhere else an earthquake hit, a hurricane struck, or a drought crept in.  The most important thing I learned from Katrina and these other events is that disasters do the most damage along political fault-lines that already exist.

I also learned something else from Katrina.  Continue reading “What is a Disaster Lawyer, Anyway?”

Nepal Earthquake: One Year Later

A massive 7.8 earthquake rocked Nepal on April 25, 2015. The government effectively shut down just weeks later after lawmakers couldn’t agree on the provisions of a new national constitution. The National Reconstruction Authority disbanded as a result, and was recommissioned just recently after the new constitution was adopted.

Meanwhile, India, Nepal’s neighbor and strongest trading partner, blocked aid convoys from crossing into Nepal. Depending who you ask, that move was India’s attempt to flex some muscle against Nepal for constitutional proposals it disapproved of, or to protect drivers from confrontations with violent protesters across the border. Either way, the embargo lasted for four months, during which truckloads of food, and fuel, and building supplies languished on a highway while people inside Nepal slept in the rain without knowing when they would get their next meal.

Finally, the government says, a national reconstruction program is getting out of the gate. Let’s hope that’s true, because a lot of catch up is needed before any appreciable progress can be measured. One year later, here’s where things stand:

The toll:

  • 9000: people killed;
  • 1,000,000: homes destroyed;
  • 4,000,000: people still living under substandard temporary conditions.

The “progress”:

The money flow:

Reports also say that villagers in the hardest hit remote areas have yet to receive ANY governmental assistance, and still have not been reached by aid groups.

-Kathleen Bergin

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