Emergency and Disaster Management Legal Framework

Introduction

The United Nations office for disaster risk reduction defines a natural disaster as “a serious disruption of the functioning of a community or society involving widespread human, material, economic or environmental losses and impacts, which exceeds the ability of the affected community or society to cope with using its resources.”¹ In the last few decades, the incidence of natural disasters increased significantly, striking not only the underdeveloped countries but posing dangers to the worlds’ leading economies as well. Countries that have suffered from various natural disasters in the past decade include China, Japan, the US, Russia, India, Nigeria, Namibia, Mexico, and many others²

Natural disasters present an enormous danger to governments and societies around the world, due to their unpredictability, scope, and capability to inflict enormous amounts of damage to the existing infrastructure. According to the IFRC, the approximate death toll associated with natural disasters for the past decade has been over 75,000 casualties. In addition to that, over 200 million people have become displaced as a result of cataclysmic events. The estimated economic losses suffered from natural disasters are at 162 billion US dollars per year.³ In the event of a crisis, the government is expected to take affirmative action aimed at saving lives and restoring the communities to habitable conditions. These operations involve a series of integrated efforts in combination with financial transactions and volunteer activities. The purpose of these activities varies from immediate search and rescue efforts to long-term economic rebuilding.

Laws serve an important function in guiding and regulating both short-term and long-term relief efforts. They help reduce disaster risks, prevent new risks, and make communities safer. The effectiveness of laws has been proven in many disaster-prone areas around the world, namely in Africa, India, South America, East Asia, and other regions. As an example, the adoption of legal policies regarding evacuation, relocation, responsibilities, and frameworks considering the reconstruction of structural works in Vietnam helped reduce the number of flood-related deaths from 600 to less than 60 per year.⁴

Various international bodies around the world have recognized the importance of emergency and disaster legislation. Ever since 2005 and the adoption of the Hyogo Framework for Action, various countries have been putting forth legislative efforts to reduce risks posed by natural disasters and ensure the safety and timely rescue of those affected⁵ The purpose of this paper is to analyze the existing legal frameworks utilized by various countries prone to natural disasters, highlighting the key trends and important areas of legislation necessary for disaster management, and provide convincing and systematic arguments advocating the adoption of emergency disaster frameworks worldwide.

Historical Background

Although the necessity for an integrated legal framework for emergency disaster management has been acknowledged for some time, no coordinated efforts were displayed until the second decade of the 21st century. In 2011, the 31st International Conference of the Red Cross and Red Crescent adopted Resolution number 7, which encouraged all aligned states to review their existing legal frameworks to find any gaps about disaster relief management and find ways of closing these gaps⁶ The resolution stressed out the necessity of making DRR a legal priority, especially in countries prone to large-scale natural disasters, such as earthquakes, flash floods, tsunamis, forest fires, tornadoes, etc. The existing frameworks were encouraged, with the help of affiliated factions such as the IFRC, UNDP, and Red Cross, to include various important legal staples of DRR, such as resource allocation and accountability about the communities, civil society, and the private sector. Changes and additions to the land use planning and building codes were also discussed.

In 2012, many governments requested support from the IFRC and UNDP in regards to developing a cohesive legal framework that would address the needs of their specific countries regarding their financial capabilities, existing laws, traditions, and economies. In response to these requests, the IFRC and UNDP launched a joint initiative aimed at supporting and strengthening the efforts of domestic disaster risk reduction legislation. To facilitate these efforts, the organizations began a thorough investigation of the current DRR legislation to gather an evidence base, upon which a new framework would be developed. This effort took roughly two years, during which the board had performed 31 legal desk reviews of 31 countries and additional in-depth country-specific reviews. The result of this initiative was the DRR Law Report published in June 2014.

The report had discovered significant gaps and inconsistencies in the existing national DRM laws and stated the necessity of a greater focus on disaster reduction and relief measures. It also highlighted the existence of legal framework implementation issues common across various countries, namely:⁷

• The expansion of responsibilities and mandates of local authorities in regards to emergency disaster management without the allocation of required resources, personnel, facilities, and funding.
• Failure to include natural hazard risks in the existing codes for land planning, construction, and regulation.
• Failure to include various stakeholders in the decision-making process (women, minorities, vulnerable groups).

While the report offered plenty of data on existing gaps and abnormalities in the existing legal frameworks, it did not offer much in terms of solutions and recommendations. The data that was collected needed to be processed to develop the best possible legal actions that could be undertaken regarding the existing situations, unique to every country. The first pilot project dedicated to developing a coherent list of factors and recommendations began in 2015 and involved the development of a legal framework for low-income countries located in the equatorial and sub-Saharan regions. Other countries that used the checklist to improve their existing legal codes included Italy, Egypt, Mongolia, Tunisia, Senegal, Algeria, Armenia, Nigeria, Laos, Madagascar, and others. ⁸ The implementation of developed guidelines helped enhance the existing frameworks and improve disaster management-related statistics by increasing awareness, preparedness, and reducing potential losses associated with small-scale and large-scale disasters.

The IFRC and UNDP have maintained their efforts to improve the existing legal frameworks around the globe by providing specialists and short courses on disaster law to cooperating governments, and reviewing the effectiveness of the application of DRR in the scope of national law and security. The checklist developed in 2015 had evolved into a handbook providing a solid basis for the foundation of a DRR-focused legal framework. As it stands, over 10 countries are currently undergoing a legislative reforming process in regards to DRR, with the assistance of IFRC, UNDP, Red Cross and Crescent, as well as various NGOs, academic representatives, interested parties from the private sector, and independent consultants.

Legal Framework

The legal framework proposed by the UNDP and IFRC includes numerous criteria, upon which the existing national frameworks are judged, to identify potential gaps and problems that would undermine any DRR efforts and disaster relief initiatives in the event of an emergency. Some of the good and necessary practices for a DRR Legal framework include, but are not limited to: ⁹

• Introduction of new DRM law and structure. For a DRR legal framework to exist, its concepts are to be established within the existing institutional structure. This practice is associated with positive developments and improvements in disaster management. The government is expected to develop national and regional level structures with the intent of supporting various DRM policies. Other duties of these branches involve contingency planning. In Namibia, which is one of the countries that built its DRM network according to the IFRC guidelines, such a structure is called the Directorate of Disaster Risk Management. It is a government agency that undertakes most of the day-to-day prevention and emergency activities in the country. Its purpose is the coordination of various government and non-government stakeholders at the national and regional levels.
• Environmental impact assessments. The connection between the environment and the potential for natural disasters is an important legal issue, as in many emergency scenarios, the impact on the communities and the environments are greatly amplified by various ecological violations. Environmental hazards and disasters are interlinked, as one cannot be fully understood or explained without the other. Environmental hazards exist as an interface between natural events and various human-made systems. Environmental degradation reduces the capacity of the environment of withstanding an emergency and reduces its capabilities of meeting the existing social and ecological objectives. Some examples of environmental degradation include deforestation, wildfires, degradation of soil, degradation of flora and fauna, air and water pollution, climate change, ozone depletion, ocean levels rising, etc. To prevent these events and reduce the chances of natural disasters being amplified or provoked by any of these factors, the existing legal framework needs to possess the instruments to promote, supervise, and enforce the laws about national ecological security.
• Changes to the Building Code and process of land use. The Building Code and the regulations for appropriate land use are some of the key legal documents that have a direct impact on casualty rates in the event of a natural disaster. The majority of casualties during earthquakes occur due to violations or nonexistence of regulations about construction in earthquake-endangered areas. Treatises regarding appropriate city planning and land use are necessary to ensure a proper infrastructural design that would be able to ensure access to all remote areas of a city, should an earthquake or any other natural disaster occur. Changes to the building code are typically very extensive, as they consider many important aspects of construction, such as city-planning, architecture, engineering and designing practices, regulatory practices, demands for the quality of materials, etc. This presents a particular problem to many African nations ravaged by war, as the governmental capabilities of devising and enforcing these practices are extremely limited.
• Community-level structures and participation legislation. The existing legal framework must cover the processes of establishing, funding, and governing community-based structures that would be involved in the participation and promotion of various local DRR initiatives. One of the examples of positive community-based legal initiatives includes the Nature Conservation Amendment Act of 1996 and the Water Resource Management Act of 2004, which promotes communal ownership and control over the consumption and use of these critical natural resources, which significantly improved domestic resilience to natural hazards.¹⁰
• Early Warning Systems (EWS) and mapping of potential risks. The EWS is a cross-regional initiative run by the IFRC and UN OCHA that helps predict and prepare for potential natural disasters. It is an information-gathering program, and as such, requires legal support and cooperation of various ministries and government entities. Cooperation from the ministries of Water, Agriculture, Forestry, Environment, and Tourism must be supported by legal mandates to remove the element of non-compliance from the equation. Clarifying institutional responsibilities regarding the EWS via appropriate legislation and policies would help reduce confusion and improve the efficiency of the system. Another legislative aspect of EWS compliance involves the standardization of reports by the IFRC and UN OCHA standards, as it would help in information gathering and dissemination efforts.
• Establishment of Local Disaster Response Management Institutions. After the establishment of regional legal entities responsible for managing and coordinating local DRM institutions, it is necessary to extend the legal framework to support local authorities at the community, village, and individual city levels. The necessity of the extension is necessary to ensure long-term coordination and stability, as in many cases local DRM facilities are either nonexistent or operate under the mandate of partnering NGOs and international organizations, without any official legislative support.
• Funding for various disaster risk reduction activities. In many cases, the implementation of DRR is undermined by a lack of legal frameworks in regards to funding as well as by the limited nature of financial support in poor and developing countries. In many cases, initial DRR efforts are performed with the assistance of various international organizations that provide material and financial support. Government resources typically reach the DDRM only in the event of a natural disaster, by which it is too late, as the local and regional organizations are either underequipped or nonexistent. Even then, there are no clear procedures for ensuring these resources reaching their intended destination. Establishing a long-term DRR presence requires robust legal mechanisms to form the basis of the budgeting framework. This process must be enforced by the various independent government and social agencies to ensure transparency and allow fundraising efforts to extend beyond the national level. The lack of financing legal framework is one of the greatest obstacles in the path of ensuring DRR security and promoting its effective implementation.
• Community involvement in EIA and land use planning. While the construction code and land use guidelines provide a robust legal framework to rely upon in most situations, these rules rarely take the community opinion and participation into account. An efficient legal framework for natural disaster management and prevention requires the development of legislative mechanisms to ensure the participation of the local communities and figureheads in the EIA process and land use planning to protect their interests and ensure a more transparent and inclusive DRR process. As it stands, many governmental officials, when it comes to land use planning, disregard the wishes of the community, the existing construction code, and the land use planning recommendations due to limited resources or the time-consuming complexity of the process. Improving clarity and streamlining the existing legal framework is paramount.

These are some of the major points that need to be covered in an extensive legal framework to address the needs and issues of endangered countries and nations regarding environmental safety and disaster relief. Under the IFRC mandate, participating countries are required to evaluate their existing systems against the issues mentioned above and develop concise legislative and regulatory mechanisms to improve the situation.

Analysis

The IFRC handbook that outlines the shape of a basic legal framework for disaster management provides a series of well-thought-out solutions to be integrated into the existent legal systems of countries across the globe. However, it does not address one of the issues that lie at the core of many problems associated with DRR. If we compare the list of countries currently receiving aid with modifying their DRR laws with the list of countries ranked the lowest on the human rights watch list, we will find an interesting correlation.

Human rights are the basis upon which disaster management is built upon. At the same time, neither the international declaration of human rights nor the constitutions of many of those countries do not explicitly proclaim the right of a disaster victim for rescue, relief, and rehabilitation. While it is implied by certain amendments, it is never spelled out directly. This is where legal action should begin – all constitutions should explicitly state that the responsibility for relief, rescue, and rehabilitation is that of the government and the society in general. That way, under constitutional law, no government would be allowed to skip responsibility when it comes to disaster relief issues. Having such a powerful legislative document reaffirm the rights of disaster victims would be the first step for establishing a solid legal framework for DRM.

Another issue related to legal frameworks that the IFRC guidelines do not cover is the issue of governmental efficiency and corruption when establishing DRR structures and establishing regulatory agencies to ensure that the required preparations and changes are in place. Many countries have already made significant advances in DRR-related legislative efforts, but are held back by rampant corruption and unresponsiveness of the governmental apparatus. Addressing the issue of corruption should be one of the primary focus of the IFRC advocacy agenda, and yet at this time advocacy is primarily aimed at fundraising campaigns and getting governments on board with the relief efforts, rather than working to improve the effectiveness of money being spent. Without efficiency and transparency in money-spending processes, the amounts allocated within the budget would never be enough, which would result in the DRR measures becoming superficial and underwhelming, which would be extremely detrimental to the cause.

The guidelines provided by the IFRC seem to be rather general, meaning that every country would need to find a way to use them based on the existing socio-economic situation. Many countries in dire need of DRR have been suffering from consecutive disasters that have reduced their government agencies to the point of struggling with performing even their basic functions, much less something as resource consuming as extensive DRR. The most prominent example includes Haiti, where several consecutive earthquakes have undermined any governmental ability to act.¹¹ Red Cross is currently struggling at rebuilding and maintaining the country because the sheer amount of issues that rose from destruction and inefficient governing reduced the effectiveness of DRR and DRM measures implemented by the IFRC. Before impoverished countries can implement the legislative framework outlined in the IFRC handbook for disaster management, certain actions must be taken to ensure they have the basic healthcare, emergency services, and infrastructure capable of supporting a cohesive disaster relief effort.

Advocacy

Advocacy is a core activity behind IFRC, the Red Cross, and other international NGOs aimed at persuading people to make changes in their beliefs, policies, practices, systems, and structures. The goal of advocacy in promoting disaster management legal frameworks is to improve the lives of vulnerable populations. This process involves speaking for others and supporting their efforts to speak for themselves. Also, advocacy involves gathering funds and involving more people in the process of decision-making, promoting diversity, and figuring out the best possible courses of action.

As it was already stated, the main purpose behind the advocacy is to improve the capabilities of specific communities to respond to natural threats. To promote best practices in disaster legislation, IFRC engages in humanitarian diplomacy. The goals of such diplomacy are as follows:¹²

• Representation, promotion, and visibility of national societies in their efforts to improve living conditions and disaster relief management systems.
• Influencing humanitarian agendas of specific governmental and regulatory bodies by identifying critical issues and suggesting potential solutions to the problems.
• Enabling the Red Cross and Red Crescent to position itself as the primary humanitarian organization in the region to serve as a basis for further cooperation and improvement.

One of the strongest arguments for advocacy of disaster management legal frameworks is that it helps reduce casualties and material losses in the event of small-scale and large-scale natural disasters. However, the reason why this argument is often offset by corruption is because of the uncertain nature of most large-scale disasters. Large earthquakes typically happen once in several decades, while budget money for DRR measures within the existing legal frameworks is being provided every year. In countries where regulatory bodies and the notions of social morality accept the existence of corruption, corrupt officials are often abusing disaster prevention funds for their gains.

Another obstacle in the path of advocacy for a coherent disaster management legal framework is the unavailability of resources. In dire situations, where governments need to find money and resources on providing their citizens with basic needs such as food, water, and shelter, daily, any legislative efforts aimed at preventing future disasters are often viewed as untimely and wasteful.

To overcome these obstacles, any advocacy efforts should be able to present both short-term and long-term benefits of adopting and following measures proposed within the scope of a DRR legal framework. Stories of success and examples of poor countries thriving after an at least partial adoption of the framework to deal with small-scale local natural disasters. Stories of successful flash flood and forest fire preventions would be invaluable in proving the effectiveness of proposed measures, especially when supported by numbers and calculations of resources saved in comparison to the costs of installation and maintenance of DRM structures.

However, it seems that the Red Cross and the IFRC are realizing that to advocate for more dedicated government involvement, they need a stronger case to support their agenda. Strategy 2020 highlights the importance of cost-benefit analysis as the primary advocacy tool in improving community resilience, greater accountability, and the impact of various promoted DRR programs¹³ At first glance, it may seem that the CBA is against the very notion of humanitarian NGOs, as the premise suggests the importance and availability of resources and dollars over humanitarian concerns for human life. However, in this case, cost-benefit analysis is, in its essence, closer to medical triage techniques in terms of resource allocation. In many impoverished countries, the resources available for disaster management and prevention are finite. Therefore, dedicating a large amount of effort and resources at the expense of other important social and economic areas would not only cause more harm than good but also be inappropriate from an ethical perspective. Thus, cost-benefit analysis helps the governments and NGOs alike do the best they could with the limited amount of resources they have.

Advocacy for DRR measures has to be focused, concise, and clearly state the benefits for the country in question about potential costs and savings in the event of an emergency. However, the humanitarian aspect of DRR must not be neglected. The purpose of any government, first and foremost, is to protect its people, which includes the most vulnerable groups who are likely to suffer the most, should a natural disaster strike. To summarize, any advocacy effort must cover these key messages:

• Representatives of vulnerable populations must be involved in the process of planning and decision-making. They know the best what risks they face¹⁴
• DRR is cost-effective in both the long-term and the short-term perspective when mitigating small-scale emergencies and local disasters.
• Neglecting DRR causes death and destruction. Governments have a moral duty to protect their citizens. Even the rich and corrupt government officials can become victims of a natural disaster.¹⁵
• Environmental damage takes a lot of time and resources to repair. Lack of DRR planning makes a country more vulnerable to consecutive disaster strikes.
• Climate change is happening, and the scientific community offered plenty of proof to support that notion. With climate change comes the potential for natural disasters previously unseen in some parts of the world. In the event of a natural disaster, the poor, the children, and the elderly are especially vulnerable. We must prepare and adapt to the situation.

Conclusions

Natural disasters occur with increasing frequency, due to climate change, human endeavors, and many other factors largely outside of our control. While the importance of having a functional system of disaster relief management, not every country has the resources to do so. The first step to a cohesive DRM strategy is the establishment of a legal framework to ensure the rights of citizens for rescue and rehabilitation. This right must be guaranteed by the Constitution. After this important step is made, it is necessary to develop all of the necessary mechanisms, regulations, and structures to support the budding legal framework. Without these measures, long-term sustenance of DRR would not be achievable, meaning that the next time a disaster comes, the damage and casualties would be enormous. This is especially true for countries susceptible to tornadoes, tsunamis, flash floods, and earthquakes due to geographical proximity to potential sources of natural hazards.

IFRC assists in establishing working legal and structural foundations for DRR efforts. Their efforts have seen a modicum of success in various countries around the world, some of which include Namibia, India, China, Japan, Indonesia, Madagascar, and various others. The IFRC Handbook for establishing a DRR legal framework provides a checklist of potential gaps within the existing laws and regulations, which helps identify certain areas in need of improvement or reformation. The handbook identifies the essentials of a functioning legal framework, which include the establishment of a dedicated ministry, legal grounds for DRR budgeting, the establishment of various regulatory bodies, and involvement of local communities in the process of decision-making and control. However, while measures provided in the handbook are useful and applicable to many situations, none of them is tailored to any specific country’s financial, social, ecological, and environmental conditions. A more dedicated and tailored approach would help avoid failures in an organized disaster relief effort like during the Haitian crisis of 2012.

Advocacy is an important part of promoting disaster relief management. The simple establishment of a functional legal framework for DRR is not enough if the people, the government, and the regulatory bodies do not exhibit a complete dedication to its tenets. Corruption remains one of the primary obstacles to the effective implementation of DRR. Advocacy should be aimed at the elimination of corruption while providing a solid humanitarian and financial argument for the implementation of DRR on a large scale. Convincing struggling countries that DRR would save more money in the long-term and short-term perspective would be a major step to reducing the damage caused by natural disasters and help protect vulnerable populations, namely the poor, the elderly, and the children.

Works Cited

“Disaster Management and Law – A Human Rights Perspective.” Lawyers Club India, Web.

IFRC. Disaster Risk Reduction: A Global Advocacy Guide. 2012. Web.

IFRC. Effective Law and Regulation for Disaster Risk Reduction: A Multi-Country Report. 2014. Web.

IFRC. The Handbook on Law and Disaster Risk Reduction. 2015, Web.

Johnston, Jake. “Outsourcing Haiti: How Disaster Relief Became a Disaster of its Own.” Global Research, 2016.

National Disaster Framework. 2017.

Pandey, Kuman Rajendra. Legal Framework of Disaster Management in India. 2016.

“Risks and Disasters.” UN-Spider, Web.

UNDP. The Checklist on Law and Disaster Risk Reduction. 2015, Web.

UNDP. Namibia: Country Case Study Report. 2014, Web.

Footnotes

1. See “Risks and Disasters” for more information.
2. See “Effective Law and Regulation for Disaster Risk Reduction: A Multi-Country Report.” for a full list of countries.
3. See “The Handbook on Law and Disaster Risk Reduction.”
4. See “The Checklist on Law and Disaster Risk Reduction” for more information.
5. “The Checklist on Law and Disaster Risk Reduction.”
6. See “Effective Law and Regulation for Disaster Risk Reduction: A Multi-Country Report.”
7. See “Effective Law and Regulation for Disaster Risk Reduction: A Multi-Country Report.”
8. See “The Checklist on Law and Disaster Risk Reduction” for more information.
9. See “The Handbook on Law and Disaster Risk Reduction” for more information.
10. See “Namibia: Country Case Study Report” for more information.
11. According to Johnston, the Haitian relief effort was a disaster.
12. See “Legal Framework of Disaster Management in India” by Pandey, Kuman Rajendra.
13. See “Disaster Risk Reduction: A Global Advocacy Guide” for more information.
14. See “Disaster Management and Law – A Human Rights Perspective.”
15. See the “National Disaster Framework” for additional details.