Preparing for Disasters: Bring on the Lawyers!

When most people think of preparing for sudden-onset natural disasters, the things that typically come to mind are stockpiling supplies or planning evacuation routes, or perhaps installing early warning systems. The often tedious process of developing laws and policies doesn’t immediately surface as a priority action. Developing and ensuring implementation of building codes simply doesn’t have the same heroic feel of search and rescue teams pulling people out of an earthquake’s rubble. Setting up systems to process offers of foreign assistance doesn’t have the urgency of distributing food and water to desperate survivors. Reviewing land tenure systems seems boring in comparison with the immediacy of building homes for people who have lost everything in a typhoon. And yet, when legal frameworks are not in place and disasters occur, people suffer and they die. Without legal preparedness, recovery takes far longer.

Experts agree that climate change will increase the intensity and unpredictability of sudden-onset disasters. Patterns of urbanization mean that poor people flocking to cities live in ever more-marginal areas, areas which are more susceptible to the effects of natural hazards. Governments have a responsibility to protect their citizens from the effects of disasters. This means that they have a responsibility to mitigate the risks of natural hazards (or disaster risk reduction as it is called), to respond effectively when disasters occur, and to help people recover after disasters strike. In all of these areas, legal preparedness is key.

Once a major emergency occurs, there is no time to shepherd legislation through a parliament or to engage in the necessary consultations to ensure that new regulations conform with existing law.

Through its pioneering work on international disaster response law, the International Federation of Red Cross and Red Crescent Societies has developed a set of guidelines to help governments make sure that their legal frameworks are in place to facilitate international relief efforts in the event of a disaster. This includes deciding on such measures as whether to allow for expedited processing of relief goods in the event of a disaster, whether to allow foreign medical personnel to work in the country, or even whether to authorize extended hours for customs officials. These are measures which need to be in place before a disaster strikes. Once a major emergency occurs, there is no time to shepherd legislation through a parliament or to engage in the necessary consultations to ensure that new regulations conform with existing law. The need for international disaster response law (IDRL) affects both developed and developing countries as evidenced in Anne Richard’s short study on the difficulties faced by the US in managing offers of foreign assistance after Hurricane Katrina. When I was in Tokyo shortly after the March 2011 triple disaster, I asked a senior relief official what his greatest headache was and was surprised when he said “dealing with all the offers of foreign aid.” IDRL offers guidance not only in facilitating international relief assistance but also suggests concrete ways that governments can regulate and yes, control, the activities of foreign relief agencies when disasters strike, particularly important given the proliferation of agencies who often want to respond.

Many, but far from all, governments have a national law on disasters. A study last year by the Asian Development Bank found that 30 of 61 countries in the Asia Pacific region had developed national laws on disaster risk management. Given the vulnerability of this region to sudden-onset disasters, this figure is disturbing. A national legal framework is an essential first step in legal preparedness for disaster, usually taken in tandem with creating a national focal point or organization to coordinate disaster risk management. The national disaster laws which do exist come in different forms – some only cover response to disasters, others cover both response and risk reduction, still others cover all phases of disaster management. Too often the national focal point on disaster response is a weak entity, with limited budget, staffing and political clout which is insufficient when a major disaster occurs. These weaknesses often become apparent only when disaster strikes although it is important to note (as a sort of silver lining) that these weaknesses can become the driving force for institutional reform, and for legal preparedness.

Developing legal frameworks to reduce the risks of disasters is a more complicated undertaking than improving response mechanisms as it ideally includes a “whole-of-government,” or even a “whole-of-society” approach. IFRC, together with the UN Development Program has recently released a large-scale comparative study on national laws and policies on disaster risk reduction in 31 countries. To reduce the risks of disasters, it isn’t enough to have a strong national disaster management organization; rather disaster risk reduction measures need to be incorporated into such diverse sectors as urban planning, resource management, education and insurance schemes. The involvement of the private sector, professional associations and communities themselves are needed to reduce the risks of disasters.

Finally, legal measures are needed to expedite recovery efforts, most importantly with respect to land. Legal systems are needed to secure land for temporary shelters for those displaced by disasters and to ensure land titles as a necessary precondition for rebuilding destroyed homes. Resolving the legal issues around land and housing is usually much more complex and time-consuming then the actual construction of even large numbers of homes, as starkly demonstrated by the case of Haiti. But legal measures carried out by governments can make a difference. Following its 2010 earthquake, the Chilean government set up processes to expedite land claims which meant that homeless people were able to get their housing replaced sooner.

There are many other fascinating disaster-related legal issues which merit further attention such as the role of human rights law and questions of governmental responsibility for failure to prevent disasters. But perhaps a first step is to recognize that developing appropriate legal frameworks can be just as much a life-saving contribution to those affected by disasters as sending medical teams or bags of rice.