By Tess McPhail
Natural disasters are on the rise. Without adequate laws in place, authorities can be overwhelmed and vital aid delayed, according to MLS alumni working in the field.
In 2018 we’ve seen a major earthquake and tsunami hit Sulawesi in Indonesia, typhoons lash several countries including Japan, the Philippines and China, wildfires break out across California and major flooding hit India. This is only a snapshot of the natural disasters that
have struck around the globe this year. Experts argue these disasters are increasing in frequency and severity, so what role does the law have to play in times of crisis?
MLS alumna Victoria Bannon (LLM 2004) is the co-founder and director of Humanitarian Consulting Pty Ltd, an organisation that specialises in strengthening legal, policy and institutional frameworks for disaster preparedness and response.
She observes that a range of real-world obstacles often prevents the effective operation of laws and procedures when natural disasters strike.
“Natural disasters place normal systems and procedures under enormous strain,” Bannon says.
A quick response can be hampered by a lack of preparedness, confusion about roles and responsibilities, or red tape and bureaucratic delays.
She says laws addressing disasters need to have both local and global dimensions.
“Ideally, national legislation should be developed in such a way that it integrates the broader approaches and terminology agreed at the international level.”
“It also needs to reflect the specific national and local contexts and encourage participation from civil society.”
A range of laws and policies exist that are aimed at addressing the harm caused by natural disasters.
However, according to disaster law specialist and MLS alumna Rachel Macleod (BA 2011, JD 2015) ‘disaster law’ has only recently emerged as a field of international law.
“In the scheme of the history of international law, international disaster law is a relatively new field, having only come into existence in the early 2000s,” she says.
Macleod works as a Senior Program Lead for Disaster Law at the Australian Red Cross, and works directly with the International Federation of Red Cross and Red Crescent Societies’ Disaster Law Programme. The Programme’s mandate is to use law to reduce human vulnerability to disasters around the world.
“Disaster law does not only focus on how the law operates after a disaster occurs,” Macleod says.
It is equally concerned with legal measures to prevent and reduce the risks posed by disasters.
According to Bannon, one of the distinguishing features of this area of law is the fact that no comprehensive multilateral treaty on disaster law exists.
“At the international level, there are a range of legal instruments – from treaties to regional agreements to United Nations resolutions – that address different aspects of natural disasters,” she says.
“But, as yet, there is no single, comprehensive, legally-binding instrument.”
Often it is left to international humanitarian organisations to try to fill this gap. This is usually in the form of legislative guidelines.
Macleod’s work at the Australian Red Cross, for example, is focused on developing an evidence-based checklist to help domestic decision makers when creating, amending or reviewing disaster laws and policies.
Macleod says the challenge is not just to develop strong disaster laws, but also to integrate these disaster management measures into domestic law.
“Many countries and subnational jurisdictions have dedicated disaster laws, policies and institutions.
“However, in order to be effective, disaster considerations also need to be mainstreamed into many other areas of law, such as environmental, building and planning laws.
For example, planning laws should prohibit homes from being built in areas that are highly prone to flooding, and building law should impose minimum standards to reduce vulnerability to earthquakes.
Bannon notes that governments are often slow to act when it comes to disaster law reform.
“One of the biggest challenges is garnering enough political will within governments to review and update their existing legislation,” she says.
“Unfortunately, it often takes a major disaster to trigger the necessary impetus for change.”
Another key challenge in disaster law is ensuring the protection and inclusion of vulnerable groups in disaster management.
MLS alumna Kirsten Sayers (BA 1989, LLB 1992) is CEO of RedR Australia, an international humanitarian agency that selects, trains and deploys technical specialists to build resilience in countries and communities preparing for and recovering from disaster, conflict and instability. Protecting vulnerable people is a key focus of its work.
“When there is a disaster, response priorities come sharply into focus as everyone seeks to quickly identify the most pressing immediate needs,” Sayers says.
But everyday needs also continue. As we’ve seen with the recent tragedy in Indonesia, it doesn’t matter that there is a natural disaster – people still need to give birth, for example, and we need to ensure that clean birthing kits are available.
Macleod notes that disasters also have the propensity to aggravate pre-existing vulnerabilities and social problems.
“People with sensory impairments may be unable to comprehend warnings, while people with mobility impairments may be unable to evacuate quickly enough,” she says.
“Racial and ethnic minorities may be more likely to live in disaster-prone areas and in poorly constructed housing, resulting in higher injury and mortality rates.”
Ensuring that vulnerable groups are protected during natural disasters is no small task. According to Sayers, the best course of action is to focus on preparedness.
“For RedR, areas of gender and disability inclusion are particularly important as we work to support UN agencies and government ministries in critical preparedness efforts,” she says.
“According to the UN, every dollar invested in prevention could save seven dollars in recovery.
Those numbers will vary, but the general principle stands firm: if you are prepared for a disaster you can respond more effectively.
Although at times the law can hamper the disaster response, Macleod points out that when implemented well, disaster law can significantly increase the effectiveness of the response.
“The law can be a barrier to international actors – and their equipment and supplies –entering the affected country and providing disaster relief,” she says.
“Equally, law can be an enabler by creating simplified and expedited procedures that facilitate the rapid delivery of international assistance.”
Bannon agrees that the law has a key role to play when it comes to responding to natural disasters.
“Not every problem in a disaster situation has a legal solution,” she says.
“But there are ways that good laws and policies can improve the effectiveness of the overall response.”
Banner image: Local responders with the Fiji Red Cross support their communities after Cyclone Winston in Fiji. Image credit: Navneet Naryan/IFRC.
This article originally appeared in MLS News, Issue 20, November 2018