IDRL: National legislation for an effective disaster response

1. Disaster Risk Reduction

The first element of disaster response is reducing the risk of disasters in the first instance and recognizing that risk reduction is a development concern.

The international community has recognized this, as well as the central place of national legislation in promoting this goal, in the Hyogo Framework of Action. Law can address risk reduction from many different angles.

Most obviously, these include effective urban planning, building codes, shoreline and waterway management, industrial regulation, transport rules and environmental policy.

While all states have legislation in most of these areas, those laws do not always highlight disaster reduction issues. Also, though perhaps less direct, laws to address poverty, discrimination and agricultural management should also be seen as components of an overall program to reduce vulnerability to hazards.

Another element emphasized in the Hyogo Framework is community empowerment.

Law can promote this by ensuring that communities have adequate information about developing hazards, for instance through vigorous environmental impact assessment regimes for construction projects and by ensuring that disaster awareness is integrated into educational curricula.

Disaster laws can also ensure that community-level institutions have prominent roles in detection and early warning systems. Bangladesh’s regime on cyclone preparedness and response is a major success story in this regard, as highlighted in this year’s edition of the Federation’s World Disasters Report.

2. Institutional Structures

With regard to disaster relief, other speakers have emphasized the necessity of well thought-out institutional structures for coordination between affected ministries and different levels of government.

I will just add that enshrining at least the broad outlines of such structures in law rather than mere policy can be helpful in connecting projected roles and responsibilities with the resource allocations necessary to ensure their capacity.

It is also important that both national disaster laws and policies adequately include and to some extent define the role of non-governmental actors, particularly the national Red Cross or Red Crescent Society.

In many countries, the national society represents the most important institutional capacity for certain aspects of disaster relief, yet sometimes it is not represented in national planning and coordinating structures and its role is not clearly laid out in the overall national plan.

3. Protection Issues

With all the technocratic aspects of disaster response, the issues of protection and fundamental human rights are normally not specifically addressed in disaster laws.

Recent post-disaster assessments have levelled criticism at both governments and aid organizations for instances of discrimination, inequity in the distribution of aid, security lapses in particular for women and children, failure to consult with aid beneficiaries and reconstruction-related property rights issues.

While general constitutional and other legal protections might generally be used to address such problems, reminders of basic principles within a disaster regime can be helpful as a guide for the response system.

4. For the International Response

Another major gap in the disaster laws and policies of many countries is the failure to adequately anticipate the need for international assistance.

This is not all that surprising, as contemplating the possibility that one’s country may not be able to take care of its own is not particularly politically uplifting.

For our part in the Federation, we work very hard to promote the capacity of domestic actors to meet their own needs. However, the consequence of not planning for the eventuality of outside assistance is ad hoc decision-making, confusion, and last-minute negotiations with the myriad types of international aid providers.

This leads in turn to unnecessary delay, mistrust and lack of cohesion between international and national actors, and added chaos. This is the last thing a country needs after a major disaster.

National legislation cannot solve all the problems that arise with international assistance operations, but there are some areas that can be usefully addressed.

a. Requests and Offers of Assistance

First, national law should set out clear authority and procedures for requesting and accepting offers of international aid. The law should say who in the Government can make the necessary decision and ideally it should not break up that responsibility among too many different actors.

The law should give an indication as to when the decision should be made, particularly for sudden-onset disasters, like earthquakes, when the first 48 hours are the most crucial for life-saving intervention.

The law should also set out the basis on which the decision should be made. That basis ought to be an objective assessment of the needs in relation to available national resources, with methodology appropriate to the urgency of the situation. Outside aid should only be requested when it is really needed but should not be spurned if national resources are not up to the task.

b. Solidarity within the Red Cross/Red Crescent Movement

Regardless whether a government decides to accept international aid, its laws should not block domestic non-state actors from receiving help they request from foreign sources – such as seconded staff, donated goods and equipment, and particularly financial assistance – to support their own efforts. Of course, those efforts should be carefully coordinated within the overall domestic response.

The argument for this is particularly strong for support within the Red Cross/Red Crescent Movement, although it actually arises very rarely given the close relationship national societies have with their governments.

Within the Movement, we are bound by our principles to assist sister societies when they request it.

By the same token, where the domestic society is capable of handling a disaster situation on its own, neither the Federation nor any other outside national societies may intervene.

This is set out in our Statutes and in the Seville Agreement of 1997, which governs cooperation between the various parts of the Movement.

Given that national societies must be recognized by a national law that affirms both their auxiliary status and their capacity to abide by the Movement’s principles, and the participation of nearly all states in the International Conference of the Red Cross and Red Crescent which has approved the principles I have mentioned, Governments should facilitate this type of international solidarity that is central to the Movement.

This type of support to domestic actors should be considered legally distinct from the direct intervention by outside organizations, including foreign Red Cross and Red Crescent societies, when acting under their own organizational “flags”.

Of course, the line between supporting the needs of a domestic actor and what I have called “direct intervention” may not always be obvious and this may be an issue to explore in our discussion.

c. Entry of Personnel, Goods and Equipment

The decision to accept assistance from a particular external actor is only the beginning of the story. The mechanics of the entry and operation of international actors are commonly affected by a number of domestic legal regimes.

In many of the most recent major international operations, affected Governments have modified or waived visa and work permit requirements for relief personnel soon after the disaster.

However, this has not always been the case. Moreover, some initially very open regimes changed over a short time. Even in the early stages, the implementation of facilitated entry procedures has sometimes been uneven, for example, with sudden decisions to disallow entry of persons from certain nationalities.

Putting legislation in place before the disaster that plots out a foreseeable course for the relaxation and restoration of normal visa and work permit rules can greatly reduce confusion and delay.

Likewise, disaster-specific legislation can greatly ease the temporary recognition of foreign credentials and licenses for technical experts, particularly in the medical field.

The entry of relief goods and equipment can be even more complicated. Health, agricultural, trade, general customs and other restrictions can apply (sometimes all to the same item) and may be regulated by different national agencies as well as by provincial and local governments.

Telecommunications equipment, aircraft, and medical equipment and drugs are frequently subject to special regulation. Duties, taxes and other charges other than usage fees ought not, as a general principle, be charged on relief consignments, as pointed out in the Customs Coordination Council “Recommendation to expedite the forwarding of relief consignments in the event of disasters” of 1970.

A comprehensive disaster law should address all of these areas and clearly build in appropriate exceptions.

On the other hand, not all legal restrictions on entry should be waived, even in a disaster. This is particularly true for health regulations on certain food and drugs. Furthermore, it is plain that states retain a fully justified interest in ensuring that international relief does not compromise their security.

d. Operations and Accountability

Once relief personnel and their goods and equipment have entered a country, their effective operation is frequently hampered by the lack of specific legal provisions to enable them to act.

General laws on non-profit organizations, for instance, frequently require lengthy procedures for registration before an organization can legally operate. Organizations may therefore find it impossible to open bank accounts, hire local staff, rent premises, and purchase local goods and equipment.

Many countries lack comprehensive good samaritan laws and foreign relief personnel and organizations thus find themselves exposed to significant risk of liability for their dangerous work.

Foreign actors may also be subject to double taxation on their income, unjustified criminal arrest and prosecution, and search and seizure of their property.

On the other side of the coin, problems arise when foreign actors are uninformed about the national laws, cultural mores, or the true needs of those affected and the capacities and roles of domestic actors.

International coordination structures remain quite loose and competitiveness frequently arises among governments, international agencies and non-governmental organizations to be seen as doing something in the face of a high-media disaster.

“Supply-driven” thinking may lead such actors to insist on providing whatever they have most easily at hand. They may also deliberately sidestep national coordination structures in order to avoid “bureaucracy” with the effect of undermining domestic structures.

At the same time, private individuals and civic organizations unused to humanitarian action may be moved to acts of generosity that can be counterproductive, resulting in unneeded or inappropriate aid creating bottlenecks in airports, warehouses and other sensitive points.

More seriously, international actors may violate humanitarian principles, for example, by using a disaster situation to further their own religious, political or other interests. This can seriously undermine public confidence in the entire ensemble of relief efforts.

To some degree, these problems can be addressed at the national level through effective institutional coordination mechanisms as discussed earlier.

Moreover, national law can explicitly link facilitated access and operations measures for international humanitarian actors to abiding by humanitarian principles, and ensuring that domestic authorities are properly informed of their activities.

Doing so will take careful consideration of just what might be the enforceable core of “humanitarian principles”. Efforts to define this at the international level, such at the Sphere Standards and Humanitarian Charter, the Red Cross/Red Crescent Code of Conduct, and the Humanitarian Accountability Partnership, are still in the infancy and are, at this point, resolutely voluntary and in many parts rather open-ended.

Yet states already have the undoubted authority to determine from whom they will accept international aid. Linking this to a “hard core” of humanitarian standards would help to ensure that that authority is not exercised arbitrarily.

Conclusion

In conclusion, I would note that the international progress on the Hyogo Framework and the battering that many parts of the world took in this extremely disaster-prone year are creating a political space in many countries to consider addressing what otherwise be politically difficult to discuss.

It is important that these discussions be as holistic as possible – spanning the risk reduction-relief divide, as well as that between domestic and international actors, in order to come up with a viable comprehensive national approach.