Disaster Law: The Rubric of Institutional Preparedness in Disaster Risk Reduction

Over the last 25 years, the world has seen a rise in the frequency of natural disasters in rich and poor countries alike. Today, there are more people at risk from natural hazards than ever before, with those in developing countries particularly at risk. This essay series is intended to explore measures that have been taken, and could be taken, in order to improve responses to the threat or occurrence of natural disasters in the MENA and Indo-Pacific regions. Read more ...
 

Defining Disaster Law (D.L.)

Is law needed in disaster risk reduction (D.R.R.)? Disaster researchers have begun to wrestle with this question. Ironically, however, and despite repeated institutional failures of state machinery in the face of disasters, those engaged in the field of legal studies have yet to pay attention to the need for disaster law. Yet, disaster law is a necessity in consideration of the fact that states can no longer camouflage their lack of preparedness as an “act of God.” On the contrary, disasters repeatedly expose an ill-governed and corrupt state structure, be it Louisiana in a developed country such as the United States or Uttarakhand in an aspiring India.

Disaster experts erroneously refer to a loosely documented and dispersed compendium of laws and notifications as disaster law. This corpus of laws and regulations is picked up from a variety of areas that directly or indirectly relate to disasters. As a result, they sometimes even contest and invalidate each other. Take, for example, the Bureau of Indian Standards (BIS),[1] the National Building Code (N.B.C.) of India,[2] City Zoning Laws, and laws for the Change of Land Use. What would a district planner do if a riverbed area is demarcated as open for construction? His legal mandate to prohibit construction is derived from a set of laws that are yet to become disaster conscious and ecosystem compliant. If the presence of geotechnical engineers for soil testing and structural engineers for metal usage in building designs is not mandatory through laws, then river beds would be left open for multi-story building construction, and soft foundations would become unstoppable design choices in a greed-hungry, realtor-driven city.

The coastal state of Kerala has increased its vulnerability to disasters several times by defying Coastal Zone Regulations.[3] Therefore, the present existence of a “compendium” is nothing more than an anthology of various legal references applied in disaster mitigation that constitutes a scattered and fragmented set of knowledge but nonetheless provides rich fodder for research in any country. Disaster law (D.L.) is a holistic, ecosystem-based convergence framework about land management, carrying capacity of habitats, and justice dispensation to inhabitants. All other relevant legal content, sermons, questions, and anecdotes are made to adjust and fit into the convergence framework of disaster law. It is likely to be the driving force of governance in the context of the four priority areas of the Sendai Declaration: understanding disaster risk; strengthening disaster risk governance to manage disaster risk; investing in disaster risk reduction for resilience; and enhancing disaster preparedness for effective response and to “Build Back Better” in recovery, rehabilitation, and reconstruction.[4]

Disaster law is the fulcrum of resilience building, as it is based upon environmental anthropology, which is considered to be “an applied side of Ecological Anthropology which encompasses the broad topics of primate ecology, paleoecology, cultural ecology, ethnoecology, historical ecology, political ecology, spiritual ecology, human behavioral and evolutionary ecology and the like.”[5]

Why Disaster Law?

Are institutions prepared to face disasters? Are administrators moving ahead in the Hyogo spirit of resilience-building to satisfy the four priorities for action of the Sendai Declaration?[6] Is India well-equipped to achieve the targets enshrined in the Sendai Declaration? Any form of governance reform to address the above three concerns would produce basic structural-legal changes. In the absence of a disaster law framework, such changes as might occur would gurgle out in the form of disconnected laws or a “compendium” that would neither influence courtroom debates nor could guide judges who have no firsthand experience of disasters. Disaster law is the flywheel of disaster jurisprudence, aiming to achieve an enforcement of norms and standards that succeeds in reducing losses and damages in disasters.

The Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters (H.F.A.) is a departure from earlier disaster management agreements. H.F.A. prioritizes community resilience and institutional preparedness to describe and detail the work that is required from all different sectors and actors in order to reduce loss of life and damage to social, economic, and environmental assets when disasters occur. Unlike earlier disaster management policies, which were anchored in neutral and isolated science and technology-based learning, the H.F.A. is embedded in political, social, and cultural categories, or what one may refer to as “critical pedagogy.”[7] The Hyogo Framework reaffirms that D.R.R. is not just about knowing but also about changing ourselves and the world we live in. Hyogo fundamentally altered how disaster-affected people are perceived—not as passive victims or objects to be acted upon during crisis, but as capable actors or agents of change for their own well-being. Ironically, this has neither been able to influence nor change the manner in which disaster management institutions function, even though we have passed the Hyogo deadline of 2015.

The introduction of “resilience” in disaster management indicated a need for institutional transformation, a refreshing institutional pedagogy of understanding the factors through which human capabilities return to normalcy after absorbing the trauma and shocks or surviving the devastating infrastructural, physical, and emotional trauma of a disaster. This new concept envisions the state in the new garb of a decentralized constellation of community institutions coordinated by enlightened and knowledge-based professional district-level bodies. Knowledge-sharing would entail that systems of governance develop a concern about pre-existing community vulnerabilities such as disability, gender, age, and poverty that prevent them from deciphering warnings and taking action to ensure their own safety. What constitutes institutional preparedness for the trafficking and poaching of young girls, women, and children during disasters? There have been dozens of cases of the trafficking of women and children in the aftermath of the June 2013 Uttarakhand disaster alone;[8] however, policies still do not deal with anything beyond property and cash looting, which are dealt with under the Indian Penal Code (I.P.C.) and Criminal I.P.C. sections through a fairly outdated set of dismissive police personnel. During the Manipur earthquake this year, The Third Pole reported that Ema (Mothers) Market—the famous women’s market—was severely damaged, leaving more than 2,000 women without livelihoods to support their families.[9] The state had neither a plan nor a strategy to provide these women with a resilient marketplace and a resilient livelihood.

How Disaster Law (D.L.) Influences Disaster Risk Reduction (D.R.R.)

Legislation for managing, mitigating, and preventing disasters has been emanating from the rubric of increased environmental information. There is sufficient data to show that disasters have increased in frequency, impact, and range of destruction despite increased human ability to control natural phenomenon and predict the risks. This suggests that developmental planning has not yet synchronized with these findings and data obtained from the ground. Can D.L. address responsibility, commitment, transparency, and accountability of enforcement agencies in disaster management? A new domain of legal activism is emerging that addresses the administrative and political demands and responsibilities in disaster risk reduction. This nascent area of law requires a more intensive examination of comparative case studies from underdeveloped and developed regions to demonstrate how the presence of a legal framework has not only reduced vulnerability to natural disasters but also reduced losses and damages due to disasters as well as, in some instances, prevented major disasters. The argument and findings suggest that disaster law is the strongest tool to sustain development and enable communities to enjoy the fruits of development without major economic and emotional breaks in their lives.

On a simple logic, better built houses, roads, transport, and hospitals, together with well-functioning institutions focused on predictability forecasting and alerting government departments, can mitigate disasters to a substantial level. Badly governed regions are also the worst affected by disasters. Take the case of Tokyo and Louisiana. Tokyo has demonstrated greater resilience than Louisiana. The manner in which the U.S. responded to Hurricane Katrina shocked Japan, which had been sending their officials to the Federal Emergency Management Agency (FEMA) for training.[11] Louisiana’s governance structures heightened the impact of the disaster due to corruption, ineptitude, and incompetent administrative leadership.

Is Disaster Law Needed? A Case Study of Manipur, India

How does the victim of disaster seek justice once disasters become “non-sacred,” that is, no longer treated as acts of God? Most disasters are created by human beings due to anthropogenic designs of development in which nature and its assets are destroyed through voracious consumption in defiance of the limits of its carrying capacity. Disasters, therefore, fall within the scope of the right to life and a decent existence and the laws of state responsibility to protect its citizens. Repressive regimes hide and deny justice to the victims of disasters. They also fail to assume responsibility to protect their citizens as well as responsibility for their violations which lead to death and disasters. It is also reasonable for new incumbents to power to promote the truth by sharing knowledge in the public domain about the causes of disasters. A critical rethinking of the study of comparative law and legal theory in a rapidly changing world suggests that the fundamental concepts of disaster law are deeply intertwined with the intellectual traditions of constitutional and administrative law.

This paper attempts to take up the case study from Manipur, the north-eastern Himalayan state of India, which is situated in Seismic Zone V (very severe intensity zone). Despite the establishment of a State Disaster Management Authority (S.D.M.A.)—mandatory under the Disaster Management Act of 2005— “the disaster preparedness of this state exists only on paper, just like the rules to construct quake-resistant buildings.”[12] On January 4, 2016 this state experienced its strongest earthquake in 90 years (6.8 on the Richter scale), which killed and disrupted the life and livelihood of many. Yet, since then the local communities have not received any support in terms of training, drills, workshops, or even any slowing down of the construction of controversial dams and illegal building projects. Even though Noney village in Tamenglong district, which is just 55 km from the state capital Imphal, was at the epicenter of this quake, most other districts are also vulnerable to landslides, floods, and earthquakes. From the most populated Imphal West (pop: 514,683) and Imphal East (pop: 452,661) districts to the least populated Tamenglong (pop: 140,143) district, a total of more than 2.5 million people is constantly awaiting the next disaster.

The State Disaster Management Authority has an appropriate policy framework for the state-wide assessment of natural hazards and risk, but the vulnerability framework is narrow since it depends largely on tremendous interdisciplinarity, which is yet to be achieved. The recurrence and severity of floods, landslides, and earthquakes in the backward, poor, tribal hill regions of Churachandpur, Thoubal, Ukhrul, and Senapati districts has almost doubled since 1947; the last three years have been the most vulnerable. The state authorities have been allocated their roles and responsibilities through the two volumes of the State Disaster Management Plan for Manipur. The steps that should have been taken following this plan—but that still have not been taken, due to a lack of committed enforcement—include:

1. An appropriate and true assessment of vulnerability information about hazard parameters, such as the magnitude or intensity of an event, the exposed area, and information on the impact of the possible damages of certain elements (land, bodies of water, buildings, roads, electricity, animals and trees, etc.) upon communities beyond the loss of human lives (i.e., livelihood, trafficking, insurance availability, crop failures, employment, etc.). This also has to reveal the geographic distribution, recurrence period, and quantification in a unified electronic database for natural hazards. D.L. becomes approachable to judges through this information.
2. The orography of the region has not been put in the public domain for local academia to conduct research and studies or to share information on important risks and vulnerabilities with local institutions and people.[13] This research would feed into D.L. jurisprudence.
3. An investigation of the spatial-time and magnitude-frequency regularities for natural disasters and their correlation to economic, physical, and emotional losses remains a big gap missing from the plan. Studies are either supplied with an insufficient quality and quantity of data or a lack of a high standard inventory of (G.I.S.-based) maps of elements at risk and their susceptibility to spatial and temporal localization. This adds scientism to D.L.
4. Social vulnerability, which is a measure of both the sensitivity of local communities to natural disasters and their cultural, ethnic, and linguistic ability to respond to and recover from them, is a complex and dynamic demographic research area. However, no investments in this prime research area have been made so far. However, the plan relies on insufficient probabilities rather than providing valuable feedback to courtroom debates on disaster recovery and rebuilding.
5. Administrative lapses as a factor in disaster-generation remain a big gap in the plan, and policy structures are designed with eyes wide shut. The government cited the villagers' encroachment on the riverbed for banana cultivation as the cause of the Thaubal river flash floods rather than acknowledging its own oversight of the warning provided by water leaking from the wall of the Mapithal Dam in Thoubal district. Similarly, state authorities were to blame for the flash floods from the Chakpi River in the Rungchang Chakpikarong village in Chandel district, as they had failed to remove the older bridge adjacent to the new bridge that they had built. The older bridge entangled wooden logs in its low height pillars, leading to water accumulation and subsequent flash floods.
6. The plan weakens D.L. in its hesitation or unwillingness to create community resilience structures, human and animal shelters, schools, and regular meetings and training of local, smartphone-brandishing youth, church leaders, local district council representatives, pit shop owners, and hospital and medical practitioners. The S.D.M.A. needs to take a more proactive role to facilitate these actions.
7. Last is the need for a trans-disciplinary D.L. agenda for disasters. As Otar Varazanashvili et al. suggest, “[d]ifferent scientific disciplines should work closer together in order to evaluate a common framework of vulnerability taking into account the specific situation … and the specific needs of the region.”[14] D.L. is based upon trans-disciplinary knowledge.

The Department of Relief and Disaster Management, which is allocated the task of providing assistance to the S.D.M.A., which in turn is expected to promote an integrated and coordinated system of disaster management, has not been able to function in the manner expected of it in the institutional setup. In a meeting with Jason A Shimray, Secretary of the Relief and Disaster Management Department of the Manipur government, many institutional shortcomings came to light, including:[15]

1. An inadequate number of personnel to manage the potentially mammoth task of disaster management. His office has two or three staff members only, while the State Disaster Response Force, which is supposed to have about 900 people, is staffed by only 37.
2. A complete disconnect between the Municipal Councils of Manipur, Irrigation and Flood Control, Forest and Environment, Commerce and Industries, local governance, Town Planning and the Public Works Department. 
3. A failure to delegate and decentralize power, which is crucial to the prevention of disasters.
4. Little, if any, progress in the establishment of the Emergency Operations Center, which, as contemplated in the Disaster Management Act of 2005, is expected to extend to the district, sub-division, block, and local incidence point with a well-defined, controlled, and coordinated structure supported with information and communications technology (I.C.T.) resource tools.

Conclusion

The ethos and the structure of D.R.R. institutions alone do not prepare these institutions to effectively apply resilience. D.L. is the most appropriate tool to change the rules of the game and bring functionality to D.R.R. The legalities spread around D.R.R. would need solutions and arguments from constitutional law, tort law, administrative law, or insurance law. However, as Farber and Faure write, ‘disaster law is not merely a grab bag of legal doctrines that can sometimes relate to natural disaster. Rather, disaster law involves the construction of a portfolio of risk management strategies.’[16] This has gradually brought it close to the public liability insurance laws to help build resilience of marginalized communities. Although D.L. is developing rapidly, considerably more research on the impact of multi-dimensional risks upon human and non-human lives is needed. To be sure, achieving progress in this regard is likely to be as complicated as in any other trans-disciplinary research where interest-based lobbies attempt to capture the content. Nevertheless, one can hope that the ultimate objective of saving lives will instill into these institutions the sense of urgency and determination required to make disaster law the fulcrum of resilience building.

[1] The Bureau of Indian Standards (BIS) is the national Standards Body of India working under the aegis of Ministry of  Consumer Affairs, Food & Public Distribution, Government of India. It is established by the Bureau of Indian Standards Act, 1986 which came into effect on December 23, 1986.

[2] The National Building Code of India (NBC) 2005, is a national instrument regulating the building construction activities across the country. It serves as a Model Code having 11 Parts some of which are further divided into Sections totaling 26 chapters having the objective of enhancing our response to meet the challenges posed by natural calamities and reflecting the state-of- the-art and contemporary applicable international practices.

[3] Amita Singh, “Coastal Ballads and Conservation Ironic” Understanding Implementation Slippages of the CRZ Law,” Economic and Political Weekly (February 13, 2016): 70-75.

[4] See United Nations Office for Disaster Risk Reduction (U.N.I.S.D.R.), Sendai Framework for Disaster Risk Reduction 2015-2030 (2005), accessed June 12, 2016, http://www.preventionweb.net/publications/view/43291..

[5] Eleanor Shoreman-Ouimet and Helen Kopnina, eds., Environmental Anthropology Today (London: Routledge, 2011) 1.

[6] See United Nations Office for Disaster Risk Reduction (U.N.I.S.D.R.), The Hyogo Framework for Action 2005-2015: Building the Resilience of Nations and Communities to Disasters (HFA) (2007), accessed June 12, 2016, http://www.unisdr.org/files/1037_hyogoframeworkforactionenglish.pdf.

[7] See Amita Singh, “Disaster Law and Community Resilience,” Delhi Law Review (February 2016): 122-130. 

[8] See Nita Bhalla, “Women, Children at Risk of Trafficking after Uttarakhand Floods,” Reuters, July 5, 2013, accessed June 12, 2016, http://in.reuters.com/article/uttarakhand-floods- women-children- traffi-idINDEE96402V20130705; Action Aid International, “Women and Children at  Risk of Human Trafficking Warns Action Aid,” July 5, 2013, accessed June 12, 2016, http://www.actionaid.org/news/women-and-children-risk-human-trafficking-north-india-warns-actionaid; and Seema Sharma, “Women Trafficking a Rising Concern in State,” Times of India, August 2, 2014, accessed June 12, 2016, http://timesofindia.indiatimes.com/city/dehradun/Women-trafficking-a-rising-concern-in-state/articleshow/39493450.cms.

[9] Yambem Laba, “No Lesson Learnt in Manipur Quake,” The Third Pole, February 15, 2016, accessed June 12, 2016, https://www.thethirdpole.net/2016/02/15/no-lesson- learnt-in- manipur-quake/.

[10] See for example United Nations Office for Disaster Risk Reduction (U.N.I.S.D.R.), Centre for Research on the Epidemiology of Disasters (CRED), The Human Cost of Weather Related Disasters 1995-2015, accessed June 12, 2016, http://www.unescap.org/sites/default/files/Year%20In%20Review_Final_Ful…

[11] This comparison is found in Takashi Nagata et al., “Comparing hurricane Katrina to Japan’s Kobe Earthquake in 1995: Sharing Policy and Institutional Lessons from Two Large Scale Natural Disasters in the United States and Japan,” January 21, 2009, accessed June 12, 2016, https://cdn1.sph.harvard.edu/wp-content/uploads/sites/114/2012/10/RP239.pdf.

[12] Lambem Laba, “No Lesson Learnt in Manipur Quake.”

[13] Orography is a branch of physical geography dealing with the formation and features of mountains. It includes hills and elevated terrains. It falls within the broader discipline of geomorphology.

[14] Otar Varazanashvili et al., “Vulnerability, Hazard and Multiple Risk Assessment for Georgia,” Natural Hazards 64 (2012): 2021-2056.

[15] The meeting was held during the JNU-Manipur University collaborative workshop, Imphal, India, April 9-11, 2016.

[16] Daniel A.Farber and Michael G.Faure, Disaster Law (London, UK: Elgar Research Collections, 2010) xiv.