Law and Disaster Preparedness and Response Literature Review

Introduction

This literature review is part of a project to support governments to include effective domestic preparedness and response elements in their legal frameworks for disaster risk management. The review is part of the preparatory analysis, research and evidence base currently under development to support and inform the drafting of a ‘Checklist on Law and Disaster Preparedness and Response.’ The proposed new Checklist will fill a gap in the existing set of tools on disaster law developed by the International Federation of Red Cross and Red Crescent Societies (IFRC), which currently address legislative considerations for international disaster response and domestic disaster risk reduction, but not for domestic disaster risk management more generally.

The IFRC has been providing technical support to governments on the development of law for disaster risk management for over 10 years. Its primary focus has been directed towards preparedness for international relief, and more recently, disaster risk reduction.
The basis for the technical advice of the IFRC programme on disaster law to date has stemmed from three primary tools, each of which was based on country, regional and global research and consultations, together with comparative analysis. They are the:

• Guidelines for the domestic facilitation and regulation of international disaster assistance and initial recovery assistance;

• Checklist on the Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance; and

• Checklist on Law and Disaster Risk Reduction, and its accompanying Handbook.

When providing technical support to National Red Cross and Red Crescent Societies and governments, the IFRC has frequently received requests for technical advice or comments on disaster risk management law and policy more generally, in particular on institutional and procedural arrangements for preparedness and response. Despite many countries undergoing legislative review processes and adopting new laws for disaster risk management (DRM) in the last decade, a preliminary literature review in 2015 found gaps in guidance on effective domestic laws and regulations for disaster preparedness and response.

‘Disaster risk management’ is the broad term used to describe a range of laws, policies and strategies to ‘prevent new disaster risk, reduce existing disaster risk and manage residual risk’ as a means to reduce losses from disaster and build resilience. Within this field, the terms ‘disaster risk reduction’ and ‘disaster preparedness’ describe aspects that need to occur before a hazard or situation impacts communities; they are closely related, and overlap, but have important differences in emphasis. ‘Disaster risk reduction’ (DRR) is an ongoing and long-term process that aims to strengthen resilience and achieve sustainable development by preventing the creation of new risks (e.g. through methods of building, planning, construction of infrastructure, zoning and location of industry and residences), and by reducing risks through management of the physical environment, use of new technologies, improved risk mapping, risk assessments and early warning systems, reduction in poverty and other forms of social vulnerability, as well as raising community and government awareness and capacity to prepare and respond. ‘Disaster preparedness,’ on the other hand, is more specifically concerned with the human knowledge and capacity of ‘governments, response and recovery organizations, communities and individuals to effectively anticipate, respond to and recover from the impacts of likely, imminent or current disasters.’ The concept of preparedness therefore has an operational emphasis; it focuses on the human systems needed to respond effectively to disaster situations, which require clear mandates and procedures backed by information systems, knowledge and capacity that have been built in advance. Disaster response measures can then be taken immediately after receiving early warning from the relevant authority, or in anticipation of an impending disaster, or immediately after an event occurs without warning. The United Nations Office for Disaster Risk Reduction (UNISDR) defines these as the ‘actions taken directly before, during or immediately after a disaster in order to save lives, reduce health impacts, ensure public safety and meet the basic subsistence needs of the people affected.’

There are some international standards available relating to domestic preparedness and response. For example, despite being primarily focused on disaster risk reduction, the Sendai Framework for Disaster Risk Reduction, (like its predecessor the Hyogo Framework for Action), sets the key international standards on domestic preparedness and response. Sendai Priority 4 is ‘Enhancing disaster preparedness for effective response and to ‘Build Back Better’ in recovery, rehabilitation and reconstruction.’ It sets out a list of important issues and actions to strengthen preparedness and response efforts. It also calls on states to ‘prepare or review and periodically update disaster preparedness and contingency policies, plans and programmes with the involvement of the relevant institutions.’

With regard to international law, primary human rights treaties recognize the rights to life, food, housing, clothing, and health as well as the right to be free from discrimination, all of which are at the heart of humanitarian relief. Several human rights instruments pay specific attention to displaced persons, including those displaced by disasters. The Guiding Principles on Internal Displacement call on governments to provide humanitarian relief to internally displaced persons and to promote and facilitate relief activities by humanitarian organizations. The Inter-Agency Standing Committee’s Operational Guidelines on the Protection of Persons in Situations of Natural Disasters seek to provide clear operational guidance on human rights issues to consider in disaster relief contexts. The Code of Conduct of the International Red Cross and Red Crescent Movement and NGOs in Disaster Relief, the Sphere Project’s Humanitarian Charter and Minimum Standards in Disaster Relief, and the Core Humanitarian Standards, also establish voluntary quality and accountability standards.

Prior to the project of which this current review is part, both the United Nations Development Programme (UNDP) and the United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA) published general guidance on issues to consider when drafting legislation for disaster risk management. Independent authors have also published books and articles that include preparedness and response issues to address within legislation. In addition, comparative analyses have also been published on the implementation of laws and policies within certain regions or state groupings.

For its part, the IFRC, in the publication Legislative Issues in Disaster Management and Epidemic Response: Humanitarian Diplomacy Guidance Note, has set out key questions to consider in the development of law for disaster preparedness and response, amongst other areas of disaster risk management and epidemic response. Additional research and guidance has also been prepared by the IFRC on regulatory barriers to shelter, to address the complex legal issues that arise in the aftermath of disasters with regard to security of tenure and housing, land and property rights.
This literature review documents these and the other key research and guidance developed to date, so that the Checklist project can build upon what has already been prepared and focus further research on country level experience with law and disaster preparedness and response.
The review is based on online research of secondary materials, primarily those that are publicly available. Key issues considered in the literature review are the way domestic legislation addresses, or should address: state of emergency and/or state of disaster, institutional arrangements, information systems, funding sources, contingency planning, legal facilities, rights to assistance, security and protection of vulnerable groups, shelter, liability and accountability