Disaster Law

Emerging Thresholds

Amita Singh, Amita Singh

• Verlag: Routledge India
• Jahr: 2017
• ISBN:
  9781351593564
• Auflage: 1
• Thema: Social Sciences
• Thema: Global Development Studies

This book looks at how legal frameworks can and do reduce risks arising out of disasters. The volume:

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• analyses existing disaster laws and the challenges on the ground;

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• brings together case studies from some of the most vulnerable regions; and

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• proposes solutions to avert existing and possible future crises.

The book offers appropriate legal frameworks for disaster management which could not only offer sustainable institutional reforms towards community resilience and preparedness but also reduce risk within the frameworks of justice, equity and accountability. It examines the intricacies of governance within which governments function and discusses how recent trends in infrastructure development and engineering technology could be balanced within the legal principles of ethics, transparency and integrity. The chapters in the volume suggest that legal frameworks ought to resonate with new challenges of resource management and climate change. Further, these frameworks could help secure citizens' trust, institutional accountability and effective implementation through an unceasing partnership which keeps the community better prepared and more resilient.

This volume will be indispensable to scholars and researchers of disaster management, law, public policy, environment and development studies as well as policymakers and those in administrative, governmental, judicial and development sectors.

Part I
Disaster law

Content and correlations

1
Disaster law and the post-Hyogo pedagogical change in the framework of governance

Amita Singh

How disaster law addresses risk: resilience: mitigation (RRM)?

The World Conference on Disaster Reduction was held between 18 and 22 January 2005 in Kobe, Hyogo, Japan, and adopted the present Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters (hereafter referred to as the ‘Framework for Action’). Prior to this, the Yokohama Strategy for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness and Mitigation and Its Plan of Action (‘Yokohama Strategy’), adopted in 1994, had highlighted the grave consequences for the survival, dignity and livelihood of individuals, particularly the poor, and hard-won developmental gains. Disaster risk is increasingly a global concern compounded by increasing vulnerabilities to environmental degradation, climate variability, geological hazards and health-related epidemics. Disasters increasingly threaten the world’s economy and its prosperity. In the past two decades, on average more than 200 million people have been affected every year by disasters. The focus on ‘law for managing disasters’ is likely to be the driving force of governance in the context of the four priority areas of Sendai Declaration,¹ namely, 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

This chapter argues on the relationship of disasters to bad governance and law as an important tool to bring about a more holistic and inclusive system of power sharing within which resilient communities survive.

In this discourse on disaster mitigation, the more commonly used term ‘disaster risk reduction’ (DRR) is replaced by a more appropriate term ‘resilience building, risk reduction and mitigation’ (RRM). The term DRR appears to be rooted in the old engineering approaches in which the model or a solution is woven around ‘risk’. The normative edge is missing in it as much as the aspect of the role of intangibles and intuitive elements which do not form part of the measurable, definable and calculable aspect of ‘risk reduction’. Communities may perceive of a hazard as ‘no risk’ as they have been used to acclimatized to this hazard for ages. However, the engineer may perceive this differently and may recommend an enormous investment in a DRR programme even though a minor but focused investment could strengthen community resilience. RRM is the process of perceiving ‘risk’ through the eyes of a community, and this holistic process takes into account the whole ecology, ecosystems within it and the bonds of relationships between the human, non-human, the flora and fauna inhabiting the region since prehistoric times.

History of human progress is an unbridled advance against the weaker and differently looking species. Extinction is even legally accepted for human survival and comfort. This process is considered as an outcome of policy prudence and practical reasoning, notwithstanding its fundamental ethical deficits and moral problems and the degree of criminal liability attached to killing. ‘Killing’ in hunting becomes a sport, in the rural habitats at the forest rims it is justified for resource protection, in euthanasia it’s a choice, at the guillotine as much as in wars it’s the larger social and national good which can justify and legitimize killing. What about killing by negligence? Since most disasters are man-made due to oversights in planning and management which can be considered ‘negligence’, should it not entail criminal liability? In defining a law around ‘negligence’, there are soft penalties fixed for infractions such as negligent driving or building additional floors not permitted under building bye-laws. Therefore, ‘negligence’ does not bring dire penalties as it is neither considered to be morally as bad as deliberate nor direct as the intention to kill as in a ‘murder’. Thus there is a need to redefine law from the perspective of disasters as ‘the non-criminal and less morally bad, nature of imprudence in normal life has carried over to disaster planning’ (Zack, 2012, 821).

In a sheer lack of ethical research in law on human progress, governments are confused and fail to turn back, take a breath, pause a while to think ‘where have we gone wrong?’. The United Nations acting as a lighthouse has set some speed breakers in the form of new indices of Human Development, Ecosystem Services, Millennium Development Goals and the Sustainable Development Goals on a common minimum denominator to facilitate inclusive governance. This has always been the core concern of United Nations on how to make governance more inclusive of the voices of the marginalized. The creation of UNCTAD in 1964 and the debates centring around Raul Prebisch’s² (Love, 1980) theory of trade relations, unequal exchange and centre-periphery approach had shown that the UN has been open to the rationale of bridging the gap that exists between the industrial centre and the agrarian periphery or between the developed and the developing countries as much as between affluence and scarcity. However, in doing so the agrarian periphery has now been carved out as islands of insulated market-oriented agriculturist communities distanced from their ecosystem of forest, grazing grounds, community lands and wild life. This has only thrown them into greater vulnerability and insecurity, but most of all it has trapped them into a vicious cycle of markets and production with no pre-existing indigenous buffer to fall back upon. Law needs to address the processes in which a non-habitant decides for a habitat and generates avoidable vulnerability.

Underneath the silent neglect by governments is the brewing fury of nature which erupts as disasters. Neither the government nor the pace of the development is able to withstand the prowess of destruction. If only they (government and communities) work together in advance and share information, experience, planning and preparedness, the spectre of death and devastation can be averted. Disaster law brings the two together with a common aim of deciphering the pre-warning messages of earth sciences with regard to carrying capacity, scarcity and the pattern of climatic changes in the region so that the administrative and individual conduct could be synchronized to achieve RRM. Disaster law strengthens the understanding that certain types of human conduct cannot be ignored as optional but should be treated as obligatory. It is an indispensable regulatory mechanism like a gauntlet around an ambitious and fast-track developers who discount life to things. It is a developing discourse and is not much encouraged by governments, administrators and private developers since it produces the future before the present and, then on that basis, demands policy restraints. Therefore it empowers communities against administrative and political recklessness, abuse of authority to inflict an irretrievable injury to natural habitats and living creatures. Resilience against disasters can be effectively built by empowering communities rather than just empowering administrative departments. RRM efforts are more sustainable through bottom-up approaches in contrast to the top-down government relief activity. Nations inadvertently create obstacles to RRM efforts in their inability to address legal gaps and promote collaboration to strengthen resilience of communities to disasters. At the same time it is also seen that the failure to build appropriate legal instruments in advance to address community responses, collaboration and emergency management can push administration into an overwhelming inflow of philanthropy and relief operations as a result of which specific vital aid can be delayed or even lost to affected communities. Disaster law relates to participation, damage control and local habitat management as mandatory conditions of governance besides fixing criminal liability of public administrators for being negligent towards this planning process or in its enforcement. The disaster law inadvertently sets a sustainable, reliable and cost-effective model of addressing disasters.

Formulating and identifying laws which prevent disasters and empower communities to participate and lead efforts in disaster management from cradle to grave is one of the strongest ways to build their resilience and reduce risk of disasters. Law helps in preventing, healing and in compensating the wrongdoings perpetrated by governance driven by consumerism and commodification over the habitat of clueless communities to disrupt their relationship with nature. It reinstates ‘communities’ as the sultans of local ecology and local administration as the beacon of disaster management.

Law a pivot for the post-Hyogo pedagogy of DM

It is important to understand the Hyogo Framework to analyse the pedagogies of disaster policies. This framework was a break from the past in converting a neutral and isolated science and technology-based learning to the one embedded in political, social and cultural categories or what one may like to address as ‘critical pedagogy’. It reaffirmed the connection of RRM policies to a process of accompanying learners (administrators, scientists and communities) to discover ways to care for rather than impose drill learning in human lives. RRM is not just about knowing but also about changing ourselves and the world we live in. Hyogo changed the whole per...

Inhaltsverzeichnis

• Cover
• Title
• Copyright
• Contents
• List of illustrations
• Notes on contributors
• Preface
• Abbreviations
• Introduction
• PART I Disaster law: content and correlations
• PART II Country-specific disaster laws
• PART III International legal framework of disaster management
• PART IV The wide-eyed slippages of disaster law
• PART V Case-specific studies
• PART VI Epilogue
• Index