Expert of the Week   for  09 - 15 Feb 2015

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Tessa Kelly

Senior Disaster Law Officer

International Federation of Red Cross and Red Crescent Societies (IFRC) Expertise:  International and national law for disaster risk management, in particular the development and implementation of legal frameworks for disaster risk reduction and common legal issues in both risk reduction and humanitarian assistance.

Tessa is an Australian lawyer (LL.B and LLM) specializing in legislation and legal issues in disaster risk management. In her current role, she works at a global level in Geneva leading the International Federation of Red Crescent and Red Cross Societies’ work on law and disaster risk reduction. Her role prior to this included managing the IFRC’s Disaster Law Programme for the Asia Pacific region in Kuala Lumpur, where she worked with a range of National Red Cross and Red Crescent Societies and governments in Asia and the Pacific to improve laws and regulations for disaster risk reduction and humanitarian response. Her previous experience has also included working with UNDP in Vietnam to support the development of a new law for disaster management, and working in a law firm in Lao PDR to undertake a review of their legal and regulatory framework for international humanitarian assistance.

Do laws make a difference? What is the role of legal frameworks for disaster risk reduction?

Read more on the context

QQuestion by Brian Frenkel

We hear more and more about how important it is to have the participation of communities and ‘vulnerable groups’ in disaster risk management, but as you say in your abstract - ‘general aspirations are not enough’. How can laws actually ensure communities and ‘vulnerable groups’ are properly represented and what sort of responsibilities would you expect them to be assigned? And how can you then m

Brian Frenkel

APosted on 15 Feb 2015

Hi Mr Frenkel, good question! The people who are exposed to disaster risks are often in the best place to manage and reduce their impact  - that is why it is why it is so important to include communities, and in particular those most vulnerable, in initiatives and decisions relating to disaster risk reduction. If not,  solutions that are imposed are rarely sustainable.  Unfortunately however, one of the biggest challenges in the implementation of the Hyogo Framework for Action was ensuring impact at the community level.

To ensure that communities are properly represented, legislation may provide that community representatives, as well as representatives from National Red Cross and Red Crescent Societies, civil society, volunteers and private groups, should have a seat on their local disaster risk management committee – as is the case in the Philippines. The legislation in the Philippines also provides that the barangay (the most local level of administration) committees are required to “facilitate and ensure the participation of at least two CSO representatives from existing and active community based people’s organizations representing the most vulnerable and marginalized groups in the barangay.”

 In addition to representation, community groups or representatives may be assigned roles in the management of different aspects of disaster risk reduction, such as the maintenance of early warning systems, or the management of forests or water sources. For example, Namibia’s legal framework provides for the establishment of community-driven structures that will be active in water resources management, such as Basin Management Committees and Local Water User Associations. Namibia’s laws also promote community forest management, allowing communities to develop their own by-laws and practices to effectively manage certain areas of forest.

While there a number of good examples of inclusive provisions to ensure strong community participation, in our research, consistent implementation of these provision is also a major challenge. In many cases, more attention needs to be paid to both clearly articulating roles and responsibilities within legislation as well as raising awareness amongst the communities and their local administration of relevant rights and obligations under the legal framework. Ensuring that there is proper representation of the diverse groups contained within a community, and that the voices of the most vulnerable are heard, should also be a priority when developing and implementing legal and policy frameworks for DRR. 

QQuestion by Mr Fabian Yory

Hello . . . how make that the state can be more efficient about the prevention process, the distribuition of alerts, etc?

Mr Fabian Yory Professor | Independent
Colombia

APosted on 15 Feb 2015

Thank you for the very important and wide-reaching question, Mr Yory. As states prepare for the adoption of the Post-2015 Framework for Disaster Risk Reduction in Sendai next month, there has been a lot of discussion on steps that states should be taking to more efficiently prevent and reduce the impact of disasters – so I won’t attempt to address them all here, or my answer may never end!

From an international law perspective though, a first step could be to more formally recognise the international legal obligation that states have to take measures to reduce disaster risks.  The International Law Commission has been working on some draft articles (that might one day become a treaty) on the Protection of Persons in the Event of Disasters, and has included a provision that states have a duty to reduce the risks of disasters, including by conducting risk assessments, collecting and disseminating risk information, and installing and operating early warning systems. At this stage, though, these articles are in draft form and are not binding. Existing international human rights law, however, has been interpreted to impose a positive obligation on states to take measures to reduce risks. For example there are a number of European Court of Human Rights decisions that indicate that a state has a duty to prevent disasters where there is a known risk, as well as an obligation to put systems in place to warn the population. By more widely and explicitly recognising this international legal obligation, states could be held to account when they fail to put in place efficient measures to reduce risks.

At the national level, domestic laws and legal frameworks also have a big role to play in enhancing the efficiency of prevention measures undertaken by state actors. Firstly, they can ensure that roles and responsibilities are very clearly assigned to avoid ambiguity and confusion. For example when it comes to alerts and early warnings, national or local laws may assign clear roles to institutions or people to assess hazard and risk as well as to make timely decisions to issue warnings. Secondly, laws and regulations should help ensure the proper allocation of resources, and sufficient training for those with DRR responsibilities. To enhance accountability, laws can also establish public reporting and/or parliamentary oversight committees, as well as impose civil and/or criminal liability on state or non-state actors for failure to fulfil their DRR responsibilities. For example, the DRM laws of the Philippines and India have criminal sanctions concerning interfering with disaster warning equipment or processes, and circulating a false warning that leads to panic.

 Of course, there are many considerations to take into account when looking at improving the efficiency of prevention measures (in particular with regard to science and technology as well as dedicating sufficient resources), but developing a robust, inclusive and multi-sectoral legal and policy framework is a good place to start! 

QQuestion by Mr Emin Yahya Mentese

Dear Tessa,
Many times countries have DRR legislation that conflict and collide with each other at the same time. This situation leads to problems in implentation process. But as practinioters do you think we can bend the laws for the good to form robust strategies by using corporational experiences and relationships and even social capital? Do you have such experience?
Best regards.

Mr Emin Yahya Mentese Geomatic Engineer | Istanbul Metropolitan Municipality
Turkey

APosted on 15 Feb 2015

Thank you Mr Mentese, you are absolutely right that many countries have legislation that is conflicting or overlapping and this can lead to major challenges in implementation. Practitioners working in this kind of environment, no matter how well intentioned they are or how well they work together, will still have to face ambiguity and uncertainty in the application of these laws. So to address these issues, I think a good starting point would be to undertake a legislative review process (see for example, the Checklist on Law and Disaster Risk Reduction) to identify where laws are conflicting and where there are gaps in the legal framework. Then, rather than having to bend the laws, amendments to the legislation could be introduced to remove conflicting provisions, as well as to promote much more holistic  and inclusive approach to disaster risk reduction. Reforms to legislation should ideally recognise and build off the existing social capital within that country context, as well as be tailored to local resources, capacity and culture. As you've indicated, promoting DRR as a whole-of-society responsibility involving the private sector, civil society and individuals, will inevitably lead to better outcomes than if it were seen as a government responsibility alone. 

QQuestion by Mr John Kis

How does corruption impede efficient aid-delivery, and what policies can limit the inefficiency?

Mr John Kis Mr | THSC
Australia

APosted on 15 Feb 2015

Thanks for raising a tricky issue, Mr Kis! Corruption is of course a very real and very damaging issue in the international humanitarian and development sector. In major humanitarian operations, tracking where and to whom aid is delivered to can be an overwhelming task, and there are often questions about who is actually benefiting from foreign donations and whether aid is reaching those most in need.  Laws and regulations, while certainly not a fix-all solution, can play and important role in addressing problems in accountability and efficiency. Clear customs procedures for the entry of humanitarian relief, for example, can provide for exemptions on fees and taxes, as well as an ensure expedited procedures to allow rapid entry of relief items and reduce the risks of bribes. Legal obligations to report on the use of funds, and setting up over-sight bodies and mechanisms to track the receipt and release of donations and relief goods, have also proven to be important tools for transparency and accountability. Overall, the more comprehensive, detailed and well-implemented the legal framework is for international aid relief, the less scope there is for corruption. 

QQuestion by Ms Clelia Daniel

Dear Tessa,
We believe that businesses can provide strategic views and expertise to develop a pathway to a more sustainable and resilient development. How do you think this sector could be better involved in the development and implementation of laws for DRR?

Ms Clelia Daniel Program Manager | CSR Asia
Thailand

APosted on 13 Feb 2015

Thanks Ms Daniels, you’ve raised an important issue. When developing legislation for disaster risk reduction and management, it is important to widely consult and engage with all stakeholders who are affected by the legislation to ensure that their concerns are addressed and their perspectives are heard – so we would certainly encourage any countries undertaking legal reform processes to ensure the active engagement and contribution of the private sector in the drafting process.

In terms of implementation, there are some good examples (such as in the Philippines) where legislation requires the participation of private sector representatives on their national or sub-national committees for disaster risk management to ensure they have a voice in the decision-making and coordination processes at different levels of administration.  There are also examples where the private sector is given specific responsibilities within disaster management legislation, such as in Mexico, where private sector individuals dealing with hazardous materials and explosives must develop and file disaster risk management (civil protection) plans, promoting active engagement with other actors and encouraging them to share responsibility in disaster risk reduction. By increasing their responsibility and accountability, legislation can  also help to foster the leadership role that the private sector can play in adopting safer, more responsible, development practices. 

QQuestion by Mr Nate Rabe

How would you describe disaster law in one sentence?

Mr Nate Rabe coordinator | IFRC
Malaysia

APosted on 13 Feb 2015

Thanks Mr Rabe, here goes: Disaster law is all the laws and regulations that establish institutions, mechanisms and procedures to protect people from the impact of disasters and reduce the risk of them occurring..

 

QQuestion by Mr DUSAN ZUPKA

Dear Tessa,

During my missions in many disaster prone countries I observe a serious disconnect in existing disaster management legislation between disaster risk management/reduction and development portfolios.
What are in your view main reasons of this situation?
What kind of messages would you send to the authorities of the countries concerned to mainstream DRM into development efforts?

Mr DUSAN ZUPKA Coordinator DRM courses | University Geneva/International Graduate Institute
Slovakia

APosted on 12 Feb 2015

Thank you Mr Zupka, your question goes to the heart of the risk reduction agenda – promoting better disaster risk governance through development planning is essential to reduce existing exposure and vulnerability, as well as to prevent the creation of new disaster risks through urban development. Yet as you point out, there is still much progress to be made. In our review of legislation we found a clear need to better connect and link the laws and regulations that govern development planning with the legislation for disaster risk management.

In terms of reasons for this divide, it’s clear that disaster risk reduction cannot be fully addressed by one law or one institution. Most disaster management legislation will establish a single agency, such as a national disaster management authority, or a civil defence office, to be responsible for fostering more of a holistic disaster risk management approach. However, what we found in our research is that these institutions often need  to strengthen their coordination with other sectors and stakeholders, especially those related to development planning and climate change adaptation (CCA), and they also often need clearer mandates, increased authority or better resources and capacity.  Additionally, what we’ve found is that the laws and regulations addressing  physical development planning (land use planning, construction, building codes, environmental and natural resource management, etc)  are not yet specifically addressing DRR, they are administered quite separately from the DRM system and in many cases there are major challenges in their implementation due to a lack of resources and training. And unfortunately, it’s these sectoral laws that are really the pillars of disaster risk governance as they can address underlying vulnerability and  prevent new risks from arising.

Despite these challenges, however, we have also seen some positive initiatives. For example, the disaster  management law in the Philippines requires the integration of disaster risk reduction and management plans within their development plans at local, regional and national level.  Some countries have also developed laws that integrate DRR, CCA and development planning in one coherent approach as in Algeria, Dominican Republic, Mexico and Uruguay, and in a draft law in Vanuatu.

As to key messages or recommendations, obviously it would depend on the country context and their existing risk governance capacity and legal arrangements,  but I would encourage authorities to assess whether their  disaster management legislation establishes mechanisms for cross-sectoral coordination, especially with laws and institutions that govern development planning at both the national and local levels, as well as ensuring that their sectoral laws include provisions to reduce risk. Providing for enforcement or accountability mechanisms is also important, including by looking at legal liability of government officials,  agencies and the private sector, in addition to ensuring that the national legal and policy framework promotes public education and generates leadership for disaster risk reduction that extends across all sectors. 

QQuestion by Mr Cristóbal Mena

I would like to thank the abstract for the topic, very clear and straightforward.
Some countries interpret their transparency laws, in a way that information about risks and hazards to be of national security. Do you consider the need to include in law for DRR mechanisms that ensure access to data and transparency, hence improving accountability? What are some of the trade-offs of such decisions?

Mr Cristóbal Mena Safety and Risk Manager | Metrogas
Chile

APosted on 11 Feb 2015

Thanks for the great question, Mr Mena – you’ve certainly brought up a very topical issue! As you say, some countries may have laws that seek to limit the type and extent of risk information that is disseminated to the public – especially if it is likely to cause widespread panic or fear or give rise to any national security risks. At the international level, however, instruments like the Hyogo Framework for Action have emphasised the importance of being able to access risk information. States have a responsibility to take measures to reduce disaster risks within their territory and promote the safety of their citizens, and publically sharing information about disaster risks has been recognised as being essential to public safety and resilience.

 So yes, I do think a national legal frameworks needs to promote public access to risk information, and there a number of good practices we can refer to. For example, in some countries such as in Algeria and Vietnam, their disaster risk management legislation contains a specific right for people to access information on major disaster risks they face in their place of work or residence.  A number of other countries also have a general ‘right to information’ within their constitution (such as Kyrgyzstan and Angola) that could be used as a basis for challenging restrictions to information or decisions to withhold risk information.

In terms of ‘trade-offs’ for promoting better access to disaster risk information, some may refer to economic or financial impacts (for example, devaluation of property and insurance implications), or point out that when it comes to more sensitive information, particularly concerning hazardous materials and more ‘man-made’ disasters,  dissemination of information should be managed and controlled by authorised agencies to avoid inaccuracy or mass panic.

In terms of the development and enforcement of legislation addressing disaster risk information though, I would say that public safety should be the paramount concern, and if we have better access to risk information we can make more informed decisions and choices about what risks we are willing to face and what we can do to reduce them.   

THIS SESSION CONCLUDED ON

15
February
2015