New research explains why disaster law lags behind

While countries have been increasingly moving toward transnational legal norms in areas such as public health, financial stability, and health policy, a new book chapter by Penn Law professor Eric Feldman and his student Chelsea Fish L’16 argues that in the critical area of disaster management these transnational efforts have lagged far behind other fields.

Feldman is the Co-Director of the Center for Asian Law and Fish is a Senior Editor at the University of Pennsylvania Journal of International Law. In addition, this year Feldman is leading a Global Research Seminar titled “Disasters and the Law,” which includes a research trip to Japan, where students will explore legal issues involved with disaster management in the wake of the Fukushima nuclear disaster.

The chapter by Feldman and Fish, forthcoming in Comparative Law and Regulation, edited by David Zaring and Francesca Bignami, explains that two primary factors influence why the area of disaster law has resisted “transnationalization.” First, there is a distinct lack of laws and policies at the national level on which a transnational structure could be built. And second, governments tend to “go it alone” in the area of disaster management. Most nations, they note, manage disasters on an ad hoc basis.

Feldman and Fish use the concept of transnational legal ordering (TLO), from the book Transnational Legal Orders, edited by Terence C. Halliday and Gregory Shaffer, to discuss how disaster law has largely resisted global governance. According to Halliday and Shaffer, a TLO is “a collection of formalized legal norms and associated organizations and actors that authoritatively order the understanding and practice of law across national jurisdictions.” In their research, Feldman and Fish have found that TLOs are most visible when it comes to post-disaster emergency response, and much less visible in other areas — particularly in victim compensation.

“The capacity of human beings to deny, ignore or minimize potentially unpleasant and undesirable experiences is vividly on display in how they approach the possibility of being affected by disasters,” Feldman and Fish write. “Despite Biblical warnings and the regular occurrence of devastating events, we seem content to act as if disasters are always someone else’s problem.”

Feldman and Fish argue that the most well developed TLOs are in the area of disaster response. There are a large number of organizations dedicated to providing humanitarian relief immediately following a disaster (such as the International Red Cross, Oxfam, the U.N.’s Office for the Coordination of Humanitarian Affairs (OCHA), and others), and they play a critical role in providing support for disaster victims in the short term by providing food, clean water, sanitation, and shelter.

But while private aid in recent years has continued to grow, Feldman and Fish note, these organizations are often poorly integrated and suffer from coordination problems. During the international response to the 2010 earthquake in Haiti, for example, poor coordination between the international community and the Haitian government prevented the relief effort from being as comprehensive as it could have been.

When it comes to victim compensation, Feldman and Fish write, “transnational regulatory regimes for compensating victims of natural disasters are largely non-existent.” Individuals are usually not compensated for personal injuries or property losses. Many private insurance policies exclude types of disaster risk, and many individual underestimate the risk of natural disasters and tend to underinsure.

Feldman and Fish explain that the 2011 earthquake and tsunami in Fukushima, and the resulting nuclear accident at the Tokyo Electric Power Company’s Daiichi and Daini nuclear power plants, demonstrate how the absence of TLOs in the area of disaster preparedness, along with a lack of domestic legal order for managing disasters, resulted in a slow and poorly organized response to the disaster. Little compensation was available for victims of the earthquake and tsunami, save for token payments from a condolence fund and insurance payments from those who happened to have earthquake policies, and those affected by the nuclear disaster had to navigate a complex bureaucracy that provided three separate routes to compensation.

In contrast, the French compensate the victims of natural disasters through “a regularized and inclusive system that socializes risk by spreading the coast of disaster related harms broadly throughout the populace,” Feldman and Fish write. The animating value to this system is solidarity — the Constitution of 1946 “proclaims the solidarity and equality of all French people in bearing the burden resulting from national calamities.” The system disincentivizes the submission of tort claims by providing the alternative of insurance, which is less expensive and socially preferred because of its association with solidarity.

While the U.S. government has generally been disinterested in social solidarity, Feldman and Fish explain, after the terrorist attacks of September 11, 2001, the government stepped in to enact the Air Transportation Safety and System Stabilization Act (ATSSSA). The ATSSSA made civil suits against the airlines the exclusive jurisdiction of the Southern District of New York, which streamlined claims processing, insulated the airline industry from devastating liability, and ensured equity among claimants.

In addition, the ATSSSA created the no-fault September 11th Victim Compensation Fund, a second route to compensation. Congress protected the airline industry, Feldman and Fish explain, while expressing compassion to the victims and their families, in a way that was deeply rooted in — and justified by — the value of solidarity.

Despite the frequency with which disasters strike, their relative ubiquity, and their border crossing nature, Feldman and Fish write, TLOs have largely failed to materialize, and the human consequences are profound. The Fukushima disaster alone cost over $200 billion, including direct economic losses representing four percent of Japan’s GDP. It is the costliest disaster in history.

But there is hope, Feldman and Fish argue. “The ability of the social solidarity norm to effectively motivate disaster compensation regimes in two countries with such different social and political values is suggestive of its potential to undergird the creation of law and disaster TLOs across a broad spectrum of nations.”

“When that occurs,” they add, “we will know that the predictions of a truly globalized international legal order will have finally proven true.”