Beyond Operations: the rise of disaster law and good governance
In an everyday setting, international visitors, organizations, or donors must respect the laws of the state they are entering. In a disaster or crises setting though, where a state is overwhelmed and requires immediate assistance in the form of finance, resources and expertise, everyday laws governing how foreign entities can operate can be inadequate or hinder swift response.
To deal with these exceptional circumstances, there is a growing body of disaster risk law and governance frameworks, which seek to guide community, national and international actors to reduce and manage disaster and climate-related risks.
Chapter 3 looks at the current mechanisms for law and governance, including legislation, policies, mandatory standards and administrative procedures and how well they facilitate adequate recognition of local actors and a shift toward more equal partnerships between international and local actors.
Local actors and international governance for humanitarian response
For decades the international community has taken steps towards instigating international disaster response law (IDRL) and policies, which regulate international assistance and recognize the sovereignty and authority of national governments. However, many national, and local actors (within the national context) feel that there is still a significant gap between the rhetoric of regulation and recognition and the reality on the ground, and that they are not really in the driver’s seat –with regard to global decision-making or with respect to international response efforts in their territories.
On paper the state and authorities, which sit under the state, have a much stronger position in international governance systems for humanitarian response than other local actors. Despite this, national governments, still have legitimate frustrations.
When Cyclone Pam put Vanuatu’s disaster response mechanisms to the test, outside assistance poured in from its neighbours in the Pacific and from around the world. The huge influx of international agencies put considerable strain on Vanuatu’s national structures and institutions leading to mutual recriminations between some officials and aid agencies about alleged lack of coordination and stalling of emergency aid. The Vanuatu government called on international actors to respect the sovereignty of disaster-affected countries and to streamline their efforts with the existing protocols of the government in order to build and maintain trust.
The most formal ‘instruments’ at the international level are very clear about the role of national-level authorities. However, coordination and frameworks for local actors within the national context, civil society organizations including NGOs, are largely overlooked. As discussed in chapter 1, ‘local actors’ refers to an increasingly diverse category of individuals, organizations, businesses and networks, who play a critical role in disaster risk reduction and crises response. At the national level, the role of civil society and the private sector is growing in national law and policy, but the degree to which governments engage and value their participation is quite varied.
There is an evolution towards a more inclusive approach in guidance documents produced for the use of humanitarian agencies. The ‘cluster approach’ improves planning, coordination and accountability in international response through a series of sectorial ‘clusters’ are co-chaired by appropriate government authorities and selected operational agencies. Cluster leads are charged emphatically with ensuring local capacities are built and strong links with local authorities and local civic society are established and maintained (IASC, 2006). Despite the relative success that national governments have found by incorporating the cluster system into national disaster response frameworks, it is still widely criticised for failing to adequately integrate national or ‘sub-national’ authorities, and local NGOs.
Local actors and international governance for disaster risk reduction (DRR)
In relation to disaster risk reduction, international frameworks are currently governed by non-binding agreements, although there are important treaties, particularly at the regional level. In contrast to humanitarian response, direct participation and engagement of local and national actors in international decision-making structures for DRR has evolved more quickly toward robust inclusion.
The 2015 Sendai Framework steps up previous frameworks, recognising specifically the centrality of national governments for DRR, and acknowledges the need to share responsibility within the national context between the “central government and relevant national authorities, sectors and stakeholders, as appropriate to their national circumstances and systems of governance.” The specificity of statements within the Framework recognises the need to empower local authorities and communities in DRR.
Chapter 3 highlights that slow onset disasters present a different set of challenges with treaties tending to empower state or national actors to the exclusion of sub-national authorities and NGOs.
Domestic rules on humanitarian response and disaster risk reduction
Although gaps exist within international law and governance, chapter 3 highlights a lack of domestic law and procedures in many countries, limited capacity and in some cases, a half-hearted attempt to participate fully in the designated coordination role impact the success of partnership, and effective humanitarian response and DRR initiatives.
The enactment of national disaster law has proven to be often difficult, confusing and politically charged. Both local and national authorities may seek to hold operational control to meet expectations of leadership, or indeed in other contexts the reverse may happen with authorities seeking to shift responsibility or blame to the other.
At a domestic level, the gaps in the theoretical and the actual empowerment of community groups, organizations and networks are similar to those described at the international level. There is a trend in many countries toward addressing these gaps, which is a positive step forward as this lack of clarity for this group of local actors who are commonly relied upon to implement frameworks and activities, undermines their ability to do so.
Prevailing attitudes about he role of local actors in humanitarian response and DRR management have changed over time and both international and domestic law and governance are evolving in line with the consensus positions of experts and practitioners in the field. Chapter 3 demonstrates that the task today is to bring the reality closer in line with that common aspiration.
Indonesia sets the standard for legal preparedness for international assistance
The 2004 tsunami was a catalyst for significant legal and institutional reform in Indonesia, which now has one of the most comprehensive legal frameworks for disaster management and response in the world. Before that, there were no clear procedures for managing the huge influx of international assistance.
Hurdles included high taxes and duties on the import of relief goods, lengthy procedures for customs clearance, inconsistency and confusion surrounding visas and work permits.
But the Indonesian Red Cross (Palang Merah Indonesia or ‘PMI’), worked together with the government, NGOs, and key humanitarian actors like the UN to develop a legal framework to address these issues. Indonesia adopted a new disaster management law in 2007, followed by regulations that included the role of international institutions and foreign NGOs.
A guideline developed by Indonesia’s National Disaster Management Authority in 2010 provides even more detailed direction on the role of international assistance in relief operations.
Recent disasters such as the Padang earthquake in 2009 and the Mount Merapi eruption in 2010 have tested the system and confirmed that great strides have been taken.
The authorities and the PMI recognise the need to test, revise and improve their national laws and frameworks. With technical assistance from the IFRC and other partners, steps have included simulations to test roles, responsibilities and coordination mechanisms, as well as research, dissemination and advocacy about IDRL.
The Indonesian parliament is reviewing the national disaster management law in 2015 and 2016, and PMI are playing an active role.