Disaster Law 9780415705974, 9781315867670, 2014007183

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Disaster Law

Disasters and their management are today central to public and political agendas. Rather than being understood as exclusively acts of God and nature, natural disasters are increasingly analysed as social vulnerability exposed by natural hazards. A disaster following an earthquake is no longer seen as caused exclusively by tremors, but by poor building standards, ineffective response systems or miscommunications. This book argues that the shift in how a disaster is spoken of and managed affects fundamental notions of duty, responsibility and justice. The book considers the role of law in disasters and in particular the regulation of disaster response and the allocation of responsibility in the aftermath of disasters. It argues that traditionally law has approached emergencies, including natural disasters, from a dichotomy of normalcy and emergency. In the state of emergency, norms were replaced by exceptions, democracy by dictatorship and rights by necessity. However, as the disaster becomes socialised the idea of a clear distinction between normalcy and emergency crumbles. Looking at international and domestic legislation from a range of jurisdictions the book shows how natural disasters are increasingly normalised and increasingly objects of legal regulation and interpretation. The book will be of great use and interest to scholars and researchers of legal theory, and natural hazards and disasters. Kristian Cedervall Lauta is Assistant Professor at the Faculty of Law, University of Copenhagen, Denmark. He is the Deputy Principal Investigator on the University of Copenhagen’s 2016 programme for excellence interdisciplinary research project ‘Changing Disasters’; and a founding member of the Copenhagen Center for Disaster Research – COPE.

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Disaster Law Kristian Cedervall Lauta

First published 2015 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2015 Kristian Cedervall Lauta The right of Kristian Cedervall Lauta to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Lauta, Kristian Cedervall, Author. Disaster law / Kristian Cedervall Lauta. pages cm Includes bibliographical references and index. ISBN 978-0-415-70597-4 (hardback)—ISBN 978-1-315-86767-0 (ebk) 1. Disaster relief—Law and legislation. 2. Emergency management—Law and legislation. I. Title. K1980.L38 2014 344.05'34—dc23 2014007183 ISBN: 978-0-415-70597-4 (hbk) ISBN: 978-1-315-86767-0 (ebk) Typeset in Garamond by Keystroke, Station Road, Codsall, Wolverhampton

In loving memory of my mother, Dorte Cedervall Lauta And to my daughters with whom she would have loved to share this dedication, Agnes and Ella Søgaard Lauta

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Table of Contents

Acknowledgements

xi

1

Introduction 1.1 Structure and content of the book 3 1.2 Some methodological remarks 4 1.2.1 On the field 7 1.2.2 On case selection 7 1.3 Limitation of scope 8 1.4 Conclusion 9

1

2

Disasters 2.1 Scientific revolutions: paradigm theory 13 2.2 Three paradigms of disaster research 14 2.2.1 God/divinity 15 2.2.2 Nature/contingency 17 2.2.3 The social/vulnerability 19 2.3 The social paradigm of disaster research: positions, classifications and developments 22 2.4 Modern disaster research 24 2.4.1 Risk 25 2.4.2 Vulnerability 29 2.4.3 The impact of disasters: death and destruction 31 2.4.4 Disasters and catastrophes? 33 2.4.5 Super hazards? 34 2.4.6 Natural disasters? 35 2.5 Conclusion: disasters as social phenomena 36

11

3

Exceptions and norms 3.1 Idealised positions in emergency theory 42 3.1.1 Legal-executive discretion: presidential prerogative, traditional martial law and police powers 43

41

viii Disaster Law

3.2

3.3 3.4

3.5

3.1.2 Extra-legal executive discretion: the Lockian prerogative and extra-legality 45 3.1.3 Absolute executive discretion: the Schmittian exception 48 3.1.4 Legislative accommodation: the enabling act 53 3.1.5 Legislative accommodation: legality and the état de siège 55 3.1.6 Individual discretion: Dicey’s martial law and necessity 56 Bridge: problems and presumptions of the theoretical field 58 3.2.1 First presumption: emergencies are generic 59 3.2.2 Second presumption: norms and exceptions 59 Sub-conclusion: exceptions and norms 59 Critique: dismantling the state of exception 60 3.4.1 On the concept of disaster 61 3.4.2 On the concept of law 65 Conclusion 70

4

Disaster management 4.1 Refuting exceptionalism: disaster management as a human right 76 4.2 Managing disasters: global disasters – global response 81 4.2.1 Nordic cooperation 83 4.2.2 European Union: to the rescue 84 4.2.3 International disaster response law 93 4.3 Conclusion: disaster management 102

5

Disaster responsibility 5.1 Bridge: misfortune and injustice 106 5.2 Excuses 109 5.2.1 Acts of God 110 5.2.2 Statutory exceptionalism: excuses and responsibility 122 5.2.3 Sub-conclusion: excuses 124 5.3 Responsibility for disaster 125 5.3.1 ‘Insouciance, myopia and shortsightedness’ 125 5.3.2 A disaster ‘made in Japan’ 130 5.3.3 The L’Aquila Seven and penal law 132 5.3.4 Sub-conclusion: responsibility 135 5.4 Conclusion: disaster responsibility 136

75

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Disaster law 6.1 Findings 142 6.2 A theoretical field on disaster law 144 6.3 A final perspective 146 6.3.1 The blame cycle 147 6.3.2 A line in the sand 148 6.3.3 The rationalist fantasy 149 6.4 Conclusion 150

141

Index

155

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Acknowledgements

I need to thank a great number of people for their assistance and support in the writing of this book. First and foremost, for his role as recruiter, supervisor and provocateur thanks to Professor Henrik Palmer Olsen. Thanks to Professor Daniel Farber and the entire Centre for Law, Energy, and the Environment at the University of California, Berkeley, for valuable comments and for welcoming me in California during my PhD. In this regard I would also like to thank the Faculty of Law, Knud Højgaards Fond, and JurForsk for their economic support to my stay at Boalt Hall. Thanks to everyone at the Faculty of Law in Copenhagen. In particular I would like to thank Professor Mikael Rask Madsen for knowing everything; Associate Professor Anders Henriksen for always shaking things up; Professor Vibe Ulfbeck for unimpeachable support; and Professor Jens Elo Rytter for his help, guidance and friendship. I owe Professor Morten Broberg very special thanks. Without his entirely unbelievable work effort and never-ending encouragement, things could have looked significantly different today. A number of colleagues have made my writing process significantly more delightful, among them Mikkel Jarle Christensen, Nikolaj Nielsen, Søren Stig Andersen, Sophia Tarrow, Andreas Ehlers, Anders Møllman and Jakob von Holderstein Holtermann: thanks for sharing faith, lunches and thoughts. I send a special thought to Rasmus Okholm-Hansen and Anders Ehlers for exploring the legal world with me, and a thanks to Rasmus for diligently reviewing a very premature version of the present volume. I have had the great privilege of being involved in several cross-disciplinary projects. I would, in this regard, in particular like to thank Associate Professor Isak Winkel Holm for always providing perspective, for his invaluable comments on the unfinished work and for excellent and inspiring crossdisciplinary cooperation. As this volume has been rewritten, I am deeply engaged in several cross-disciplinary research projects: thanks to the people at COPE, and not least my colleagues on University of Copenhagen’s 2016 programme for excellent interdisciplinary research, Changing Disasters. I also owe great thanks to Jean Monnet Professor Alberto Alemanno, for his great faith in me, and for opening doors to the (academic) world.

xii Disaster Law Thanks to Katie Carpenter and, in particular, Mark Sapwell from Routledge for their excellent support, constant encouragement and truly professional handling of my manuscript and to Shaneela Khan for her skilful assistance. Finally, a gratitude too big to express in words, thanks to the strongest person I have ever known and whom I am proud to call my wife, Birgitte Søgaard Lauta, for her infinite strength, belief in me and for her unconditional love. Everything would mean less without you to share it with. The volume is dedicated to my mother, Dorte Cedervall Lauta, who passed away as I embarked on the work for my PhD dissertation, and to my gifted, beautiful and highly beloved daughters, Ella and Agnes, who entered, and utterly changed, my world while writing it.

1

Introduction

Although easily forgotten in the modern welfare state, human interaction with ecological systems is an essential condition for the quality of life and remains a structural element in social interactions. The most violent manifestation of this co-dependency is the natural disaster. Disasters cause not only physical destruction, but also the personal devastation of losing all possessions, family pictures or even loved ones. It is a phenomenon that affects the most fundamental themes of human life and thus the nerve of society as such. Natural disasters are in these years increasing in numbers and tangibility. Over the last 30 years the number of registered disasters has more than quadrupled on a global scale1 and we are reminded thereof by a constant flow of global information. Never before has the increase in, and coverage of, natural disasters been so intense. All around the globe disasters and their management are today central on public and political agendas. Our understanding of disasters, in particular natural disasters, has changed significantly over the last 250 years. Disasters have changed from being understood as acts of God and nature to today being understood through our own inability to avoid them. After the Great East Japan earthquake in March 2011, it was neither God nor nature the Japanese community blamed for the melt down of the Fukushima Dashii nuclear plant. Rather the sense of (in)justice was directed towards the plant-operator, TEPCO, for its inefficient response and preparation; the local authorities for not evacuating in a timely manner; and the Japanese Government for not having introduced proper legislation and security measures. It was truly a disaster ‘made in Japan’.2

1 See more trends in the International Disaster Database (EM-DAT) hosted by the Centre for Research on the Epidemiology of Disasters (CRED) http://www.emdat.be/. 244 million people were affected by natural disasters in the record year 2011; see D. Guha-Sapir and others, ‘Annual Disaster Statistical Review 2011: the Numbers and Trends’ (Brussels: CRED, 2012). 2 The Fukushima Nuclear Accident Independent Investigation Commission, ‘The National Diet of Japan’ (2012) at 9.

2 Disaster Law This transformation in the understanding of disasters could be referred to as a social turn in the general perception of disasters. Essentially, natural disasters are increasingly understood and analysed as vulnerability exposed by natural hazards, rather than through hazards themselves. A disaster following an earthquake is therefore no longer understood as caused exclusively by the tremors of the earth, but equally by poor building standards, ineffective response systems or miscommunications. This social turn in the understanding of disasters affects how we speak of, how we manage and how we feel before, during and after a disaster. It thereby affects our fundamental notions of duty, responsibility and justice, and forces the social as well as the legal system to reconsider even the most fundamental concepts of their function. The aim of this book is to investigate how this social turn in the understanding of disasters affects law. Traditionally, law has approached emergencies, including natural disasters, from a dichotomy of normalcy and emergency. When a disaster occurred, a state of emergency was declared. In the state of emergency norms were replaced by exceptions, democracy by dictatorship and rights by necessity. The disaster was a sphere for vigour and sovereignty, rather than restraint and legality. However, as disasters become social, the idea of a clear distinction between normalcy and emergency crumbles. The presumption of this book is that natural disasters are increasingly understood in line with other social phenomena, and they are therefore mitigated through social organisation. This has a number of consequences for individuals, societies and perhaps even organisation of life as such, and therefore fundamentally alters the role of law in the management of disasters. Law is central to social organisation, not least in complex social settings, like a society, and therefore a body of law regarding natural disasters emerges. This body covers every aspect of the traditional disaster management circle. In order to investigate this general claim, I will analyse two case studies emblematic for the function of law in disaster situations; disaster response and the allocation of responsibility in the aftermath of disasters. The investigation does not take its standpoint from a given legal system, but will include a number of perspectives from international and national law (in particular from the US and European legislative systems). Thus, as our concept of disaster (Chapter 2), as well as law and society (Chapter 3), changes, so does the way in which we legally approach disasters. The social turn in our understanding of disasters affects the way we regulate and interpret, as well as the decisions we make. The dissolution of the strict dichotomy between normal times and extraordinary times is reflected both in the institutional and in the legal architecture. In institutional terms disasters are no longer approached through a separate institutional architecture (a dictatorship); disaster prevention and

Introduction 3 management is integrated into the function of all parts of society. Emergency accommodation is replaced by disaster management. In legal terms, the dichotomy between norm and exception is replaced by a continuum of law securing both a fundamental legality and the necessary flexibility to effectively encounter disasters. To investigate this claim the growing body of legal regulation on disaster responses (mainly international law) is analysed and European human rights law explored, in order to demonstrate the integration of disasters into existing legal structures. Furthermore, in recent years we have seen progressively more legal conflicts regarding the allocation of legal responsibility in the aftermath of natural disasters, and this trend seems only to be accelerating. After every major disaster in the last 10 years, questions of compensation, penal liability and guilt have been central to the affected society’s recovery. From China to the USA, and Iceland to Chile, discontent with mismanagement follows disasters. I will investigate how the legal distribution of responsibility in the aftermath of disasters is affected by the social turn of disasters. I will investigate how the excuses, traditionally shielding actors from responsibility in the aftermath of disasters, are affected by the change in our understanding of natural disasters, and how new standards of disaster response and preparation are being institutionalised by law.

1.1 Structure and content of the book The book is divided into three overall parts: a theoretical part (Chapters 2–3), an investigatory part (Chapters 4–5) and an evaluative part (Chapter 6). In the theoretical part, the book will investigate the concept of disasters (Chapter 2: Disasters) and describe and criticise contemporary legal theory on the field (Chapter 3: Exceptions and norms). This part aims to develop concepts and provide an overview of present contemporary theories, thereby creating the necessary platform for an interpretation of legal sources. Chapter 2 will describe the historical development in the way disasters are understood using Kuhn’s paradigm theory (Kuhn 1970). Kuhn’s theory of scientific revolutions offers the possibility of presenting a well-organised, ‘vertical’ (historical) narrative and thereby an operational conceptualisation of the development of concepts through an investigation of the paradigms of disaster research. The aim of the chapter is generally to develop a systematic approach to disaster research, including the development of a number of key concepts, and particularly to examine what could be referred to as the ‘social turn’ in disaster research. The historical overview will therefore be followed by a horizontal (contemporary) overview of positions within the present (social) disaster paradigm. The aim of this developed position is to use it in the interpretation of legal sources. Chapter 3 sets out to create an overview of legal and state theories’ conceptualising emergency accommodation. This will be done in order to construct a number of idealised presumptions pertaining to the

4 Disaster Law accommodation of emergencies, and thereon serve as the basis for a following critique. Thus, the chapter will try critically to arrange existing theories on emergency accommodation, in order to create a field of somewhat comparable theories.3 The aim of the chapter is to create an overview of existing theoretical positions, in order to be able to criticise the existing field of legal emergency accommodation theories. Thereafter, I will examine two emblematic case studies (Chapter 4: Disaster management; and Chapter 5: Disaster responsibility). The aim of the investigation is to produce a tentative reading of a section of the portfolio of disaster law. Chapter 4 sets out to investigate the present legal framework for the management of disasters. The chapter will, taking the example of European human rights law, argue that the changed understanding of disaster affects our present legal instruments, including human rights. This is done in order to investigate whether disasters today are treated as extraordinary occurrences within law. Thereafter, the chapter investigates a section of the new legal regimes on disaster management. Starting with the example of cross-border cooperation on disaster response, I aim to show how new legal regimes and institutional platforms mushroom. Thus, not only does the changed understanding of disasters affect present law, but it also drives the development of new legal frameworks. Chapter 5 is an investigation of the distribution of responsibility in the aftermath of disasters. The chapter will attempt to categorise responsibility types and analyse selected compensation schemes chosen in the light of this book’s theoretical notions. The aim of the chapter is to demonstrate how our changing concepts of disaster, and changed concept of law, affect the distribution of responsibility in the aftermath of natural disasters. The chapter contains case studies from around the world. Chapter 6 will summarise the conclusions reached and discuss the emergence and formation of disaster law as a legal discipline. Finally, the chapter will address a segment of the findings from a politico-legal perspective.

1.2 Some methodological remarks This volume is reworked version of my PhD dissertation.4 For a more detailed introduction to the concept of law applied, I would encourage the reader to consult the dissertation, and obviously the applied sources, not least Kaarlo Tuori’s Critical Legal Positivism.5 3 The methodological and theoretical problems inherent in this exercise will be addressed at the beginning of the chapter. 4 Kristian Cedervall Lauta, ‘Exceptions and Norms: the Law on Natural Disasters’ (University of Copenhagen, 2011). 5 Obviously, Tuori’s work is a product of a series of important contributions to legal theory, not least Jürgen Habermas, Between Facts and Norms (trans. William Rehg, Cambridge: Polity Press, 1997), H. L. A. Hart, The Concept of Law (2nd edn Oxford: Clarendon Press,

Introduction 5 The lack of pre-existing theoretical as well as organisational structure in the field of study calls for a broad spectrum, theoretical apparatus, which is able to address issues of different orders, disciplines and character, and simultaneously integrate these theoretical notions into legal analysis. Thus, the approach applied in this volume is eclectic. Many different theorists, and consequently many different theories (anchored in very different scientific traditions), are applied to enlighten the problems and phenomena encountered. In order to facilitate the integration of this broad spectrum and diverse theoretical apparatus into law, the volume operates with a concept of law and a general methodology inspired by the Finnish legal theorist Kaarlo Tuori’s critical legal positivism. Tuori’s critical positivism enables the theorist to study law descriptively as well as critically, while still recognising ‘the constraints imposed by the positivity of modern law, which also justify and even necessitate the positivism of legal science’ (Tuori 2009: 319). According to Tuori, law has ‘two faces’: On the one hand, it can be approached as a set of norms, as a legal order; this is the aspect with which typical lawyers in their spontaneous positivism equate the law. However, there is also another aspect to the law: it can also be examined as a set of specific social practices, as legal practices. (Tuori 2009: 121) Tuori thereby underlines that law should be understood as an interplay between a normative legal order and legal practices, a social reality (Tuori 2009: 122). He refers to the collective of the two aspects of law as the legal system, and simultaneously underlines that this is not a system-theoretical position (Tuori 2009: 121).6 The particular characteristic of Tuori’s concept of law is ‘the process of sedimentation, originating from the surface level, [that] has already produced a legal culture and a deep structure sustaining surface-level regulations and decisions’ (Tuori 2009: xiv). Thus, he approaches law as consisting of three levels: a surface level, the legal culture and a deep structure.7 The surface layer 1994), Hans Kelsen, Reine Rechtslehre (Zweite Auflage edn Vienna: Verlag Franz Deuticke, 1960), Robert Alexy, ‘Coherence and Argumentation or the Genuine Twin Criterialess Super Criterion’ in Aulis Aarnio, Robert Alexy, Aleksander Peczenik, Wlodek Rabinowicz and Jan Wolenski (eds), On Coherence Theory of Law (No 131 Lund: Juristförlaget i Lund, 1998), Ronald Dworkin, Law’s Empire (Cambridge, MA: The Belknap Press of Harvard University Press, 1986). 6 For such account of law, see most prominently Niklas Luhmann, Law as a Social System (trans. Klaus A. Ziegert; Fatima Kastner, Richard Nobles, David Scchiff and Rosamund Ziegert (eds) Oxford Socio-Legal Studies; Oxford: Oxford University Press, 2004). 7 This number of levels could according to Tuori be more or less: ‘what matters however, is not exactly how many levels we identify but that we perceive that there is more to the law than its visible surface, that the law should not be reduced to such normative materials

6 Disaster Law of law consists of ‘linguistically formulated norms or norm fragments’ (Tuori 2009: 154), so that ‘when we speak of statutes, decisions and the statements of legal science as elements of the law’s surface level, what exactly is at issue are their linguistically objectified contents’ (Tuori 2009: 155). The legal culture layer is the top sub-surface layer and consists of methodological elements (meta-norms, standards and patterns of argumentation) and general doctrines of different fields of law (legal concepts and principles) (Tuori 2009: 166 ff). Legal culture is therefore mainly structuring and provides analytical elements essential for legal analysis and decision-making. The deep structure of law is constituted by ‘basic categories such as “legal subjectivity” and “subjective right” and by fundamental principles such as human rights as general normative ideas’ (Tuori 2009: 192). Rather than thinking of the segments as a vertically structured system, they could be understood as a concentric system, structured with a core of legal deep structure and culture and a surface layer of linguistically formulated norms or norm fragments. The surface level is therefore always the first layer approached by the scholar, while the sub-surface layers must be reconstructed.8 When reconstructing the sub-surface layers a broad theoretical and scientific apparatus must be applied. Thus, Tuori is aware of ‘the social theoretical element inherent in all normative legal science’ (Tuori 2009: 313). While he aims to maintain the ‘specificity of legal science’, he simultaneously allows for a ‘co-operation with social science’ (Tuori 2009: 313) in the reconstruction of the sub-surface layers of law. In this volume, the dynamism with social scientific concepts is crucial in the development of the concept of disaster and in the analysis of contemporary emergency accommodation models. Thus, I set out to implement these concepts in the legal analysis, as they are essential to understand the legal practice and to reconstruct legal culture, and thereby to understand the legal system. They, in Tuori’s terminology, constitute the social reality that in the interplay with legal order constitutes the legal system. The understanding of law in multiple layers also means that ‘critical positivism (. . .) rejects the strict separation between law and morals’ traditionally characterising legal positive theory (Tuori 2009: 29). The critical element of critical legal positivism becomes possible in the interrelation between the levels of law as the methodology ‘does not content itself with exposing the vertical and horizontal contradictions inherent in the law but employs them in its normative criticism and its constructive proposals’ (Tuori 2009: 320). This constructive criticism when encountering a legal contradiction will in this volume primarily concern vertical contradictions as individual regulations and courts decisions; see Kaarlo Tuori, Critical Legal Postivism (Surrey: Ashgate, 2009) at 154. 8 The positivity of law does not cover only the surface layer, but ‘even the levels of the legal culture and the deep structure’: Tuori (n 7) at 320.

Introduction 7 (Tuori 2009: 317 ff); contradictions between the reconstructed legal culture and the surface level norms. I will as best as possible follow the prescription of critical legal positivism to interpret these constructively. Tuori refers to this type of critique as a ‘non-subjectivists criticism’, as it is immanent in law: As internal criticism, it is immanent in the sense of drawing its normative criteria from the law itself, from its sub-surface layers. (Tuori 2009: 313) It thereby becomes possible to formulate an internal, non-arbitrary criticism of law, based on law itself. (Tuori 2009: 314) 1.2.1 On the field During the preparation of this volume I have investigated a large number of legal regulations, cases and policies regarding natural hazards. The difficulty of organising this large and unstructured field on the one hand poses demands to the concept of law applied (see above) and on the other hand requires a methodological apparatus able to synthesise the existing, very different, theories in the field. I will throughout the book make a number of methodological interventions. Furthermore, the field as such is in a dynamic stage of development and so the normative frameworks, as well as the social phenomenon9 analysed, are therefore in flux. As previously noted, this has led to the reduction of the field studied to two emblematic examples. I will elaborate on these in the following section. 1.2.2 On case selection The two case studies investigated are chosen for their prominent position in the theoretical field. It has always been central to the enterprise of investigating emergencies to discuss the limits and character of actions committed in exigencies. Disaster management in general, and international disaster response law, are trending and timely topics, and thereby central to investigate changes in the overall portfolio for disasters. Furthermore, this book is intended for a global audience, necessitating a case selection relevant to as many people as possible.

9 Thus, it seems reasonable to assume that the earthquake in Japan and the subsequent meltdown of a nuclear plant in Fukushima will have a global influence on the way in which we perceive disasters.

8 Disaster Law The second case study, distribution of responsibility, is chosen for its centrality to the enterprise of disaster and its character as a driver of the development in the field. Whilst other legal disciplines that could have been investigated (e.g. administrative law or environmental law) are densely regulated, tort law is often reliant on principles and standards. Thus, the distribution of responsibility is standard-driven and thereby the aspect of law most sensitive to changes in our concepts of responsibility and (in)justice, as well as changes in the notions of the world (e.g. what constitutes a natural disaster). Thus, the law of torts has the potential of detecting changes in our (legal) conceptions of a given phenomenon and is therefore the perfect test range for this volume.

1.3 Limitation of scope Disaster management is often presented as consisting of a repetitive circle of preparation – response – recovery – adaptation. This volume is particularly interested in response and recovery issues relating to disaster management. The two case studies conducted are therefore considered emblematic for respectively the response (Chapter 4) and recovery (Chapter 5) phases in relation to disaster management. Obviously, other elements of disaster management will be touched upon in the analysis. This book concerns mainly natural disasters. In the following chapter the concept of natural disaster will be developed. Thus, when referring to ‘disasters’ I do so mainly with reference to natural disasters. The aim is not to describe a theory relevant for terrorism, war, internal revolt or genocides, and these agency-driven or intentional emergency-situations will be addressed specifically in Chapter 3 in an attempt to segregate the natural disaster from these emergency-situations. As we shall see, the concept of natural disaster covers a large group of phenomena spanning from world destruction to regional flooding. I will address this in more detail in the following chapter; however, it seems important to state that I am not preoccupied with disasters threatening the world as such (and I doubt legal scholarship is strictly relevant to this field), but with a disaster concept of a more operative nature. This volume examines the interrelationship between law and disasters with a theoretical aim. While a thorough, doctrinal analysis of given legal systems application in disaster situations would have revealed other important features of the disaster law and thereby generated other important insights, it would have been unable to detect and flesh out the developments occurring in the deeper layers of the law; in law’s culture, concepts and rationales. Finally, the concept of law applied and body of cases investigated in this volume is ‘ethnocentric’ (Tuori 2009: 5).10 This does not necessarily entail that the general points do not regard law as such, but that the concepts 10 Tuori, (n 7) at 5: ‘What I have in mind when speaking of modern law is, above all, the countries which we are in the habit of calling western democracies’.

Introduction 9 and rationales are undeniably developed from the offset of a fairly privileged, North-European scholar anchored in a tradition of liberal democracy and enforceable human rights.11

1.4 Conclusion I have argued that law is a coherent system, functioning through rules and principles, segmented in three idealised layers. This developed concept of law will be applied diligently in the book and thereby serves as a theoretical and methodological presumption of the study. Critical Legal Positivism as promulgated by Kaarlo Tuori will be applied to conceptualise the fundamental legal concepts and architecture (Tuori 2009). Law is, in this conception, social in origin and function. Kaarlo Tuori’s critical legal positivism articulates an adequate theoretical and methodological framework, addressing law both doctrinally (a surface layer) and as deeper lying concepts, principles and rationalities (sub-surface layers). The theory thereby enables the scholar to direct an immanent normative criticism of positive law, through a reconstruction of legal culture. Thus, Tuori allows for the reconstruction of fundamental rationales and developments as well as for doctrinal legal analysis, and thereby offers a theoretical framework with the ability of translating sociological and political concepts, developments and theories into legal analysis. However, before applying the developed concept of law the two main objects of study will be theoretically constructed in the following chapters: the natural disaster (Chapter 2); and, respectively, legal and state theory on emergencies (Chapter 3). These theoretical developments will serve as a theoretical background throughout the book.

Bibliography Alexy, Robert (1998), ‘Coherence and Argumentation or the Genuine Twin Criterialess Super Criterion’ in Aulis Aarnio, Robert Alexy, Aleksander Peczenik, Wlodek Rabinowicz and Jan Wolenski (eds), On Coherence Theory of Law (No 131 Lund: Juristförlaget i Lund). Commission, The Fukushima Nuclear Accident Independent Investigation (2012), ‘The National Diet of Japan’. Dworkin, Ronald (1986), Law’s Empire. Cambridge, MA: The Belknap Press of Harvard University Press. Guha-Sapir, D. and others (2012), ‘Annual Disaster Statistical Review 2011: the Numbers and Trends’ (Brussels: CRED).

11 For instance, the fact that I am a trained lawyer, male, married, or that I was born in Denmark. In particular the former means that a number of practices, concepts and approaches are tacit in my way of working and understanding legal sources. I will therefore inevitably approach law from a ‘participant’s internal point of view’ (ibid) at 285. Hence, this constant dialogue between observer and object means that a certain bias intangible for the author must be expected.

10 Disaster Law Habermas, Jürgen (1997), Between Facts and Norms (trans. William Rehg, Cambridge: Polity Press). Hart, H. L. A. (1994), The Concept of Law (2nd edn Oxford: Clarendon Press). Kelsen, Hans (1960), Reine Rechtslehre (Zweite Auflage edn Vienna: Verlag Franz Deuticke). Kuhn, Thomas S. (1970), The Structure of Scientific Revolutions (2nd edn Chicago: University of Chicago Press). Lauta, Kristian Cedervall (2011), ‘Exceptions and Norms: the Law on Natural Disasters’ (Copenhagen: University of Copenhagen). Luhmann, Niklas (2004), Law as a Social System (trans. Klaus A. Ziegert; Fatima Kastner, Richard Nobles, David Scchiff and Rosamund Ziegert (eds) Oxford Socio-Legal Studies; Oxford: Oxford University Press). Tuori, Kaarlo (2009), Critical Legal Postivism (Surrey: Ashgate).

2

Disasters

In the comedies and tragedies of classical antiquity, the ‘catastrophe’1 was the turning point and final culmination of the plot – the pinnacle from where the play’s intrigues were revealed; in tragedies the point from which the downfall begins, and in comedies the point where the young couple marries against all odds.2 The word derives from the Greek κατά ‘down’ and στρέφω ‘turn’, meaning an overturning or literally a ‘down turn’ – an event or situation determined to tear down and forever change existing structures (physical, social, as well as normative). Antiquity’s concept of catastrophe reveals a core feature in the way we have traditionally approached disasters – the unveiling. By unveiling, I refer to the idea of the disaster as an exposé of existing, tacit structures: as the pinnacle from where the destinies of our main characters are uncovered or the wicked intentions of the villain become clear to the audience. This chapter will introduce three paradigms of disasters, which all share this fundamental idea of disasters as unmasking: divinity, contingency and vulnerability. In the paradigm of divinity, the disaster gives humankind the possibility, in the glimpse of an eye, to witness divinity; to be touched (or in the worst cases, punished) directly by the hand of God(s) (Leibniz 1988; Neiman 2004).

1 For a discussion on the difference between ‘disaster’ and ‘catastrophe’, see below. In the English translation of Aristotle’s Poetics, ‘catastrophe’ is replaced by ‘disaster’ (underlining the conceptual hybridism between the two). For a short introduction to the historical genesis of the concepts, see also Gerrit Jasper Schenk, ‘Historical Disaster Research: State of Research, Concepts, Methods and Case Studies’, Historical Social Research 32/3 (2007) 9–31. 2 Aristotle, who allegedly introduced the concept of catastrophe in his Poetics from 335 BC, preferred the tragic catastrophe, as ‘pity and terror should come from the plot’; cf. Aristotle, ‘Aristotle’s Poetics’ in John Geoge Baxter (ed) (Montreal: McGill-Queen’s University Press, 1997) at 99. Samuel Beckett’s short play ‘Catastrophe’ from 1982 uses the ambiguity of catastrophe (as both a technical term from drama and as a substantial concept, ie disaster) as its modus operandi; see Samuel Beckett, The Collected Shorter Plays (New York: Grove Press, 2010).

12 Disaster Law As we shall see, the 1755 earthquake in Lisbon marks a turning point in science’s understanding of disasters and, with the enlightenment’s successful depreciation of God, the unmasking also changed character. In the paradigm of contingency the disaster denounces the contingent character of nature. Furthermore, in state theory, the disaster (as a sub-set of a larger group of emergencies) is often conceived as a window through which the ‘real’ state architecture can be observed. In this tradition, the disaster is an emblematic object to observe the constitution of the state itself – an event through which it becomes possible to examine issues of sovereignty, the balance of powers or the foundation of legitimacy of the state (Hobbes 1974; Locke 2004; Machiavelli and Hobbes 1983; Machiavelli and others 1997; Schmitt 1931: 34; Schmitt 2005; Schmitt 2006). This state-theoretical understanding of the disaster will be thoroughly investigated in the following chapter (Chapter 3). Even within a ‘modern’ disaster paradigm disasters are unveiling, although the tacit and unveiled structures are tied neither to the divine nor to nature. The modern disaster is an exposé of the unpreparedness or, in terms of disaster research, the vulnerability of an affected social entity. It provides insight in a certain fragment of the social itself – our ability to withstand, prepare for and bounce back from hazards, in theory referred to as our resilience. This chapter sets out to systematise theory on disasters pursuant to these three overall paradigms. It is important to outline the historical development of the disaster, as it (to some extent) corresponds to a development in legal concepts and theory. Thus, the aim of the overview and the developed concepts is to establish the theoretical conditions for a legal theory on disaster management. I will use Kuhn’s theory of scientific revolutions to create an orderly historic narrative of the evolution of disaster research.3 As it is a central claim of this book that law plays a central role in the modern understanding of disasters, a number of positions in present disaster research will be drawn up.

3 The choice of disaster research as the object of investigation on the perception of disasters imposes the risk of producing an ‘elitist’ conception of disaster, out of touch with a more popular understanding of disaster. On this point see also E. L. Quarantelli, Partrick Lagadec and Arjen Boin, ‘A Heuristic Approach to Future Disasters and Crises: New, Old, and in-between Types’ in Havidán Rodríguez, Enrico Ll. Quarantelli and Russell R. Dynes (eds), Handbook of Disaster Research (New York: Springer, 2007). However, the methodological framework necessary to examine a broader popular conception of disasters seems to be beyond the scope of this book. Thus, it is not possible to devise a major investigation of the popular understanding of natural disasters, although this would significantly improve the research design. A number of different approaches to developing a concept of natural disaster could have been applied. I have chosen to use Kuhn’s theory of scientific revolutions to structure the development of the concept, as it offers a methodology to develop a very operable historical narrative.

Disasters 13

2.1 Scientific revolutions: paradigm theory The term ‘paradigm’ originates in grammar studies (Kuhn 1970: 23; Sharrock and Read 2002: 33), where it is used as a pattern or model applicable on unencountered examples: In this standard application, the paradigm functions by permitting the replication of examples any one of which could in principle serve to replace it. (Kuhn 1970: 23) For Kuhn, however, the scientific paradigm ‘is rarely an object for replication’ (Kuhn 1970: 23). Rather, the paradigm is an object for elaboration and specification. A scientific paradigm is fundamentally an epistemological framework shared by a scientific community. It is a framework through which research is conducted in order to solve three classes of problems: ‘determination of significant fact, matching of facts with theory, and articulation of theory’ (Kuhn 1970: 34). According to Kuhn, the majority of all science is occupied with projects falling within an existing scientific paradigm, which Kuhn (somewhat sarcastically) refers to as ‘puzzle solving science’ (Kuhn 1970: 52). As scientific results (conducted either inside or outside the paradigm) generate too many anomalies, a theoretical crisis arises. Thus, when unexpected anomalies accumulate, it forces the researcher to rethink the paradigm and thereby enables a scientific revolution. Scientific revolutions are, according to Kuhn, similar to a ‘Gestalt switch’ – an ability to switch between two different perceptions of the same picture, in Kuhn’s example a duck/rabbit picture. In Kuhn’s version, however, there is no possibility of continuously switching between paradigms (Read 2002: 45–46) as a scientific revolution changes the picture for good. Kuhn’s point is that by applying an entirely new pattern of rationality to the same phenomena, what was previously conceived as a duck is now permanently replaced by a rabbit (although we are still investigating the same picture). Hence, a scientific revolution is irreversible and fundamentally changes our perceptions of a given phenomenon. For Kuhn, a scientific revolution is not an individual or for that matter a collective rational decision. It is, like the analogy suggests, a change emerging from fundamentally conflicting positions. This also means that arguments or results reached within a given paradigm will be perceived as unconvincing for scientists working within another paradigm. Thus, there must be a ‘logical gap’ in order to describe something as an independent paradigm, a gap between two coherent systems (‘obviously, then, there must be a conflict between the paradigm that discloses anomaly and the one that later renders the anomaly law-like’ (Kuhn 1970: 97)).

14 Disaster Law Although a logical gap is the premise of describing something as an independent paradigm, the new paradigm can reorganise or, in Kuhn’s expression, ‘cannibalize’ some of the old paradigm’s results. This can lead to a reallocation of the paradigm’s main research focus between scientific disciplines, methods and problem fields (Kuhn 1970: 103; Read 2002: 49). Kuhn further underlines the potential existence of a ‘hard core of knowledge’, which is carried on from the old paradigm to the new (Read 2002: 49). More than anything, Kuhn’s theory of scientific revolutions is an attempt to create a historical theory of scientific communities (Kuhn 1970: 1 ff): a ‘diachronical’ reconstruction of science’s epistemological development. A number of methodological problems arise when attempting to describe contemporary research through a Kuhnian conceptual apparatus. In medias res, things are rarely as clear as history tends to expound and a scientist of any persuasion must, per se, in strict Kuhnian sense, adhere to the very paradigm she sets out to describe. Furthermore, the amount of research conducted and the accessibility to this research has exploded in the last 20 years, rendering the idea of a ‘normal science’ significantly more elusive. With this overflow of research the possibility of co-existing (but utterly contradictory) research paradigms seems to have been substantiated significantly.4 Thus, research communities are easier to create and sustain than at the time of Kuhn’s writings. Bearing this in mind, I will in the following section reconstruct three main paradigms of disaster research.

2.2 Three paradigms of disaster research One of the founding scholars of the sociology of disasters, the American sociologist Enrico Quarantelli, defines three phrases through which ‘the Western world’ has understood natural disasters as ‘acts of God’, ‘acts of ‘nature’ and, finally, as ‘acts of men and women’ (Furedi 2007: 483; Quarantelli 2000: 3 ff ). Quarantelli’s categorisations do not entirely describe the scientific 4 Foucault’s concept of ‘episteme’ seems in this regard to supplement Kuhn’s paradigms. While paradigms are always conflicting – always in competition of being the dominant, Foucault’s epistemes can be overlapping, even complementary. Different disciplines can make use of different epistemes, and their co-existence can in itself contribute to understanding each other. However, at the same time as offering more operable flexibility, the concept of episteme also waters out the strict conceptualisation offered by Kuhn’s paradigms. Thus, Foucault understands episteme, not merely as a tool to organise science, but rather to define the limits of science itself. In Power/Knowledge Foucault states: ‘I would define the episteme retrospectively as the strategic apparatus which permits of separating out from among all the statements which are possible those that will be acceptable within, I won’t say a scientific theory, but a field of scientificity, and which it is possible to say are true or false. The episteme is the “apparatus” which makes possible the separation, not of the true from the false, but of what may from what may not be characterized as scientific’ (Michel Foucault, Power/Knowledge: Selected Interviews & Other Writings 1972–1977 (New York: Pantheon Books, 1980) at 197). I will apply Kuhn’s paradigm theory bearing in mind the weakness of the apparatus in sense of reconstructing contemporary research.

Disasters 15 paradigms to which these phrases adhere, and might not have intended to do so; however, Quarantelli’s categories are illustrative of the changes in our fundamental understanding of the disaster. In the following, the development will be structured using Kuhn’s paradigm theory. The scientific revolutions in disaster research are (naturally) tied to larger scientific revolutions: revolutions in our epistemological understanding of divinity, foreseeability and not least of the social itself, and are therefore multi-causal par excellence. A certain narrative simplicity is therefore prioritised to create an overview. Thus, the developments described are not only relevant to disaster, but to our understanding of the world as such, in line with most scientific revolution; these developments are in other words a particular section of a broader development. 2.2.1 God/divinity The first disaster-paradigm is one of divinity.5 Narratives of the disaster as interventions by God(s) are numerous. Most prominently in Christian culture are perhaps the biblical plagues and the flood (Genesis Chapter 6–8). According to the Genesis (6: 7), God said to Noah: ‘I will wipe man from the face of the earth, man, my own creation and also the animals of the field, and the creatures that crawl on the ground, and the birds of the air; for I regret having made them’. Only Noah was to survive, since ‘he found favour in the eyes of Yahweh’ (Genesis (6: 8)). God wanted to punish mankind for being greedy, and simultaneously to correct mankind, her own creation. The Bible is rich in such stories, not least the destruction of Sodom and Gomorrah (destroyed with fire and brimstone, Genesis 18), the Apocalypse (the Book of Revelation) and at least one of the plagues of Egypt (hail and thunder, Book of Exodus, Chapter 7–12). However, the narrative of the (natural) disaster in the form of an intervening divine force is not limited to Christianity. Perhaps the oldest known flood myth can be found in Mesopotamian mythology (Frymer-Kensky 1988: 63 ff). The humans were created by the Gods to do hard labour; however, the noise produced by the working humans made the Gods change their minds and destroy mankind with a seven day flooding of earth. Only Atrahasis (‘the very wise’) successfully escaped the flood with his family. Similarly, in Greek mythology the story of Deucalion and Pyrrha describes how Zeus, in order to punish mankind, floods the earth and only the titan Prometheus and his wife survive (by constructing an arch) after being forewarned (Kelsen 1988: 128 ff). In Indian mythology the first king on earth, Manu, saves mankind 5 Obviously, this introduction of God as a disaster paradigm is only possible diachronically. The word catastrophe is for instance first introduced in German by Erasmus from Rotterdam (circa 1466–1536) and in the meaning we attach it today to Kant in the 1760s, and consequently an idea of disaster (and obviously, disaster research) did not exist.

16 Disaster Law from a terrible flood, after being warned of its coming by a carp (which turns out to be Matsya, the first avatar of Vishnu, the Supreme God in the Vaishnavite tradition of Hinduism) he had saved (Kelsen 1988: 128). Finally, in Mayan mythology, a tribe of men made of wood was eliminated through a flood initiated by the Gods and replaced by the present tribe of men (made of corn). Similar understandings of the divine and nature can be found in other parts of the world (Dundes 1988: 3 ff). God is (or the Gods are), in this paradigm, the architect of the world and the meaningful animated force behind nature and human life as such. Disasters are therefore perceived as meaningful events. God sends them either as punishment, foresight (a particularly dystopian kind of punishment), or with the purpose of correcting her own creation. This conception of the natural disaster as either an integral in God’s creation or an expression of God’s will seems to have been the dominant disaster paradigm until the middle of the 18th century. The narrative has the strong advantage of creating meaning and thereby comfort in the disaster. Thus, the disaster befalls us because a greater (and just) being has so decided. One of the prominent exponents of this discourse is the German philosopher, scientist, lawyer and theologian Gottfried Wilhelm Leibniz (1646–1716). In Theodicy,6 his defence of God in a fictional trial rests on two principal arguments (Neiman 2004: 21). The first argument is that God could not have acted differently when creating the earth – he merely utilised the possibilities available. The second, and perhaps the most well known argument, is that the world is, in fact, the best possible (Leibniz 1988; Neiman 2004: 21–22).7 Leibniz’s defence for God is what we, today, through the ungrateful of another paradigm and with Kuhn’s taste for sarcasm, would call ‘mob-up’ work (Kuhn 1970: 24). Leibniz is trying to create a coherent explanation of the evil in the world through a paradigm, in which God is the architect and judge of the world. Hence, he offers an epistemology based on the paradigm of divinity. The challenge of explaining the occurrence of injustice through a paradigm of a just and good God requires a certain measure of optimism on behalf of the world. This extract from the English poet Alexander Pope’s (1688–1744) famous work Essay on Man serves as a perfect example that illustrates the optimism inherent in the paradigm of divinity: All nature is but art, unknown to thee; All change, direction which thou canst not see; All discord, harmony not understood; 6 The Theodicy was formulated as a defence (in the legal sense) for God. The title, Theodicy, is made up from a combination of the Greek words Theos (God) and dike (justice); see G.W. Leibniz, Theodicy (Peru, IL: Open Court Publishing Co, 1988). 7 Alexander Pope further developed Leibniz’s theory into a so-called theistic theodicy, claiming that God had created the world, but did not actively intervene in his creation; see Isak Winkel Holm, ‘Kleist Og Katastrofen: Forestillingen Om Det Sårbare Samfund’ Kritik 42 (2009) 37–49 at 40.

Disasters 17 All partial evil, universal good. And, spite of pride, in erring reason spite, One truth is clear, whatever is, is right. Leibniz’s and Pope’s optimistic perception of the world as a just and fundamentally good place is repeatedly challenged during the Enlightenment; however, it took a horrifying event to trigger the first scientific revolution in disaster science and thereby to make way for the introduction of a new paradigm of disasters. 2.2.2 Nature/contingency The Lisbon earthquake of 1755 marks a turning point in the understanding of natural disasters. The earthquake and subsequent tsunami and fire caused widespread death (between 10,000 and 100,000 people died8) and destruction in Lisbon, and is considered one of the worst disasters ever to have befallen the European continent.9 The earthquake left only 15 per cent of all buildings in Lisbon habitable (in a city of 275,000 inhabitants) (Fonseca 2005: 35). The disaster also left great marks on European intellectual life. Johann Wolfgang Goethe (1749–1832), who was six years old when the disaster struck, referred to the Lisbon earthquake as representing his ‘first poignant experience with the demonic’ (Brown 1992: 480) and wrote in Dichtung und Wahrheit: ‘Ja vielleicht hat der Dämon des Schreckens zu keiner Zeit so schnell und so mächtig seine Schauer über die Erde verbreitet’ (Brown 1992: 477) The Lisbon disaster became the symbol of a changed perception of good, evil and not least of God.10 The prominent position in cultural history is mainly accredited to the (at the time) exiled French philosopher Voltaire’s

8 Most likely, however, between 12,000 and 15,000; see João Duarte Fonseca, 1755 - the Lisbon Earthquake (2nd edn, Lisbon: Argumentum, 2005). 9 The earthquake was of such a magnitude that some reports suggest that it could be felt in Denmark; see H. F. Reid, ‘The Lisbon Earthquake of November 1, 1755’ Bulletin of the Seismological Society of America 4/2 (1979) 11–15. This fact is, however, contested; see Fonseca, 1755 - the Lisbon Earthquake at 60. 10 For a discussion on the decisiveness of the earthquake, see Robert H. Brown, ‘The “Demonic” Earthquake: Goethe’s Myth of the Lisbon Earthquake and Fear of Modern Change’, German Studies Review 15/3 (1992) 475–91. Brown suggests that the role of the Lisbon Earthquake is overrated, and points to an already existing theoretical discussion on the theodicy before 1755. Goethe himself claims that the earthquake kept him in ‘a lasting doubt about divine Providence’, cf. Brown, ‘The ‘Demonic’ Earthquake: Goethe’s Myth of the Lisbon Earthquake and Fear of Modern Change’, at 478. See also a critique of the general role in modern thought of the Lisbon earthquake, Helena Buesco, ‘Seeing Too Much: The 1755 Earthquake in Literature’, European Review 14/3 (2006) 329–38. It seems absolutely reasonable to question the position of a single earthquake, and the change of paradigm is as already pointed out multi-causal; however, the symbolic position of the earthquake in European cultural thought seems to be undisputed.

18 Disaster Law bloody attacks on Pope’s Great Man and Leibniz’s Theodicy, in respectively Poem upon the Lisbon disaster (Poème sur le désastre de Lisbonne) from 1755 and Candide11 from 1757 (Voltaire and others 1977; Voltaire 1991). In the poem on the disaster, which was written within weeks from the time of the earthquake, Voltaire exclaims: Philosophes trompés qui criez: ‘Tout est bien!’, Accourez, contemplez ces ruines affreuses. And he goes on to ask rhetorically: Direz-vous en voyant cet amas de victimes: ‘Dieu s’est vengé, leur mort est le prix de leurs crimes?’ Quel crime, quelle faute ont commis ces enfants Sur le sein maternel écrasés et sanglants? Voltaire points, from a modern perspective, to the obvious – there can be no comprehensible or orderly justice behind children dying in Lisbon, while the parties continue in Paris and London. This, however, does not in itself necessitate a fundamental shift in the understanding of disaster; God could be evil or just playful. However, for Voltaire the answer seems to be that the world is not orderly or for that matter just; rather, it is chaotic and contingent. There is no (orderly and just) will or destiny behind the wickedness of the world, and Voltaire urges us to see the world as it is. With specific regard to disasters (nature), these are considered unorderly, unforeseeable and chaotic (and thereby potentially unjust and evil, although those terms bear no greater meaning for the understanding of disasters). Voltaire thereby points to a series of fundamental anomalies by the paradigm of divinity and comes to herald the paradigm for the disaster as it would be understood in the following centuries – a paradigm that to a certain extent still haunts the public conception of disasters. In the paradigm of contingency, the disaster is a product of an unorderly and unforeseeable nature or, rather, the disaster is an inherent part of a fundamentally contingent nature. In this paradigm, nature and studies of disasters will, in Kantian terminology, always be reduced to studies für sich (as it appears) rather than an sich (as it is), as the essence of nature is its contingent being. Studies of nature are therefore essentially not of nature’s true being, but of the way in which we as ordinary rational beings perceive nature. Kant himself made some of the first seismological considerations after the Lisbon earthquake, and the Marquess of Pombal, who led the Portuguese Government, initiated a large 11 Ironically meaning the innocent or simple-minded.

Disasters 19 investigation on earthquakes. Their efforts gave low yield (both in terms of future foreseeability of earthquakes and in terms of understanding/explaining their causes), which in turn seemed only to strengthen Voltaire’s and Kant’s shared position. In the same way that nature, not least owing to the scarce amount of available knowledge on its function, was conceived as utterly contingent, so were disasters considered an inherent manifestation of nature. The scientific revolution from God to nature (as contingency) also entailed a shift in the disciplines primarily interested in the disaster. While the paradigm of God left the disaster in the hands of the theologians, poets and philosophers, the paradigm of contingency or nature calls for investigation aimed at systemising our ways of dealing with contingent events. Thus, studies of coordinated state response to natural disasters or emergency accommodation emerged in the wake of the Lisbon disaster. Simultaneously, the response to the Lisbon earthquake was allegedly the first ever response effort organised by the state (Dynes 2000b: 17 ff; 2000a: 110 ff; Fonseca 2005: 76; Quarantelli 2009: 10 ff). As we shall see in the following chapter on the traditional legal conceptualisation of emergency management, the studies took departure in the state’s ability to withstand the unforeseeable crisis. Crisis following becomes a window or emblematic object to reconstruct the state’s interior power architecture. I shall return to this particular aspect of disaster research in the following chapter. The main change in the scientific inventory of the disaster research portfolio, however, was the explosion of natural sciences. Nature has been one of the main objects of scientific investigation for the last 250 years. Among them, the sciences of seismology, meteorology and volcunology have developed with the purpose of describing and investigating the contingent nature and thereby mitigating the damage if or when a natural hazard was edging closer. The main focus of disaster management was not prevention, but mitigation and the increasing understanding of these hazards. However, as our collective knowledge on nature grows and we are gradually becoming more capable of precisely reconstructing nature’s ways through prognostics, the conception of nature as fundamentally contingent is challenged and the anomalies, in the Kuhnian sense, grow in tandem with our ability to foresee what the paradigm assumes to be unforeseeable. 2.2.3 The social/vulnerability The genesis of the latest scientific revolution seems harder to pinpoint in time. Historical distance has the advantage of granting (or perhaps rather constructing) clarity, and the fundamental scientific paradigm of this book emerges primarily within contemporary history. However, in a letter in

20 Disaster Law response to Voltaire’s Lisbon poem, the Swiss philosopher Jean-Jacques Rousseau wrote: I do not see how one can search for the source of moral evil anywhere but in man. (. . .) Moreover (. . .) the majority of our physical misfortunes are also our work. Without leaving your Lisbon subject, concede, for example, that it was hardly nature that there brought together twentythousand houses of six or seven stories. If the residents of this large city had been more evenly dispersed and less densely housed, the losses would have been fewer or perhaps none at all. Everyone would have fled at the first shock. But many obstinately remained (. . .) to expose themselves to additional earth tremors because what they would have had to leave behind was worth more than what they could carry away. How many unfortunates perished in this disaster through the desire to fetch their clothing, papers, or money? (Bestermann 1958: 102–15) The philosopher thereby hints at the boundaries of the third paradigm; God, coincidence or the works of nature did not cause the disaster (alone); social organisation played a significant role.12 Rousseau heralded the coming of the main paradigm through which the disaster today is understood: the social. Rather than understanding the disaster as an external, intruding force into society, it could be understood as a phenomenon (partially) produced by the society itself. The disaster is in this paradigm not only understood as an intervening disturbance, but a phenomenon generated from our own system’s weaknesses. Thus, the paradigm changes what we would previously conceived of as bad luck into deficiencies and repudiates nature from the centre of disaster studies to a characterising component of a fundamentally social phenomenon. The paradigm thereby radically transforms the epistemology of disaster. This social turn of disaster research entails that vulnerability and risk and their positive mirror images resilience and sustainability, replaces contingency and prevention. I will return to and develop further these concepts below. As our knowledge of natural hazards has grown through the refinement of meteorology, vulcanology and seismology, our ability precisely to foresee the workings of these hazards reaches a level from where the disaster changes character and becomes socially tangible. Thus, to a certain extent it is no longer a question of if we can foresee natural or technological hazards, but how

12 For a comparative discussion of Rousseau and Voltaire, see Martin Hultén, ‘Er Verden God? Eller: Den Grædende Og Den Leende Filosof Rousseaus Og Voltaires Diskussion Om Forsyn Og Fremskridt I Midten Af Det 18. Århundrede’, Det Onde i Litteraturen (København: Akademisk, 2003) 78–90. Kant also discussed the theories of Leibniz in Über das Misslingenaller philosphishcen Versuche in der Theodicé from 1791.

Disasters 21 we choose to furnish our society to mitigate them.13 As regards the residual (utterly unforeseeable) hazards, risk analyses create a framework to transform this uncertainty into politically (legally) operable probabilities and thereby in turn force society constantly to reduce the residual risk to a minimum. Thus, what will be referred to as ‘the social paradigm’ is fundamentally dependent on results and inputs generated by scientific studies of nature; however, it bases itself on a significantly different epistemological approach to disasters. This does not mean that, for example, meteorology or natural science as such is abandoned as scientific disciplines, but their results change position within the paradigm to understand disasters. The social paradigm ‘cannibalizes’ the nature paradigm’s results and reallocates them. Accordingly, natural sciences are no longer disaster research, but hazard or climate research. Natural sciences thereby shift from being the central element of disaster research to becoming a component of a larger epistemological framework. The social paradigm in this sense reorganises and reuses the prior paradigm’s results and introduces an entirely new epistemology to the disaster. While the nature paradigm would explain the disproportionate increase in the number of disasters during the last 30 years as a result (or even proof) of the fundamental contingent character of nature, the social paradigm explains this as a result of increasing social complexity, human forcing,14 population growth, technological dependency and urbanisation (and obviously the increase in our ability to gather relevant data and thereby register global disasters). The development in the three disaster paradigms can be summed up roughly in the following manner: Disaster paradigms Manifestation

Epistemology

Ontology

God

Foresight / theodicy

The disaster is divine

Nature

Contingency

The disaster is inherent in nature

The Social

Vulnerability

The disaster is social

Figure 2.1 Disaster paradigms

13 I will modify and discuss this bold statement in the following sections. 14 Some naturally occurring events have been observed to have great effect on the climate; this could for example be the case when large quantities of aerosol derived from a volcanic eruption is contained in the atmosphere. This phenomenon is called ‘forcing’. Forcing can be either anthropogenic (human forcing, e.g. the enhanced greenhouse effect) or caused by ‘natural’ agents (e.g. aerosols). See IPCCs reports for further input on contemporary climate research.

22 Disaster Law The concepts used to understand disasters in the social paradigm are rooted in the social system, and social sciences therefore increase in relevance and position. Sociology in this regard has played, and plays, a significant role in the development of concepts and in the understanding of the modern disaster. As the disaster is social, sociological theory seems pivotal to construct its inventory. In order to examine the developments in the understanding of natural disasters, the investigation therefore departs from existing sociological theories. A discussion on the sociological positions within the social paradigm will follow. The aim is to examine the main concepts, the theoretical background for the social disaster paradigm, as well as the broader concepts of risk and vulnerability.

2.3 The social paradigm of disaster research: positions, classifications and developments The following discussion will be based on the general positions within the social paradigm of disaster research. The first systematically conducted study of disasters and social change were made, as a doctoral thesis, by the Canadian priest Samuel Prince in 1920 (Scanlon 1988). Prince analysed the Halifax explosion15 under the framing title Catastrophe and Social Change (Prince 1968; Rodrâiguez and others 2007). The main emphasis of Prince’s doctoral work is on the social effects of the disaster, especially on social disintegration and the possibility of social change in the aftermath of disaster (Dynes and Quarantelli 1993). The work is widely acknowledged as the first comprehensive contribution to disaster research with an emphasis on the social dimension of the disaster. The work carried prevalent features of the nature paradigm, as it did not in fact address the disaster itself as social. It merely identified the disaster as relevant for social change and thereby for social sciences. Prince’s major accomplishment in terms of disaster research is thereby to link the possibility of social change with disasters: ‘under the stimulus of catastrophe, necessity becomes the mother of intervention’ (Scanlon 1988: 225). This idea of crisis or disaster as a platform or window for social change is well represented in earlier and perhaps, in particular, in later literature (Taleb 2012). The Italian national historian Santi Romano, according to Giorgio Agamben, claims that necessity is the original source of law (Agamben 2005); the Austrian economist Joseph Schumpeter made Karl Marx’s idea of schöpferische Zerstörung (creative destruction) famous (Schumpeter 2013); and political scientists investigate

15 On 6 December 1917 a French cargo ship loaded with explosives blew up after colliding with another ship, devastating the city of Halifax in Canada. Around 2,000 people were killed and approximately 9,000 injured. The explosion sent a ‘white cloud billowing 20,000 feet [around 6 km] above the city’; see CBC’s theme site for the Halifax Explosion: http://www.cbc.ca/halifaxexplosion/he2_ruins/he2_ruins_explosion.html (last visited February 2014).

Disasters 23 how disasters affect conflict (Kelman 2012). While this idea on the one hand addresses the social consequences of a disaster, it tells us little of the disaster itself on the other. I shall return to this idea throughout the book. In 1932 the American sociologist Lowell Juilliard Carr in a more general analysis of social change described disasters as, not only leading to, but as being embedded in social change (Carr 1932). Radically, Carr suggested that ‘the essence of disaster is cultural collapse’ (Carr 1932: 213). Thereby, Carr suggested a definition of disaster, which not only touched upon, but was deeply rooted in social scientific knowledge – he efficiently pointed to an anomaly in the nature paradigm of disasters, namely our inherently relative understanding of which phenomena we consider disastrous, relative to society’s and the affected individuals’ cultural expectations. The American sociologist Ronald W. Perry identifies three overall approaches to understanding a disaster within the social paradigm: the classical approach, the hazard-disaster approach and the explicitly socially focused approach (Perry 2007).16 These three approaches constitute different ways of understanding the disaster as a dysfunctional intersection between hazard and social system. Hence, the approaches within the social paradigm can be understood as three different entry-points to the same phenomenon, approached either through the perspective of the hazard, as the intersection between a social system and a natural hazard or, finally, approached through the social system itself.17 In the following section, I aim to examine disasters in modern theory and to outline the main positions and ideas constituent for contemporary 16 Many other ways of classifying disaster research positions could be applied – see e.g. Celia Wells, Negotiating Tragedy: Law and Disasters (Modern Legal Studies; London: Sweet & Maxwell, 1995) xxi, 213 at 5 or D. E. Alexander, Natural Disasters (London: UCL Press, 1993) at 13–14. Tierney, Lindell and Perry identify three main approaches in American disaster research: the functionalist or system perspective; the vulnerability perspective; and social constructivism; see Kathleen J. Tierney, Michael K. Lindell and Ronald W. Perry, Facing the Unexpected. Disaster: Preparedness and Response in the United States (Natural Hazards and Disasters; Washington, D.C.: Joseph Henry Press, 2001) at 16 ff. 17 In the work We Have Never Been Modern from 1991 (translated into English in 1993), the influential French thinker Bruno Latour examines the fabric of a number of fundamental dichotomies on which we base our understanding of the world; see Bruno Latour, We Have Never Been Modern (Cambridge, MA: Harvard University Press, 1993). According to Latour, the strict dichotomy between human and non-human is deprived of meaning, as the dichotomy is an artifice of modernity, made only to strengthen modernity itself. Following the line of argument the understanding of one of them as immanent and the other as transcendent is also deprived of meaning. In Latour’s framework a given scientific collective must include an analysis of all actors (‘subjective’ as well as ‘objective’), and all things of relevance to the construction of the studied field. Thus, for Latour everything is fundamentally a hybrid of politics, law, authority, discourse, subjects, objects etc and must be observed accordingly. The disaster is not only immanent or transcendent; it does not adhere to nature or man, but is fundamentally a hybrid. It does, however, exist as a social form in the above stated sense, and is conceived from these concepts in contemporary disaster research. Notwithstanding Latour’s objections to modernity’s different artifices, I will describe the disaster in the terms of the theoretical field that applies.

24 Disaster Law disaster management. Most disasters are (obviously) complicated hybrids between natural, technological and human interactions and, although tempting, it could easily turn out to be counter-productive to develop too narrow a definition of what a disaster is. Following the overview of contemporary positions, the key concepts applied in this volume will be developed.

2.4 Modern disaster research In most modern theory, disasters are defined as phenomena that are approached solely or almost solely from their social causes and consequences. As a principle, the concepts of ‘hazards’ and ‘events’ are systematically removed as conceptual features of the disaster. The disaster is social, and therefore not tied to a certain type of hazard, but to a certain social pattern and consequence. The focus thereby changes from predefined threats of nature to an emphasis on individual and shared vulnerability. To exemplify this approach, a recent example from the Chilean port city Iquique might be illustrative. Iquique, a city of 140,000 citizens, is located in the Atacama Desert between the Andes and the Pacific Ocean. Because of unique weather conditions, the average annual rainfall in the city is around 0.5–1 mm or an average of one precipitation day a year. Hence, rainfall of 0.2 mm within hours caused an emergency in the city, owing to electric breakdowns and caused damage to 4,000 rooftops (on ‘precarious dwellings’).18 This amount of rain, 0.2 mm, is equivalent to the average rainfall during two hours on a single day in mid-June in Denmark, in other words, an infringement so insignificant that it would hardly influence the planned visit to the beach. The example illustrates the main idea of the social disaster paradigm – the disaster is not caused (only or mainly) by the rainfall, but by the social system’s inability to mitigate the rain. No gods, no nature: only socially constructed systems’ failure to adapt to naturally occurring hazards, in this case, the rain. A downpour that would hardly be noticed in Copenhagen causes disaster in Chile. Thus, disasters are not results of nature, but of our social systems’ inability to adapt to the surrounding environment. The social becomes the central epistemological frame and all disasters (in principle) causally attributable to human agency. One could say that the social paradigm removes the disaster from nature and thereby replaces the sole object for the study of disasters; however, it is perhaps more precise to state that another epistemological framework replaces the strict division between objects of social systems respectively nature:

18 ‘Drizzle, light wind damage Chilean desert city’, Associated Press (21 July 2009).

Disasters 25 vulnerability.19 Vulnerability dissolves the idea of nature and social as strictly distinct entities, and melts them into a uniting analytical discourse. Therefore, even for the most extreme of positions within modern disaster research, knowledge of the hazard is vital, even though the concrete categorisation of the hazard becomes less important to understand what a disaster is. The main element of this position is to approach the disaster through the social system’s dysfunction(s). Vulnerability is the unifying term for our potential weakness towards risks, covering ‘weakness in social structures or social systems’ (Perry and Quarantelli 2005: 345).20 Risk, in this conjuncture, is understood as the probability of a negative impact taking place,21 and is a social instrument to change uncertainty into probability. Risk and vulnerability are thereby inextricably linked.22 In the following, I will provide a brief introduction to, and develop the concepts of, risk and vulnerability. 2.4.1 Risk Ulrich Beck’s Risikogesellschaft from 1986 theorised the ‘social turn’ in our perception of disasters by tying the concept of risk to modernity itself (Beck 2008b; 2008a).23 Beck’s risk society concerns the distribution and management of risk in society and focuses on the increase in risks induced by modernity itself (consequently Beck characterises the modernity as reflexive,

19 I do not use vulnerability as inseparably tied to an agenda of non-discrimination, although it obviously opens such perspectives. For an overview of positions within such a narrower conception of vulnerability, see Tierney, Lindell and Perry, Facing the Unexpected. Disaster Preparedness and Response in the United States at 184 ff. 20 A slightly more detailed definition can be found in Wisner and others’ At Risk: ‘the characteristics of a person or group and their situation that influence their capacity to anticipate, cope with, resists and recover from the impact of a natural hazard’; see Ben Wisner and others, At Risk. Natural Hazards, People’s Vulnerability and Disasters (London and New York: Routledge, 2004) at 11. 21 For a short introduction to the historical roots of the risk concept, see Niklas Luhmann, Risk: A Sociological Theory (New York: Aldine de Gruyter, 1993) at 8 ff. 22 See also Ben Wisner, Ilan Kelman and J. C. Gaillard, ‘Hazard, Vulnerability, Capacity, Risk and Participation’ in Alejandro Lópex-Carresi and others (eds), Disaster Mangement. International Lessons in Risk Reduction, Response and Recovery (Earthscan; London and New York: Routledge, 2014) at 14. 23 Two other prominent exponents of the tradition are the English theorist Anthony Giddens and the German sociologist Niklas Luhmann. Giddens defines the risk society somewhat differently from Beck, but fundamentally shares concepts and concerns with Beck. See for instance Anthony Giddens, Runaway World: How Globalization Is Reshaping Our Lives (London: Profile, 1999). Luhmann also differs from Beck. In his Risk: A Sociological Theory he discusses risk in conjunction with Luhmann’s own theoretical frame: the social system. In the following I will use elements of Luhmann’s analysis supplementary to Beck’s. Although their fundamental methodology differs, I believe that they both raise central points to the character and function of risks. When applying Luhmann, it is therefore not an expression for a shift to system-theoretical theory, but as an explanatory perspective.

26 Disaster Law as ‘becoming its own theme’) (Beck 2008b: 19, 153 ff). The social paradigm could be understood in this context as a particularity of the risk society paradigm presented by Beck. According to Beck, ‘the social production of wealth is systematically accompanied by the social production of risk’ (Beck 2008b: 19, 21). The risk society is aimed at solving the challenge of preventing, minimising, dramatising and/or channelling risks (Beck 2008b: 19) and as a number of these risks are induced by the modern society itself through ‘techno-economic development’ (Beck 2008b: 19): Questions of the development and employment of technologies (in the realms of nature, society and the personality) are being eclipsed by questions of the political and economic ‘management’ of the risks of actually or potentially utilised technologies – discovering, administering, acknowledging, avoiding or concealing such hazards with respect to specially defined horizons of relevance (Beck 2008b: 19–20). Risk is a mitigating mechanism making any event or potential event systematically operable and thereby its distribution becomes an issue of distributing wealth. Risk internalises and translates uncertainty and makes it accessible to decision-makers, forcing a regime of probability and scenariomaking.24 Risk is, in this sense, merely an optic enabling a certain perception of the world – a framework making uncertainty politically, legally and economically operable. Thus, uncertainty is merely risk not yet internalised – and/or not yet conceived as within social reach. The internalisation of uncertainty is a political, ideological manoeuvre driven through social and political constructions; risk is therefore, in the words of the German Sociologist Niklas Luhmann, a ‘phenomenon of multiple contingency, which consequently offers different observers differing perspectives’ (Luhmann 1993: 16).25 For this reason, Beck uses the concept of risk society to analyse how the distribution of risks takes place. The ‘social turn’ in our understanding of risks (disasters) poses a dilemma: how can we foresee, what is unforeseeable and how can we mitigate what is not yet: Wir haben es mit Konsequenzen der Erfolge der Moderne und ihrer technischen Phantasie zu tun. Sie stellen uns vor mögliche Katastrophen, de 24 For this point, elegantly put in regard to modern warfare, see Mikkel Vedby Rasmussen, The Risk Society at War: Terror, Technology and Strategy in the Twenty-First Century (Cambridge University Press, 2006). 25 Luhmann distinguishes between risk and danger. While risk adheres to things under social control, dangers are things beyond. An unforeseeable asteroid attack is thus a danger, not a risk in Luhmann’s perception. This could lead one to suggest that natural disasters were consequences of danger, rather than risks. My argument is that this is no longer, per se, the case. Technological hazards are not the only phenomena dealt with under the concept of risk. See more below.

Disasters 27 unser begriffliches und institutionelles Fassungsvermögen übersteigen. Trotzdem sind wir zu Entscheidungen gezwungen. (Beck in Süddeutsche Zeitung)26 Our dependency as well as use of modern technology induces potential disasters that we do not have the cognitive capacity to understand or imagine.27 In spite of this, a decision to act must be taken. The underlying ideology of human totality, or rather nature’s controllability, is of course merely a delusion – a delusion of grandeur even, inherent in the presumption of foreseeability and reliance on risk analysis is thereby a blindness. If we believe we can foresee everything, we instantaneously become blind to the fundamental contingent character of our enterprise, since the framework is not ‘seeing what it does not see’ (Luhmann 1993: 14). This blindness accordingly follows, embedded in the presumption of foreseeability and from reliance on risk analysis. The idealised approach outlined in this analysis must subsequently, when operationalised, be coupled with openness towards the unforeseen as well as the unforeseeable. This is also the starting point of the influential Lebanese mathematician Nassim Taleb’s devastating criticism of what he deems naïve probability thinking. In The Black Swan, Taleb convincingly makes the point that real impact adheres to what we did not expect (and could not expect, no matter how hard we tried). The idea that risk or probability makes future threats tangible or politically accessible is, according to Taleb, mindless. Rather than trying to rationalise or explain the occurrences of black swans (basically extreme outliers: rare, unforeseeable, major impact events) using hindsight, we should embrace the contingency inherent in the world and spend our time preparing for the unexpected by building general robustness towards the unforeseeable (Taleb 2010) or perhaps even anti-fragile societies (Taleb 2012). Obviously, not everything is foreseeable, but that does not entail that nothing is. As societies increase their knowledge, they will increasingly be better at modelling the ways of nature and, if we simultaneously remember that there will always be a residual (unaccounted for) risk, it seems sound to combine a probabilistic, a robustness-focused and a possibilistic (Clarke 2006) approach to disaster management. As I will discuss in Chapter 5, this dilemma resurfaces within law, in the discussion on foreseeability in tort and penal cases in the aftermath of disaster. The risk perspective is irreversible (as it functions as part of a Kuhnian paradigm). When accepting a phenomenon as a risk, any political leader is 26 ‘Ein strategisch inszenierter Irrtum’, interview of Ulrich Beck by Andreas Zielcke broadcast on Sueddeutsche.de on 14 March 2011. 27 For a very elegant and comprehensive investigation of this point, see Charles Perrow, Normal Accidents (New York: Basic Books, 1984) and Charles Perrow, The Next Catastrophe (Princeton: Princeton University Press, 2007).

28 Disaster Law met with the moral obligation and/or political expectation to address it. In the words of Luhmann: ‘The ethic of ensuring the non-occurrence of disaster is so generalized that it can be imposed on, and morally expected of, everyone’ (Luhmann 1993: XI). This ‘obligation’ is perhaps even imperative in modern decision-making: One can, of course, reach agreement on whether to make a decision or not; but this is then a matter of communication not of knowledge. Once dissolved into temporal and social differentiations there is no return to the innocence of primary observation. (Luhmann 1993: 17)28 In that sense, the risk perspective could seem to be both ever-expanding and open-ended. In law this is today clearly illustrated by European human rights law, as discussed in Chapter 4. Thus, today the (continued) development of disaster prevention is not only a moral obligation, but also a human right.29 The risk perspective gains ground not only owing to our technological landmarks, but also as we increase our knowledge and research possibilities (Luhmann 1993: 28). However, this does not mean that we are moving towards a risk-free society: If there are no guaranteed risk-free decisions, one must abandon the hope that more research and more knowledge will permit a shift from risk to security. Practical experience tends to teach us the opposite: the more we know, the better we know what we do not know, and the more elaborate our risk awareness becomes. In the terminology of disaster sociology, risk could be perceived as a way of theorising the hazard(s); however, as the point of departure for risk analysis is society itself, risk should rather be understood as an amalgam between a hazard and a vulnerability analysis. It is a theoretical instrument to prioritise between different threats to society through probability.

28 And even ‘risk communication itself has become reflexive and thus universal. Refusing to assume risk or demanding their rejection have become dangerous behaviour. The reaction is a refusal to calculate whenever one feels that risky behaviour could lead to disaster’; see Luhmann, Risk: A Sociological Theory at X. 29 Beck could be said to differ from Luhmann on this point. According to Beck, ‘the process of becoming aware of risks is (. . .) reversible’; Ulrich Beck, Risk Society (ed Mike Featherstone, Theory, Culture and Society: London: Sage, 2008) at 75. Not to be understood in the sense that it ceases being a risk, but that the prevailing perception of a risk can ‘fluctuate wildly’; ibid. This means that while the content of the risk analysis can fluctuate even if the concrete assessment of a given risk (to use Beck’s own example the risk from nuclear energy production) can fluctuate (irrespectively of available knowledge). History provides ample examples to support Beck’s claim; however, while their value may fluctuate, they remain risks.

Disasters 29 Risk is a quantified approach often connected to a certain school. The American sociologist Lee Clarke refers to it as a ‘probability approach’,30 and Luhmann refers to a ‘rationalist tradition’.31 It is an analytical tool to make what is inoperable (uncertainty) systemically operable. However, inherent in this tool is an attitude towards the findings; a presumption that all threats can be quantified and subsequently rationalised. It is therefore not a scientific or accurate instrument, but a way of estimating what will always be contingent (the future). To be sure, a risk approach does not ensure correspondence between what is perceived as threats and what are in fact ‘real’ threats, but when applying a risk framework the contingency of the future is suppressed as a dominating epistemological regime. These concepts are not used in support of the strong claim that modern society is a risk society (and that modernity as such is reflexive), but the weaker, partial claim, that natural disasters are today understood through a social paradigm. Risk plays a role in this conceptualisation as a way to socialise uncertainty. In the following paragraph, I will make a few remarks on vulnerability and the relationship between risk and vulnerability. 2.4.2 Vulnerability Vulnerability is a theoretical term stipulating that disasters should be understood from the social system’s (potential) inability to mitigate a given threat. According to the American anthropologist Anthony Oliver-Smith, disasters should be understood as events caused by a network of ‘pre-disaster conditions’, such as social structures, built environments, cultural perceptions, individual capacities, etc, and these conditions thereby determine how a given society is able or unable to cope with a hazard (Oliver-Smith and Hoffman 1999: 4). Thus, ‘the processes that “generate” vulnerability are countered by people’s capacity to resist, avoid, adapt to those processes and to use their abilities for creating security, either before a disaster occurs or during its aftermath’. In Haiti, a 7.0 magnitude earthquake killed more than 220,000 people in January 2010, while one month later an 8.8 magnitude earthquake (around 500 times more powerful) killed only 500 in Chile (Smith and Flores 2010). The pre-disaster conditions differed significantly (build, social, legal and political). Pre-disaster conditions are root causes of vulnerability, and vulnerability was the difference between Haiti and Chile.32 30 This approach is characterised by systematically excluding worst cases, as they are considered, per se, non-probable and thereby ‘residual’ or acceptable (low-risk, high mitigation cost and high-impact events). Lee Clarke advocates possibilistic thinking as a way of thinking of extreme events; see Lee Ben Clarke, ‘Possibilitic Thinking: A New Conceptual Tool for Thinking About Extreme Events’, Social Research 75/3 (2008) 669–90. 31 See further Luhmann, Risk: A Sociological Theory at 16 ff. 32 The American geographer and philosopher Ben Wisner differs between social vulnerability, adhering to individualised conditions (social position, sex, religion, etc) and generalised

30 Disaster Law Thus, vulnerability is a framework to analyse the disaster with departure in the affected object (a social system) – and thereby a way of reorganising disasters as social (here in the broadest conceivable sense) rather than natural or theological problems. As New Orleans was flooded in 2005, it was not (only) a result of a hurricane (Katrina), but mainly of poor levee constructions, a dangerous harbour design, centuries of inattentive city planning and unclear organisational boundaries between FEMA and the state. Thus, vulnerability is a perspective focusing on the social system’s (in the broadest sense) dysfunctional outputs, and is therefore a way to conceptualise the disaster through a ‘pure’ social scientific terminology. While vulnerability is a property of an object, risk is a measurement of the probability of this property resulting in the dysfunction of the object.33 Risk is therefore one way of instrumentalising or structuring vulnerability. Not all vulnerability can be fully met through systemic or individual mitigation and adaptation. There will always be risks of a magnitude or character that render absolute elimination too difficult or troublesome to strive for. In this sense we are forced to live with a number of threats or risks as inherent components of modern society’s basic organisation (Beck 2008b: 153 ff; Luhmann 1993: 28 ff), and perhaps even increasingly so as our dependence on shared infrastructure grows. A specific group of these will be dealt with below under the title ‘Super hazards?’ (extreme high impact, low frequency hazards); however, all hazards (even if they are impossible to eradicate) are possible to address in social terms. A contemporary example might serve to illustrate this point. In April 2010, the Icelandic volcano Eyjafjallajökull erupted, an incident that later became known as the volcanic ash crisis. The eruption resulted in the closure of the North European airspace for eight days,34 affected around 10 million passengers35 and caused damages claims amounting to €3.9 billion (Ragona and others 2011). The hazard caught Europe off-guard – with fairly good reason. Although aware of the potential for volcanic ash to close the airspace (and therefore prescribing and enforcing a zero-threshold limit for ashes), the actual experience in Europe with eruptions of the size of Eyjafjallajökull was very limited. The wind

vulnerability (‘a characteristic of the poorest of the poor in every society, especially those how suffer income poverty and are marginal‘); see Wisner, Kelman and Gaillard, ‘Hazard, Vulnerability, Capacity, Risk and Participation’ at 14. Although helpful in more technical studies of disasters, I will not use this distinction. 33 Many theorists would claim that vulnerability is part of a risk definition. Thus, risk would be dangers overlapping with a given entity’s vulnerability. 34 The airspace was entirely closed down from 15–23 April. The following week the airspace was closed in parts of Europe and the airspace closed again in Ireland, Northern Ireland and Scotland on 4 and 5 May and in Spain, Portugal, Northern Italy, Austria and Southern Germany on 9 May. Irish and UK airspace closed again on 16 May and reopened on 17 May. 35 ‘Ash-cloud of April and May 2010: Impact on Air Traffic’, report by Eurocontrol 2010, STATFOR/Doc394 v1.0 28/6/10 at 7.

Disasters 31 conditions and ferocity of the eruption left a pattern of ash all across Northern Europe. One year after the disaster, the European Commission Vice-President Siim Kallas, responsible for transport, stated: Volcanoes and other aviation crises are by their nature unpredictable and each one will be different. We can never get to zero risk but we can make maximum efforts to prepare strong systems to cope with disasters.36 Even what some might consider a truly unforeseeable development of a volcanic eruption was a year after being internalised in our response system; contingency plans and new scientific work on the ability of jet engines to fly through volcanic ashes developed. When the Icelandic volcano Grímsvötn erupted in May 2011, Europe was significantly better prepared. Although not nearly as long lasting as the eruption of Eyjafjallajökull, on its own, Grímsvötn was a more violent eruption.37 However, it only caused the European airspace minor disturbances, not least owing to intense monitoring, more knowledge-based risk assessments and new legal procedures that were in place.38 In other words, even risks or hazards that cannot entirely be mitigated can be addressed through vulnerability. Vulnerability is the basic term through which natural disasters are understood – a regime of governance stipulating constant analysis and accordingly in which adaptation and distribution of responsibility is a central legal and political theme. Before concluding this chapter, one further characteristic predominant in public perception of disasters will be examined. 2.4.3 The impact of disasters: death and destruction While it is clear that the physical impact of a disaster can differentiate quite substantively,39 it seems equally clear that some immediate negative impact is inseparably tied to the phenomenon. Thus, the impact must pass a certain (relative) threshold to be characterised as a disaster. Accordingly, it would not

36 Press release: ‘Volcanic ash disruption: one year on and crisis preparedness’, MEMO/11/235 (12 April 2011). 37 The initial explosions sent an ash plume, twice the size of the eruption of Eyjafjallajökull in April 2010 (20 km), into the atmosphere, and in the following days sent out 12 km high plumes, whereas Eyjafjellajökull’s 2010 eruption only sent out 9 km high plumes. 38 See for instance Press Release from Association of European Airlines: ‘AEA Presidents: Second ash crisis is a wake-up call for Europe’ of 26 May 2011. See further MEMO/11/235 of 12 April 2011 from the Commission: ‘Volcanic ash disruption: one year on and crisis preparedness’. For a comprehensive analysis of the disaster, and its impact on, not least, European law see Alberto Alemanno (ed), Governing Disasters. The Challenges of Emergency Risk Regulation (Cheltham, UK: Edward Elgar, 2011). 39 For instance, covering both the 2011 earthquake in Japan with insured material damages for US$34.6 billion and the volcanic ash cloud crisis, where no actual material damage occurred.

32 Disaster Law be considered a disaster if a flood razed an empty area, set for demolition the following day. Small and frequent infringements of a social system, such as snow forcing the national soccer team to postpone their game, or rain interfering with our plans to spend the day at the beach is not considered a disaster. Some kind of minimum loss, economic, symbolic or human is tied to our understanding of disaster. In the following, this effect will be discussed as impact. Many attempted definitions of disasters are narrowly tied to measurements of impact (relative or absolute). However, these predefined thresholds are often overtaken by social agendas, politics or culture. On 3 November 2004, N. P. Johnsens Fyrværkerifabrik (a fireworks-factory) exploded in Seest, a suburb of Kolding, Denmark. The fire and following explosion that caused the death of a firefighter were not described or approached as a disaster by the response team, as they had sufficient response capacity and knowledge to control the incident. However, after a national television report characterised the explosion as a disaster, the entire media coverage team on the spot and, eventually, the rescue team concurred.40 The example shows the discursive relativity of ‘disasters’ and how it often becomes more interesting to observe the process of defining disaster than the outcome. If we were to define a disaster as a phenomenon causing ‘physical destruction and death’ (Killian 1954), the definition would not include the volcanic ash crisis in April 2010, as the volcanic ash crisis did not result in any harm to human life nor materials. However, the crisis generated a gigantic loss and had a significant negative impact on the affected passengers’ lives and well-being. If, on the other hand, following a quantitative approach, one were to define disasters from an absolute economic threshold, a hurricane destroying two fishing villages in São Tomé and Príncipe, and leaving 500 families homeless and killing 25 would probably not be able to meet any absolute economic threshold defining a disaster; however, it would indisputably be a disaster for the communities involved. The threshold for the impact of disaster therefore seems inherently relative to both economy and culture, and not least norms of the society or social entity affected. Thus, the idea of disaster is, in accordance with Carr’s observation, inherently tied to cultural expectations. Besides this relativity to the ‘internal’ social structures (internal relativity), there seems to be a significant relativity to the degree of identification with the affected system (external relativity). According to Médecins Sans Frontières, every third child in Africa is starving,41 yet in general opinion this is not

40 In almost all the official reports on the incident it is referred to as Fyrværkerikatastrofen (the fireworks disaster); see, however, Beredskabsstyrelsen, ‘Fyrværkeriulykken I Kolding 2004 - En Teknisk Beredskabsfaglig Erfaringsopsamling’ (Birkerød: Beredskabsstyrelsen, 2005). Today, even a Wikipedia-entry on the Seest fireworks disaster exists (last visited in February 2014). 41 See the webpage of Médecins Sans Frontières.

Disasters 33 considered a disaster. This idea of ‘external relativity’ has been addressed by the American sociologist Lee Clarke in his book Worst Cases (Clarke 2006). According to Clarke, the relativity we experience seems to be a measure of context dependency (Clarke 2006: 19 ff) as, for instance, Austrians do not identify themselves with a child from the Horn of Africa, they do not consider the impact significant enough to constitute a disaster and vice versa. This could also partially serve to explain the major political and social impact of the East Asian tsunami in 2004, as tourists were among the most affected (Korf 2006). Thus, impact as a defining feature is not only internally relative (to what cultural or economic impact characterises a disaster); it is also inherently externally relative (meaning we cannot even compare two exact equivalent impacts across cultures). Rather, discursive struggles based ideology, culture and power surface in these attempts to define the concept finitely. While impact seems to be an important feature of characterising a disaster, it is a very inoperable feature. A certain negative impact is inseparately connected to the popular and scientific understanding of disasters, and this impact must pass a given relative threshold in order to constitute a disaster. I will not define this threshold and will throughout the book work with a very broad notion of disasters, including incidents that scarcely constitute disasters in a traditional sense (e.g. flooding in Copenhagen, oil spills or volcanic ash clouds). 2.4.4 Disasters and catastrophes? Enrico Quarantelli operates with an intensifying scale of incidents going from ‘everyday emergencies’ and ‘disasters’ to ‘catastrophes’ (Quarantelli 2006).42 A progressively intensifying figure emerges depending on the impact and severity of the situation, structured by three overall categories of incidents. A similar idea is behind the International Nuclear and Radiological Event Scale (the INES-scale). The scale rates incidents from 1–7; from (1) anomaly to (7) major accident (in Danish ‘katastrofe’ – a disaster43) the scale graduates the incident, and stipulates proportionate reactions to each step.44 In other applications, catastrophe characterises the hazard causing the disaster.45 Many other influential categorisations and following considerations on the 42 For a similar approach, increasing from crisis to catastrophe, see Thomas A. Birkland, Lessons of Disaster: Policy Change after Catastrophic Events (American Governance and Public Policy Series; Washington, D.C.: Georgetown University Press, 2006) xviii, 216 pp at 5. 43 See e.g. DEMA’s operation manuals. 44 Only two incidents strong enough to get a 7-grading on the INES scale have occurred: the Chernobyl accident (1984) and the meltdown of the Fukushima plant (2011). 45 See e.g. Lowell Juilliard Carr, ‘Disaster and the Sequence-Pattern Concept of Social Change’, American Journal of Sociology 38/2 (1932) 207–18.

34 Disaster Law distribution of everyday incidents and disasters exist.46 Although agreeing with Quarantelli that ‘everyday emergencies’ differentiate ‘disasters’ and ‘catastrophes’, especially the use of the two latter seems more or less convergent in literature on disasters. This, however, does not undermine the importance of classifying disasters by size and severity, one way or another. Nevertheless, in this volume catastrophe will be applied synonymously with disaster. 2.4.5 Super hazards? A number of hazards of a magnitude rendering them inoperable within our traditional concepts exist; their potential impact and/or character make them impossible or extraordinarily difficult to mitigate or adapt to.47 In a sense they transcend our conceptualisation and thereby escape our analytical framework to understand them. These so-called super hazards could include super volcanoes (e.g. the Yellowstone Caldera48), major asteroid strikes, sun-storms or large-scale bacterial infections causing pandemics. Part of applying a risk approach to society is to accept that such low frequency high impact events exist and that current available technology does not, as yet, offer the possibility of mitigating them on reasonable terms. They are, in other words, an integral, unsolvable part of being, and the ability to ignore or de-emphasise them an integral part of the general approach to risk analysis. Risk analysis cannot and will never eradicate the contingency of the world and, in particular, these transcending events or worst cases will always constitute a threat to the welfare of society.49 I am not preoccupied with the potential collapse of the world. Scenarios as depicted in the disaster movies ‘2012’ (2009) or ‘The Day after Tomorrow’ (2004) are not the object of investigation. The central claim is that as the disaster becomes social the border between what is conceived as normal and extraordinary respectively is shifted. Thus, the disaster becomes increasingly normal. This does not entail that nothing extraordinary can or will occur, only that our concepts of what is extraordinary are dynamic and evolving in 46 See for instance the so-called ‘Heinrich triangle’ suggested by Herbert Heinrich in a book from 1931 on industrial accidents; H. W. Heinrich, Industrial Accident Prevention: a Scientific Approach (London: McGraw-Hill, 1931). Heinrich suggests that, for each major accident, 29 minor accidents and 300 dangerous occurrences take place. A number of ‘precursors’ of a potential major accident therefore reveal themselves. It becomes essential to mitigate the major accident, to take these precursors or accidents with no serious damage seriously. 47 See also Richard A. Posner, Catastrophe: Risk and Response (Oxford; New York: Oxford University Press, 2004) at 8. 48 There are six known super volcanoes, among them Lake Toba, Sumatra, Indonesia; Long Valley, California; and Lake Taupo, New Zealand. 49 For two entirely opposite solutions to super hazards, see Posner, Catastrophe: Risk and Response at 8, who argues that we should ignore these low-frequency events; and Lee Ben Clarke, Worst Cases: Terror and Catastrophe in the Popular Imagination (Chicago: University of Chicago Press, 2006) xi, for the opposite position.

Disasters 35 these years. Before concluding this chapter a short point on the use of natural disasters will be touched upon. 2.4.6 Natural disasters?50 After the horrible earthquake and following tsunami in 2011 hit Japan, Ulrich Beck stated in Süddeutsche Zeitung:51 Die Kategorie Naturkatastrophe signalisiert, dass sie nicht von Menschen verursacht und daher auch nicht von Menschen zu verantworten ist. Das ist aber die Sicht eines vergangenen Jahrhunderts. Der Begriff ist schon deshalb falsch, weil die Natur keine Katastrophen kennt, allenfalls dramatische Veränderungsprozesse. Solche Veränderungen wie ein Tsunami oder ein Erdbeben werden erst im Bezugshorizont menschlicher Zivilisation zur Katastrophe. Der aktuelle japanische Fall macht augenscheinlich, wie das, was wir der Natur zurechnen, und das, was wir der Technik und menschlichem Können zurechnen, direkt mit einander verwoben ist. Das Beispiel, wie hier Erdbeben und Flutwellen erst aufgrund der (mangelnden) Sicherheitstechnik der Kernkraftwerke die Katastrophe bewirkt haben, zeigt, dass natürliche und zivilisatorische Sphären nicht als getrennt zu sehen sind. In short, nature as cause of a disaster, or rather as a way of understanding the disaster, is an idea belonging to a historical paradigm. Natural disaster as a concept thereby becomes misleading, as nature knows no disaster. Human and social vulnerability is the only meaningful way of perceiving the disaster in Japan. This is obviously too radical a proposition. After all, there would be no disaster in New Orleans without hurricane Katrina or in Japan without the Great East Japan earthquake. What is clear is that the hazard changes position in our understanding of natural disasters. In the social paradigm the meaning of diversifying ‘natural’ disasters from technical, man-made or chemical disasters simultaneously become less and more important. On the one hand, knowledge of the origin and risks of the individual hazard increase in importance, as this is crucial to design an effective and specialised response (you cannot respond to an oil spill and a fire in a similar manner). On the other hand, however, the overall classification of the hazard as natural or non-natural becomes less important, in line with Ulrich Beck’s claim, as our way of understanding the disaster stems from the effect and our ability to mitigate this effect.

50 See also Wisner, Kelman and Gaillard, ‘Hazard, Vulnerability, Capacity, Risk and Participation’ (cited above): ‘Many causes but one clear truth: disasters are not natural’. 51 ‘Ein strategisch inszenierter Irrtum’, Interview of Ulrich Beck by Andreas Zielcke aired on Sueddeutsche.de on 14 March 2011.

36 Disaster Law Yet, this volume’s scope is focused on a certain class of hazards: namely natural hazards; hazards that are understood as adhering to nature. In the following chapter, I will elaborate on what I believe is a substantial difference between such hazards and disasters caused by war, terrorism and crimes (disasters caused by human intent).

2.5 Conclusion: disasters as social phenomena Our understanding of disasters has undergone two scientific revolutions during the last 250 years. The disaster has evolved from a phenomenon understood as Acts of God (a paradigm of divinity), to a phenomenon understood as acts of nature (a paradigm of contingency), to a contemporary understanding of disasters as acts of men and women (a paradigm of vulnerability). Through a presentation of contemporary disaster and risk sociology, I have argued that disasters are social phenomena and should be understood through social systems’ inability to encounter naturally occurring hazards or, more precisely, our social vulnerability. Vulnerability is understood as a property of an object, while risk is a measurement of the probability of this property resulting in the dysfunction of the object. Thus, risk is a way to instrumentalise uncertainty and vulnerability politically, economically and legally. The two concepts are tied narrowly together in the understanding of the disaster as social. Although fundamentally rooted in social vulnerability, the disaster in our public conceptualisation of the phenomenon is inevitably tied to a certain impact or pattern in the social (‘death and destruction’). The stipulation following from this realisation is a political and, as we will see, a legal need to address the identified risks or vulnerabilities. When redefining what was previously conceived as non-social as social, a number of fundamental rationale changes: (. . .) What thus emerges in risk society is the political potential of catastrophes. Averting and managing these can include a reorganisation of power and authority. Risk society is a catastrophic society. In it the exceptional condition threatens to become the norm. (Beck 2008b: 24) This ‘social turn’ in our perception of disasters affects the social, the political and the legal order, and contains the possibility of reorganising the power and authority of society. Thus, the changed conception of disaster can generate new insights into the way in which we theorise the application of law in emergency management. The border between what is perceived as ‘normal’ or respectively ‘extraordinary’ is affected by the reorganisation of the disaster paradigm’s inventory. This book sets out to examine this phenomenon within law: the potential reorganisation of the legal culture solving conflicts resulting from

Disasters 37 the management of disasters. Rather than theorising this dynamic as the ‘exceptional condition’ becoming the norm, as suggested by Ulrich Beck, I will try to analyse it from the opposite position – that the exceptional is being normalised. I will return to this lurch in the following chapter when discussing contemporary emergency theory and in Chapters 4 and 5 when reconstructing the effects in law. Hence, I will embark on a small part of the challenge of the social disaster tentatively to investigate how the departure from the disaster as understood through God or nature affects the legal instruments traditionally applied to tackle crises. In order to do so, contemporary positions on emergency management must be established. The following chapter sets out to construct the field of theoretical positions on emergency management, in order to estimate the need to criticise the theories and/or theoretically reorganise emergency management in legal theory.

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38 Disaster Law Clarke, Lee Ben (2006), Worst Cases: Terror and Catastrophe in the Popular Imagination (Chicago: University of Chicago Press) xi. —— (2008), ‘Possibilistic Thinking: A New Conceptual Tool for Thinking about Extreme Events’ Social Research 75(3) 669–90. Dundes, Alan (1988), ‘Introduction’ in Alan Dundes (ed), The Flood Myth (Berkeley and Los Angeles: University of California Press). Dynes, Russell R. (2000a), ‘The Lisbon Earthquake in 1755: Contested Meanings in the First Modern Disaster’ TsuInfo Alert 2(4) 10–18. —— (2000b), ‘The Dialogue between Voltaire and Rousseau on the Lisbon Earthquake: The Emergence of a Social Science View’ International Journal of Mass Emergencies and Disasters 18(1) 97–115. Dynes, Russell R. and Quarantelli, E.L. (1993), ‘The Place of the 1917 Explosion in Halifax Harbor in the History of Disaster Research: The Work of Samuel H. Prince’ in The 1917 Explosion: Collision in Halifax Harbour and its Consequences (The Gorsebrook Research Institute for Atlantic Studies, St Mary’s University, Halifax). Fonseca, João Duarte (2005), 1755: The Lisbon Earthquake (2nd edn Lisbon: Argumentum). Foucault, Michel (1980), Power/Knowledge: Selected Interviews & Other Writings 1972–1977 (New York: Pantheon Books). Frymer-Kensky, Tikva (1988), ‘The Atrahasis Epic and Its Significance for Our Understanding of Genesis 1–9’ in Alan Dundes (ed), The Flood Myth (Berkeley and Los Angeles: University of California Press). Furedi, F. (2007), ‘The Changing Meaning of Disaster’ Area 39(4) 482–89. Giddens, Anthony (1999), Runaway World: How Globalization is Reshaping Our Lives (London: Profile). Heinrich, H. W. (1931), Industrial Accident Prevention: A Scientific Approach (London: McGraw-Hill). Hobbes, Thomas (1974), Leviathan (London: Fontana). Holm, Isak Winkel (2009), ‘Kleist og katastrofen: Forestillingen om det sårbare samfund’ Kritik 42 37–49. Hultén, Martin (2003), ‘Er verden god? Eller: Den grædende og den leende filosof Rousseaus og Voltaires diskussion om forsyn og fremskridt i midten af det 18. århundrede’ Det onde i litteraturen (København: Akademisk) 78–90. Kelman, Ilan (2012), Disaster Diplomacy. How Disasters Affect Peace and Conflict (New York: Routledge). Kelsen, Hans (1988), ‘Retribution in the Flood and Catastophe Myths’ in Alane Dundes (ed), The Flood Myth (Berkeley and Los Angeles: University of California Press). Killian, L. M. (1954), ‘Some Accomplishments and Some Needs in Disaster Study’ Journal of Social Issues 10 66–72. Korf, Benedikt (2006), ‘Disasters, Generosity and the Other’ The Geographical Journal 172(3) 245–47. Kuhn, Thomas S. (1970), The Structure of Scientific Revolutions (2nd edn Chicago: University of Chicago Press). Latour, Bruno (1993), We Have Never Been Modern (Harvard University Press). Leibniz, G. W. (1988), Theodicy (Peru, IL: Open Court Publishing Co). Locke, John (2004), Second Treatise of Government (New York: Barnes & Noble Books) xv.

Disasters 39 Luhmann, Niklas (1993), Risk: A Sociological Theory (New York: Aldine de Gruyter). Machiavelli, Niccolò and Hobbes, Thomas (1983), The Prince (limited edn Franklin Center, PA: Franklin Library) 517 pp. Machiavelli, Niccolò, Julia Conaway Bondanella and Peter Bondanella (1997), Discourses on Livy (The World’s Classics; Oxford: Oxford University Press) xxxii. Neiman, Susan (2004), Evil in Modern Thought (Princeton: Princeton University Press). Oliver-Smith, Anthony and Susannah M. Hoffman (1999), The Angry Earth: Disaster in Anthropological Perspective (New York: Routledge) xiii. Perrow, Charles (1984), Normal Accidents (New York: Basic Books). —— (2007), The Next Catastrophe (Princeton: Princeton University Press). Perry, Ronald W. (2007), ‘What Is a Disaster?’ in Havidán Rodríguez, Enrico L. Quarantelli and Russell R. Dynes (eds), Handbook of Disaster Research (New York: Springer). Perry, Ronald W. and E. L. Quarantelli (eds) (2005), What is a Disaster: New Answers to Old Questions (International Research Committee on Disasters). Posner, Richard A. (2004), Catastrophe: Risk and Response (Oxford, New York: Oxford University Press) 322. Prince, Samuel Henry (1968), Catastrophe and Social Change, Based Upon a Sociological Study of the Halifax Disaster (1st AMS edn New York: AMS Press) 151 pp. Quarantelli, E. L. (2000), ‘Disaster Planning, Emergency Manangement and Civil Protection: The Historical Development of Organized Efforts to Plan for and to Respond to Disasters’ Preliminary Paper (University of Delaware, Disaster Research Center). —— (2006), ‘Catastrophes are Different from Disasters: Some Implications for Crisis Planning and Managing Drawn from Katrina’ ssrc.org. —— (2009), ‘The Earliest Interest in Disasters and Crises, and the Early Social Science Studies of Disasters, as Seen in a Sociology of Knowledge Perspective’ Working Paper (University of Delaware). Ragona, Maddalena, Francesca Hansstein and Mario Mazzocchi (2011), ‘The financial impact of the volcanic ash crisis on the European airline industry’ in Alberto Alemanno (ed), Governing Disasters. The Challanges of Emergency Risk Regulation (Cheltenham, UK: Edward Elgar). Rasmussen, Mikkel Vedby (2006), The Risk Society at War: Terror, Technology and Strategy in the Twenty-First Century (Cambridge: Cambridge University Press). Reid, H. F. (1979), ‘The Lisbon Earthquake of November 1, 1755’ Bulletin of the Seismological Society of America 4(2) 11–15. Rodrâiguez, Haviââdâan, E. L. Quarantelli and Russell Rowe Dynes (2007), Handbook of Disaster Research (New York: Springer) xxxi, 611. Scanlon, T. Joseph (1988), ‘Disaster’s Little Known Pioneer: Canada’s Samuel Henry Prince’ International Journal of Mass Emergencies and Disasters 6(3) 213–32. Schenk, Gerrit Jasper (2007), ‘Historical Disaster Research. State of Research, Concepts, Methods and Case Studies’ Historical Social Research 32(3) 9–31. Schmitt, Carl (1931), Die Hüter der Verfassung (Beiträge zum öffentlichen Recht der Gegenwart; Tübingen: Mohr) vi. —— (2005), Political Theology: Four Chapters on the Concept of Sovereignty (University of Chicago Press edn Chicago: University of Chicago Press) lii. —— (2006), Die Diktatur: von den Anfängen des modernen Souverätsgedankens bis zum proletarischen Klassenkampf (7th Aufl edn Berlin: Duncker & Humblot) 257 pp.

40 Disaster Law Schumpeter, Joseph A. (2013), Capitalism, Socialism and Democracy (London: Routledge). Sharrock, Wes, Rupert Read (2002), Kuhn: Philosopher of Scientific Revolutions (Key Contemporary Thinkers: Blackwell Publishers Ltd). Smith, Alastair and Flores, Alejandro Quiroz (2013), ‘Disaster Politics. Why Natural Diasters Rock Democracies Less’ Foreign Affairs http://www.foreignaffairs. com/articles/66494/alastair-smith-and-alejandro-quiroz-flores/disaster-politics? cid=soc-twitter-in-snapshots-disaster_politics-111213, accessed 13 November. Taleb, Nassim Nicholas (2010), The Black Swan (London; New York: Penguin Books). —— (2012), Antifragile (London and New York: Allan Lane/Penguin Group). Tierney, Kathleen J., Lindell, Michael K. and Perry, Ronald W. (2001), Facing the Unexpected. Disaster Preparedness and Response in the United States (Natural Hazards and Disasters; Washington, D.C.: Joseph Henry Press). Voltaire (1991), Candide (Mineola, NY: Dover Publications Inc.). Voltaire and others (1977), Poem upon the Lisbon Disaster = Poème sur le désastre de Lisbonne, ou, Examen de cet axiome ‘tout est bien’ (Lincoln, MA: Penmæn Press) 33 pp. Wells, Celia (1995), Negotiating Tragedy: Law and Disasters (Modern Legal Studies; London: Sweet & Maxwell) xxi, 213. Wisner, Ben, Kelman, Ilan and Gaillard, J. C. (2014), ‘Hazard, Vulnerability, Capacity, Risk and Participation’ in Alejandro Lópex-Carresi and others (eds), Disaster Mangement. International Lessons in Risk Reduction, Response and Recovery (Earthscan; London and New York: Routledge). Wisner, Ben and others (2004), At Risk: Natural Hazards, Peoples’s Vulnerability and Disasters (London and New York: Routledge).

3

Exceptions and norms

Emergencies, crisis and necessity have always been central themes in legal theory as well as in state theory. The Italian political philosopher Niccolò Machiavelli’s (1469–1527) ragione di stato (raison d’état) is intimately tied to the notion of necessity (necessitas), which for Machiavelli constituted the main paradigm for the political (Machiavelli and Hobbes 1983); and the Italian historian Santi Romano even considers necessity the true originating source of law (Agamben 2005: 27). In state theory, the emergency has, as mentioned in the previous chapter, been conceived as an opportunity to examine the underlying (real) state architecture. In this theoretical approach, emergencies are conceived as events superseding the thin veneer of legal procedures, rules and principles, and thereby disclosing the underlying structures of power, sovereignty, or chaos (Agamben 2005; Schmitt 2005).1 Thus, it is central to this theoretical approach to assume that law is unable to accommodate crisis. Inherent in this notion of emergency is a presumption of a dichotomy between norms and exceptions (legally), respectively normalcy and emergency (factually). This presumption stipulates that when faced with an emergency, the legal framework will prove unable to accommodate the challenges posed by the emergency, and must therefore be replaced by a regime of exceptions. In the most extreme manifestations of the approach the constitutional state is replaced by a state of exception, a dictatorship or a state of emergency; (non-legal) conditions in which the exception, for a limited period, becomes the norm. This chapter sets out to systemise the existing contributions in legal and state theory on emergencies. The theories will be presented through a number of idealised 2 positions, exemplified through historical and contemporary 1 This idea is obviously not limited to law or political theory. Samuel Henry Prince’s investigation of the Halifax explosion led him to state: ‘A very thin veneer over the primitive tendencies which held sway for ages (. . .) Catastrophe shatters the unsubstantial veneer’; Samuel Henry Prince, Catastrophe and Social Change, Based upon a Sociological Study of the Halifax Disaster (1st AMS edn New York: AMS Press, 1968) at 50. 2 Idealised is in the following used in line with Weber’s ideal types as Gedankenbilder, and thus, as theoretically constructed images capable of accentuating certain features of given

42 Disaster Law cases.3 The aim of the chapter is to construct a typology of emergency powers and critically to reassess the need for a new way of theorising emergency accommodation in light of the social turn in our understanding of disasters. The first section of the chapter will provide an overall architecture of the theoretical field. Thereafter, the chapter will argue that the theoretical field is characterised by two idealised presumptions, before finally formulating a critique of these presumptions and thereby the field as such.

3.1 Idealised positions in emergency theory In the following, a number of different accommodation models will be introduced. As already mentioned, the models often stem from an existing institutional framework.4 This will be used as a structuring element in the following typology of idealised emergency models. Traditionally,5 the executive branch of government is assigned a vital role in emergencies. The description will therefore begin with three different models of executive discretion: legal executive discretion, extra-legal executive

phenomena; see e.g. Max Weber, The Theory of Social and Economic Organization (New York: Free Press, 1968). The chapter applies the concept both as idealised presumptions and idealised positions. Both should be understood in the said understanding of idealisation. 3 The aim is to create a theoretical overview and to visualise differences and strengths between the theories, as well as to identify potential shared presumptions of the theories. Some of the theories might suffer from this generic form of presentation, and thereby the presumption of their conformity and universal applicability; however, I will endeavour to respect the premises and fundamental differences of the theories to the highest possible extent. Characteristic for legal theory in general and perhaps emergency theory in particular, is that the distinction between doctrinal legal analyses and their theoretical permutations is paper-thin. While some of the theories have a distinct theoretic and abstract content (e.g. Carl Schmitt), some of the idealised theories presented are based on readings of existing legal doctrines or institutional models (e.g. martial law and state of siege). However, instead of letting the theories’ asymmetrical presumptions limit the possibility of investigating them as ideas of emergency accommodation they will be expounded as representing idealised positions within the field. To make this possible, a certain measure of violence on the theories’ foundations must be accepted. To a great extent this violent artifice is a shared trade by the gathered theoretical enterprise. Thus, it is a widespread practice in description of emergency theories to deal collaterally with these theories (often even without addressing the problem). See for instance what is widely considered the leading comparative theoretical piece on emergency accommodation, Oren Gross and Fionnuala Nâi Aolâain, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge Studies in International and Comparative Law (Cambridge, England: 1996); Cambridge: Cambridge University Press, 2006) xxix, 481. 4 Theoretical discussions on emergency models often take place as a discussion of legal form as well as legal content. Thus, theories often become amalgams of considerations on the status of the exception, as well as on how and who should be able to access the exception or state of emergency. Hence, it is a discussion on both legal design and legal boundaries, and therefore a theoretical field encompassing both normative and descriptive scholarly efforts. 5 The chapter will address both contemporary and classic theory on emergencies. However, the selection of theories is not historical. The theories are chosen for their position in contemporary theory or their relevance for the development of contemporary theories. The chapter is thereby not aiming to construct a genealogy of the theoretical field, but to reconstruct a number of contemporary theoretical positions.

Exceptions and norms 43 discretion and absolute executive discretion. In particular, the analysis of absolute executive discretion will be developed, as the German politicalphilosopher and lawyer Carl Schmitt’s writings have great importance for the conceptualisation and, not least, problem-identification of the entire field. Thereoafter, two models of legislative accommodation will be presented before finally touching upon an asymmetrical model (a model emphasising the role of the individual, rather than the institutional set-up). Whilst the executive models seem generally well fitted to describe Anglo-Saxon, common law approaches, the legislative models are mainly adhering to a Continental European tradition. They are, however, all influential as perceptions of emergency accommodation, and therefore influential to the relevant actors’ behaviour, rationales and decisions during and after an emergency. 3.1.1 Legal-executive discretion: presidential prerogative, traditional martial law and police powers The following paragraph will investigate emergency accommodation as a norm-based executive prerogative. In this type of emergency accommodation, emergency powers are delegated to an existing (democratic) authority from within the executive branch of government. This includes theories on presidential prerogatives, the doctrine(s) of martial law and so-called police powers. The former US President Theodore Roosevelt (1858–1919) expressed the following conviction after his response to a mining crisis in 1902: ‘Occasionally, great national crisis arise which call for immediate and vigorous executive action, and in such cases it is the duty of the President to act upon the theory that he is the steward of the people’ (Roosevelt 2006: 300).6 According to this accommodation model, the leader of the executive branch is by the constitution7 delegated a prerogative, as ‘the steward of the people’, to defend ‘the people’s’ interests. The presidential prerogative is often considered inherent in the existing constitutional structure, and thereby under judicial as well as political review. In recent years, this position has found support in numerous theoretical contributions, not least in American theory.8 The main apprehension of this 6 As quoted in Jules Lobel, ‘Emergency Power and the the Decline of Liberalism’ Yale Law Journal 98 (1988) at 1399. 7 Constitution is here applied to cover both a formal positive constitution, the presumptions of the authority of state, and the ‘nature of common law’. 8 For a juxtaposed analysis of this tradition and its recent impact, see John Yoo, The Powers of War and Peace (Chicago: University of Chicago Press, 2006); Anders Henriksen, Arven Efter Bush (Copenhagen: Gyldendal, 2009) at 76 ff. John Yoo’s unitary executive theory seems to be the most prominent contribution to this theoretical approach; see Yoo, The Powers of War and Peace, John Yoo, Crisis and Command (New York: Kaplan, 2009). See also Adrian Vermeule and Eric Posner, The Executive Unbound: After the Madisonian Republic (New York: Oxford University Press, 2011).

44 Disaster Law type of emergency accommodation is not to review the material decision of the head of state, but only the limits under which such prerogative can be exercised. Thus, it is often structured as a discussion on the horizontal division of powers within a constitutional order. In a more radical form, executive discretion exists as the institution of martial law. Martial law has been outlined in a number of various ways as either tied to military rule; as referring to internal military norms, or as a general manifestation of the exercise of executive power. Traditional martial law, however, is inseparably tied to the introduction of military rule. In times of crisis, military institutions cede almost absolute power, ultimately replacing courts with military tribunals and the legislative and executive branches with military command. It is a model where an institution part of the constitutional order is delegated extraordinary powers to deal with the challenges of exceptional times. The British constitutional law scholar Albert Venn Dicey refers to this, as martial law in ‘the proper sense of that term’, as ‘a suspension of ordinary law and the temporary government of a country or parts of it by military tribunals’ (Dicey 1959: 287). Although this form is, according to Dicey, ‘unknown to the law of England’ (Dicey 1959: 287), it seems to have great practical relevance today on the global scene.9 The police power is a state power to ‘govern men and things’10 – a nonfederal executive prerogative possessed by the governor or in terms of this typology, another example of legal executive discretion. The doctrine is a state-pendant to the federal war power-doctrine, and is defined as ‘an exercise of the sovereign right of the government to protect the lives, health, morals, comfort, and general welfare of the people’.11 It is to be understood as a legal doctrine that can, in crisis, be proclaimed in support of an unauthorised necessary executive action.12 The doctrine is exclusively accessible to the governor. The authority itself is according to the Supreme Court ‘a vague one which embraces an almost infinite variety of subjects’.13 In an article from

9 It is still unsettled whether the role of the military in Egypt is to be considered constitutional, but what is clear is that the traditional military coup d’etat seem to be moving towards a legal accommodation model since the Cold War. For an impressive study of role of military in democracies see Nikolay Marinov and Hein Goemans, ‘Coups and Democracy’ British Journal of Political Science CJO2013, doi:10.1017/S0007123413000264. 10 License Cases, 46 U.S. 504, 583 (1847). 11 See more in Blaisdell, 290 U.S. at 437 (1934). 12 For a description of the historical emergence of the doctrine of police power in the US federal system, see Markus Dirk Dubber, The Police Power: Partiarchy and the Foundations of American Government (New York: Columbia University Press, 2005). 13 Universal Interpretive Shuttle Corp. v Wash. Metro. Area Transit Comm’n, 393 U.S. 186, 192 n.5 (1968) (quoting Munn v Illinois, 94 U.S. 113, 145 (1877)). See also Michael Cook, ‘“Get out Now or Risk Being Taken out by Force”: Judicial Review of State Government Emergency Power Following a Natural Disaster’ Case Western Reserve Law Review 57/1 (2006–2007) 265–300 at 287 ff.

Exceptions and norms 45 2006, Michael Cook quotes the so-called Slaughter-House case,14 when he states that the police power of a state: (. . .) is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property.15 According to Dubber, the police powers are the ‘most expansive, and most amorphous, of governmental powers’ (Dubber 2005: xi); yet, in light of some of the following accommodation models, this is hardly the case. It is, however, clearly another ‘idiom of apologetic which belong to the vocabulary of constitutional law’ (Dubber 2005: xiv; Novak 1994: 1085), and thereby comparable to the above-mentioned doctrines. When following the rationale of the legal executive discretion models, the central legal question becomes whether the decision is within the boundaries of the relevant executive prerogative, and/or whether the relevant constitutional procedure of such decisions is observed. The model thereby invites us to discuss the horizontal power division rather than the vertical question of the decisions’ compliance with superior or pre-existing law. Decisions will often be subject to both political and judicial review, although both the judicial and legislative branches will be hesitant to review the legal content of the decision (as it would be considered a prerogative of the governor or president). In simpler terms, the decision rests on the execution of an executive prerogative, prescribed by law, or inherent in the constitution and subject to both political and judicial review. 3.1.2 Extra-legal executive discretion: the Lockian prerogative and extra-legality The first model of executive power offered above is closely connected to the model described in the following. However, while the exercise of the prerogative described above rests on a legally designated discretion, the extra-legal executive discretion is non-legal (or rather extra-legal). It is, in the words of American legal theorist Mark Tushnet, ‘“reviewed” – and disciplined – not by law but by a mobilized citizenry’ (Tushnet 2005: 46). The idea of extra-legality stipulates that a certain group of actions done contrary to law should neither be considered legal nor illegal; rather, they should be understood as non-legal or extra-legal – as an inherent set of 14 See 83 U.S. 36, 62 (1872). 15 See furthermore Hamilton v Ky. Distilleries & Warehouse Co., 251 U.S. 146, 156 (1919), in which the Supreme Court states that: ‘Police power is inherent in the sovereignty of every state and is reserved to the states through the Tenth Amendment’.

46 Disaster Law extraordinary powers not sustained by law, and therefore not reviewable or controlled by law.16 In his Two Treatises on Government (Book II), the English political philosopher John Locke (1632–1704) considers how to secure the liberal order and simultaneously permit the executive power the necessary flexibility effectively to deal with unforeseen challenges (Locke 1988: §§ 159–68). For Locke, the answer is, for ‘the good of the society’,17 to leave ‘several things (. . .) to the discretion of him that has the executive power’ (Locke 1988: § 159). This discretion compiles into Locke’s concept of the prerogative. A discretionary margin left to the ruler, for her to apply for the good of society, in cases where ‘the legislator [is] not being able to foresee and provide by laws for all that may be useful to the community’ (Locke 1988: § 159). In other words, the ruler, who possesses the prerogative ‘has by the common law of Nature a right to make use of it for the good of the society’ (Locke 1988: § 159). The application of the prerogative seems intended to be available in a broader context, but is to be applied more intensely in emergencies: For since many accidents may happen wherein a strict and rigid observation of the laws may do harm, as not to pull down an innocent man’s house to stop the fire when the next to it is burning; and a man may come sometimes within the reach of the law, which makes no distinction of persons, by an action that may deserve reward and pardon; it is fit the ruler should have a power in many cases to mitigate the severity of law, and pardon some offenders, since the end of government being the preservation of all as much as may be, even the guilty are to be spared where it can prove no prejudice to the innocent. (Locke 1988: § 159) The prerogative is exercised ‘without a rule’ (Locke 1988: § 166), and ‘sometimes even against it’ (Locke 1988: § 160). Thus, the Lockian prerogative is as an extra-legal competence for the ruler (the executive authority) to put aside norms for the benefit of the society as such. Should the prerogative be misused (that is, not applied for the benefit of the people), it ‘gives the people an occasion to claim their right and limit that power, which, whilst it was 16 As we shall see below Gross’ extra-legality differs from this notion. Gross main point is of a more normative, accommodative character, as he demands explicit acquiescence. I shall return to this in further detail below. 17 Granting a certain resemblance with Cicero’s doctrine, Salus populi suprema lex esto (‘The welfare of the people is the supreme law’); see Marcus Tullius Cicero, Niall Rudd and J. G. F. Powell, The Republic and the Laws (Oxford World’s Classics; Oxford; New York: Oxford University Press, 2008) xliii, 242 pp. at book III, part III, sub. VIII. John Locke later uses the doctrine of Salus populi to describe the fundamental rules of government; see John Locke, Second Treatise of Government (New York: Barnes & Noble Books, 2004) xv, 154 pp. For an updated use of Locke’s concepts, see Martin Loughlin, The Idea of Public Law (Oxford: Oxford University Press, 2003).

Exceptions and norms 47 exercised for their good, they were content should be tacitly allowed’ (Locke 1988: § 164). Hence, abuse of power should be sanctioned on the people’s initiative. Should the people choose not to revolt or respond otherwise, the actions of the ruler are, in the words of the Israeli legal theorist Oren Gross, ratified by an ‘implicit, general, ex ante public acquiescence’ (Gross 2003: 1104). Oren Gross himself is an exponent of a modern approach to extra-legality. According to Gross: ‘there may be circumstances where the appropriate method of tackling extremely grave national dangers and threats entail going outside the legal order, at times even violating otherwise accepted constitutional principles’ (Gross 2003: 1097). Where ‘Locke seems to put his trust in an implicit, general, ex ante public acquiescence in the exercise of such power, I [Gross] would argue that an explicit, particular, ex post ratification (or rejection) of the same is preferable’ (Gross 2003: 1104). Gross’s approach is based on three presumptions: ‘(1) emergencies call for extraordinary governmental response; (2) constitutional arguments have not greatly constrained any government faced with the need to respond to such emergencies; and (3) there is a strong probability that measures used by the government in emergencies will eventually seep into the legal system even after the crisis has ended’ (Gross 2003: 1097). Gross aims to place the risk of an extra-legal action with the violator (e.g. a public official or politically appointed leader) and let them take the responsibility while ‘openly acknowledging their actions’ (Gross 2003: 1099). It should thereafter be left to the people, ‘either directly or indirectly, how to respond ex post to such extralegal actions’ (Gross 2003: 1099). By this, Gross emphasises that legal order should never a priori legitimise extraordinary action, and thereby he instates or supports ‘an ethic of responsibility’ (Gross 2003: 1099) and maintains law immaculate. Thus, Gross shares a basic logic with Locke; the emergency actions are not to be considered legal; rather, they are extra-legal in the sense that (a) the action should not create precedence for the exercise of the prerogative for future responders and (b) it is not sanctioned by or reviewed in accordance with law.18 The idea of how these (non-legal) actions should be (ethically or 18 Historic references both in US case law and constitutional theory is plentiful. The former US president, Thomas Jefferson, once asked on the exercise of authority stated: ‘A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means (. . .) The officer who is called to act on this superior ground, does indeed risk himself on the justice of the controlling powers of the Constitution, and his station makes it his duty to incur that risk (. . .) The line of discrimination between cases may be difficult; but the good officer is bound to draw it at his own peril, and throw himself on the justice of his country and the rectitude of his motives’, as quoted in Lobel, ‘Emergency Power and the the Decline of Liberalism’ (at 1383). Furthermore, in US case law the exercise of ideas of extra-legality can

48 Disaster Law potentially politically) sanctioned by the affected citizenry then becomes a matter of preferred design. 3.1.3 Absolute executive discretion: the Schmittian exception No one has had greater influence on the theoretical discussions developing through the last century than the German jurist and political philosopher Carl Schmitt. The theory and thinking of Carl Schmitt play a central role in general writings on emergency accommodation, if not as a theoretical basis, then as a basis for dissociation and thereby positioning.19 A more thorough investigation of Schmitt’s concepts will therefore be conducted and a short critique of Schmitt presented. Schmitt’s writings are often mistaken for an attempt to devise a theory on emergencies. However, Carl Schmitt’s main purpose was to create a theory of the state or, more precisely, to reactualise a theory of sovereignty. Schmitt saw the liberal democracies emerging in the aftermath of the First World War as systems excluding the political from the state, and the aim of his work is therefore dedicated to close this gap by remerging the (civil) society with the state. The emergency does play a central role in Schmitt’s state theory. For Schmitt, the crisis of state (the emergency) is an opportunity to examine or observe the foundations of the state as such. For that reason, Schmitt is often read as an emergency theorist and takes a prominent position in the field of emergency theories. However, before embarking on the investigation of Schmitt’s emergency theory, I will in the following paragraphs provide a brief general introduction to Schmitt’s thinking and concept of law. The raison d’état for Schmitt is developed by distinguishing between friend and enemy (Schmitt 2007). The main reason of the state is, according to Schmitt, not to express the will of the people or to secure the exercise of their rights, but instead to prevent enemies from intruding and thereby securing the safety of its citizens (friends).20 Following this presumption, an emergency (Nottfall) according to Carl Schmitt is not characterised by an infringement of citizens’ rights or by natural hazards, but by the intrusion of an enemy. be seen in Little v Bareme, 6 U.S. (2 Cranch) 170 (1804). For a historical encounter of extralegality in a US context, see Sofaer, ‘Emergency Power and the Hero of New Orleans’ Cardozo Law Review 2 (1981). 19 Dyzenhaus and other suggests that the obligingness towards Schmitt, in fact is an expression of a strengthening of the liberal order; see David Dyzenhaus, ‘The Compulsion of Legality’, in Victor Ramraj (ed), Emergencies and the Limits of Legality (Cambridge: Cambridge University Press, 2008) at 33. However, to me, this argument seems very weak and basically unfounded in the field. 20 Schmitt claims in support of his friend/enemy dichotomy that a unified German people can be identified. This group of friends is defined to be an ‘utterly homogeneous group’; see David Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelson, and Hermann Heller in Weimar (Oxford, New York: Clarendon Press; Oxford University Press, 1997) xiv, 283 at 14.

Exceptions and norms 49 Carl Schmitt was a conservative thinker, a decisionist and an authoritarian. He positions himself in opposition to the normativism that dominated the legal theory in the German-speaking world in the 1920s and 1930s, most prominently the Austrian legal philosopher Hans Kelsen’s legal positivism. For Schmitt, the assumption of a Grundnorm or any positive basis for law is a misperception, as autoritas, non veritas facit legem (‘authority, not truth makes law’) (Hobbes 1974: Chapter XXVI). For Schmitt, this entails that ‘like every other order, the legal order rests on a decision and not on a norm’ (Schmitt 2005: 10). An important part of understanding Carl Schmitt is therefore embedded in his assumption of norm’s point of ascription (Zurechnungspunkt) (Schmitt 1996). In Schmitt’s theoretical framework, norms are, ultimately, based on sovereign exercise of authority. Schmitt thereby simultaneously challenges the positivists dominating the legal thinking of his time, for instance Kelsen’s Grundnorm, and the conventionalistic natural law thinkers, who assume the foundation of law to be morality, God or nature. In Schmitt’s thinking, law is not a system or order separable from the political and it derives from neither nature nor God. It can therefore be altered, changed or replaced at the will of a sovereign recognised by the social unit. In fewer words, the state is not constituted by rules, but rests on the authority of a sovereign. Schmitt’s basic fear is that the French post-revolutionary detachment of legitimacy, in his own words ‘the democratic notion of legitimacy’ replacing ‘the monarchical’ (Schmitt 2005: 51), has made the modern liberal order incapable of efficiently tackling crisis and that this incapability will lead to the collapse of the state as such. The liberal democracies are, according to Schmitt, incapable of guaranteeing the security of its citizens because of its mechanic focus on individual rights rather than the prevention of the enemy from intruding. The mechanical right-based model embedded in the liberal democratic state, according to Schmitt, is not only a threat towards the being of the state, but it systematically excludes the political from the society – thereby preventing the state from defining a political unity and effectively protecting it. Schmitt’s project in this regard becomes one of designing a state theory that can re-merge the civil with the state, and thereby reintroduce the political. As the legal order is not capable of dealing with the emergency (which is defined as a threat towards the raison d’état: the security of its friends), substantiating it becomes superfluous. In Schmitt’s own words, ‘the state suspends the law in the exception on the basis of its rights to self-preservation, as one would say’ (Schmitt 2005: 12).21 For Schmitt the being of the state, 21 The American Professor of philosophy Samuel Weber excellently clarifies this contradiction with regard to Schmitt’s general thinking (to base the decision on a norm, which it simultaneously refutes): ‘The paradox or aporia of Schmitt’s position is suggested here by the conclusion of the passage just quoted. For if the “decision” is as radically independent of the norm as Schmitt claims, it is difficult to see how the decision of the state to suspend its laws can be justified at all, since all justification involves precisely the appeal to a norm. This is why, in appealing to a “right to self-preservation,” Schmitt acknowledges that the term is

50 Disaster Law ontologically speaking, goes far beyond the maintenance of its legal order. Thus, what Schmitt refers to as the sovereign reveals herself in emergencies as a protector (or Hüter22) of the main reason and legitimacy of the state: the security of its citizens. Schmitt attaches therefore, as already mentioned, great importance to the emergency. His basic presumption is that crisis is ‘more interesting than the rule’, since ‘it confirms not only the rule but also its existence, which derives only from the exception’.23 The latent decision on the exception resembles the decision founding the order as such, ‘the decision on the exception is a decision in the true sense of the word’ (Schmitt 2005: 6). Thus, it is not a decision made with reference to a (legal) norm, but a decision based directly on the authority of the decision-maker. Based on this shortly sketched introduction to Schmitt’s thinking, it is perhaps possible more clearly to understand Schmitt’s most famous maxim, by which he opens Political Theology from 1921: ‘Suverän ist, wer über den Ausnahmezustand entsheided’ (Schmitt 1996: 1) (‘Sovereign is, he who decides on the exception’ (Schmitt 2005: 5)). With this maxim Schmitt ties his notion of sovereignty to the (legal) exception. The decision on the exception serves as a window through which the sovereign reveals herself (in times of crisis). It is a display of authority penetrating law (as law ultimately rests on this authority), and sovereign is she who possesses the possibility of exercising this authority.24 It is for that reason that it is crucial for Schmitt to underline that the exception is ‘distinguishable from juristic chaos’ (Schmitt 2005: xlii–xliii): it is in fact the opposite of anarchy or juristic chaos. It is a rare opportunity to examine the true original source of law. Schmitt’s overall project could therefore, in line with the Italian aesthete Giorgio Agamben’s claim, be seen as an attempt to anchor the exception to the legal order, by tying it to the notions of sovereignty and decision (Agamben 2005: 59).25

22

23 24

25

more “a way of speaking” than a rigorous concept’; see Samuel Weber, ‘Taken Exception to Decision: Walter Benjamin and Carl Schmitt’ Diacritics 22/3/4 (1992) 5–18 at 10. The solution that Carl Schmitt presents us with in his work from 1931, Der Hüter der Verfassung, is the introduction of a neutral constitutional bulwark; a pouvoir neutre (a neutral power), safeguarding the real interest of the legal order, namely the maintenance of the order and safety of its citizens. This notion of a protector of the state, has been heavily criticised; see most prominently Hans Kelsen, Wer Soll Der Hüter Der Verfassung Sein? Abhandlungen Zur Theorie Der Verfassungsgerichtsbarkeit in Der Pluralistischen, Parlamentarischen Demokratie (Robert Christian van Ooyen, Tübingen: Mohr Siebeck GmbH & Co KG, 2008). A philosophical idiom borrowed from the Danish philosopher Kierkegaard’s Repetition from 1883. Disregarding if the authority is actively displayed, Agamben conceptualises in State of Exception this potentiality of the exception as the permanent state of exception, using the words of Walter Benjamin: ‘the state of exception . . . has become the rule’ as quoted in Giorgio Agamben, State of Exception (Chicago: University of Chicago Press, 2005) at 6. This position is formulated as an implicit answer to the German philosopher Walter Benjamin, who some years before the publication of Political Theology published the essay A Critique of Violence. In the essay Benjamin examines violence and constructs from it

Exceptions and norms 51 To illustrate this, Schmitt claims that ‘the exception in jurisprudence is analogous to the miracle in theology’ (Schmitt 2005: 36). God created the world (and the laws of nature) and the function of the world is based on her authority. When God intervenes in her creation and thereby displays her authority, it is a miracle. The divine intervention is thereby understood through the concept of the miracle. The miracle is intangible and irrational seen from the laws of nature; however, at the same time its exercise is inseparable from these laws (as it is defined by the defiance of these law). Thus, it is only in contrast to the laws of nature that the intervention becomes a miracle. This duality is central in Schmitt’s characterisation of the sovereign:26 (. . .) although he [the sovereign] stands outside the normally valid legal system, he nevertheless belongs to it, for it is he who must decide whether the constitution needs to be suspended in its entirety’. (Schmitt 2005: 7) The authority according to Schmitt is something that works from behind law, something superior to which law belongs. The best possibility to observe sovereignty exercised thereby becomes crisis, and more than any, Schmitt thereby positions the state of exception in the core of state theory. Obviously, the requirement to necessity or emergency is idle for everyone but the sovereign herself, since the sovereign decides not only on the exception (Ausnahmezustand), but also on the categorisation of an emergency (Notfall) and thereby poses absolute discretion. One of Schmitt’s contributions to the field of emergency theories is his definition of the character of emergency. Schmitt consequently changes between the concepts of exception (Ausnahmefall/Ausnahmezustand) and a typology used to diagnose society. For Benjamin, divine violence or pure violence is sovereign violence; Walter Benjamin, ‘Zur Kritik Der Gewalt’, Gesammelte Schriften (Frankfurt am Main: Suhrkamp Verlag, 1991). Sovereignty is therefore something inaccessible, unattainable and perhaps most importantly unexplainable (it transcends law and society – in fact transcendence is its being). Thus, it is not bound to or by the state; it is per definition anchored outside the state, beyond the reach of the state. Schmitt’s aim is to make the exception accessible to the state again – to anchor sovereignty to the state permanently. For a much more deliberate analysis of the relationship between Schmitt and Benjamin, see Horst Bredekamp, ‘From Walter Benjamin to Carl Schmitt, Via Thomas Hobbes’ Critical Inquiry 25/2 (1999) 247–66, or Weber, ‘Taken Exception to Decision: Walter Benjamin and Carl Schmitt’. Benjamin is in many ways in agreement with Schmitt, but as Schmitt as a conservative thinker idealises the order, by perceiving this as inherent in sovereignty, Benjamin as a communist idealises the revolt against the order – the revolution. Both authors writing seems furthermore intimately influenced by their respective beliefsystems, Schmitt being a practising catholic (considering in his youth to become a priest), and Benjamin a practising member of the Jewish community. 26 To be sure of the reader’s understanding of the analogy Schmitt quotes the French philosopher René Descartes: ‘It is God who established these laws in nature just as a king establishes laws in his kingdom’; see Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (University of Chicago Press edn Chicago: University of Chicago Press, 2005) lii, 70 pp at 47.

52 Disaster Law emergency (Notfall), the former referring to the legal order and the latter to the factual circumstances.27 According to Schmitt, emergencies ‘cannot be anticipated, nor can one spell out what may take place in such a case, especially when it is truly a matter of an extreme emergency and of how it is to be eliminated’ (Schmitt 2005: 6). Hence, Schmitt presumes that emergencies (according to their definition) can never be anticipated, and subsequently that regulation of procedures or material emergency provisions will not ever surmount the challenge of the emergency. As I hope to argue later in this volume, Schmitt is far from right; the modern conception of disasters and not least the diverted juridification of the disaster functionally contradicts this presumption. It seems obvious to grant Schmitt that emergencies cannot all be anticipated, or rather that emergencies are often unanticipated; however, once the focus changes from prevention to resilience and from accommodation to management the understanding of the emergency changes character. The strict dichotomies between norm and exception or between order and chaos used as a presumption for Schmitt’s rationale become increasingly difficult to sustain, as law expands its province and function. Rather than observing the legal order as merely rules, mature modern law applies principles to mitigate the gaps or dilemmas arising from emergency accommodation. I shall return to this in detail in the following critique. In Political Theology, Schmitt himself indirectly pronounces the normativity of his theoretical presumption when stating, ‘whether the extreme exception can be banished from the world is not a juristic question’ (Schmitt 2005: 7).28 Rather, according to Schmitt it is a question based on ‘philosophical, especially on philosophical-historical or metaphysical, convictions’ (Schmitt 2005: 7). It is according to Schmitt not a question to be settled through legal arguments, but a question of a more fundamental conviction. In line with the Canadian legal philosopher David Dyzenhaus, I disagree with this presumption, and will attempt to formulate a legal response later in the volume. However, in all fairness to Schmitt’s theory, it is improbable that the incidents I refer to as disasters all would (if any at all) amount to an emergency in a Schmittian sense (an extreme peril threatening the state). Whilst the emergency theories described above all focus on the executive branch’s exclusive position to put aside the legal order in times of emergency, two overall models of legislative accommodation will be touched upon in the following.

27 His general application of the concepts of emergency and exception however suggests that the limits between the concepts are at best indistinct. 28 David Dyzenhaus refers to this as Carl Schmitt’s challenge; see David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge; New York: Cambridge University Press, 2006) xv, 250 pp at 35 ff.

Exceptions and norms 53 3.1.4 Legislative accommodation: the enabling act In my examination of emergency accommodation theories, I have found that one historic model, more than any, constitutes the point of departure for the theoretical enterprise: the Roman dictatorship. In times of exigency, a supreme ruler (a dictator) was appointed for a limited period of time, without possibility of reappointment or prolongation with the single purpose of reestablishing the normative order ex ante (Gross and Nâi Aolâain 2006: 20–26). The dictator was considered a politically appointed magistrate with supreme powers referred to as a magistratus extraordinarius, and was exempted from liability of any kind for her actions during the dictatorship. There could never at one time be more than one dictator – a rare, standing exception to the collegial principle otherwise exercised in Rome. During the dictatorship, the appointed dictator possessed almost absolute power; a dictator rei gerundae causa29 or what Carl Schmitt terms a commissarial dictator (Schmitt 2006).30 The dictatorship was an integral part of the Roman constitution; thus, the dictator entering absolute power paradoxically diverted her authority explicitly from the constitution. The only material limitation to the authority of dictatorship therefore was the object itself – the restoration of the republic ex ante and the protection of the Roman constitution. As a result of this object, the dictator was unable to change the fundamental institutional design of the state (and thereby maintaining power31). The main role of the dictator was preventive or defensive (Gross and Nâi Aolâain 2006: 22; Rossiter 1948: 24).32 In the dictatorship, the ‘norm’ and the ‘exception’ become (both as legal concepts and in the state’s institutional design) analytical border concepts covering all accounts of situations – either something is part of the normal legal order (normality/norm) or it is not (emergency/exception).33 The actions of the dictator were therefore not subject to judicial review.

29 ‘A Dictator for getting things done.’ 30 The French philosopher Jean-Jacques Rousseau was an enthusiastic supporter of the institution. In Rousseau’s Du Contrat Social from 1762, he advocates a version in which a ‘supreme ruler’, almost identical with the Roman dictator, were opposed by a legislator. The supreme ruler should be inaugurated for a limited period to resolve a crisis, and in the words of Rousseau be able to ‘do anything, except make laws’; see Jean-Jacques Rousseau and others, The Social Contract and Discourses (London, Rutland, VT: J. M. Dent; C. E. Tuttle Co., 1986) liv, 362 pp at 294, including passing and executing judgments. 31 L. Cornelius Sulla, who ruled as ‘emperor’ of Rome from 83 to 79 BC, was however appointed to redraft the republican constitution. 32 See otherwise N. C. Lazar, The Ethics of Emergency Powers (Yale University Doctor of Philosophy, 2005). 33 This line of thinking is parallel to Ronald Dworkin’s in his article ‘No Right Answer?’, in which he discusses the possibility of the existence of a logical space between concepts is introduced; see H. L. A. Hart, P. M. S. Hacker and J. Raz, Law, Morality and Society (Oxford: Clarendon Press, 1977) vi, 312 pp at 65.

54 Disaster Law The period of the dictatorship was traditionally six months – a timeframe only violated a few times34 and most probably effective because of the difficulty in leading a military campaign during winter (Gross and Nâi Aolâain 2006: 22). Furthermore, a number of safeguards were tied to the appointment and exercise of the powers implemented in the institutional architecture.35 Based on the dictatorship a large group of accommodation-models has been developed, not least the above-mentioned executive prerogatives, in which the legitimacy of the institution is implicit or inherent in the constitutional structure and activated through executive decision.36 In the following, a version more directly in line with the Roman dictatorship will be examined. Rather than basing the dictator’s executive action on an existing or implicit delegation, the explicit introduction of an act enabling the dictatorship is necessary – an institution only activated through an explicit and independent consent by the legislative branch, often referred to as an ‘enabling act’. The New York-based professors John Ferejohn and Pasquale Pasquino present, in their typology of emergency powers, a ‘neo-Roman model’ (Ferejohn and Pasquino 2004: 213). Instead of appointing a person with no relation to the government (as in the Roman model), a person within the government is appointed – most commonly an elected president. The main difference is therefore the criterion on which the person is appointed: ‘While the Roman dictator was chosen from among men of special virtues and abilities, in the newer scheme of things the person who is to wield emergency powers enjoys a kind of popular or democratic mandate’ (Ferejohn and Pasquino 2004: 213).37 The weight in the legitimacy of the appointed dictator shifts from an individual basis to a democratic or collective basis. The neo-Roman model does not entail an institutional separation between authorities during normal and exceptional times (merely a normative, legal one), and thereby diverts 34 Most famously Cornelius Sulla and, not least, Gaius Julius Caesar, who from 48 BC until his death in 44 BC could be said to have changed the Roman Republic into the Roman Empire. 35 For a more elaborate description of the limitations in the dictatorship, see Gross and Nâi Aolâain, Law in Times of Crisis: Emergency Powers in Theory and Practice at 21–26. 36 Public calls for a somewhat similar construction in US emergency have been voiced in the aftermath of hurricane Katrina. These calls have been for a so-called disaster tsar or recovery tsar, a construction similar to Hoover during the response to the Great Mississippi Flood of 1927. In 1927 President Calvin Coolidge made a quasi-governmental commission (cabinet and Red Cross), seated under Secretary Hoover, with the authority to deal with the recovery controlling federal, regional and local authorities. On the possibility of reviving such an institution, see Daniel Farber and Jim Chen, Disasters and the Law: Katrina and Beyond (New York: Aspen Publishers, 2006) xxii, 348 pp at 93 ff. When referring to a US model, the reader must again bear in mind the idealised positions applied in this chapter. 37 The extolled Lucius Quinctius Cincinnatus is an often applied example in the theory of the dictatorship, when exemplifying a man of virtue.

Exceptions and norms 55 from the Roman dictatorship. The model is very similar to the legal executive discretion model described above, however, only enabled by an explicit legislative initiative. The central legal question is often, as in the legal executive discretionmodel above, what is allowed under the scope and content of the delegation, and hence the following legal analysis of the enabling act. 3.1.5 Legislative accommodation: legality and the état de siège While a number of the traditional models seem to assume that emergencies cannot efficiently be met through legal instruments, other models base themselves on exactly the opposite presumption. The Canadian philosopher David Dyzenhaus suggests in his book from 2006, The Constitution of Law, in a direct answer to what he refers to as Carl Schmitt’s challenge (‘whether the extreme exception can be banished from the world is not a juristic question’ (Schmitt 2005: 7)), that ‘the exception can be banished from the legal order’ (Dyzenhaus 2006: 53). This means that ‘states of emergency can be governed by the rule of law’ (Dyzenhaus 2006: 53). In order to exemplify this model, this short idealised typology will investigate a related historic institution – the state of siege.38 The French état de siège or state of siege is the centrepiece of the American political scientist Clinton Rossiter’s theoretical institution: the constitutional dictatorship. According to Rossiter: ‘it is in this typically French solution to the ancient problem of constitutional dictatorship that modern emergency government reaches its peak of institutional and legal perfection’ (Rossiter 2002: 79). The état de siège is, in the words of Rossiter, ‘a legally anticipated device to place the nation in a state of emergency’ (C. Rossiter 2002: 79), a model in which all particularities of the exercised authority are prescribed by norms. The basic presumption of the state of siege is that ‘emergencies can be anticipated and counter-measures can be put in place by promulgating comprehensive legal rules ex ante’ (Gross and Nâi Aolâain 2006: 27). The solution thereby seems to be related to the republican model suggested by the Italian philosopher Niccolò Machiavelli (1469–1527) in Discourses on 38 The most (in)famous use of the state of siege is the French president Raymond Poincaré’s declaration of state of siege for all of France on 2 August 2 1914 for the duration of the ongoing First World War. Although later reaffirmed by an act of parliament, this was hardly an application in line with the intentions of the institution. The president was furthermore referred the competence to extend or terminate the state of siege, again in contradiction to the original intensions behind the application of the institution. Similarly, the Poincaré government ceded significant emergency-powers by delegation through the 1920s economic crisis in France, contrary to the purpose of the state of siege, traditionally only applicable during violent crisis (Gross and Nâi Aolâain 2006: 29). The over-excessive use of the emergency powers eventually led to the fall of the third French republic and of the state of siege as the model described above. The Poincaré crisis seems to illustrate the main problem of assigning emergency powers by delegation, as it contains, like every other emergency accommodation model, a substantial risk of snowball effect.

56 Disaster Law Livy, able to accommodate ‘(. . .) for everything with its laws and has established a remedy for every accident and given the mode to govern it’ (Machiavelli and others 1997: 10): a system of ‘extreme legality’ (Rossiter 2002: 79). During a state of siege, the basic institutional division between the branches of the state does not change unless explicitly authorised by legal delegation. While other models leave nothing but the exception to the rule in times of exigency, the state of siege’s main function is the exact opposite: to maintain the validity of the norm at all costs. During a state of siege all constitutional rights are upheld unless ‘such rights were not legitimately suspended under the state of siege’ (Gross and Nâi Aolâain 2006: 28). According to Rossiter, three characteristics can be identified: ‘(1) the stamp of legality; (2) its thorough regulation by statute’ [numbers added]; and (3) ‘(. . .) parliamentary supremacy’ (Rossiter 2002: 83). In crisis, the parliament plays the role of both architect and entrepreneur. The French Minister of Justice Jules Dufaure even characterised the system as ‘parliamentary dictatorship’ at the institution’s introduction in 1879 (Rossiter 2002: 84). In addition, Dufaure thereby underlined the principal premises for the system – that ‘the right to suspend the rule of the laws can belong to no one but the power which makes them’.39 In the following, one further model will briefly be investigated before concluding the chapter. It is characterised by relying on the state; the model discusses necessity as an individual privilege, and is thus a model anchoring the right to self-defence outside the state architecture. 3.1.6 Individual discretion: Dicey’s martial law and necessity The English legal theorist Albert Venn Dicey is an exponent for a ‘modern’ version of martial law.40 According to Dicey, martial law is based on the common law right to repel force by force, and ‘has in itself no special connection with the existence of an armed force’ (Dicey 1959: 288). Rather, martial law in Dicey’s understanding is applicable to ‘every subject, whether a civilian or a soldier, whether what is called a “servant to the government”, such as a policeman, or a person in no way connected with the administration, not only has the right, but is, as a matter of legal duty, bound to assist

39 Franck-Chaveau in the Chamber of Deputies (6 February 1878) Journal Officiel (7 February 1878) as quoted in Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Piscataway, NJ: Transaction Publishers, 2002) at 84. In a sense it is a point that aligns the model with Carl Schmitt, although disagreeing on where the adherence of the real power to change the law lies. 40 See also Edward S. Corwin for whom martial law is a ‘general term for the operation in situations of public emergency of certain well known principles of the common law – the right of self-defense of the individual’; Gross and Nâi Aolâain, Law in Times of Crisis: Emergency Powers in Theory and Practice at 33; Edward S. Corwin, ‘Martial Law, Yesterday and Today’ Political Science Quarterly 47 (1932) at 97.

Exceptions and norms 57 in putting down breaches of the peace’ (Dicey 1959: 288). Everybody therefore has a duty to ‘put down breaches of the peace, such as riots and other disturbances; they are, each and all of them, authorised to employ so much force, even to the taking of life, as may be necessary for that purpose’ (Dicey 1959: 189). None of the individuals acting in accordance with this doctrine, however, is exempt from liability for their actions. For Dicey, the duty to repel force by force gives the right to do ‘as may be necessary’; however, actions done are not exempted from review and potential liability: The kind and degree of force which it is lawful to use in order to down a riot, is determined by nothing else than the necessity of the case (Dicey 1959: 290). This means that in principle there are no absolute limits to the exercise of power in necessity, and the exercise of this power should, in principle, be accessible for everyone. However, the final determination of whether or not an action was necessary should be made by a judge or jury (Dicey 1959: 291), and the burden of proof should be placed upon the person who invoked the defence of necessity. Thus, the exercise of necessity is fundamentally legal, and can (and should) be legally reviewed. For Dicey, the privilege is preventive in nature41 (Gross and Nâi Aolâain 2006: 32), as opposed to punitive or progressive privileges. Hence, the exercise of ‘martial law’ (in Dicey’s version) can only be carried out when actually faced with a threat or emergency (and not anticipatory). The legal right described by Dicey is very closely related to the continental concepts of private and public necessity, self-defence and negotiorum gestio translated into an institutional or quasi-institutional setting. The continental version of necessity42 is a doctrine allegedly based on the legal maxim that ‘necessity knows no law’.43 The doctrine originates from the early Middle Ages, and is most famously manifested in Gratian’s Decretum: Quia enim necessitas non habet legem, set ipsa sibi facit legem (‘Necessity knows no law, but makes law’). Necessity essentially gives the right to derogate proportionately from a norm during a crisis, in order to safeguard a more valuable utility than the one endangered. Applying a model (in a sense, a non-model) of individual discretion to an emergency, no special constitutional or institutional arrangements would be invoked. The necessary (illegal or extralegal) actions to encounter the peril invoked by a natural hazard would be left to anyone to perform, and the 41 For the opposite view, see Frederick Pollock, ‘What Is Martial Law’ Law Quarterly Review 70 (1902) at 156. 42 The figure exists in common law as well; see for instance the US Supreme Court case David D. Mitchell v Manuel X. Harmony, 59 U.S. 115 (1851) or in the context of natural disasters see Cope v Sharpe [1912] 1 KB 496; Bishop & Parsons v Mayor of Macon, 7 Ga. 200, 1849 WL 1663 (1849); Vincent et al v Lake Erie Transp. Co. (1910) 109 Minn. 456, 124 N.W. 221; Ploof v Putnam (1908) 81 Vt. 471, 71 A. 188; and in that context see Southport Corp. v Esso Petroleum Co [1953] 2 All ER 1204, 1209–10 (QB). 43 In German law Not kennt kein Gebot and in Roman law necessitas non habet legem.

58 Disaster Law response of the hazard to those authorities also responsible in normal times.44 A subsequent judicial review of the decision should assess the necessity of the action and the character of the threat. Above, I have outlined a rough typology of different legal models of emergency accommodation. In the following ‘bridge’, I will argue that the theories of emergency accommodation share a number of problems and presumptions in the way they approach and conceptualise emergency accommodation. The aim of the bridge is to prepare a case for the formulation of a critique of the emergency theories.

3.2 Bridge: problems and presumptions of the theoretical field The theoretical field outlined above revolves around three problems: (1) can law effectively accommodate crisis; (2) what is the legal status of ‘exceptions’ vis-à-vis the normal legal order in emergency accommodation; and (3) who can/should be able access these emergency powers (exceptions)? These three problems seem common and topical for the different models of discussions on emergency accommodation. Hence, all the theories mentioned attempt to answer these questions from different organisational and/or theoretical perspectives. Some of the theories focus on the content and characterisation of the exception, discussing whether actions taking place outside the positive legal order are legal, illegal or extra-legal, while other theories focus on institutional design and thereby on issues of democratic legitimacy, the balance of powers or the constitution of the state itself. In the attempts to solve these problems the field shares a number of presumptions. I will specifically focus on, and in the following chapter criticise, two of these presumptions: (1) that emergencies are generic and their effective accommodation is mainly an internal state-architectural question and (2) an enforceable dichotomy between norm and exception exists. 45 These two presumptions are, obviously, a distorted or exaggerated idealisation, and thereby a simplification of the very different and nuanced positions on norm and exception, some of which are outlined above. Therefore, the aim of these roughly extrapolated (idealised) positions is not directly to criticise the independent positions, but rather to enable a promulgation of this book’s position on the following pages. In order to do so, a position is constructed and used as a critical platform to reconstruct law’s role in the management of disasters.

44 In present disaster management regimes these are reflected as a ‘sector responsibility’. 45 This presumption is presumably neither shared by Dyzenhaus (the model on legislative accommodation) nor by Dicey.

Exceptions and norms 59 3.2.1 First presumption: emergencies are generic The first presumption is perhaps better expressed as an observation. When discussing emergency accommodation the group of hazards is undifferentiated. Thus, everyone seems to assume that the way effectively to encounter an emergency will remain unaffected by the character of the threat. Thus, there is no identifiable difference in the accommodation of a war situation and a natural hazard, or for that matter between different natural hazards. The presumption is that one unifying institutional model for emergencies can be developed and maintained.46 3.2.2 Second presumption: norms and exceptions The second idealised presumption is that the field is pervasively occupied with the dichotomies of norm and exception – respectively normality and emergency. Even the theories emphasising the fundamental legality of such decisions are structured by, or position themselves against, this presumption of the field. In the following critique, this dichotomy will be more thoroughly investigated, and I will argue that the dichotomy is no longer suitable or, more precisely, useful to structure the field.47 The presumptions will be thoroughly analysed and criticised in the following chapter.

3.3 Sub-conclusion: exceptions and norms I have argued that a typology of existing emergency accommodation models can be made starting with the three overall branches of government. Furthermore, I have argued that although they can accentuate different aspects of emergency accommodation and be significantly different in form and content, the models seem to share two overall presumptions. The theories assume that: (1) crisis can be met through a generic emergency accommodation form; and (2) that an enforceable dichotomy between norms and exceptions exists (and should either be facilitated or repressed). Furthermore, the discussion is often structured around the character and

46 This way of formulating the field’s presumption could be accused of being a straw man fallacy, as none of the above mentioned theories claims to address natural disasters. Contrary, most of the theories are directly emerging in a discussion on either counterterrorism or war-situations. However, were that to be the case, the following section could be understood as an exploration of the presumption’s validity in regard to natural disasters, rather than as a critique of the existing theoretical field; a critique of the fact that it is unaddressed by the theoretical field, rather than misunderstood by the theoretical field. 47 It seems important to stress once more that the aim of identifying these idealised presumptions is not to criticise the theories’ individual foundation. Rather, the aim is to reconstruct an idealised presumption of the field, and thus to be used as a structuring artifice.

60 Disaster Law content of decisions made contrary to law, and is thereby a discussion on legal boundaries and indirectly on the concept of law itself.48 In the following section, I will formulate a critique against the two identified presumptions. Based on this critique, I will in the following chapters discuss how law then approaches the dilemmas of emergencies. This model will naturally draw on a number of the elements accentuated above, but also fundamentally differ by refuting the shared presumptions of the field. Further, I will attempt to use the developed typology to position my own theoretical approach within the field outlined above.

3.4 Critique: dismantling the state of exception The ability to manage crises and emergencies effectively is a pivotal part of maintaining a society. Risk, security and dangers are therefore central terms for understanding modern society (Beck 2008b, 2008a; Bigo 2000; Habermas 1997b; Luhmann 1993). However, as our understanding of hazards changes so do our expectations with regard to their management: ‘We don’t run from hurricanes, we drink them’ is an example of graffiti seen in post-Hurricane Katrina New Orleans (Monteith 2010: 478). As threats towards society have become increasingly foreseeable (through hazard research, risk analysis, vulnerability maps, etc), as their frequency increases (owing to climate change, population growth and urbanisation) and as we become increasingly globally interdependent, fundamental transformations within society and law are triggered. This is closely interconnected with the paradigm shift in our way of understanding disasters, as argued in Chapter 2. Today’s disasters are understood mainly through the concepts of risk, vulnerability and resilience (all quintessential social concepts), rather than as the result of an unforeseeable nature or a revengeful God. The immediate effect of this social turn is reflected in the affected societies’ ability to understand and mitigate environmental hazards. As the disaster is increasingly understood through social terms, it can no longer detach itself from law; rather, it becomes a social ‘object’, and emergency accommodation is replaced with disaster management. In sync with this development, public and private regulation on how to manage, mitigate and recover from and prepare for environmental hazards has rapidly increased over the last 10 years, as I aim to show in the following chapters. Although modern emergency accommodation can be said to carry traits of all the models above, in their pure form, none of them seem suitable to contain the changes that follow the transformed perception of the natural 48 This becomes very clear for instance in the comparison between Carl Schmitt’s theory (presuming that law is ultimately based on the exercise of authority) and the state of siege (presuming that law is ultimately based on parliamentary consent) introduced above. Both models assume that the source of law itself can alter the legal architecture indefinitely effectively to accommodate crisis, but disagree strongly on who or what this source is.

Exceptions and norms 61 disaster, the changes undergoing in society and, last but not least, the changes in our conception of law. In the following section, the two overall presumptions developed above will be critically reassessed in light of, respectively, the changed concept of disaster, developed in Chapter 2 and a modern concept of law, discussed briefly in Chapter 1 (and further developed below). The aim is to reconsider in a critical light the ability of the developed presumptions to serve as theoretical presumptions for disaster management, and thereby to collate the theoretical concepts into a critique of the typology developed above. 3.4.1 On the concept of disaster As the concept of disaster changes, in accordance with the argument presented in Chapter 2, the presumptions underlying the theoretical field are challenged as theoretical constructions. Two points of critique against the theoretical field, in light of the changing concept of disaster, will be discussed below. First, I will argue that a number of further characteristics of the generic hazard presumption can be identified and that the disaster differs from these characteristics in a number of ways. I will try to reconstruct and address these characteristics of a generic hazard below. The aim of this critique is to underline the need to diversify the natural disaster from other hazards to the state. Secondly, and in relation to the above, I will argue that a basic presumption of the emergency theory discussed above, the emergencies’ unpredictability, is challenged by our increasing ability to foresee hazards. This will be addressed below as the (un)foreseeability of emergencies. 3.4.1.1 The generic hazard presumption: intention, prevention and elimination As we have seen from the developed typology, institutions or theories on emergency accommodation have often assumed that hazards can be approached generically, and often in the context of war, insurrection or global terrorism. Thus, the field bases itself on a presumption of either symmetrical (enemies following the international rules of engagement) or asymmetrical (enemies not following the international rules of engagement) threats towards the welfare or security of the state. Traditionally, the understanding of disaster sustained this presumption; while the paradigm of divinity conceptualised the disaster as the workings of God, the paradigm of contingency attributed to nature the ability unforeseeably to overwhelm the state. The idea for the state of an external enemy intruding could therefore be maintained as a generic characterisation of all potential hazards. Thus, the resemblance between war and the traditional paradigms of disaster research is striking – intruding unforeseeable subjects

62 Disaster Law threatening to undermine the security and welfare of the state itself and to harm the citizens of the state. As the paradigm of disaster research changes from an external, intruding force (God or nature) to an (internal) vulnerability, the state is forced to change its response and the foundation of the theory erodes. This is an ongoing transition, and the following critique should be understood in this light. The criticque will be divided into three interrelated points, or perhaps rather three points in which natural disasters differ from a traditional enemy of the state. In the following, these three points will be discussed as intention, prevention and elimination. INTENTION: SUBJECT PRESUMPTION

The first characteristic of a generic enemy in the traditional conceptualisation of emergency is that an enemy attempts to harm the state as such. Hence, the threat is not merely a concrete threat but also an abstract threat; the awareness that an enemy with the intention to undermine or seriously harm the state or its citizens exists. The evil intent behind the action is a hazard on its own. The attribution of an emergency to a wicked-minded subject thereby seems to be an important presumption of the legal/political approach to emergencies, and ties the response to either a war rationale or to Smith’s friend/enemy distinction. In this emergency understanding, the enemy is often identifiable and always attributable of responsibility.49 The terrorists orchestrating the attack on 9/11 are a perfect example of such subjects. The social disaster paradigm transforms the way in which society organises the disaster from an external force (God and/or nature) into a social phenomenon, and thereby deprives the enemy presumption of its potency and explanatory force. The disaster can no longer be conceived by the analogy with an enemy intruding. As I will argue in Chapter 5, the loss of an external force affects not only our conceptualisation of emergency accommodation, but also the way in which we distribute responsibility in the aftermath of disasters. Violent conflicts are led by a subject with the intention of destroying the state, and therefore by an external force as was the case with the disaster in earlier paradigmatic conceptualisations.50 The disaster in the social paradigm is merely a certain category of phenomena within the social order, and issues of accountability, management and responsibility must therefore be solved within the social order itself. Thus, the natural disaster has no intention to harm the state.

49 The concatenation of war and counter-terrorism we have seen in recent years thus seems to follow neatly from this presumption of a generic intent-driven enemy of the state (global terrorism, internal revolt or war). 50 Or in the case of the nature paradigm: a non-accountable subject.

Exceptions and norms 63 PREVENTION: RESPONSIVE THREAT PRESUMPTION

Terrorism, war and internal revolt (henceforth war) are usually part of a larger ideological opposition against the society in question as pointed out above. A terrorist attack, for example, will be understood and acknowledged not only as an isolated infringement in a state’s security, but as a part of a larger and organised threat towards that society. Such organised threat is able dynamically to exploit the vulnerabilities of the state and to adapt to the state’s (re)actions actively – it is, in other words, responsive. Threats of this character arguably entail great mobility to counter them effectively, as the response contains a strategic and/or tactical dimension. It is in this regard crucial for the success of a crisis command to be able to respond quickly and to punish the enemy’s potential mistakes swiftly. Therefore, a certain margin of executive discretion might be necessary to accommodate such threats effectively. Furthermore, when faced with a dynamic threat, a need for the state to display symbolic and political power might arise. Arguably, the state needs to signal vigour and determination in order to prevent future attacks and to create political and symbolic momentum, domestically as well as internationally.51 The disaster, however, is not responsive. It does not adapt in accordance with its enemy and it is unaffected by the display of vigour. It therefore entails an entirely different rationale than a military or strategic rationale to prevent a disaster. For this reason the rationales of leaving a discretionary margin to the state in order for it to respond responsively simply crumble. Thus, natural disasters are not responsive. ELIMINATION: FINITE ORGANISED THREAT PRESUMPTION

War has a winner and a loser. The presumption is that the enemy can be defeated through appropriate instruments, and the threat can thereby finitely be eliminated, further entailing that extraordinary executive authority given in crisis can be restored in times of normalcy. A sort of balancing argument can therefore be presented in favour of momentary exceptional actions.52 The presumption regards the existence of an organisation, the possibility of finitely eliminating it through proactive efforts and the idea that the threat is temporally confined. Natural hazards are not organised and, perhaps more significantly, they cannot be finitely removed, but are rather inherent features of life. Furthermore, 51 It is not the aim of this book to investigate such a need or claim, only to argue for the increasing need to differentiate between types of emergencies. For a very good and thorough account of legality and critique of such vigour during emergencies, see Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency. 52 This claim is the central foundation of Eric A. Posner and Adrian Vermeule, Terror in the Balance: Security, Liberty, and the Courts (Oxford: Oxford University Press, 2007).

64 Disaster Law the only way to mitigate the threat is by changing the way in which we live, build and organise (the core message of vulnerability), reactively or prospectively, while an enemy can be eliminated proactively. The disaster is thereby not a finite organised threat and there is no one to serve as a subject of retaliation. It is furthermore not temporally confined, but rather an inherent feature of life itself. Thus, disasters cannot be eliminated. As already mentioned in the introduction, at least two characteristics assumed by the theoretical emergency field of a generic hazard can be identified: the generic hazard presumption and the (un)foreseeability of hazards. In the following section, the latter will be investigated. 3.4.1.2 The (un)foreseeability of emergencies The position and character of foreseeability, and thereby the framing of emergencies, changes with our fundamental understanding of natural disaster. The weight under the foreseeability shifts, as it is no longer a systemically uncontrollable and intangible subject (emergency) that intervenes in a systemic order (normalcy), but the system itself that through actions or omissions generates a dysfunctional output. The result of this transition is a shift in the assessment of foreseeability from relying on the extraordinary factual circumstances, to addressing it through the social, and thereby legal, order. This shift reorganises the question of foreseeability to a legal rather than a non-legal problem. It is a basic function of law to distribute responsibility, and when the natural disaster is no longer a severable non-legal subject, responsibility must be redistributed. Throughout this volume, this shift in focus or lurch of the foreseeability will play a vital role. The claim is not that we can suddenly foresee every natural disaster, but that foreseeability of the hazards matters less. This lurch is the basis for a change in legal institutions distributing responsibility, and simultaneously imposes restrictions on the way we respond to disasters. These theoretical claims will be investigated in more practical terms throughout the following chapters. It is important to note that in this context the changed conception of foreseeability undermines one of Carl Schmitt’s basic presumptions and one of the important steps in traditional conceptualisation of the emergency dichotomies, namely that an emergency is unforeseeable per se. Modern disasters are not unforeseeable, although the hazards are often unforeseen. The definition of a disaster as the inability or inadequacy of the system to deal with naturally occurring (recurring) hazards, and the consequent demand to foresee emergencies (to prevent them from occurring), forces a gap to open between preparation and disaster. This gap in turn compels law either to adapt dynamically, and quickly, in order to close it, or to address this gap directly by redistributing responsibility (between private and public entities,

Exceptions and norms 65 and among private parties). I will return to these issues in much greater detail in the following chapters. However, before embarking on the investigation of disaster law, a critique of the theoretical dichotomy between norm and exception will be presented in the following section. The dichotomy will be critically reassessed in light of the concept of law applied in this volume, and will thereby prepare the ground for the reconstruction of law in Chapters 4 and 5. 3.4.2 On the concept of law Theories in jurisprudence on emergency accommodation, as we have seen, often start with the dichotomy of norm vis-à-vis exception. The abovementioned theories assume the correctness, even necessity of such a distinction (or the necessity to address such divide) when meeting emergencies. I have also argued that the theoretical field is occupied with issues of both legal design and of legal content. In the following, I will argue that the idea of a separate state architecture to encounter emergencies is intimately tied to the idea of a separate legal content. It will be addressed as a common position stipulating dualism: normatively (norm/exception), institutionally (constitutional state/emergency rule) and factually (normality/emergency or war/peace). The claim is that the understanding of emergency accommodation through norm and exception is interlinked with the society’s understanding and use of the concepts of normality and emergency, as well as war and peace. The claim I put forward is twofold; it is a claim that the way we theorise existing phenomena needs to change, and a claim that the phenomena we observe (law, institutions, society itself and the perception of disasters) has changed. The two perspectives can hardly be analysed independently of one another, as existing theories have affected the way in which we understand and approach emergency accommodation. Therefore, theories emerge from the same genesis and trajectory as their empirical foundation. I will strive to specify where the analysis deals with a factual (institutional, legal or social) change – respectively a theory to enlighten the institutional, legal or social; however, the two can be difficult to tell apart. The critique will unfold below under the headline ‘The concept of law’. However, before embarking upon the discussion, I will start with a short elaboration of the concept of exception. 3.4.2.1 The concept of exception Exception is used in at least two theoretical capacities in legal science. Hence, it is used as ‘the ability to act unfettered by preexisting legal constraints’ (Stein 2007: 100) and as a prescribed modification to a written rule. The exception in the latter capacity, as a prescribed modification to a written rule, always corresponds to the rule to which it is designated and is therefore

66 Disaster Law governed by the legal culture pertaining to the rule (Schauer 1991).53 In this sense, the exception is part of a legal design. By contrast, the exception in the former capacity has an antagonistic relationship to norms. It is particularly this capacity of exceptions with which the following critique is preoccupied. Thus, an exception is an ideology or theorisation coupled with crisis accommodation, stipulating that legal norms are inefficient to deal with the challenges posed by crisis, and that an exception or even a state of exception is needed to accommodate emergencies effectively. An exception is in this application non-legal (or extra-legal), or corresponding to a separate legal rationality (e.g. as discretion or Schmittian sovereignty). It is obvious that a grey area exists between the two forms of exceptions, as a statutory exception can form a bridge to actions fundamentally contrary to legal constraints. Such grey area is particularly relevant in the description of enabling acts. A further elaboration of the concept is definitely possible, but the theoretical field as such keeps a certain ambiguity in its basic concepts, and in order to address the field as an entity this conceptual flexibility seems necessary. The exception is laden with different content (legal, non-legal, illegal) depending on the overall theoretical approach and, as pointed out above, even the two capacities of the exception melt together in the theoretical field as well as in legal doctrine. In the following, the exception will be analysed as a concept intimately tied to the ability to act unfettered by pre-existing legal constraints (as something non-legal). 3.4.2.2 The concept of law Liberal constitutional thought and legal positivism came together in the cradle of the 20th century Western constitutional democracies. Liberal theory bases ‘constitutional democracy upon the tension between polar opposites: between law and politics, public and private, state and civil society, universal and particular, reason and desire, self and other’ (Lobel 1988: 1389). Liberalism in this sense, the American constitutional law scholar Jules Lobel (ibid) claims: . . . is not simply a specific political position, but a world view that seeks to resolve societal tensions by creating a legally significant dividing line between the two poles of the tension. The constitutional restraints on emergency powers explicitly manifest a series of dualities in accordance with the liberal paradigm: crisis and normalcy, war and peace, constitutional and unconstitutional action. 53 For this point elaborated in a human rights context, see Jonas Christoffersen, Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (International Studies in Human Rights: The Hague Martinus Nijhoff Publishing, 2009) at 69 ff.

Exceptions and norms 67 According to Lobel, strict legal positivism is rendered possible from a number of dichotomies: between law and politics, law and morality, and law and culture. By being able to separate law as an independent system, clearly distinguishable from other spheres or normative systems, the notions of human rights, rule of law and civility could flourish. Law could thereby be attributed the core features we define it by today: foreseeability, transparency and legality. Whether this position can be characterised as liberal seems subordinate; I will in the following paragraphs refer to the position as a traditional formalistic position (Habermas 1997a: 427).54 The traditional formalistic legal position is a particularity of a larger theory of norms, emphasising the immovability of individual rights based on a formalistic foundation (rather than a natural one). The basic idea of such a normative system is, according to Jürgen Habermas, that ‘the legal order was to protect the legal freedom of the citizen against encroachments of a state apparatus restricted to preserving the public order’ (Habermas 1997a: 431). The role of the administration in such legal society is ‘reactive, bipolar and selective’ (Habermas 1997a: 431), in short: As long as the classical administration could concentrate on the tasks of ordering an economic society left to economic self-regulation, in principle the need for intervention arose only if this order was disturbed – an order permanently established by constitutional law and guaranteed by the constitutional state. (Habermas 1997a: 430) The legal system is in this tradition preoccupied with creating clear boundaries, and legal theories accordingly set out to describe what is inside and respectively outside the boundaries of law.55 This way of conceptualising law makes the idea of a dichotomy between norm and exception obvious, perhaps even an inherent feature. The state relegitimises itself or, rather, enforces its immovability by securing the individualistic justice on which it is based. However, as the 54 Habermas refers to three contemporary paradigms of law: a liberal formal, one adhering to the welfare state and a procedural paradigm; see Jürgen Habermas, Between Facts and Norms, trans. William Rehg (Cambridge: Polity Press, 1997) at 427 ff. These paradigms are according to Tuori attempts to reconstruct the level of legal culture, making use of ‘a certain social theoretical conception’; see Kaarlo Tuori, Critical Legal Postivism (Surrey: Ashgate, 2009) at 82. 55 These dichotomies were absolutely not impaired by the early 20th century understanding of law as dependent on a formal criterion of legal validity, expressed through a formal norm, (e.g. Kelsen’s Grundnorm or Hart’s ‘rule of recognition). When applying a strict formal criterion of validity it becomes easier to conceive something as incoherent with the existing legal systems systematisation of facts. The price of applying a strict formal legal criterion granting clarity on what is considered legal is therefore the exclusion of a certain group of facts as non-legal. A traditional formalistic (positivistic) approach to law therefore necessitates a theoretical distance to what is outside law, characterising it as either non-legal (Gross, Locke) or illegal (Rossiter, Ackerman, Dicey).

68 Disaster Law immovability of individual rights becomes pivotal for the state’s legitimisation, the need to invent a shadow system arises. This shadow system is controlled through legally enforced dichotomies of peace and war, norm and exception, and friend and enemy. In the shadow system, security is the raison d’état. The dichotomies between peace and war, and norm and exception, play a pivotal role as border concepts, and the state thereby comes to work in two spheres: ‘Normal constitutional conduct, inhabited by law, universal rules and reasoned discourse; and a realm where universal rules are inadequate to meet the particular emergency situation and where law must be replaced by discretion and politics’ (Lobel 1988: 1390). The liberal democracies thereby made themselves dependent on a shadow system, where the unpopular, but necessary, could thrive. Its key concept, the exception, is in this regard not only non-legal, it is beyond the reach of, and therefore fundamentally different from, law.56 This dependence on, and simultaneous denial of, emergency powers is exactly Carl Schmitt’s theoretical handle to criticise the vulnerable (naïve), liberal constitutional democracies, as these systems let the legitimacy of the system itself rely on a legally defined borderline, one created to chain the inevitable shadow of society and thereby separate the state from its own (unarticulated) raison d’état: survival. Schmitt equally understands the world from these dichotomies (Schmitt 2007); however, while he cultivates the dichotomies to understand the state, the traditional formalists understand the state through only one side of the dichotomy (normalcy), while continuously, and very deliberately, disregarding what is outside law (exactly because it is outside). The response of the liberal democracies to the challenge of the exception therefore is to deny, oppress and mystify it, ‘because creating either a plethora of legal exceptions or inherent executive constitutional power to meet every conceivable emergency would undermine the distinction between emergency and nonemergency actions’ (Lobel 1988: 1390). Furthermore, the way they legitimise a separate legal entity (and/or system), and thus legitimise their entire theoretical enterprise, is exactly by not taking note of what is ‘outside’ the system (as it is considered non-legal).57 Luhmann touches (briefly) upon this issue in conjunction with his general discussion on law’s problem of internalising violence in Law as a Social System: The paradox of the unity of the code legal/illegal (. . .) was not to be solved by externalisation- but had to be unfolded internally in the legal 56 Lobel goes even further and characterises the exception as aberrational; see Lobel, ‘Emergency Power and the the Decline of Liberalism’, at 1389. 57 As famously stated by former US Supreme Court Justice, Robert Jackson in Youngstown v Sawyer: ‘Emergency powers (. . .) tend to kindle emergencies’, so better suppress the idea of their existence. See Youngstown Sheet & Tube Co. v Sawyer, 343 U.S. 579 (1952) at 650.

Exceptions and norms 69 system. (. . .) Today the problem is evident in the anomaly of the selfdefence/emergency law. There remain residual and borderline cases where the law permits the violation of law in legally defined terms and conditions. It is no accident that there are cases in which the use of physical force is permitted and the typical reference to legal procedure excluded. Whenever violence is involved, the paradox of legal coding shows up – but in a form which is immediately unfolded within the legal system through setting conditions which make the paradox invisible. (Luhmann 2004: 265, original emphasis) While this is not an accession to Luhmann’s general thinking, his metaphorical description of law’s internalisation of the paradox (to make what is illegal legal) and function of rendering ‘the paradox invisible’ seems very descriptive for the debate outlined in the previous chapter on emergency law. As I will suggest below, many different evasive manoeuvres have been made to not address this paradox.58 Luhmann suggests that law does not address the dilemma through divinity or transcendence, nor externalisation (understood from the legal system) or for that matter authority, but rather through internalised safeguards. With these safeguards, legal scholars and the law as such enforces a legal borderline between norm and exception. While this does not solve the dilemma, it makes the dilemma invisible for the legal practitioner. This is reflected in particular in Continental European literature, imposing either a proximity of danger test or a threat threshold controlling the access to the exception (Koch 2011; Tarrow and Lauta 2011), and is simultaneously what takes place when cases on the boundaries for legal executive discretion are tried in court (testing the horizontal division of powers). Lobel claims that the Cold War challenged the factual circumstances crucial to uphold the dichotomies by dissolving the possibility of effectively differentiating between war and peace (Lobel 1988: 1399 ff). However, although the Cold War period could be attributed to this dissolution of the dichotomy between norm and exception, it could with equal weight be claimed simultaneously to reaccentuate it by making the dichotomy its basic concepts of conflict,59 for instance, by referring to a perpetual state of 58 The paradox is perhaps even more precisely expressed as follows; inside law is a gateway to surpass law under observance of a number of expressed criteria and thereby to exercise coercion/violence outside law. For Luhmann such dilemmas exist everywhere around us, and it is part of the system’s basic functionality to make such dilemmas disappear – to disguise complexity. Luhmann’s claim is therefore not that the nexus between security visà-vis freedom is not complicated to navigate in or even a dilemma, but merely that systems of all kinds gain legitimacy and functionality by making such complexity invisible. 59 See for instance a US senate committee noting in 1976: ‘The recognizable distinctions between declared war and credible peace have been blurred throughout these [post-war] years by a series of regional wars and uprisings, in Asia, the Middle East, Latin America, Europe and Africa’, S. Rep. No 755, 94th Cong. 2d Session I-8 (1979) as quoted in Lobel, ‘Emergency Power and the the Decline of Liberalism’ at 1403.

70 Disaster Law emergency in the US, or as Truman laconically rephrased it: ‘a great change in our normal peacetime way of doing things’ (Lobel 1988: 1401). I will claim that the social turn of disasters fundamentally challenges the usability of these dichotomies. Niklas Luhmann discusses a similar dichotomy in his Risk Sociology between normal and deviant. For Luhmann, the theme of his risk sociology becomes ‘us having to lose the habit of observing society in terms of this distinction because it has ceased to be useful’ (Luhmann 1993: VII). As the disaster becomes social, the dichotomy between normality and emergency ceases to be useful, as the disaster should be integrated in all parts of society. In a sense, the legal dichotomies that this chapter aims to criticise are no more than a reflection of these larger societal and institutional dichotomies. The institutional, conceptual and normative separations in emergency accommodation are thereby intimately tied together. Furthermore, as the concept of mature modern law gains ground, the need to sever exception from norm crumbles. The need to define what is, a priori, inside or outside the legal order, becomes less important,60 as the formal criterion of validity is supplemented by a substantive criterion layered in the legal system. In other words, formality is replaced by coherence and legal discretion replaced by legal principles (Tuori 2009: 267).

3.5 Conclusion I have argued that there is a need to reconsider the two idealised presumptions of the legal theoretical emergency field outlined above, when assessed in light of a changing concept of disasters and a concept of mature modern law. Hence, I have argued there is a need to differentiate the field of emergencies, and therefore a platform to discuss a separate theory for law on natural disasters. What I refer to as the generic hazard presumption of the theoretical field is undermined by the changed conception of disasters. Closely connected to this, I have argued that the idea of separating normality and emergency institutionally, conceptually and normatively should be left owing to changes in our understanding of state, disaster and law. To analyse emergency decisions through the concepts of norm and exception becomes, to borrow an expression from Habermas, ‘an artifact of a false paradigmatic understanding of law’.61 The rejection of the idealised presumptions seems to lead to at least one important conclusion: the application of the existing theoretical models designed for the purpose of securing effective accommodation of war, 60 It is naturally still a function of law to express what is considered a legal argument respectively not a legal argument; however, as law is segmenting in layers the need formally to determine what is considered a legal source is reduced. 61 An expression borrowed from Habermas, Between Facts and Norms at 429.

Exceptions and norms 71 internal revolt and terrorism can no longer be done mechanically. New institutions and intensive regulation is the obvious outcome of the steep increase in the amount of registered disasters combined with the changed perception of disasters. On this overall point, the question of the efficiency of the legal set-up intended to deal with war triggers a development on which this volume bases its primary presumption: a pervasive juridification or normalisation of the natural disaster. The juridification of disaster management detaches the exception of its role as the main mechanism, and enforces the role of legal rules in disaster management. The following chapter sets out to investigate this by creating an overview of the legal sources and actors in disaster response situations, and in the attribution of legal responsibility in the aftermath of disasters. Truly unforeseeable, state threatening events can never be banished by or from any (legal) order no matter how carefully prepared, but as we increase our knowledge on the capabilities on our own system, as well as on the hazards threatening it, the unforeseeable, and thereby the need for legal exceptionalism, is constantly pushed. As we will see in the following chapters, it is the presumption of this book that decisions traditionally relying on exceptionalism today are increasingly integrated in a normal legal order – controlled or accommodated by legal principles (legal culture). In this sense, the meaning of the category ‘exception’ and particularly the closely interconnected idea of non-legal (extra-legal or sovereign) decisions lose explanatory value. The exception becomes, in the words of the American constitutional law scholar Frederick Schauer: ‘what electric windows are to automobiles – useful accessories but hardly central to the enterprise’ (Schauer 1991: 871). The juridification not only dismantles the exception its prominent role in the theoretical field; it also interacts with the understanding of disasters. Thus, law simultaneously relies on and strengthens the development of disasters from external forces (independently moving, unaccountable events) to a social phenomenon (a recurring social phenomenon with negative consequences such as traffic jams or flight delays). This affects our fundamental models applied to distribute responsibility,62 and thereby challenges and transforms fundamental institutions in the society. Also, for that reason, emergency accommodation ideas originally developed to withstand an intruding enemy are obsolete. When a disaster occurs, authorities are already responsible and every action or omission is subject to, and permeated with, this responsibility. Or, in even simpler terms: there is no one to blame but society itself, which is why the unity, the error margin and sympathy are vastly different from a war situation.

62 Responsibility is here applied in the broadest sense, as penal, tortious as well as private and public.

72 Disaster Law

Bibliography Agamben, Giorgio (2005), State of Exception (Chicago: University of Chicago Press). Beck, Ulrich (2008a), World Risk Society (Polity Press). —— (2008b), Risk Society (ed Mike Featherstone, Theory, Culture and Society: London: Sage). Benjamin, Walter (1991), ‘Zur Kritik der Gewalt’, Gesammelte Schriften (Frankfurt am Main: Suhrkamp Verlag). Bigo, Didier (2000), ‘When two become one: internal and external securitasations in Europe’, in Morten Kelstrup and Michael C. Williams (eds), Internal Relations and the Politics of European Integration (London: Routledge). Bredekamp, Horst (1999), ‘From Walter Benjamin to Carl Schmitt, via Thomas Hobbes’, Critical Inquiry 25(2) 247–66. Christoffersen, Jonas (2009), Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights (International Studies in Human Rights: The Hague: Martinus Nijhoff Publishing). Cicero, Marcus Tullius, Rudd, Niall and Powell, J. G. F. (2008), The Republic and the Laws (Oxford World’s Classics; Oxford; New York: Oxford University Press) xliii, 242 pp. Cook, Michael (2006–2007), “‘Get Out Now or Risk Being Taken Out By Force”: Judicial Review of State Government Emergency Power Following a Natural Disaster’ Case Western Reserve Law Review 57(1) 265–300. Corwin, Edward S. (1932), ‘Martial Law, Yesterday and Today’ Political Science Quarterly 47. Dicey, Albert Venn (1959), Introduction to the Study of the Law of the Constitution (9th edn London: MacMillan & Co Ltd). Dubber, Markus Dirk (2005), The Police Power: Partiarchy and the Foundations of American Government (New York: Columbia University Press). Dyzenhaus, David (1997), Legality and legitimacy: Carl Schmitt, Hans Kelson, and Hermann Heller in Weimar (Oxford, New York: Clarendon Press; Oxford University Press) xiv, 283. —— (2006), The Constitution of Law: Legality in a Time of Emergency (Cambridge; New York: Cambridge University Press) xv, 250. —— (2008), ‘The compulsion of legality’ in Victor Ramraj (ed), Emergencies and the Limits of Legality (Cambridge: Cambridge University Press). Farber, Daniel and Chen, Jim (2006), Disasters and the Law: Katrina and Beyond (New York: Aspen Publishers) xxii, 348. Ferejohn, John and Pasquino, Pasquale (2004), ‘The Law of Exception: A Typology of Emergency Powers’, Int. J Constitutional Law 2(2) 210–39. Gross, Oren (2003), ‘Chaos and Rules: Should Responses to Violent Crises Always be Constitutional’ The Yale Law Journal 112(5) 1011–134. Gross, Oren and Nâi Aolâain, Fionnuala (2006), Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge Studies in International and Comparative Law, Cambridge: 1996); Cambridge: Cambridge University Press) xxix, 481. Habermas, Jürgen (1997a), Between Facts and Norms (trans. William Rehg, Cambridge: Polity Press). —— (1997b), ‘Lærer vi af Katastrofer?’ Social Kritik 52–53. Hart, H. L. A., Hacker, P. M. S. and Raz, J. (1977), Law, Morality and Society (Oxford: Clarendon Press) vi, 312 pp.

Exceptions and norms 73 Henriksen, Anders (2009), Arven efter Bush (Copenhagen: Gyldendal). Hobbes, Thomas (1974), Leviathan (London: Fontana). Kelsen, Hans (2008), Wer soll der Hüter der Verfassung sein? Abhandlungen zur Theorie der Verfassungsgerichtsbarkeit in der pluralistischen, parlamentarischen Demokratie (Robert Christian van Ooyen, Tübingen: Mohr Siebeck GmbH & Co KG). Koch, Henning (2011), ‘Fare for Statens Sikkerhed’ Juristen (9). Lazar, N. C. (2005), The Ethics of Emergency Powers (Yale University Doctor of Philosophy). Lobel, Jules (1988), ‘Emergency Power and the Decline of Liberalism’ Yale Law Journal 98. Locke, John (1988), Two Treatises on Government (Cambridge: Cambridge University Press). —— (2004), Second Treatise of Government (New York: Barnes & Noble Books) xv, 154 pp. Loughlin, Martin (2003), The Idea of Public Law (Oxford: Oxford University Press). Luhmann, Niklas (1993), Risk: A Sociological Theory (New York: Aldine de Gruyter). —— (2004), Law as a Social System (ed Fatima Kastner, Richard Nobles, David Scchiff and Rosamund Ziegert, Oxford Socio-Legal Studies; Oxford: Oxford University Press). Machiavelli, Niccolò and Hobbes, Thomas (1983), The Prince (limited edn Franklin Center, PA: Franklin Library) 517 pp. Machiavelli, Niccolò, Bondanella, Julia Conaway and Bondanella, Peter (1997), Discourses on Livy (World’s Classics; Oxford: Oxford University Press) xxxii, 414 pp. Marinov, Nikolay and Goemans, Hein (2013), ‘Coups and Democracy’, British Journal of Political Science CJO2013, doi:10.1017/S0007123413000264. Monteith, Sharon (2010), ‘Hurricane Katrina: Five Years after Introduction’ Journal of American Studies 44(3) 475–82. Novak, William J. (1994), ‘Common Regulation: Legal Origins of State Power in America’ Hastings Law Journal 85 1061–98. Pollock, Frederick (1902), ‘What is Martial Law’ Law Quarterly Review 70. Posner, Eric A. and Vermeule, Adrian (2011), The Executive Unbound: After the Madisonian Republic (Oxford: Oxford University Press). Posner, Eric A. and Vermeule, Adrian (2007), Terror in the Balance: Security, Liberty, and the Courts (Oxford: Oxford University Press). Prince, Samuel Henry (1968), Catastrophe and Social Change, Based upon a Sociological Study of the Halifax Disaster (1st AMS edn New York: AMS Press) 151. Roosevelt, Theodore (2006), An Autobiography (Middlesex: Echo Library). Rossiter, Clinton (2002), Constitutional Dictatorship – Crisis Government in the Modern Democracies (Piscataway, NJ: Transaction Publishers). Rossiter, Clinton L. (1948), Constitutional Dictatorship – Crisis Goverment in the Modern Democracies (Princeton: Princeton University Press). Rousseau, Jean-Jacques and others (1986), The Social Contract and Discourses (London, Rutland, VT: J. M. Dent; C. E. Tuttle Co.) liv, 362 pp. Schauer, Frederick (1991), ‘Exceptions’ University of Chicago Law Review 58(3). Schmitt, Carl (1996), Politische Theologie: Vier Kapitel zur Lehre von der Souvenänität (7th Aufl edn Berlin: Duncker und Humblot). —— (2005), Political theology: four chapters on the concept of sovereignty (University of Chicago Press edn Chicago: University of Chicago Press) lii, 70 pp.

74 Disaster Law —— (2006), Die Diktatur: von den Anfängen des modernen Souverätsgedankens bis zum proletarischen Klassenkampf (7th Aufl edn Berlin: Duncker & Humblot) 257 pp. —— (2007), The Concept of the Political (expanded edn Chicago: University of Chicago Press) cm. Sofaer (1981), ‘Emergency Power and the Hero of New Orleans’ Cardozo Law Review 2. Stein, Jeremy B. (2007), ‘The Necessary Language of Exception: A Response to Frederick Schauers’s “Exceptions”’ NYU Annual Survey of American Law 63. Tarrow, Caroline Sophia and Lauta, Kristian Cedervall (2011), ‘Ingen ild uden røg – politi og beredskab i kastrofesituationer’ Juristen (5). Tuori, Kaarlo (2009), Critical Legal Postivism (Surrey: Ashgate). Tushnet, Mark (2005), The Constitution in Wartime: Beyond Alarmism and Complacency (Durham; London: Duke University Press). Weber, Max (1968), The Theory of Social and Economic Organization (New York: Free Press). Weber, Samuel (1992), ‘Taken Exception to Decision: Walter Benjamin and Carl Schmitt’ Diacritics 22(3/4) 5–18. Yoo, John (2006), The Powers of War and Peace (Chicago: University of Chicago Press). —— (2009), Crisis and Command (New York: Kaplan).

4

Disaster management

When the state of exception is replaced as the primary legal regime to respond to disasters, new fundamental questions arise: questions of who (of legal process) as well as what (of legal content, obligations and rights). Even the title of this chapter, ‘Disaster management’, seems to suggest a departure from the basic conception of emergency outlined in Chapter 3. In the field of exceptionalist theories disasters cannot be managed; they are per se unexpected and overwhelming. The Canadian Sociologist Craig Calhoun strikes to the heart of this when he states that modern disasters ‘both can and should be managed’ (Calhoun 2004: 375). Law plays a central role in successful management, not least in the complicated social settings of societies today. In the words of the one of the leading disaster researchers, the American sociologist Charles Perrow: ‘The regulatory potential for avoiding disaster and reducing their consequences is obvious’ (Perrow 2007: 295). As the original presumption of disaster ‘management’ changes from a dichotomy between norms and exceptions, law becomes one of the main outlets for the efforts to create more disaster resilient societies. In this chapter, I will investigate how legal disaster management regimes are emerging in these times around the world, taking the example of international disaster responses. Besides this ‘proactive’ role of law as a reform and/or management tool, the conceptual glide away from exceptionalism also brings about new rights and obligations. In other words, beyond the regulation we enact to meet the new challenges of disasters, disasters also become part of already existing legal ideas, principles and rules. I will investigate case law from the European Court of Human Rights (ECtHR or the Court) in order to document that today an effective legal disaster management framework is considered a human right in Europe. Thus, this chapter claims: (a) that disasters are increasingly treated as normal social phenomena within law; and (b) that new law is increasingly enacted in order to manage disasters. The aim is to discuss how disaster response today is changed through law, and thereby how disasters are no longer responded to in a vacuum of exceptionalism, but rather in a continuum of legality. This, however, does not

76 Disaster Law mean that present law is without problems or is even well functioning. In the concluding remarks of this chapter, I will therefore list three challenges I find particularly relevant to address in order to create a coherent and effective international legal framework for disaster management.

4.1 Refuting exceptionalism: disaster management as a human right One of the most central legal structures for liberal democracies is the state’s securement of basic human rights. Thus, human rights aim to safeguard the most central themes of life and democracy through guaranties extended by constitutions and conventions around the globe. Recent jurisprudence from the ECtHR suggests that effective protection and relevant legal instruments safeguarding individuals from natural hazards is part of modern human rights protection. The case law is analysed as an emblematic example of the conceptual glide of disasters. The central question is whether, if disasters are so extraordinary, their consequences should be exempted from the most central rights-protection: the right to life. The right to life is enshrined in the European Convention on Human Rights, Article 2, which states: Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. The provision obliges not only states to refrain from interfering with the life of individuals, but also to safeguard the life of individuals (a positive obligation), in particular when major risks are involved.1 In Öneryildiz v Turkey2 from 2004, the ECHR assessed the applicability of the protection after a tragic disaster. On 28 April 1993, a methane explosion shook a slum quarter in Ümraniye, a district of Istanbul. The pressure mounted by the explosion caused a landslide engulfing some 10 slum dwellings, including the one belonging to the applicant. The methane explosion caused the deaths of 39 people. The affected slum area was built right next to a rubbish tip, and public authorities were well aware of the risk of a methane explosion caused by fumes from the rubbish tip and that ‘the damage could be very substantial’.3

1 See e.g. LCB v United Kingdom (judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III); Guerra and others v Italy (judgment of 19 February 1998, Reports 1998I); and Calvelli and Ciglio v Italy ([GC] no 32967/96, ECHR 2002–I). 2 Öneryildiz v Turkey (48939/99). 3 See ibid para 13.

Disaster management 77 In the Court’s decision it was stressed that there had been ‘lack of appropriate steps to prevent the accidental death of nine of the applicants’ close relatives’ and ‘lack of adequate protection by law safeguarding the right to life’. This protection applies no less in the ‘sphere of industrial risks, or “dangerous activities”, such as the operation of waste collection sites in the case of Öneryıldız’.4 With regard to dangerous activities (‘particularly with regard to the level of the potential risk to human lives’5), states must therefore ‘govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks’ to be in compliance with the basic right to life.6 In establishing such preventive measures ‘particular emphasis should be placed on the public’s right to information’;7 however, ‘relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels’.8 Thus, the positive obligation in Article 2 of the European Convention on Human Rights (the right to life) today includes the right to protection from technical/chemical hazards when involving major risks, and this protection can only be effectively safeguarded through appropriate regulatory steps. While the decision by the Court thereby takes a first step in establishing an obligation to regulate major risks, in the given case it could be claimed that the major risk was invoked by a facility within the government’s area of responsibility (a former rubbish tip), and thus in a sense a major risk incurred by the government itself. The Court was confronted with the question of natural hazards’ applicability, when a few years later the Court was asked to assess the alleged mismanagement of a mudslide in Caucasus.9 A mudslide in July 2000 had buried the town of Tyrnauz (population 25,000) in the central Caucasus; 8 people were confirmed dead and 19 people were missing. Mudslides were not an unusual hazard for the citizens of Tyrnauz. In fact, mudslides happened almost every year, occasionally causing damage when hitting the town. Thus, the citizens and local authorities were accustomed to the cause and potentially devastating consequences of mudslides. However, in the summer of 1999 – a year before the mudslide in question – mud and debris seriously damaged a mud retention dam protecting the town from the 4 5 6 7 8 9

Ibid paras 71 and 90. Ibid para 132. Ibid. Ibid. Ibid. Budayeva and others v Russia (Application nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02). See also (2006) Murillo Saldías and Others v Spain (Application no 76973/01).

78 Disaster Law slides and, in spite of repeated warnings of the risk, the Russian authorities did not repair the dam nor follow recommendations to implement alternative preventive measures (e.g. by establishing a warning system), leaving the town more vulnerable than usual to mudslides.10 Based on this, the Court held Russia responsible for ‘inadequate maintenance and failure to set up a warning system’ under the positive obligation to secure life pursuant to Article 2. The Court underlined, quoting Önerylidiz, that states are obliged: ‘. . . to take regulatory measures and to adequately inform the public about any life-threatening emergency, and to ensure that any occasion of the deaths caused thereby would be followed by a judicial enquiry’.11 In regard to dangerous activities (‘particularly with regard to the level of the potential risk to human lives’12), states must ‘govern the licensing, setting up, operation, security and supervision . . .’ of major risks.13 Thereby, the Court expanded the Önerylidiz ruling also to encompass natural hazards. In this regard, the Court emphasised that the margin of appreciation ‘must be afforded even greater weight in the sphere of emergency relief in relation to a meteorological event, which is as such beyond human control, than in the sphere of dangerous activities of a man-made nature’.14 In order to assess whether a given disaster is managed in violation of Article 2, the ‘particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities’ acts or omissions, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved’.15 Furthermore, ‘these considerations should apply in so far as the circumstances of a particular case point to the imminence of a natural hazard that had been clearly identifiable, and especially where it concerned a recurring calamity affecting a distinct area developed for human habitation or use’.16 In short, the extent of the obligations following from the Convention ‘would depend on the origin of the threat and the extent to which one or the other risk is susceptible to mitigation’.17 While the Court thereby maintains a wide margin of interpretation to future decisions as well as to the Member States’ implementation arrangements, it is clear that negligent management of natural disasters infringes the right to life set out in Article 2. Even though the Court maintains a distinction between

10 11 12 13 14 15 16 17

Ibid para 18. Ibid para 131, quoting Öneryıldız (n 2) §§ 89–118. Ibid para 132. Ibid. See Budayeva and others v Russia (n 9). See ibid para 136. Ibid para 137. Ibid para 137 in fine.

Disaster management 79 man-made and natural hazards (subscribing a different margin of appreciation), our changing understanding of disasters, as accounted for in Chapter 2, increasingly levels out this difference. Five overall state duties seem to be put forth in the two cases. In accordance with the decisions, states shall in conformity with Article 2: (1) enact and implement laws and policies on disaster management; (2) take necessary administrative measures such as observing areas at risk; (3) inform the population about the risks and dangers; and (4) evacuate potentially affected populations (Ginetti and Schrepfer 2012: 14). Furthermore, the Court underlined that states are obliged to secure: (5) that sufficient judicial enquiry into the causes of a disaster takes place. Thus, inherent in the right to life is also a right to effective investigation, which when relevant includes criminal procedures. In short, Member States have an obligation to secure ‘that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished’.18 I will return to repression and punishment in the following chapter. The Court most recently confirmed its stance in Kolyadenko and Others v Russia19 from 2012.20 The case regarded the Russian authorities’ mismanagement of a river flood in 2001. The Court reiterated the positive obligation outlined in Öneryıldız and Budayeva and others, which ‘entails above all a primary duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life’21 and found Russia had neglected her responsibility under the Convention, as follows: Firstly, the authorities failed to establish a clear legislative and administrative framework to enable them effectively to assess the risks inherent in the operation of the Pionerskoye reservoir and to implement town planning policies in the vicinity of the reservoir in compliance with the relevant technical standards. Secondly, there was no coherent supervisory system to encourage those responsible to take steps to ensure adequate protection of the population living in the area, and in particular to keep the Pionerskaya river channel clear enough to cope with urgent releases of water from the reservoir, to set in place an emergency warning system there, and to inform the local population of the potential risks linked to the operation of the reservoir. Lastly, it has not been established that there 18 See ibid para 138; see further paras 139–45. 19 Decision of 28 February 2012 (Application nos 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05). 20 Two further cases fortifies the Öneryildiz decision; see Stoyanovi v Bulgaria (Application no 42980/04) on the responsibility of a parachute accident and Krivova v Ukraine (Application no 25732/05) on failed crowd management in a cinema. 21 Ibid para 157, reiterating Öneryıldız para 89 and Budayeva and others para 129.

80 Disaster Law was sufficient coordination and cooperation between the various administrative authorities to ensure that the risks brought to their attention did not become so serious as to endanger human lives. Moreover, the authorities remained inactive even after the flood of 7 August 2001, with the result that the risk to the lives of those living near the Pionerskoye reservoir appears to persist to this day.22 The cases clearly confirm that parties to the Convention have a responsibility to safeguard as best as possible the lives of its citizens from any threat, and an obligation to install the necessary legal safeguards for the fulfilment and oversight of the enjoyment of this right. Thus, the five points outlined above seem to be reference points in a more general assessment on the involved state’s efforts to design and maintain an effective disaster management regime (Pedersen 2013). Disaster prevention is today a European human right and a well-designed, effective and implemented disaster management regime is essential to the fulfilment of the Member States’ obligation under the convention. This development, all driven within the last 10 years, clearly testifies to the juridification of disaster management, namely exceptionalism refuted by the most central legal tool available – the very thing Carl Schmitt considered the weakness of liberal democracy – individual rights. Human rights jurisprudence thus on the one hand rejects exceptionalism and traditional emergency accommodation, as accounted for in the previous chapter, and on the other hand reinforces itself by driving a development towards more resilient societies. While this is obviously driving a societal and technical development, it is no less relevant to the legal framework. As states are forced under the Convention to develop comprehensive disaster management regimes, national legal regimes are burgeoning.23 Thus, it is not only policy and good legal-political arguments that drive the development of disaster law, but also the fundamental rights and obligations. The Court has emphasised over and over again the importance and necessity of developing and maintaining a legal framework that is capable of addressing major risks. Thus, disaster management, and therefore disaster law, is today a human right. In the following section, I will investigate how a similar development, not driven by the European Convention on Human Rights, but by the general slide in our conception of disasters, humanitarianism and geopolitics, takes place globally.

22 Ibid para 185. 23 See e.g. in the Danish context, Kristian Cedervall Lauta, ‘Exceptions and Norms: The Law on Natural Disasters’ (Copenhagen: University of Copenhagen, 2011) at 172 ff. In the US context, Daniel Farber and others, Disaster Law and Policy (2nd edn Wolters Kluwer Law & Business: Cheltenham: Aspen Publishers, 2010); Daniel Farber and Michael Faure (eds), Disaster Law (Cheltenham, UK: Edward Elgar, 2010).

Disaster management 81

4.2 Managing disasters: global disasters – global response On 12 January 2010 at 16:36 local time, the small seaside town of Léogâne was shaken by a horrible earthquake. Around 80–90 per cent of the buildings in the town were destroyed and all government infrastructures such as roads, electricity and water supply collapsed. Léogâne is situated just 29 km (18 miles) west of the Haitian capital and very close to the epicentre of the quake, which in time came to be identified as the 2010 Haiti earthquake. The earthquake claimed no less than 316,000 lives,24 20,000–30,000 of them in Léogâne alone (up to 20 per cent of the inhabitants of the city).25 Léogâne was a fairly small fishing town with no global claim to fame or attention. However, the entire world followed the disaster attentively in the months that followed the earthquake. The disaster was thereby not only a disaster for the citizens of Léogâne, but simultaneously broadcast to a global audience. Disasters are becoming increasingly visible on a global scale as new types of media and the general increase in global mobility allows for much more expedient and effective news coverage of disaster sites. A disaster in Haiti is no longer only relevant to the local authorities in Léogâne and the Government of Haiti, but to the global community. After the earthquake, international help was on the ground in Haiti and within 24 hours teams were organising search and rescue missions in the ruins of Port-auPrince.26 Within a week the Security Council had authorised an increase of 3,500 troops and police of the United Nations Stabilization Mission in Haiti in Resolution 1908.27 The World Food Program had over 200 staff members on the ground, and even the International Atomic Energy Agency sent eight mobile medical X-ray machines to Haiti. The Union of South American Nations pledged US$300 million to help rebuild Haiti, and the World Bank provided extra funding of US$100 million to support recovery and reconstruction in Haiti. The European Union released €3 million and later earmarked around US$600 million in humanitarian aid.28 Thus, today, disasters are truly global events.

24 ‘Haiti raises quake death toll on anniversary’ CBC News (12 January 2011), available at http://www.cbc.ca/news/world/story/2011/01/12/haiti-anniversary-memorials.html (last visited February 2014). 25 Roger Annis, ‘Report from Leogane’, Canada Haitii Action Network (27 February 2010) http://canadahaitiaction.ca/node/52 (last visited February 2014). 26 The Icelandic search and rescue team, ICE-SAR, was among the first to arrive on 13 January; see ‘The Icelandic Urban SAR team has landed at Haiti’ (13 January 2010). 27 UN Security Council Resolution 1908 (19 January 2010) to expand the United Nations Stabilization Mission in Haiti (MINUSTAH); see Resolution 1542 (2004). 28 ‘EU earmarks over €420 million for Haiti’ (6 August 2012) Business Day, available at http://www.bdlive.co.za/articles/2010/01/18/eu-earmarks-over-420-million-for-haiti (last visited February 2014).

82 Disaster Law As the world has become increasingly interconnected and interdependent, the importance of providing effective response to disasters everywhere in the world increases. Fundamental economic, geopolitical and demographical issues are at stake when a disaster occurs. Even in Léogâne, Haiti these central issues all put pressure on the international community’s ability effectively to aid in disaster situations and, therefore, today disaster response is often conducted in a field with multiple actors. This incoherent assemblage of international organisations, NGOs, private charities, national authorities and local responders poses a number of challenges on its own. Thus, it is safe to conclude that the build-up of international disaster management architecture gives rise to a number of concerns regarding overlaps in competences, functions and aims, and leaves a picture of a cluttered institutional architecture still in flux. In particular, the vertical relations between global, regional and national actors seem unsettled. Taking the example of a Nordic country; cooperative ties and legal frameworks exist on the Nordic level, with the countries around the Baltic Sea, in NATO (the EADRCC), through the Arctic Council, in several European forums depending on the sector (civil protection, health, radiological, oil spill, etc)29 including of course within the European Union and in several fora on global level. It is safe to say that the field is ‘a tangled web of donor and host governments, the military, NGOs, UN bodies, and private charities and firms’ (Hannigan 2012: 3). This changing and unsettled institutional architecture has an immediate spill-over effect on the emerging legal framework, as all these different forums maintain their own guidelines, rules and principles. I shall return to some of these challenges below. In the following section, I will try to highlight the most central legal sources derived from a Nordic Country. Subsequently, I will formulate three interrelated challenges for the international legal framework. The aim of this exercise is, on the one hand, to document the explosive growth within the last

29 Among them the European Forum of Local and Regional Disaster Management (a forum set up under the umbrella of the Council of Europe’s Congress of Local and Regional Authorities); European and Mediterranean Major Hazards Agreement (EUR-OPA: a CoE platform for cooperation between European and Southern Mediterranean countries in the field of major natural and technological disasters); Disaster Preparedness and Prevention Initiative for South Eastern Europe (DPPI SEE: set up in November 2010 in accordance with the Stability Pact for South Eastern Europe, provides a framework for South Eastern European nations to develop programmes and projects leading to strengthened capabilities in preventing and responding to natural and man-made disasters); Central European Disaster Prevention Forum (CEUDIP: a forum aiming at exchanging information on the status of disaster prevention, institutions and activities in early warning, media role, legislation, education and other subjects); European Network of National Platforms and Focal Points for Disaster Reduction (a 2007 agreement between France, Germany and Switzerland to among other things host a number of training workshops on disaster reduction and relief); the Euro-Atlantic Disaster Response Coordination Centre (EADRCC: a ‘24/7’ focal point for coordinating disaster relief efforts among NATO member and partner countries); and finally the Organisation for Economic Cooperation and Development (OECD).

Disaster management 83 years of legal sources and regimes and, on the other hand, to point out three interrelated challenges for international disaster law. 4.2.1 Nordic cooperation30 In the 2011 Helsingfors statement,31 the Nordic Ministers made a declaration of solidarity, emphasising ‘the strong community of values’ between the Nordic countries.32 The declaration underlined the commitment of the Nordic countries ‘to cooperate in meeting the challenges in the area of foreign and security policy in a spirit of solidarity’ and, more practically, to ‘upon request . . . assist with relevant means’. The declaration will be followed up by an action plan suggesting practical measures; however, it is doubtful whether it can be considered more than merely a symbolic gesture in light of the obligations already undertaken by the European Union (see further below).33 In the Haga declaration34 from 2009, the Ministers of Defence declared a willingness to develop, among other things, a common Nordic emergency response unit. However, no operational result has yet come out of it.35 Similarly, the so-called Stoltenberg report from 200936 suggests the establishment of a Nordic disaster task force, NORDRED.37 The report’s recommendations are discussed in bi-annual meetings of the Nordic foreign ministers, and have resulted in a number of statements.38 Furthermore, the Nordic states also cooperate in the Arctic Council. Two binding agreements39 30 Besides participation in the Nordic cooperation, Denmark also participates in the Council of the Baltic Sea States, CBSS, where cooperation on disaster management is on the agenda. 31 See the Nordic declaration on solidarity. 32 Denmark, Finland, Iceland, Norway and Sweden. 33 Iceland and Norway, who are not members of the European Union, will not be included under the solidarity clause of the Treaty for the Function of the European Union; however, both countries are participants to the civil protection mechanism (see below), which seems to be a more extensive scheme. 34 Nordiskt ministermöte rörande samhällsskydd och beredskap Stockholm (27 April 2009). 35 A report from November 2010, ‘Rapport fra nordisk arbeidsgruppe for økt samarbeid om forskning, utredning og utvikling innen samfunnssikkerhet og beredskap’, has been published; however, the institutional implications are minimal. 36 Thorvald Stoltenberg, ‘Nordic Cooperation on Foreign and Security Policy’, proposals presented to the extraordinary meeting of Nordic foreign ministers in Oslo on 9 February 2009. The report is available on the Icelandic Ministry of Foreign Affairs’ website http://eng.utanrikisraduneyti.is/media/Frettatilkynning/Nordic_report.pdf (last visited February 2014). 37 See ibid at 23 f. 38 Other more substantive regional European cooperative constructions on disaster management exist. See for instance the programme for prevention, preparedness and response to natural and man-made disasters (PPRD) in the framework of the Euro-Mediterranean Partnership; see Barcelona Process: Union for the Mediterranean ministerial conference – final declaration, Marseille (4 November 2008), or the Disaster Preparedness and Prevention Initiative for South Eastern Europe (DPPI SEE). 39 Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic (2011) and Agreement on Cooperation on Marine Oil Pollution Preparedness and Response in the Arctic (2013).

84 Disaster Law and shared training exercises40 seem to be the most valuable contribution under the auspices of the Arctic Council. Finally, the Nordic states cooperate with UK, Estonia and the Netherlands under the network-based umbrella named International Humanitarian Partnership (IHP). IHP aims to give ‘appropriate operational, technical and financial support to multi-lateral organisations (primarily the UN, but potentially the EU and IFRC) engaged in humanitarian operations around the world’.41 Thus, a fairly ambitious, although somewhat shattered, Nordic cooperation structure aiming to prevent and respond to disasters is in place today. In spite of the dedicated effort of the Nordic countries to cooperate and regulate cross-border cooperation, the real development in recent years seems to take place on the European level. One of the best examples of an expansive juridification of disaster management is to be found in European Union law. 4.2.2 European Union: to the rescue The European Union has vastly expanded its engagement in, and competences within, disaster management in the course of the last 10 years. A series of large-scale global and regional emergencies within the last 10–15 years have put pressure on the Union’s ability to provide a strong and effective response, internally as well as externally.42 A clear and coherent strategy on how the Union should incorporate disaster management has been missing, but is now undergoing a build-up.43 As part of the text of the so-called Stockholm Strategy adopted in June 2010, the European Council considered the future of EU disaster management: The European Council considers that future EU action should be guided by the objectives of reducing vulnerability to disasters by developing a strategic approach to disaster prevention and by further improving preparedness and response while recognising national responsibility. Guidelines for hazard and risk-mapping methods, assessments and analyses should be developed as well as an overview of the natural and man-made risks that the EU may face in the future.44

40 The training exercises, SAREX (Search and Rescue) have been carried out under the auspice of the Artic Council in 2012 and 2013. 41 See International Humanitarian Partnership, Concept Paper, ‘Combining National Strengths to Enhance International Emergency Response’ (September 2012) at 2. 42 One could reasonably claim that this is a special case of the vast development in the development field in EU in general, for a description of these developments see Jan Orbie and Helen Versluys, ‘The European Union’s International Development Policy: Leading and Benevolent?’ in Jan Orbie (ed), Europe’s Global Role: External Policies of the European Union (Aldershot: Ashgate, 2009) at 68 ff. 43 See COM(2009) 82 Communication from the Commission: ‘A Community approach on the prevention of natural and man-made disasters’. 44 Ibid.

Disaster management 85 A number of legal texts in the EU address disaster prevention, for instance the EIA Directive,45 the second Seveso Directive46 and the standardised European building codes (for instance the Eurocode 8 on Earthquakes47). The following description will in alignment with the general focus of this chapter focus on the EU disaster management system.48 The EU disaster management system is divided into an internal and an external dimension. The management’s internal dimension is today based on mainly two principles: a principle of civil protection (the responsibility of the Member States to protect their citizens from existing risk and threats) and a principle of solidarity (among the Member States to assist before, during and after disasters).49 The EU external disaster and crisis response, that is, disasters in non-EU Member States also partially rely on these principles. This will briefly be addressed below. In the following section, a brief investigation of the Union’s civil protection mechanism will be conducted. The recently introduced Union Civil Protection Mechanism aims to incorporate the two principles of internal disaster response, and is thereby the centrepiece of EU disaster management today. 4.2.2.1 The Civil Protection Mechanism (CPM) The framework for civil protection was introduced in 1999, with the establishment of the Community Action Program in the field of civil

45 Council Directive 85/337/EEC amended by 97/11/EC and 2003/35/EC on public and private projects’ impact on the environment. Under the directive the question of whether disaster risk prevention is sufficiently addressed in the projects can be investigated. 46 1996/82/EC on the control of major-accident hazards involving dangerous substances. Seveso II contains requirements for the operator to supply certain information and further an obligation for the Member State to inform the Commission; see 1996/82/EF arts 14 and 15, both management related measures. For a detailed analysis of Seveso II and Danish law see Peter Pagh, ‘Risiko-Virksomheder: Eksterne Beredskabsplaner Og Information Af Offentligheden’ Juristen 1 (2011). The information obligation in Seveso II does not only regard public authorities and the commission, but also an obligation to inform the public on safety reports. Further, the public must be able to give its opinion in cases of planning for new establishments, modification of existing establishments and developments around such existing establishments; see 1996/82/EF art 13.4–5. The European Court of Human Right interprets a similar information obligation in the European Convention on Human Rights art 8 (right to private life). In Guerra and others v Italy (1998) 116/1996/735/932, the Italian Government was found to be in breach of the convention by not providing information to a family living in the vicinity of a chemical factory on the ongoing dangerous activities. 47 EN 1998 Eurocode 8 – ‘Design of structures for earthquake resistance’. 48 For a more elaborate analysis of the EU disaster/crisis management system, see Stefan Olsson (ed), Crisis Management in the European Union: Cooperation in the Face of Emergencies (Berlin: Springer, 2009). 49 ‘The Stockholm Programme: An open and secure Europe serving and protecting the citizens’ 17024/09 at 53 ff.

86 Disaster Law protection. In 2001, the community mechanism for civil protection was adopted.50 After the Indian Ocean tsunami in 2004, major revisions of the mechanism were undertaken.51 As a result, a recast of the civil protection mechanism was introduced in 2007.52 Simultaneously, a Council Regulation, the Rapid Response and Preparedness Instrument for major emergencies from 2005,53 was renamed and expanded to become the Civil Protection Financial Instrument.54 The Commission projected a major increase in the future financing for European civil protection actions, with annual amounts increasing from €16 million in 2007 to €30 million in 2013. In late 2013, a Union Civil Protection Mechanism (UCPM) was adopted,55 integrating the Civil Protection Mechanism and the Civil Protection Financial Instrument. The budget for the UCPM is an astronomical €368,428,000 (to be spent between 2014 and 2020).56 The 28 EU

50 Council Decision of 23 October 2001. A later Commission Decision of 29 December 2003 laid down the rules for the implementation of the Community Mechanism, defining its duties and the functioning of the various tools made use of in the mechanism. It could be claimed that the foundation of civil protection cooperation in the European Union dates back to 1985, to the Ministerial Meeting in Rome. Six resolutions were adopted over the following nine years, resulting in a number of operational instruments covering preparedness, as well as response related issues. All activities were, as in the EMA, organised on the basis of the subsidiarity principle pursuant to the Maastricht Treaty Art 5. 51 The decision was called for by the Council conclusions on improving the European civil protection capabilities (2005/C 304/01). ‘EU aid for tidal wave victims in the Indian Ocean’; European Parliament resolution on the recent tsunami disaster in the Indian Ocean (P6 TA(2005)0006). For further introduction to the mechanism in the history of the Union, see Olsson (ed), Crisis Management in the European Union: Cooperation in the Face of Emergencies at 85 ff. 52 Council Decision 2007/779/EC, Euratom establishing a Community Civil Protection Mechanism (recast) and Council Decision establishing a Civil Protection Financial Instrument (2007/162/EC, Euratom). 53 COM(2005) 113 final, Council Regulation establishing a Rapid Response and Preparedness Instrument for major emergencies. 54 Three Commission Decisions have been issued after the adoption of these two main pillars of civil protection legislation, each of them having a specific purpose within the meaning of the Council Decisions. One of these Decisions (2007/606/EC, Euratom) deals with laying down implementing rules for transport; the other two (2008/73/EC, Euratom and 2010/481/EU, Euratom) provide for the implementation of the modules concept. At least two documents, which are not yet legislative pieces but contain proposals or observations which will have a bearing on civil protection, deserves mention; the 2008 Commission Communication on Reinforcing the Union’s Disaster Response Capacity, COM(2008) 130. Communication from the Commission to the European Parliament and the Council: ‘on Reinforcing the Union’s Disaster Response Capacity’ and the 2010 Communication on the civil protection and humanitarian assistance, COM(2010) 600. Communication from the Commission to the European Parliament and the Council: ‘Towards a stronger European disaster response: the role of civil protection and humanitarian assistance’. Both outline a potential further elaboration of the mechanism and a general strengthening of EU’s role as disaster responder. 55 See Decision no 1313/2013/EU of the European Parliament and of the Council of 17 December 2013 on a Union Civil Protection Mechanism. 56 Ibid Art 19.

Disaster management 87 Member States and four non-Member State countries (Iceland, Norway, FYR Macedonia and Lichtenstein) participate in the mechanism. The CPM was originally based on the flexibility clause (TEC Article 308); however, with the ratification of the Lisbon Treaty a legal basis for a stronger and more efficient EU disaster management response was created (Title XXIII, Article 196 in the consolidated Treaty on the Function of the European Union (TFEU)). According to TFEU Article 196, the Union shall henceforth ‘encourage cooperation between Member States in order to improve the effectiveness of systems for preventing and protecting against natural or man-made disasters’. More precisely, this means that the Union shall: ‘(a) support and complement Member States’ action at national, regional and local level in risk prevention, in preparing their civil-protection personnel and in responding to natural or man-made disasters within the Union; (b) promote swift, effective operational cooperation within the Union between national civil protection services; (c) promote consistency in international civil-protection work’.57 The UCPM aims to protect ‘primarily people, but also the environment and property, including cultural heritage, against all kinds of natural and man-made disasters, including environmental disasters, marine pollution and acute health emergencies, occurring inside or outside the Union’.58 In 2013, the UCPM was activated 35 times. The decision is organised in accordance with a classical disaster management circle; in chapters on prevention (chapter II), preparedness (chapter III) and response (chapter IV), describing in detail a number of elements and actions, such as knowledge collection (risk assessments), knowledge sharing, training, the establishment of a shared coordination centre, support to Member States in regards to access to equipment and transport, and much more. The prevention section specifically addresses the collection and sharing of knowledge within the Member State, as well as among Member States.59 Among other things, the UCPM stipulates that Member States must develop national risk assessments available to the Commission.60 The section on preparedness focuses on the Emergency Response Coordination Centre (ERCC),61 replacing the so-called Monitoring and Information Center (MIC). The ERCC is a coordination hub operational 24/7 to serve the Member States in implementing the aims of the mechanism. Besides the ERCC, the Commission is responsible for maintaining a Common Emergency

57 See TFEU Art 196. 58 Decision no 1313/2013/EU (n 55) preamble section 3. 59 As part of the Lisbon Treaty, the Union is obliged to ‘regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action’; see TFEU Art 222(4). 60 Decision no 1313/2013/EU (n 55) Art 6. 61 Ibid Art 7.

88 Disaster Law Communication and Information System (CECIS),62 establishing and managing the capability to mobilise and dispatch expert teams,63 developing and maintaining a network of trained experts64 and supporting efforts to improve the interoperability of modules and other response capacities.65 Furthermore, the Commission and the Member States shall work together on planning and engaging in scenario-development66 and a European Emergency Response Capacity (EERC) shall be established consisting of a voluntary pool of pre-committed response capacities.67 Finally, the Commission shall monitor strategic capacity gaps68 and develop and implement a number of tasks related to training, exercises, lessons learnt and knowledge dissemination.69 The response section entails a duty of notification both to the Commission and to Member States potentially affected by a disaster.70 A Member State affected by a disaster should as soon as possible notify the ERCC, which functions as a shared communication and coordination hub for the EU’s disaster management efforts.71 Furthermore, the response section addresses the possibility of assistance from other Member States72 and from the Commission,73 and the external dimension of the UCPM to which I shall briefly return below. Interventions in response to a request of a Member State are directed by the requesting Member State. The authorities of the requesting Member State shall, according to the Council decision, ‘lay down guidelines and, if necessary, define the limits of the tasks entrusted to the modules or other response capacities’.74 The operational legal framework of such interventions will always be based on the requesting Member State’s a priori established legal framework.75 Thus, not only must a European country enact and maintain a comprehensive legal framework for disaster management (in accordance with European human rights law), but this framework must also be accessible for other countries and supplemented by guidelines to secure that other Member States can effectively assist in the given Member State’s response efforts. The second principle of EU law seems to be addressed under the same implementation arrangements. With the ratification of the Lisbon Treaty, 62 63 64 65 66 67 68 69 70 71 72 73 74 75

Ibid Art 8(b). Ibid Art 8(d). Ibid Art (f). Ibid Art 8(h). Ibid Art 10. Ibid Art 11. Ibid Art 12. Ibid Art 13. Ibid Art 14. Ibid Art 14(2). Ibid Art 15. Ibid Arts 17–18. Ibid Art 15(5). The coordination of the operation can, based on a request of the Member State, be conducted by the units themselves; however, on similar terms. See ibid.

Disaster management 89 a so-called solidarity clause was introduced that underlined the strong adherence to disaster response of the Community. According to TFEU Article 222: The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to (b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster. The obligation, in spite of its frail character (‘shall act jointly in a spirit of solidarity’), underpins the Community’s aspiration to function as a coordination and communication hub for the Member States in case of large emergencies.76 Whilst the first paragraph of the provision regards the Union’s obligation, the second and significantly more robust legal obligation is addressed to the Member States: ‘Should a Member State be the . . . victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities’.77 The provision maintains emergency preparedness as an obligation lying within the domain of the single Member State. Thus, the solidarity obligation only regards resources made available to the Union and the right ‘to choose the most appropriate means to comply’78 is reserved. The solidarity clause places a meta-obligation to ‘act jointly in a spirit of solidarity’ upon the European Union, and a concrete obligation on respectively the Union (to ‘mobilise all units’) and the Member States inter alia to assist, upon request.79 The civil protection mechanism seems to be the short-term instrument for the realisation of the solidarity clause, and Article 222 should in this regard be read in close interconnection with Article 196.80 Beyond the 76 The solidarity clause could be described as a sort of civil twin to the mutual defence clause in TFEU Art 42(7). The article was also introduced by the ratification of the Lisbon Treaty, and is, in contrast to the solidarity clause, of a purely intergovernmental character. Natural and man-made disasters were allegedly added with inspiration from the Barnier report made some years earlier on the role of disaster response in the EU, see Sara Myrdal and Mark Rhinard, ‘The European Union’s Solidarity Clause: Empty Letter or Effective Tool?’ Occational UI papers published by Swedish Institute of International Affairs No 2 (2010) at 4. Myrdal and Rhinard claim in their paper that the fact that terrorism is mentioned before disasters indicates a larger priority towards terrorism in the obligation imposed by the provision; ibid at 6. This assessment seems utterly unsubstantiated based on a text analysis of the article alone. 77 TFEU Art 222(2). 78 Ibid. 79 For a slightly different conceptualisation, see Myrdal and Rhinard, ‘The European Union’s Solidarity Clause: Empty Letter or Effective Tool?’ at 7. 80 The realisation of the solidarity clause is a task ‘the Member States shall coordinate between themselves in the Council’; see TFEU Art 222(2). This is further underlined in the

90 Disaster Law civil protection mechanism, the Union administers a number of specific response instruments and coordination mechanisms,81 as well as a number of financial instruments for Member States affected by a disaster.82, 83 A comprehensive legal framework for coordination and assistance in case of disasters within the European Union is undergoing a build-up. This development does not only improve the cooperative possibilities between the Member States, but also directly and indirectly affects the legal standards of response applied within the Member States. The Union does so by imposing standards directly relevant for national law, by creating transparency among the Member States, and by imposing new demands to the Member States’ national legal frameworks. Most importantly, this comprehensive framework testifies to the commitment to law as a main instrument to address disaster risks today and the rapid development of this field. Before concluding this section on the Union, a short description of the external dimension of the EU disaster response will follow. 4.2.2.2 ‘To infinity . . . and beyond’ With the Lisbon Treaty, a new chapter on the Union’s external action was introduced. TFEU Article 21 stipulates an obligation on the Union to ‘define declaration on the treaty: ‘Without prejudice to the measures adopted by the Union to comply with its solidarity obligation towards a Member State which is the object of a terrorist attack or the victim of natural or man-made disaster, none of the provisions of art 188 R is intended to affect the right of another Member State to choose the most appropriate means to comply with its own solidarity obligation towards that Member State’; see 37. Declaration on Article 188 R (Art 222) of the Treaty on the Functioning of the European Union. 81 A general communication mechanism exists in form of ARGUS (internal coordination mechanism – a general European rapid alert system), a system which is considered part of EU Crisis Coordination Arrangements (CCA). Argus is tied up to the Central Crisis Centre (CCC), a center connecting all the specialised response systems during a major emergency, see Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Commission provisions on ‘ARGUS’ general rapid alert system, COM(2005) 662 final. Besides ARGUS a number of specialised so called Rapid Alert Systems (RAS) are in place; for instance ECURIE (early exchange of knowledge on radiological emergencies); ADNS (Animal Disease Notification System), RAS BICHAT (Biological and Chemical Attacks and Threats), EWRS (Early Warning and Response System on outbreaks of communicable diseases), HEAF (Health Emergency Operational Facilities), RAPEX (Rapid Exchange of Information System – non-food consumer products), RASFF (Rapid Alert System for Food and FEED), RAS-CHEM (Chemicals), CIWIN (Critical Infrastructure Warning Information Network). For an in-depth investigation of the RAS, see Olsson (ed), Crisis Management in the European Union: Cooperation in the Face of Emergencies at 61 ff. Finally, the RELEX crisis platform (coordination between commission and MS) is applied in external crisis situations. 82 Funds can be provided by the European Regional Development Fund (ERDF), the EU Solidarity Fund (EUSF), the funds available for Rural Developments and LIFE+. While CPFI and the two former mentioned only aim at disaster prevention, ERDF and EUSF can under special conditions provide funds for adaptation measures as well. 83 Furthermore, the Lisbon Treaty contains an exception from the state-aid prohibition in case of natural disasters; see TFEU Art 107(b), and direct assistance in case of supply difficulties caused by natural disasters; see TFEU Art 122(2).

Disaster management 91 and pursue common policies and actions, and . . . work for a high degree of cooperation in all fields of international relations, in order to . . . (g) assist populations, countries and regions confronting natural or man-made disasters’. Thus, disaster relief plays a central role in the external as well as internal dimension of the Union.84 The efforts are coordinated by the Commission’s Humanitarian Office (ECHO) and the European External Action Service (EEAS),85 and are channelled mainly through the instrument for humanitarian aid86 and the CPM described above.87 The instrument for humanitarian aid sets out to: [C]omprise assistance, relief and protection operations on a nondiscriminatory basis to help people in third countries, particularly the most vulnerable among them, and as a priority those in developing countries, victims of natural disasters, man-made crises, such as wars and outbreaks of fighting, or exceptional situations or circumstances comparable to natural or man-made disasters.88 Aside from the requirement to distribute aid in a non-discriminatory manner, aid providers must adhere to the standards set out by international public law (IPL) and international humanitarian law (IHL),89 particularly neutrality and impartiality.90 The aid is distributed (mainly) through the 84 See also Art 188 J (Art 214): ‘1. The Union’s operations in the field of humanitarian aid shall be conducted within the framework of the principles and objectives of the external action of the Union. Such operations shall be intended to provide ad hoc assistance and relief and protection for people in third countries who are victims of natural or manmade disasters, in order to meet the humanitarian needs resulting from these different situations. The Union’s measures and those of the Member States shall complement and reinforce each other. 2. Humanitarian aid operations shall be conducted in compliance with the principles of international law and with the principles of impartiality, neutrality and non-discrimination.’ 85 For a more comprehensive overview of the organisational architecture of the development field in the EU, see Helen Versluys, ‘The European Union’s International Development Policy: Leading and Benevolent?’ at 71; and Helen Versluys, ‘European Union Humanitarian Aid: Lifesaver or Political Tool?’ at 97. 86 See Regulation (EC) No 1257/96 amended by Regulation (EC) No 1882/2003 and Regulation (EC) No 219/2009. The regulation’s function and particularly its legal basis is analysed in Morten Broberg, ‘Legal Basis of EU Council Regulation 1257/96 Concerning Humanitarian Aid: Time for Revision?’ in Hans-Joachim Heintze and Andrej Zwitter (eds), International Law and Humanitarian Assistance: a Crosscut through Legal Issues Pertaining to Humanitarianism (Berlin: Springer, 2011) at 71. The introduction of TFEU art 214, however, seems to litigate the critique presented by Broberg, if or when a new legal instrument is introduced. 87 See Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Reinforcing EU Disaster and Crisis Response in third countries COM(2005) 153 final. 88 See Regulation (EC) No 1257/96 Art 1. 89 Hereunder the UN Guidelines on the use of Military and Civil Defense Assets in Humanitarian Operations. 90 See Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Reinforcing

92 Disaster Law specialised agency of the United Nations, the Red Cross family and European NGOs.91 The Union distributed €1.1 billion in humanitarian aid in 2011. Under particular circumstances, financial disaster assistance can also be provided through the Instrument for Stability (IfS).92 The CPM is also applied outside the Community,93 without prejudice to measures adopted under the former Title V in TEU (now TFEU Title X) and within the existing international response structures.94 The measures outlined above also apply to the external dimension of the Union’s disaster response; often the Union will supply in-kind assistance, equipment or trained teams under the CPM to support an affected third country. Thus, in tandem with distribution of humanitarian aid, the Union today plays an active role on the ground in responding to disasters across the globe. Without a deeper analysis of the external policies of the European Union, it is clear that the Union aims to be a significant player in disaster response, both within and beyond the boundaries of the Union. 4.2.2.3 Sub-conclusion: European disaster law The European Union is properly engaged in creating a European legal framework for disaster response. Most significantly, Member States of the European Union have today undertaken to make substantial national risk assessments and assist in case of disasters within the Union. However, it is not only within Europe that the Union is a significant contributor. The Union had boots on the ground and substantial economic contributions in play at almost all of the major disasters occurring within the last 10 years. Essentially, the European Union is today a strong driver of national as well as international

91 92

93 94

EU Disaster and Crisis Response in third countries (COM(2005) 153 final at 4). The principles are considered ‘core principles regularly recognized as foundational to humanitarian assistance efforts generally’, see the International Law Commission, Document A/CN.4/590 (2008) at para 11, and for a more elaborate account of their function A/65/10, p 315 paras 302–304. See Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, ‘Reinforcing EU Disaster and Crisis Response in third countries’ COM(2005) 153 final at 5. The aim of IfS is ‘in a situation of crisis or emerging crisis, to contribute to stability’, as well as to ‘help build capacity both to address specific global and trans-regional threats having a destabilising effect and to ensure preparedness to address pre- and post-crisis situations’; see Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 2006 establishing an Instrument for Stability Art 1.1(a) and (b). The IfS is enacted by Regulation (EC) No 1717/2006 of the European Parliament and of the Council of 15 November 2006 establishing an Instrument for Stability. The IfS replaced among other instruments the so-called rapid-reaction mechanism, Council Regulation (EC) No 381/2001 of 26 February 2001 creating a rapid-reaction mechanism Official Journal L57 of 27.02.2001. See Decision on the Union Civil Protection Mechanism (n 55) Art 2. Response will often be carried out under the leadership of United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA); see ibid Art 16(2).

Disaster management 93 disaster management and law. The supranational level forces the national and subnational legal frameworks to follow, by enforcing duties, distributing knowledge and institutionalising response mechanisms. In fewer words, the European Union is today a significant player in the disaster management landscape, and nothing seems to indicate that this development is stagnating. Thus, there is likely to be a strengthened European cooperation in the coming years. This significant development in the European setting testifies to the above-mentioned theoretical presumptions; as the world becomes interrelated, the need for cooperation and legal norms increases. This is no less the case in the global arena. In the following section, I will account for the status of international disaster response law. While regulation and legal regimes in this field are definitely proliferating, and thereby serve as a good case to document the drive for and emergence of regulation, a number of structural challenges still characterise the present framework. I will address these challenges in the concluding remarks of the following analysis. 4.2.3 International disaster response law By 1921 the Red Cross had already suggested the need for an international convention on disasters (Farber 2013: 46; Urioste 2006: 184). Yet, even today no such convention exists.95 In sharp contrast to any other security issue with cross-border implications (take for instance war, epidemics, nuclear energy or drugs), natural disasters today remain almost entirely ungoverned by hard law under international law (Fidler 2005; Hannigan 2012: 2). Thus, disaster response is mainly governed by a body of soft law (Fidler 2005). The Canadian sociologist John Hannigan investigates what he calls the global policy field of disasters in Disaster Without Borders (Hannigan 2012: 20). According to Hannigan: ‘in the absence of a strong multilateral presence, natural disasters fell under the influence of an uneasy alliance of the Red Cross, United Nations development agencies, and humanitarian non-governmental organizations (NGOs)’. While this worked in terms of creating a fairly successful governance scheme for disaster response through the 1970s and 1980s, it falls short of tackling the challenges of modern disaster management. Thus, Hannigan suggests that a paradigm shift is taking place in international disaster response (Christoplos and others 2001; Hannigan 2012: 77): In recent years, however, changes in the nature of disaster, the structure of international aid architecture and in the discourse on humanitarian 95 In fact, Red Cross efforts led to the adoption of the Convention for the Establishment of the International Relief Union (IRU) coming into force in 1932. The IRU plays a role in disaster management today. For a brief analysis of the convention, see Alejandra De Urioste Urioste, ‘When Will Help Be on the Way? The Status of International Disaster Response Law’ Tulane Journal of International and Comparative Law 15 (2006) at 184–85.

94 Disaster Law response have compelled us to reflect critically on who should be doing what before, during and after a disaster strikes. The implications of globalization and structural adjustment have introduced a growing ambiguity into what had been seen as self-evident set-piece roles for states, non-governmental organizations (NGOs), and the private sector. (Christoplos 2003: 95) Over the last 30 years literally a forest of international actors, legal instruments and platforms have emerged within the global field. A vast number of NGOs, foundations and institutions today work specifically with disaster cooperation, mitigation and prevention. In one study, 372 different organisations involved in the Indian Ocean tsunami response were identified, operating within at least four different jurisdictions (Comfort 2007). John Hannigan identifies nine types of actors in the field: ‘national states and local governments; regional organisations, international finance institutions (IFIs); United Nations disaster agencies and other international governmental organisations (IGPs); non-governmental organisations (NGOs); multi-actor initiatives and partnerships; scientific, technical and academic communities; and the mass media’ (Hannigan 2012: 40, 22 ff). The American political scientist Michael Barnett documents how a humanitarian field has emerged from this forest of different actors, and argues that we will see an increasing amount of rationalisation, bureaucratisation and professionalisation (Barnett 2008; Hannigan 2012: 20). The European Union serves as a perfect example of how rationalisation, bureaucratisation and professionalisation occur in the field, as documented above. However, also on the global level new international legal instruments revolving around disaster management have emerged in response to these new challenges. Today, a body of international law consisting of charters, treaties, resolutions, codes and guidelines exists;96 these are collectively 96 Of platforms that will not be investigated a few deserve mention, not least the United Nations’ International Strategy for Disaster Reduction (UN-ISDR) and the associated platform Global Facility for Disaster Reduction and Recovery (GFDRR). Not investigated in any depth here is the work ongoing under the Rio Convention on Climate Change (RIOCC). RIOCC cooperates with UN-ISDR on disaster issues, as disaster risk reduction is a key element identified in the Bali Action Plan, as well as the Cancún Agreement; see more in Decision 1/CP.16 (FCCC/CP/2010/7/Add.1) ‘The Cancún Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention’ at 5. The RIOCC seems to a large extent to rely on the discussions under the Hyogo framework, why the independent content is of little interest. For a general overview of the international law sources, see for instance a Red Cross/Crescent study financed by the Danish Government, David Fisher, ‘Law and Legal Issues in International Disaster Response: A Desk Study’ (Geneva: International Federation of Red Cross and Red Crescent Societies, 2007); see also Erica Harper, ‘International Law and Standards Applicable in Natural Disaster Situations’ (International Development Law Organisation, 2009). See in Danish law Proclamation no 89 of 15 September 1994 of UN Framework Convention of 9 June 1992 on Climate Change.

Disaster management 95 referred to as international disaster response law (IDRL) (Fisher 2007: 8; Guttry and others 2012: xviii). The legal portfolio contains norms on all aspects of international disaster management including coordination,97 response, prevention and adaptation. Although extensive in scope; coherence and consistency are lacking in the present body of IDLR. Overlapping legal sources and utterly unregulated problems characterise the field. Furthermore, the vast majority of the norms described do explicitly not apply under war or in complex emergencies (ie a natural disaster in a warzone or conflict area98). Thus, international humanitarian law generally takes precedence over IDLR.99 I will in the following section attempt to draw up an outline architecture of relevant international law.100 The main strategic framework on a global scale for addressing natural disaster reduction and mitigation is set out in the Hyogo Framework for Action (HFA).101 HFA was adopted in Kobe, Hyogo by the World Conference on Disaster Reduction in January 2005, and provides a framework for actions on the strengthening of resilience of nations and communities to disasters in

97 In December 1991, the General Assembly had already requested the United Nations to ‘establish a central register of all specialized personnel and teams of technical specialists, as well as relief supplies, equipment and services available within the United Nations system and from Governments and intergovernmental and non-governmental organizations, which can be called upon at short notice by the United Nations’; see Resolution A/RES/46/182 adopted on 19 December 1991. Under the framework of the resolution, UN-OCHA administers the so-called Register of Military, Civil Defense and Civil Protection Assets (MCDA Register), a voluntary coordination mechanism containing data on the military, civil defence, civil protection expertise, capacities and range of services which may be offered in case of emergency; the data registered is non-binding for the registrant. More specific, but similar, coordination measures are in place under other legal frameworks; see e.g. the Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency, adopted by the General Conference at its special session (24–26 September 1986) and opened for signature at Vienna on 26 September 1986 and at New York on 6 October 1986, announced in Danish law by Law no 464 of 17 June 2008 on Denmark’s ratification of the International Atomic Energy Agency’s Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency. 98 A complex emergency is defined by IASC as ‘a humanitarian crisis in a country, region or society where there is total or considerable breakdown of authority resulting from internal or external conflict and which requires an international response that goes beyond the mandate or capacity of any single and/or ongoing UN country programme’; see e.g. IASC guidelines on the Use of Military and Civil Defense Assets to Support United Nations Humanitarian Activities in Complex Emergencies (March 2003). 99 See ‘Guidelines for the Domestic Facilitation and Regulation of International Disaster Relief and Initial Recovery Assistance’, 30IC/07/R4 annex at 1; International Law Commission’s report ‘Protection of persons in the event of disasters’ A/65/10, p 327 on the proposed Art 4. 100 For an updated and more comprehensive account of disaster law, see Eduardo ValenciaOspina, ‘Sixth Report on the Protection of Persons in the Event of Disasters’ (Geneva: United Nations’ General Assembly, 2013). 101 ‘The Hyogo Framework for Action 2005–2015: Building the Resilience of Nations and Communities to Disasters’, Extract from the final report of the World Conference on Disaster Reduction (A/CONF.206/6).

96 Disaster Law the period from 2005–2015.102 The aim of the framework is to contribute to a ‘substantial reduction of disaster losses, in lives and in the social economic and environmental assets of communities and countries’.103 Three strategic goals pursue this aim: (a) integration of disaster risk considerations into policies, planning and programming; (b) development and strengthening of institutions, mechanisms and capacities (‘systematically to contribute to building resilience to hazards’); and (c) systemically incorporate ‘risk reduction approaches’ in emergency preparedness, response and recovery;104 in short, increasingly to integrate considerations on risk and social vulnerability in decision-making at all levels and in all sectors of society. The Hyogo framework matches the general tendency on a local as well as a global level to integrate disasters into society, and thereby to dissolve finitely the dichotomies accounted for in Chapter 3.105 The Inter-Agency Standing Committee (IASC) is the primary mechanism for inter-agency coordination of humanitarian assistance. It is a forum involving UN and non-UN humanitarian actors, including the World Bank, the International Red Cross and Red Crescent Movement and the International Organization for Migration.106 The IASC works from a set of operational Guidelines on Human Rights and Natural Disasters.107 The guidelines are ‘addressed to intergovernmental and non-governmental humanitarian actors when they are called upon to become active just before or in the aftermath of a natural disaster’108 and intend to serve as an operable version of international law in force.109 The guidelines stress the immanent link between 102 HFA replaces the Yokohama Strategy from 1994; see the Yokohama Strategy for a Safer World: Guidelines for Natural Disaster Prevention, Preparedness and Mitigation and its Plan of Action (1994). 103 Hyogo Framework for Action (n 101) at 3. 104 Ibid 3–4. 105 See also the so-called Paris Declaration, Conclusions and Recommendations of the Conference on ‘Natural Disasters Prevention, Land-Use Planning and Sustainable Development’ Paris (17–19 June 1999). The conference, organised by the International Decade for Natural Disaster Reduction (IDNDR), launched by the United Nations, following the adoption of Resolution 44/236 (22 December 1989), concluded: ‘We recommend that the natural risk prevention policies be harmoniously integrated into a continuum of responsibility among governmental entities, economic interests, communities and citizens.’ 106 For an overview of the humanitarian response architecture, see IASC’s Handbook for RCs and HCs on Emergency Preparedness and Response (2010) at 1 ff. 107 ‘Protecting Persons Affected by Natural Disasters: IASC Operational Guidelines on Human Rights and Natural Disasters’ (June 2006). 108 Ibid at 9. 109 Among them the Universal Declaration of Human Rights, and human rights instruments as the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child. However, also on standards as the Guiding Principles on Internal Displacement, the Sphere Humanitarian Charter and Minimum Standards in Disaster Response, the IFRC Code of Conduct and the IASC IDP Policy – see below. For a full list, see ‘Human Rights and Natural Disasters: Operational Guidelines and Field Manual on Human Rights Protection in Situations of Natural Disaster’ (March 2008) at 4, 79. The Guiding Principles on Internal

Disaster management 97 disaster response and human rights, which I have already accounted for in this chapter. According to the guidelines: Human rights are the legal underpinning of all humanitarian work pertaining to natural disasters. There is no other legal framework to guide such activities, especially in areas where there is no armed conflict. If humanitarian assistance is not based on a human rights framework, it risks having too narrow a focus, and cannot integrate all the basic needs of the victims into a holistic planning process.110 The guidelines directly address the issue of law and its potential void: Furthermore, neglecting the human rights of those affected by natural disasters effectively means no account will be taken of the fact that such people do not live in a legal vacuum. They live in countries with laws, rules and institutions that should protect their rights.111 Thus, the basic presumption today is that the legal framework of a state remains unaffected by the natural disasters, and this is exactly as expressed in the first general principle of the guidelines:112 ‘People affected by natural disasters should enjoy the same rights and freedoms under human rights law as others in their country and not be discriminated against.’113 Rights encompassed by this approach are not limited to the right to life or basic social rights; the responders must respect ‘all relevant guarantees – civil and political as well as economic, social and cultural rights’.114 The guidelines secure that the legal rights of individuals affected by a disaster

110 111 112

113 114

Displacement, recognised in September 2005 at World Summit in New York in UN General Assembly resolution 60/L.1 (132, UN Doc A/60/L.1), among other principles contains: non-discrimination (principle 4(1)); right to the highest attainable standard of health (principle 19); the right to adequate housing (principle 11(1)); the right to a livelihood (Art 6(1)); the rights of vulnerable groups (principle 4(2)); participation from the ground (Art 28(2)). For a short analysis of these rights in conjunction with natural disasters, see Hope Lewis, ‘Human Rights and Natural Disaster: The Indian Ocean Tsunami’ Human Rights 33(4) (2006) 12–16. ‘Protecting Persons Affected by Natural Disasters: IASC Operational Guidelines on Human Rights and Natural Disasters’ (n 100) at 9. Ibid. See also the Report of the Representative of the Secretary-General on the human rights of internally displaced persons, Walter Kälin, E/CN.4/2006/7 para 8: ‘From a rights perspective, it is important to stress that protection activities of international actors must not be limited to securing strictly the basic survival needs of IDPs but should cover all guarantees contained in the four categories of rights outlined above. In other words, what is needed is a rights-based approach to humanitarian action.’ ‘Protecting Persons Affected by Natural Disasters: IASC Operational Guidelines on Human Rights and Natural Disasters’ (n 100) at 13. Ibid at 10.

98 Disaster Law are to the widest extent possible preserved.115 This unreserved adherence to a rights-based approach seems widely shared among the international organisations responding to natural disaster.116 The International Law Commission at its fifty-ninth session (2007) decided to include the topic of ‘protection of persons in the event of disasters’.117 The work will in the coming years produce a treaty proposal on the protection of individuals in disaster situations.118 Thus, human rights play a significant role in constituting the legal framework of natural disasters. Besides these principles and overall commitments of the global community, a number of more concrete and specialised legal instruments exist: the Tampere Convention on the Provisions of Telecommunication Resources for Disaster Mitigation and Relief Operations (1998), which entered into force in 2005, is often highlighted as a central legal instrument in the architecture of disaster law. However, one could also highlight the International Convention on Oil Pollution Preparedness, Response and Cooperation (OPRC) from 1990119 or the Convention on the Transboundary Effects of Industrial Accidents from 1992.120 Furthermore, the Conventions on the Safety of United Nations and Associated Personnel from 1994121 and the

115 For an analysis of the question under International Humanitarian Law, see HansJoachim Heintze, ‘Convergence between Human Rights Law and International Humanitarian Law and the Consequences for the Implementation’ in HansJoachim Heintze and Andrej Zwitter (eds), International Law and Humanitarian Assistance: a Crosscut through Legal Issues Pertaining to Humanitarianism (Berlin: Springer, 2011) at 83 ff. 116 Principle III, ‘Protecting Persons Affected by Natural Disasters: IASC Operational Guidelines on Human Rights and Natural Disasters’ ( June 2006) at 13: ‘Organizations providing protection and assistance to persons affected by natural disasters accepts that human rights underpin all humanitarian action. In situations of natural disaster they should therefore respect the human rights of persons affected by disaster at all times and advocate for their promotion and protection to the fullest extent.’ See also the legal manual on ‘International Law and Standards Applicable in Natural Disaster Situations’ published by the International Development Law Organization (IDLO) in 2009; Harper, ‘International Law and Standards Applicable in Natural Disaster Situations’. The manual set out among other things to ‘provide detailed information on provisions contained in treaty-based law that are relevant to disaster response’, and further to ‘provide operational and policy guidance to support the development of rights-based approaches to post-disaster rehabilitation’, ibid at 16. 117 Sixty-second session (3 May–4 June and 5 July–6 August 2010) A/65/10 at 313 ff. 118 The work title of the convention alone seems to indicate the pertaining focus on individual rights, see draft Art 7 (on human dignity), and further Dabiru Sridhar Parnaik, ‘Towards an International Legal Framework for the Protection of Individuals in the Event of Disasters: An Initial Inquiry’ in Heintze and Zwitter, International Law and Humanitarian Assistance (n 115) at 131 ff. 119 30 ILM 733 (1990). For an analysis of OPRC and the Arctic Council’s agreement on response to oil pollution, see Kristian Cedervall Lauta, ‘A Drop in the Ocean: Marine Oil Pollution Preparedness and Response in the Arctic’ Arctic Review on Law and Policy (vol. 4, no. 2, 2014). 120 2105 UNTS 46 (1992). 121 UNGA resolution 49/59 of 9 December 1994 (entry into force 15 January 1999).

Disaster management 99 Food Aid Convention from 1999122 seem within their respective areas to create a binding legal framework for activities relevant for disasters. While this could already seem like a wide range of legal instruments, the growth-level and main body of international disaster law is soft law. A number of supplementing guidelines, codes and due diligence recommendations take up the bulk of relevant legal sources in the field. In particular, NGO guidelines and intergovernmental guidelines play a vital role to adjust expectations and response mechanisms in disaster situations. Often highlighted are the so-called ‘Oslo Guidelines’ on the Use of Military and Civil Defence Assets in International Disaster Relief, which were relaunched by UN-OCHA in November 2006.123 The Oslo Guidelines are specifically aimed for the use of military and civil defence assets in disaster relief.124 The guidelines are not legally binding, but are endorsed by the UN, and the EU, as well as by NATO. Simultaneously, a set of ‘twin’ guidelines applicable to complex emergencies,125 the so-called MCDA guidelines, exist. The principles imbuing all humanitarian work, the so-called humanitarian principles, seem to be generally recognised in international law when the disaster aid takes the form of a humanitarian operation. Accordingly, disaster assistance must be based on humanity, impartiality and neutrality. These principles also include access to vulnerable groups, and the ‘do no harm’ principle. Furthermore, a vast number of guidelines, recommendations or good governance considerations could be mentioned such as the Sphere project, attempting to influence response mechanisms or the IASC-guidelines, mentioned above, compiling present law. In sum, the need of, and interest in, an effective international law system with the ability to facilitate an effective and lean disaster response is vastly increasing, and additionally includes the call for a more coherent body of IDLR. Although general principles relevant not only for disaster relief can be identified, the legal body as such is presently cluttered. While this serves as documentation of the explosive juridification of disasters as well as the apparent need of an effective legal framework under international law, the fact that no such framework exists undermines our ability effectively to respond to disasters. 122 A legal instrument under the International Grains Agreement from 1995, see Council Decision of 13 June 2000 on the conclusion, on behalf of the European Community, of the Food Aid Convention 1999. 123 The guidelines are endorsed by the EU in ‘European Consensus on Humanitarian Aid’; see (2008) C25/01. 124 Scope of Oslo Guidelines: natural technological and environmental emergencies in times of peace. 125 Complex Emergency: ‘a humanitarian crisis in a country, region or society where there is total or considerable breakdown of authority resulting from internal or external conflict and which requires an international response that goes beyond the mandate or capacity of any single and/or ongoing UN country programme’, IASC DEF.

100 Disaster Law However, with the possible introduction of a convention within the coming years the fabric of IDLR will be significantly strengthened,126 and affected states remain responsible for creating legal regimes able to facilitate international disaster response.127 Before concluding the chapter, three interrelated points of critique, or rather challenges for the international community to the body of present IDRL, will be presented. 4.2.3.1 Three challenges for IDRL I will point towards three overall challenges for the body of international disaster law.128 The challenges will briefly be touched upon below, in three trajectories: 1 – Same disaster, different rules; 2 – Different disasters, different rules; and 3 – ‘Hard times, soft law. 1 – Same disaster, different rules. Today, many different sets of rules apply to the same disaster, not least as a result of the vertical organisational overlaps in the institutional architecture and the many different actors in the field. The different key actors in international disaster management, such as bilateral state actors, multinational actors, private actors129 and NGOs are all subject to different sets of rules and, in particular, non-governmental actors are either under-regulated or unregulated in disaster response situations. When maintaining a large number of different overlapping competent legal frameworks a risk of ‘forum shopping’ emerges, giving states the opportunity to apply the legal framework most convenient in a given situation. 126 See also for similar conclusion Parnaik, ‘Towards an International Legal Framework for the Protection of Individuals in the Event of Disasters: An Initial Inquiry’ at 133.‘ 127 ‘Principle II in Protecting Persons Affected by Natural Disasters – IASC Operational Guidelines on Human Rights and Natural Disasters’ at 13: ‘States have the primary duty and responsibility to provide assistance to persons affected by natural disasters and to protect their human rights.’ See also Harper, ‘International Law and Standards Applicable in Natural Disaster Situations’ at 18: ‘The domestic legal system is the principal framework for upholding the rights of persons affected by natural disasters, responsibility for which rests with the state.’ In a sense this Westphalian (state-centric) politic model characterises all developing legal fields in international law, and therefore comes as no surprise. See finally draft Art 8 (primary responsibility of the affected state) in the ILC’s Protection of persons in the event of disasters A/65/10. 128 For more challenges, see Rohan J. Hardcastle and Adrian T. L. Chua, ‘Humanitarian Assistance: Towards a Right of Access to Victims to Natural Disasters’ International Review of the Red Cross 325 (1998); Urioste, ‘When Will Help Be on the Way? The Status of International Disaster Response Law’; Daniel A. Farber, ‘Catastrophic Risk, Climate Change, and Disaster Law’ Asia Pacific Journal of Environmental Law 16 (2013) 37–54. 129 For a call for responsibility for private actors, see Ronen Shamir, ‘Catastophes and Humanitarian Corporate Responsibility: A Conceptual Critique’ in Austin Sarat, Lawrence Douglas and Martha Merrill Umphrey (eds), Law and Catastrophe (The Amherst Series in Law, Jurisprudence, and Social Thought; Stanford, CA: Stanford University Press, 2007); Leïla Choukroune, ‘Corporate Liabiltiy for Human Rights Violations. The Exxon Mobil Case in Indonesia’ in Michael Faure and Andri Wibisana (eds), Regulating Disasters, Climate Change and Environmental Harm: Lessons from the Indonesian Experience (Cheltenham, UK: Edward Elgar, 2013).

Disaster management 101 While this might appear attractive from the perspective of the host nation, it is highly problematic for the contributing actors and the victims of the disaster, as the different guidelines and financial ramifications change from forum to forum. Thus, there seems to be a growing need for clarifying the boundaries between the different legal frameworks, and thereby creating a clearer and more coherent disaster response structure. This problem seems in particular relevant with regard to overlapping coordination and information-sharing mechanisms. 2 – Different disasters, different rules. There are today major differences in the applicable legal frameworks depending on the affected country and the type of hazard. While for example an oil spill in the North Sea is comprehensively regulated under national, regional and international law, an earthquake in Haiti is vastly under-regulated. This reflects three major challenges for international disaster law: the geographical scope of parties to the different relevant conventions; the need, on a national level, to develop legal instruments for disaster response situations; and a general under-regulation of natural hazards vis-à-vis technical and industrial hazards in international law. 3 – Hard times, soft law. Finally, and closely interconnected with the above-mentioned challenges, the reliance on non-binding regulatory mechanisms in the governance of international disaster response constitutes a challenge on its own. In particular, the management of natural disasters seems to be governed through a main body consisting of non-binding guidelines and recommendations. This means that the legal framework is not able to create clarity and thereby not able to serve to secure crucial coordination for the success of establishing an international disaster management system. While parts of this challenge might level out, as non-binding guidelines are diligently followed and as the practical experience with international disaster management increases, there seems to be a growing need to clarify the structures and legal boundaries of the management efforts as clearly as possible.130 A number of additional issues of relevance for the regulation of international disaster response could have been mentioned, such as the effective distribution of aid, the need to ensure mobility in disaster situations and the transparency of the relevant national legal framework to assisting parties. However, to sum up this overview and critique of international disaster law: even though the international legal framework is still inadequate in some aspects of disaster management, there is a clear tendency to create legal

130 For a much more elaborate and balanced analysis of soft law in International Public Law, see Steven Freeland, ‘The Role of “Soft Law” in Public International Law’ in Irmgard Marboe (ed), Soft Law in Outer Space: the Function of Non-Binding Norms in International Space Law (Vienna: Böhlau, 2012).

102 Disaster Law frameworks applicable to disaster responses, and thus to juridify the disaster management.

4.3 Conclusion: disaster management I have argued that whilst the original legal framework for emergency accommodation seems to be best described through the typology developed in Chapter 3, the developments in the field of actors, the sources and the basic concepts challenge this notion. Thus, today, disasters are managed and, in order to do so, legal frameworks have been developed nationally, regionally and internationally. In Europe, the management of disasters through comprehensive and effective legal safeguards is a human right. Thus, European Member States are obliged under the European Convention on Human Rights to develop and enforce disaster law. Disaster law, however, is not only enforced on the national level. Particularly, under the auspice of the European Union new legal tools and ambitious crossborder mechanisms are being developed, and a European disaster law is emerging. While the international disaster response law is not yet quite as adept and coherent as the European law, there is no doubt of the existence of a commitment to create comprehensive legal regimes on all governance levels.131 On the global level, however, a number of crucial challenges need to be addressed, in order to develop a more effective and well functioning legal framework. In short, as the complexity increases, so does the need for clear and wellbalanced legal regimes, and the need for a coherent and fairly comprehensive international legal framework will only grow as misfortunes, necessity and force majeure are replaced by injustice, law and accountability.

Bibliography Barnett, M. (2008), ‘Humanitarianism as a Scholarly Vocation’ in M. Barnett and T. G. Weiss (eds), Humanitarianism in Question: Politics, Power, Ethics (New York: Cornell University Press) 235–66. Broberg, Morten (2011), ‘Legal Basis of EU Council Regulation 1257/96 Concerning Humanitarian Aid: Time for Revision?’ in Hans-Joachim Heintze and Andrej Zwitter (eds), International Law and Humanitarian Assistance: A Crosscut Through Legal Issues Pertaining to Humanitarianism (Berlin: Springer). Calhoun, Craig (2004), ‘A World of Emergencies: Fear, Intervention, and the Limits of Cosmoplitan Order’ Canadian Review of Sciology and Anthropology 41 373–95. Choukroune, Leïla (2013), ‘Corporate Liability for Human Rights Violations. The Exxon Mobil Case in Indonesia’ in Michael Faure and Andri Wibisana (eds), 131 The tendency pointed to here is not to create rigid legal mechanisms regulating technical details, but increasingly to clarify the basic presumptions for the response, and thereby align the involved actors in their efforts.

Disaster management 103 Regulating Disasters, Climate Change and Environmental Harm: Lessons from the Indonesian Experience (Cheltenham, UK: Edward Elgar). Christoplos, I. (2003), ‘Actors in Risk’ in M. Pelling (ed), Natural Disasters and Development in a Globalizing World (London and New York: Routledge) 95–109. Christoplos, I., Liljelund, A. and Mitchell, J. (2001), ‘Re-framing Risk: The Changing Context of Disaster Mitigation and Preparedness’ Disasters 25 185–98. Comfort, L. K. (2007), ‘Assymmetric Information Processes in Extreme Events: the December 26, 2004 Sumatran Earthquake and Tsunami’ in D. E. Gibbons (ed), Communicable Crises: Prevention, Response, and Recovery in the Global Arena (Charlotte NC: Information Age Publishing) 137–68. Farber, Daniel and others (2010), Disaster Law and Policy (2nd edn Wolters Kluwer Law & Business: Aspen Publishers). Farber, Daniel and Faure, Michael (eds) (2010), Disaster Law (Cheltenham, UK: Edward Elgar). Farber, Daniel A. (2013), ‘Catastrophic Risk, Climate Change, and Disaster Law’ Asia Pacific Journal of Environmental Law 16 37–54. Fidler, David P. (2005), ‘The Indian Ocean Tsunami and International Law’ ASIL Insight. Fisher, David (2007), ‘Law and Legal Issues in International Disaster Response: A Desk Study’ (Geneva: International Federation of Red Cross and Red Crescent Societies). Freeland, Steven (2012), ‘The Role of “Soft Law” in Public International Law’ in I. Marboe (ed), Soft Law in Outer Space: The Function of Non-binding Norms in International Space Law (Böhlau). Ginetti, Justin and Schrepfer, Nina (2012), ‘Predicting Disasters and Protecting Rights’ Forced Migration Review 41 13–14. Guttry, Andrea de, Gestri, Marco and Venturini, Gabriella (eds) (2012), International Disaster Response Law (The Hague, The Netherlands: T. M. C. Asser Press, Springer). Hannigan, John (2012), Disasters Without Borders. The International Politics of Natural Disasters (Cambridge: Polity). Hardcastle, Rohan J. and Chua, Adrian T. L. (1998), ‘Humanitarian Assistance: Towards a Right of Access to Victims to Natural Disasters’ International Review of the Red Cross (325). Harper, Erica (2009), ‘International Law and Standards Applicable in Natural Disaster Situations’ (International Development Law Organisation). Heintze, Hans-Joachim (2011), ‘Convergence between Human Rights Law and International Humanitarian Law and the Consequences for the Implementation’ in Hans-Joachim Heintze and Andrej Zwitter (eds), International Law and Humanitarian Assistance: a Crosscut Through Legal Issues Pertaining to Humanitarianism (Berlin: Springer). Lauta, Kristian Cedervall (2011), ‘Exceptions and Norms. The Law on Natural Disasters’ (Copenhagen: University of Copenhagen). —— (2014), ‘A Drop in the Ocean. Marine Oil Pollution Preparedness and Response in the Arctic’ Arctic Review on Law and Policy (vol. 4, no. 2, 2014). Lewis, Hope (2006), ‘Human Rights and Natural Disaster: The Indian Ocean Tsunami’ Human Rights 33(4) 12–16.

104 Disaster Law Myrdal, Sara and Rhinard, Mark (2010), ‘The European Union’s Solidarity Clause: Empty Letter or Effective Tool?’ Occasional UI papers published by Swedish Institute of International Affairs No 2. Olsson, Stefan (ed) (2009), Crisis Management in the European Union: Cooperation in the Face of Emergencies (Berlin: Springer). Pagh, Peter (2011), ‘Risiko-virksomheder: eksterne beredskabsplaner og information af offentligheden’ Juristen (1). Parnaik, Dabiru Sridhar (2011), ‘Towards an International Legal Framework for the Protection of Individuals in the Event of Disasters: An Initial Inquiry’ in HansJoachim Heintze and Andrej Zwitter (eds), International Law and Humanitarian Assistance: A Cross-cut Through Legal Issues Pertaining to Humanitarianism (Berlin: Springer). Pedersen, Ole W. (2013), ‘Environmental Risks, Rights and Black Swans’ Environmental Law Review 15(1). Perrow, Charles (2007), The Next Catastrophe (Princeton: Princeton University Press). Shamir, Ronen (2007), ‘Catastophes and Humanitarian Corporate Responsibility: A Conceptual Critique’ in Austin Sarat, Lawrence Douglas and Martha Merrill Umphrey (eds), Law and Catastrophe (The Amherst Series in Law, Jurisprudence, and Social Thought; Stanford, CA: Stanford University Press). Urioste, Alejandra de Urioste (2006), ‘When Will Help Be on the Way? The Status of International Disaster Response Law’ Tulane Journal of International and Comparative Law 15. Valencia-Ospina, Eduardo (2013), ‘Sixth Report on the Protection of Persons in the Event of Disasters’ (Geneva: United Nations’ General Assembly). Versluys, Helen (2009), ‘European Union Humanitarian Aid: Lifesaver or Political Tool?’ in Jan Orbie (ed), Europe’s Global Role: External Policies of the European Union (Aldershot: Ashgate). Versluys, Helen and Orbie, Jan (2009), ‘The European Union’s International Development Policy: Leading and Benevolent?’ in Jan Orbie (ed), Europe’s Global Role: External Policies of the European Union (Aldershot: Ashgate).

5

Disaster responsibility

Disasters are no longer phenomena beyond our capacity as communities – or in legal terms, force majeure or Acts of God per se. Rather than God or nature, a modern conception of disasters allows us to attribute blame, and thereby legal responsibility, to each other. The captain on the wretched Costa Concordia received the doubtful honour of becoming world famous as ‘Captain Chicken’. The world-renowned Chinese artist Ai Weiwei blamed the Chinese Government for, and commemorated the victims of, the Sichuan Earthquake1 by covering the front of the Munich-based Haus der Kunst with 9,000 children’s backpacks spelling out: ‘She lived happily for seven years in this world’.2 More than anything, Hurricane Katrina placed the idea of disaster responsibility on the global agenda as widespread condemnation of the authorities’ mismanagement of the hurricane.3 Even in Japan, so-called blame games have informed a surprisingly large proportion of the public debate following the 2011 earthquake

1 The earthquake that took place in 2008 is estimated to have caused the deaths of nearly 70,000 people. 2 By this gesture Weiwei wanted to blame the Chinese authorities for covering up the consequences of the earthquake. Not least poor building standards for public buildings were devastating, leading to the collapse of several schools and kindergartens. Weiwei ex officio initiated an investigation in which he managed to name 5,385 children – the investigation was made without the consent or approval of the Chinese authorities. 3 Hurricane Katrina has provided a strong argument for the vulnerability approach to disaster since it was widely understood and processed as a result of imprudent planning, horrible engineering, and discriminatory management, Robert D. Bullard and Beverly Wright, Race, Place, and Environmental Justice after Hurricane Katrina: Struggles to Reclaim, Rebuild, and Revitalize New Orleans and the Gulf Coast (Boulder, CO: Westview Press, 2009); Christine Bevc, Kathleen Tierney and Erica Kuligowski, ‘Metaphors Matter: Disaster Myths, Media Frames, and Their Consequences in Hurricane Katrina’ Annals of the American Academy of Political and Social Science 604 (2006); Robert Verchick, Facing Catastrophe (Cambridge, MA: Harvard University Press, 2010). According to some theorists, Katrina even prompted a ‘paradigm shift’ in contemporary disaster research; see J. Steven Picou, ‘Introduction. Katrina as Paradigm Shift: Reflections on Disaster Research in the Twenty-First Century’ in David L. Brunsma, David Overfelt and J. Steven Picou (eds), The Sociology of Katrina: Perspectives on a Modern Catastrophe (Lanham, MD: Rowman & Littlefield Publishers, 2007) xx, 282 pp; F. Furedi, ‘The Changing Meaning of Disaster’ Area 39/4 (Dec 2007) 482–89. The hurricane’s destruction generated more than 1 million legal claims.

106 Disaster Law and melt down of Fukushima Daishii,4 and the story of the L’Aquila Seven appeared on front pages all around the world.5 In this chapter, I will argue that the normalisation or juridification accounted for in previous chapters not only with regard to the content of the legal decisions made during, and accommodation regimes for, disasters, but also, perhaps in particular, regards the distribution of legal responsibility in the aftermath of disasters. Thus, the aim of this chapter is to investigate how the social turn in disaster research affects the distribution of legal responsibility after disaster. Implicit in the dichotomy between norm and exception is the presumption of freedom of responsibility for actions done pursuant to the exception. The separation on the norm-level between norm and exception are embodied in tort figures such as force majeure, act of God, negotiorum gestio, self-helpers and necessity; all institutionalising the disruption of pre-existing legal obligations in and, to a certain extent, after disasters. I will investigate a group of tort doctrines emblematic for the distributive issues in the aftermath of disasters. The aim is to demonstrate how the legal doctrines enforcing a separation between norm and exception are either replaced or modified by considerations of fault, negligence and foreseeability, and thereby how a legal continuum replaces the dichotomy. This development seems to be vastly accelerated in recent years, driven by the changed conception of disasters; a general technological progress, not least in our ability to detect and prepare for natural disasters (especially weather-related natural hazards), and the developments in the institutional architecture accounted for in general terms in the previous chapters. Thus, disasters are increasingly juridified, as they are dealt with on the same terms as other social phenomena. The chapter will investigate these developments in law through two main parts: excuses and responsibility. However, before embarking on the investigation, I will in the following section introduce a short theoretical bridge to tie the overall theory of this volume to this chapter.

5.1 Bridge: misfortune and injustice In order to devise a theoretical apparatus able to describe why this fundamental change in our understanding of natural disasters affects our idea of legal responsibility, I will introduce a simple political philosophical distinction. The American6 political theorist Judith Shklar provides a very useful account of why we blame in her essay collection entitled The Faces of 4 See e.g. Ben Lewis, ‘The Legal Aftershocks of Fukushima’, law.com (26 January 2012). 5 For a good introduction to the case, see Stephen S. Hall, ‘At Fault’ Nature 477 (2011) 264–69. 6 Shklar was born in Riga in 1929 from where her parents migrated first to Sweden and later to Canada. She taught at Harvard from 1956 until her death in 1992.

Disaster responsibility 107 Injustice. In Misfortune and Injustice, Shklar claims that we, as an epistemological community, tend to divide ‘bad’ events into either misfortunes or injustices. Whilst misfortune follows from our conceptions of ‘natural necessity or just bad luck’, injustice is a phenomenon bound to our normative expectations of the world, necessitating the identification of a ‘blameable’ subject. According to Shklar, most evils of the world are divided into these two categories: either we accept a loss or infringement as a touch of ill-faith, or we approach it as an injustice that can be addressed, criticised and, potentially, sanctioned. The understanding of what is conceived as injustice or misfortune is bound to ‘a puzzle in which our preferences, status, perspective and political ideology are all implicated’ (Shklar 1990: 58). Hence, the limit between injustice and misfortune is not dictated by natural necessity; on the contrary, it is a socially, culturally and historically drawn line based on the dominating political, cultural and social ideology.7 According to Shklar, ‘being a woman is a misfortune that has become an injustice because we want to change our estate. Famines are also not what they used to be and for similar reasons’ (Shklar 1990: 65). Thus, the distinction between phenomena within our social reach and beyond is defined by the social order itself. In other words, our conception of justice involves definitions of its exterior boundaries as well as its inventory, that is, justice defines its objects/ subjects and solves the distributive issues amongst them. Thus, phenomena can change from being approached as misfortunes to becoming injustices, as our ideas of what is in or outside our control (and thereby our grip of injustice) develops. Shklar’s concepts of injustice and misfortune serve as illustrative factors in the understanding of why blame becomes important in the aftermath of disasters. As recounted in Chapter 2, disasters have for centuries been understood as either the work of God or of nature. While disasters in premodernity were generally attributed to divine justice, the enlightenment brought about a change in this understanding of disasters. The understanding of disasters, replacing God as the epistemological frame, was in the form of a Voltairian nature; a phenomenon almost permanently adhering to the realm of misfortune. Disasters were understood as unaccountable (superior or merely unpredictable) external forces – beyond our control and thereby inherently inseparable from their cause (the hazard). Disasters were neither fair nor unfair; they had ‘no will, no purpose, no personality’.8 They were 7 Shklar claims thereby that there is no ‘natural’ content to justice or more precisely to injustice, as Rousseau or natural law thinkers would claim, but that we manoeuvre in a socially drawn border between the two categories. 8 This is in a sense similar to Hayek’s description of the Marked in The Mirage of Social Justice from 1976; see Freidrich A. Hayek, Law, Legislation, and Liberty vol. 2: The Mirage of Social Justice (Chicago: University of Chicago Press, 1976). The sentence is rephrased from Shklar’s analysis of Hayek’s idea of social justice and capitalism; see Shklar, The Faces of Injustice at 80.

108 Disaster Law terrible misfortunes. Thus, the basic concepts of this paradigm or understanding of disasters leaves no possibility of describing or approaching disasters in terms of (in)justice. As our perception of disasters focuses on our social systems and individual weaknesses, we suddenly hear ‘the voice of the sense of injustice’.9 When the ability to foresee the ways of nature increases, so does the possible range of reactions. Thus, what we could call the social turn in our understanding of disasters refurnishes the disaster within our social order, and introduces (in)justice, and thereby law10 as an essential grid on which to approach disasters. Shklar’s theory of misfortune and injustice is, perhaps in spite of its simplicity, very useful to sketch the ongoing development, linking vulnerability to injustice and thereby to law. Furthermore, it may sketch the historical understanding of disaster as something non-legal, outside and beyond our control (a fatal misfortune). Simply put: modern disasters are potential injustices.11, 12 While hazards such as the shock(s) that left Port-au-Prince, Haiti in ruins might be unpredictable and uncontrollable, the government efforts, the building standards and the social inequality that led to the devastating result are not. In other words, the Haiti earthquake is not an injustice because of the tremors of the earth (that remains a misfortune, if you will), but because the consequences these tremors brought about could have been prevented had someone acted and prioritised differently. This potential injustice will lead communities to start searching for responsible and ‘blameable’ subjects.13 Thus, blame and responsibility become central epistemological ideas to this new understanding of disasters. Put

9 Ibid at 86. 10 Shklar is herself very sceptical towards law’s ability to adjust to the dynamic switches between misfortune and injustice. In fact, for Shklar the distinction is as much a device to criticise existing institutions and law. 11 Robert Verchick uses this exact rationale to investigate what he refers to as ‘disaster justice’ – a concept closely connected to social vulnerability as introduced by Susan Cutter in an American context. Thus, while Verchick uses Shklar’s rationale to focus on social inequality and structural injustice (social vulnerability), I will use it merely to establish disasters as a sphere for legal responsibility, and the consequences of this on a theoretical level. See Verchick, Facing Catastrophe; Robert Verchick, ‘Disaster Justice’ Duke Environmental Law and Policy Forum 23 (2012). 12 Some would assert that I am making a very uncontroversial claim. Obviously, disasters have always been occurrences involving discussions of justice and injustice. Even in preenlightenment time disasters were subject to imaginations of justice – in fact perhaps this was the primary idea of disaster and Rousseau already in the aftermath of the Lisbon earthquake points to the people as responsible for their own misfortune. However, these claims of injustice were, I would argue, not part of a common conception, either in the research community or in the populations affected. 13 See similarly three prominent legal sociologists’ suggestion for a programme for studying the emergence of new types of conflicts, Willima L. F. Felstiner, Richard L. Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claming . . .’ Law and Society Review 15(3/4) (1980/81).

Disaster responsibility 109 differently, a shift in the ‘moral character of the loss’ (Coleman 1995: 95) prompts discussions of responsibility for disaster.14 In law, the discussion on responsibility has been shielded by a number of doctrines exempting responsibility in disaster situations. In the first part of this chapter, I will investigate the development of these legal excuses through the surface doctrines of act of God and force majeure.15 The doctrines seem to overlap drastically, and will thus be described as a cluster with a somewhat diverted line of development, stemming from the application of the Act of God defence following Hurricane Katrina. This leads to a general discussion on legal responsibility for disasters. The final section will therefore focus on a general tendency in torts and penal law to discuss responsibility for disaster. The aim of the chapter is not to give a legal doctrinal description of the present law or for that sake to prove the totality of this volumes presumptions – rather the aim is to investigate and tie the overall assumption of the book (namely the transformed role and function of law in the management of natural disasters) to a legal case field. The chapter will draw on a broad selection of case law, and for that reason alone, can hardly serve as a classic legal doctrinal study.

5.2 Excuses In the following section, I will investigate a group of legal instruments exempting parties from responsibility. The investigation will use the common law defence known as act of God as an example of the development, but also draw analogies with other defences, in particular the force majeure doctrine. Legal excuses are based on a foundation of exceptionality. Hence, parties have no responsibility for inevitable accidents ‘to which human infirmity could offer no resistance – cui humana infirmitits resistere non potest’ (Hall 1993: 228). In Shelley’s case of 1581, the judge underlined that: ‘It would be unreasonable that those things which are inevitable by the act of God, which no industry can avoid, nor policy prevent, should be construed to the prejudice of any person in whom there was no laches.’16 That those things ‘inevitable by the act of God’ should be exempted from responsibility seems to be both reasonable and coherent with fundamental ideas of fault and causality dominating most modern legal systems. Hence, the doctrine could be explained as a reflection of the moral maxim of 14 Obviously, this rough genealogy does not accurately cover the historical complexity. There have always been pockets in societies where these ideas have co-existed. 15 Bacon (Maxims of Law) refers to Act of God as necessity, ‘necessity of the act of God’ and the famous Lord Mansfield refers to ‘natural necessity’ in the context of Act of God (Trent Navigation v Wood, 4 Doug 290) and later ‘natural accident’ (ibid quoted in Forward v Pittard (1785) 1 TR 28). Although closely historically interconnected, I will attempt to distinguish them in the following. 16 76 Eng Rep 199 (1579–1581) at 220.

110 Disaster Law impossibility, here as formulated by the German natural law theorist Samuel Pufendorf (1632–1694): [A] person cannot be held responsible for not doing what exceeds his powers, and which he is unable with those powers to bring about. Hence the common phrase: there is no obligation to do the impossible. (Pufendorf 2000: 25)17 The ‘common phrase’, referred to by Pufendorf, originates in the Roman law doctrine: impossibilium nulla est obligatio18 (Gordley 2004: 514; Schwenzer 2008: 711). The doctrine is richly represented in natural law writings (e.g. with Pufendorf), in penal law19 as well as moral law thinking20 and forms the essential legal cultural background for defences such as vis major, force majeure, impossibility and not least the act of God defence (Gordley 2004: 518). This is a group of excuses sharing the presumption that man ‘is bound to provide against the ordinary operation of nature, but not against her miracles’.21 Obviously, this overall dictum of impossibility is intimately tied to our notion of fault (or laches), since impossibility always forms the outer boundary of our present conception of fault. Impossibility is therefore an integral part of our idea of fault (as it is no-fault). However, traditionally discussions on the application of the doctrines are based on the superiority or extraordinarity of the force of nature involved (in the exception), rather than in the analysis of human fault (in the norm). Whilst this approach integrates easily with the left-behind paradigms of disaster, the social paradigm changes the basic presumption of disasters (that no blameable agent can be identified), and this shifts the balance between fault and impossibility, rendering, as we shall see, the defence more or less obsolete in most disaster situations. Next, as an emblematic case study, I will investigate the success of the act of God defence after Hurricane Katrina. 5.2.1 Acts of God Act of God seems to be the most illustrative example in the cluster of doctrines exempting parties from responsibility during disasters. Even the name

17 See also Samuel Pufendorf, Two Books on the Elements of Universal Jurisprudence 1660 (ed Thomas Behme, trans. William Abbott Oldfather, Indianapolis: Liberty Fund, 2009). 18 DIG 50.17.185 19 E.g. as the doctrinal sentences: Ultra posse nemo obligatur and impossibilium nulla est obligatio; Vagn Greve, Det Strafferetlige Ansvar (Copenhagen. Jurist.- og Økonomforbundets Forlag, 1999) at 132 ff. 20 See for instance Thomas Aquinas, Summa Theologiae I-Ii (1265–74) at q 13, a 5 ad 1; Leibniz, Gottfried Wilhelm (1923), Sämtliche Schriften und Briefe. (Ed. Deutsche Akademie der Wissenschaften zu Berlin. Darmstadt/Leipzig/Berlin: Akademie-Verlag). 21 Greenock Corp v Caledonian Railway [1917] AC 556 at 572.

Disaster responsibility 111 suggests the essence of the doctrine; an exterior non-accountable (superior) force’s interference in a (normal) legal relationship, and the following exemption of liability or rather manifestation of the principle: res perit domino. In the following section, the doctrine will be investigated in American case law22 with special emphasis on judgments passed in the aftermath of Hurricane Katrina in 2005. The act of God defence is known in torts law, the law of contracts and, finally, as a statutory exemption23 (an enabling mechanism).24 I will in particular focus on the former forms. Like many defences functioning as excuses, act of God has shunned exact definition. As pointed out by Lord Shaw in a famous British case: ‘I am not entirely satisfied that . . . Act of God will ever be capable of complete, exact and unassailable definition.’25

22 For an analysis of relevant Canadian Law, see Brian J. Stammer, ‘“Nothing We Could Do”: The Defence of Act of God in Environmental Prosecutions’ Journal of Environmental Law and Practice 4 (1993). In a 1993 article from the Oxford Journal of Legal Studies, C. G. Hall analyses the Act of God defence in English case law. Besides finding an ‘apparent reluctance to formulate any clear, rule-defined, theory of what is to be accounted an act of God in law’, Hall criticises a strict interpretation of the foreseeability demand in the application of the defence, represented by the Greenock case, Greenock Corp v Caledonian Ry Co [1917] AC 556, from 1917 (referring to it as ‘a “hard” criterion of unlimited foresight’; C. G. Hall, ‘An Unsearchable Providence: The Lawyer’s Concept of Act of God’ Oxford Journal of Legal Studies 13 (1993) at 247) and highlights a “soft” criterion of reasonableness’, represented by the Nichols case from 1876, Nichols v Marsland (1876) 2 Ex D 1 (CA). 23 See for instance in Environmental Law the Clean Water Act (CWA), 33 USC §§ 1251 et seq (2006) s 311(a)(9); the Oil Pollution Act (OPA), 33 USC §§ 2701 et seq (2006); or the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund), 42 USC §§ 9601 et seq (2000). For an analysis of the application or rather non-application of act of God as a statutory exemption, see Casey P. Kaplan, ‘The Act of God Defense: Why Hurricane Katrina and Noah’s Flood Don’t Qualify’ Review of Litigation 26 (2007) 155–81 at 166 ff; Kenneth T. Kristl, ‘Diminishing the Divine: Climate Change and the Act of God Defense’ Widener Law Review 15 (2010) at 351. See furthermore, in maritime law, where the defence seems to play a significant role, A. P. Moller-Maersk A/S v Ocean Express Miami, 648 F. Supp. 2d 490 (SDNY, 2009); Skandia Ins. Co., v Star Shipping, 173 F. Supp. 2d 1228, 1239 (SD Ala 2001); Dammers and Van der Heide Shipping & Trading, Inc. v. S.S. Joseph Lykes, 300 F. Supp. 358 (ED La 1969). In A. P. Moller-Maersk A/S v Ocean Express Miami, COGSA [Carriage of Goods by the Sea Act] expressly exempts carriers from liability for loss or damage arising out of ‘Acts of God’. And the damage occurred as a ‘result of Hurricane Katrina, which constitutes an Act of God for purposes of COGSA’; see 648 F. Supp. 2d 490 (SDNY, 2009) at 498. See further, Grant Gilmore and Charles L. Black Jr, The Law of Admiralty (2nd edn Mineola, NY: West Publishing Company, 1975) at 162–64; Kristl, ‘Diminishing the Divine: Climate Change and the Act of God Defense’ at 340; James E. Mercante, ‘Hurricanes and Act of God: When the Best Defense Is a Good Offense’ University of San Francisco Maritime Law Journal 18 (2005–2006) at 39. 24 Besides the function of a non-fault-mechanism act of God has traditionally, and has partially still today, the function of a flexibility mechanism, where it ‘mitigated situations where liability was otherwise absolute [on vis major]’: Hall, ‘An Unsearchable Providence: The Lawyer’s Concept of Act of God’ at 228. In that sense, some claim that ‘the thrust of the defence is to erode the principle of strict liability . . . in favour of a fault principle, the emphasis being shifted from responsibility for the creation of a risk to the culpable failure to control it’, ibid at 232. This function as a sort of mitigation mechanism to waiver strict liability is not least relevant under reference to the Reynolds rule applied in common law. 25 Greenock Corp v Caledonian Ry Co [1917] AC 556.

112 Disaster Law Act of God has been defined as ‘a providential occurrence or extraordinary manifestation of the forces of nature which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care, or by the use of those means which the situation renders reasonable to employ’:26 in simpler terms: ‘An act of God or force majeure is an unusual, sudden and unexpected manifestation of the forces of nature which man cannot resist’.27 The doctrine is used under different labels, vis major28 or force of nature,29 but most commonly as act of God or more pronounced actus dei nemini facit injuriam (act of God does no injury). Although most often referred to as originating from the famous Shelley’s Case from 1581,30 the doctrine could be claimed to find a more final legal form in Lord Mansfield’s judgment in Forward v Pittard from 178531 (Binder 1996: 6; Kristl 2010: 328).32 In this judgment, Lord Mansfield defined acts of God ‘to mean something in opposition to the act of man’. Damages should be inflicted ‘by such act as could not happen by the intervention of man, as storms, lightning, and tempest’.33 In brief, two criteria can be drawn from Forward v Pittard: the damage must be caused by a force of nature, and there must be no human agency (sole proximate cause).34 The two criteria are characteristic of the traditional doctrinal approach to disasters. The disaster is an external, uncontrollable intervening force, defining the interference as outside the realm of responsibility (as invoked by God or nature). Obviously, the two criteria alone would not stand today, since it would exempt almost any damage occurring as a result of climate variations. A third criterion has therefore been added in modern American torts: the damages must be unforeseeable,35 a criterion 26 Dollar Thrifty Auto Group v Bohn DC, LLC, 23 So.3d, 301 (LA. Ct. App. Sept. 30, 2008) at 304. 27 Duboue v CBS Outdoor, Inc., 996 So. 2d 561, at 563 (La. Ct. App. 2008) citing Greene v Fox Crossing, Inc., 32,774 p 5 (La.App. 2 Cir. 3/1/00) 754 So.2d 339, 343 (citing Caldwell v Let The Good Times Roll Festival, 30,800 (La.App. 2 Cir. 8/25/98) 717 So.2d 1263, 1272). The court applies two main criteria: (1) the accident is directly and exclusively due to natural causes without human intervention; and (2) no negligent behaviour by the defendant(s) has contributed to the accident. These criteria will be discussed in the following analysis. 28 See for instance the Supreme Court of Pennsylvania: Bowman v Columbia Tel. Co., 179 A.2d 197 (1962) at 201 and Goldberg v R. Grier Miller & Sons, Inc., 182 A.2d 759 (1962); for further details on this particularity, see Kristl, ‘Diminishing the Divine: Climate Change and the Act of God Defense’ at 362, n 4. 29 See Woodbine Auto, Inc. v Se. Pa. Transp. Auth., 8 F. Supp. 2d. 475 (E.D. Pa. 1998) at 481. 30 Shelley’s Case 1 Co Rep 93b (1581). 31 Forward v Pittard (1785) 1 TR 28, 99 Eng Rep 953 (1785). The case regarded a common carrier’s loss of a shipment of hops owing to a fire in an adjacent building. 32 The first American case discussing act of God, relying on the findings in Forward v Pittard is Polack v Pioghe, 35 Cal. 416 (1868); see also Denis Binder, ‘Act of God? Or Act of Man? A Reappraisal of the Act of God Defense in Tort Law’ Review of Litigation 15/1 (1996) 1–80 at 13. It could be argued that the doctrine was applied before in the judgment in Coggs v Bernard, 92 Eng Rep 107 (1703); see ibid at 6. 33 Forward v Pittard (1785) 1 TR 28, 99 Eng Rep 953 (1785). 34 See also Kristl, ‘Diminishing the Divine: Climate Change and the Act of God Defense’ at 329. 35 See the cases Kennedy v Union Elec. Co., 216 S.W. 2d 756 (Mo. 1948) at 763; L. G. Balfour Co., 338 N.E. 2d (1975) at 844; Lea Co. v N.C. Bd. of Transp., 304 S.E.2d 164 (NC 1983) at 174.

Disaster responsibility 113 not relevant for Lord Mansfield’s analysis, as the notion of foreseeability had no place in the general understanding of nature, and thereby of natural disasters in the mid-18th century as argued in Chapter 2. Starting with these three criteria: (1) force of nature; (2) sole proximate cause; and (3) (un)foreseeability, I will embark upon the analysis of the cases following Hurricane Katrina. 5.2.1.1 Force of nature36 A force of nature should, equivalent to a traditional concept of disaster, be of some magnitude and rarity, and should therefore be conceived as ‘extraordinary’,37 ‘unusual’,38 ‘unexpected’ (a criteria that seems to forestall part of a foreseeability-test),39 ‘superior’,40 ‘violent and sudden’41 or ‘irresistible’.42, 43 A force of nature could be lighting,44 earthquakes,45 tidal waves,46 hurricanes,47 fog48 or snow,49 and seems limited in its scope only by its demand to stem from nature.50 Nature in the context of an act of God is not limited to traditional disaster hazards and could for instance be caused 36 Act of God also appears in the form of a pure force of nature (as a component of other doctrines). An example of act of God as a pure force of nature can be found in VII, Subsection (C)(3) of the Zoning Ordinance: ‘when permitted nonconforming structures are destroyed or damaged by act of God, the structure may be replaced or repaired on condition that application for a building permit be made within one (1) year from the time the structure was destroyed’. See Williams v City of Gulfport, Miss., Slip Copy, 2010 WL 1946627 (SD Miss 2010) at 1. 37 See e.g. In Re Flood Litigation, 216 W.Va. 534, 607 S.E.2d 863 (2004) at 877; for an example from British law, see Lord Esher MR in Pandorf v Hamilton (1886) 17 FQBD 670 at 675. 38 In Re Flood Litigation, 216 W.Va. 534, 607 S.E.2d 863 (2004) at 877. 39 Dollar Thrifty Auto Group v Bohn DC, LLC, No 08-CA-338, 2008 WL 4415920 at 3 (LA. Ct. App. Sept. 30, 2008); for an example from British law, see Lord Greene MR in J. & J. Makin Ltd v London & NE Ry Co [1943] KB 467 at 470. 40 Allen v Simon, 888 So. 2d, 1140 at 1143 (La Ct. App., 2004). 41 An example from British law is Brett J in Nugent v Stith (1875) 1 CPCD 19 at 34. 42 McWilliams v Masterson, 112 S.W.3d 314 (Tex. App. 2003) at 320. 43 See more at Kristl, ‘Diminishing the Divine: Climate Change and the Act of God Defense’ at 330. 44 Norfolk Southern Ry. Co. v Moran Towing Corp., F. Supp. 2d, 2010 WL 2326597 (ED Va, 2010) at 3. 45 Ibid. For an example from Canadian law, see Canada & Gulf Terminal Railway Co. v Levesque [1928] SCR 340; Legare v Quebec Power Co. (1939), 77 C.S. 553: ‘earthquake, volcano or lightning’. 46 Norfolk Southern Ry. Co. v Moran Towing Corp., F. Supp. 2d, 2010 WL 2326597 (ED Va, 2010) at 3. 47 National Auto. Ins. Co. v Champ’s New Orleans Collision Center, LLC, 954 So.2d 197, 2006– 1144 (La.App. 4 Cir. 2/28/07) at 199: ‘hurricane that causes unexpected and unforeseeable devastation with unprecedented wind velocity, tidal rise, and upriver tidal surge, is a classic case of an “Act of God”’. Terre Aux Boeufs Land Co., Inc. v J.R. Gray Barge Co., 2000–2754 (La.App. 4 Cir. 11/14/01) 803 So.2d 86, 92 at 199. 48 White v Dickerson, 105 S.E. 2d 51 (NC 1958) at 55. 49 Slater v Worthington’s Cash Store [1941] 1 KB 488 at 492. In this case, however, the shopkeeper’s negligence to remove the snow prior to the accident precluded the application of the defence. 50 However, in British law sudden and unexpected death or injury can be regarded an act of God. See for instance Ryan v Youngs [1938] 1 All ER 522 at 524.

114 Disaster Law by animals.51 Act of God therefore seems to apply within a proper subset of phenomena otherwise covered by force majeure considerations, regarding a certain predefined group of agents (all stemming from ‘nature’). A traditional aspect of the act of God defence seems to be the impact or magnitude of the force of nature. According to a subset of decisions, the defence ‘applies only to events in nature so extraordinary that the history of climatic variations and other conditions in the particular locality affords no reasonable warning of them’.52 The application of the doctrine is ‘pushed’ to situations of extreme impact and thereby dislodged from the central legal instruments applied to distribute justice, responsibility and wealth in the aftermath of a disaster. Thus, ‘the defence is generally limited to truly unforeseeable events, rather than situations involving unusual, but not unprecedented, impacts’ (Binder 1996: 6). As indicated by the quote, this development is closely related to a discussion of foreseeability, since the defence is only applicable in truly unforeseeable cases; however, it also seems to pose independent demands to the scale and character of the force of nature. Thus, it could be assumed that the force of nature must have a certain size and impact, although disasters almost by their very definition qualify as forces of nature in the act of God defence.53 It comes therefore as no surprise that: ‘it is uncontested that Hurricane Katrina was an unexpected and extraordinary force of nature, which is capable of being classified as an Act of God at law’.54, 55 51 For instance a cow; see McWilliams v Masterson, 112 S.W.3d 314 (Tex.App.-Amarillo, August 5, 2003). 52 Skandia Ins. Co., v Star Shipping, 173 F. Supp. 2d 1228, 1239 (SD Ala 2001) citing Warrior & Gulf Navigation Co. v United States, 864 F.2d 1550 (11th Cir. 1989) at 1553 (citing Bradford v Stanley, 355 So.2d 328 (Ala 1978) at 330 and Gulf Red Cedar Co. v Walker, 132 Ala. 553, 31 So. 374 (1902)). See also Hall, ‘An Unsearchable Providence: The Lawyer’s Concept of Act of God’, at 240 ff and his conclusion at 247. 53 See, however, Freter v Embassy Moving & Storage Co., 145 A.2d. 442, in which a hurricane is not considered an act of God. It is, however, unclear if it is under observance of the force of nature criterion the defence is rejected. 54 Conagra Trade Group, Inc. v AEP MEMCO, LLC, Slip Copy, 2009 WL 2023174 (E D La, 2009) at 3, see also Dollar Thrifty Auto Group v Bohn DC, LLC, 23 So.3d, 301 (LA. Ct. App. Sept. 30, 2008) at 304: ‘Clearly, Hurricane Katrina, with its unprecedented flooding and devastation, was a force majeure or Act of God that was unforeseen and unavoidable.’ 55 In In Re Katrina Canal Breaches Consolidated Litigation, a major litigation following hurricane Katrina, the plaintiff’s claims gave raise to discuss in more general terms what adheres to nature. The plaintiffs’ claimed that Katrina was not a flood in strict legal sense, since it was not ‘natural’. Thereby, the plaintiffs hoped to receive insurance pay-outs in spite of a flood exemption in their insurance policies. The court found that Katrina was a flood; however, they ‘accept the plaintiffs’ characterisation of the flood in this case as non-natural, [they] disagree that the term “flood” in this context is limited to natural events’; In Re Katrina Canal Breaches Consolidated Litigation, 216 W.Va. 534, 607 S.E.2d 863 (W Va., 2004) at 215. Thereby, ‘the flood exclusions in the plaintiffs’ policies are unambiguous in the context of the facts of this case’, ibid at 221. Although not directly regarding the Act of God defence, the potential devastating effects to it is clear. If all flood damages from Hurricane Katrina are, as pronounced by the court, considered ‘non-natural’, it would per se exclude an act of God defence all together, since the flood was no longer

Disaster responsibility 115 5.2.1.2 Sole proximate cause The US Supreme Court refers to act of God as a ‘[l]oss happening in spite of all human effort and sagacity’.56 Even the slightest human intervention seems to affect the possibility of successfully applying the act of God defence, for instance attempts to divert floods through culverts.57 Basically, ‘(. . .) the distinguishing characteristic of an “act of god” is that it proceeds from the force of nature alone, to the entire exclusion of human agency’.58 The damage must therefore occur ‘by the direct, immediate, and exclusive operations of the forces of nature, uncontrolled or uninfluenced by the power of men and without human intervention’.59 An ungrounded utility line stroked by lightning is not ‘an act free from human agency’60 and therefore not an act of God. Thus, if any human agency is involved, the defence cannot be brought.61

56 57

58 59

60 61

a force of nature. However, although illustrative for the social turn in disaster research and for the general claims of this volume, no such claim has been tested before the courts and it seems unlikely that a similar result would be reached in an analysis of the Act of God defence. The decision was partially changed by the Court of Appeal in decision No 10–30249 (2012); see also below under responsibility. For a longer discussion and criticism of the judgment, see Walter Andrews, Michael Levine, Rhett Petcher and Steven Mcnutt, ‘A “Flood of Uncertainty”: Contractual Erosion in the Wake of Hurricane Katrina and the Eastern District of Louisiana’s Ruling in in Re Katrina Canal Breaches Consolidated Litigation’ Tulane Law Review 81 (2007). The Majestic, 166 U.S. 375 at 386, 17 S. Ct. 597 at 602, 41 L. Ed. 1039 (1897). Lea Co. v N.C. Bd. of Transp., 304 S.E.2d 164 (NC 1983) and Riddle v Balt. & Ohio Ry. Co., 73 S.E.2d 793 at 801 (W.Va. 1952) See also Strange v Bartlett, 236 Ga. App. 686, 513 S.E.2d 246 (1999); where continuing in a car in spite of heavy rain were rendering the defence void, this could also be seen as lack of response foreseeability in the framework of this volume. Johanson v Burley Irrigation Dist., 304 P.2d 912, 916 (Idaho 1956); see also Skandia Ins. Co. v Star Shipping AS, 175 F. Supp. 2d 1228 (SD Ala 2001) at 1239–40: ‘“Act of God” will insulate a defendant from liability only if there is no contributing human negligence.’ Butts v City of S. Fulton, 565 S.W.2d 879, 882 (Tenn. Ct. App. 1978); Binder, ‘Act of God? Or Act of Man? A Reappraisal of the Act of God Defense in Tort Law’ at 14; McFarland v Entergy Mississippi, Inc., 919 So.2d 894 (Miss 2005) at 903: ‘Any accident, due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains, or care, reasonably to have been expected could have been prevented; “Act of God” does not apply if there has been an intervening circumstance attributed to the defendants.’ See finally Crescent Towing and Salvage Co. v M/V Chios Beauty, No 05 – 4207, 2008 WL 3850481 (ED La Aug. 14, 2008): ‘[H]uman negligence as a contributing cause defeats any claim to the “Act of God” immunity[,] because of an “Act of God” is not only one which causes damage, but one as to which reasonable precautions and/or the exercise of reasonable care by the defendant, could not have prevented the damage from the natural event (. . .) Indeed, an “Act of God” will insulate a defendant from liability only if there is no contributing human negligence and the defendant has the burden of establishing that weather conditions encountered constituted an uncontrollable and unforeseeable cause by “Act of God”, citing Skandia Ins. Co. v Star Shipping AS, 175 F. Supp. 2d 1228 (S.D. Ala. 2001) at 1240–41. Central Ga. Elec. Membership Corp. v Heath, 4 S.E.2d 700 (Ga. Ct. App. 1939) at 702. See for instance Biloxi Yacht Club, Inc. v Grand Casinos of Mississippi, Inc., Slip Copy, 2009 WL 801635 (SD Miss 2009). In an article from 1963, James L. Howe suggests to split the damage (divisibility of damage), in the sense that it would ‘hold the defendant liable for the damage which occurred as a result of his negligence and absolve him of liability

116 Disaster Law Embedded in this demand to the force of nature as the sole proximate cause is an exercise of reconstructing the factual causation for the damages inflicted.62 The traditional doctrine sine qua non seems to be the leading principle in settling disputes on causation (Binder 1996: 25). 5.2.1.3 Foreseeability As a final criterion, the damages must be unforeseeable. A distinction between event foreseeability and response foreseeability will be applied in the following (Kristl 2010: 362). While event foreseeability is the need to observe the hazard’s character and possible impact, response foreseeability regards the actions conducted to prepare for the event and to prevent damage under and after the disaster. The demands are cumulative. The 2009 judgment Conagra Trade Group, Inc. v AEP MEMCO, LLC63 illustrates the joint application of the two demands of foreseeability: MEMCO was not negligent in delivering the Barge DE8229 and its contents to the terminal on August 22, 2005, several days before any weather information predicted with reasonable accuracy that Hurricane Katrina would make a direct hit on New Orleans [event foreseeability] (. . .) In addition, the parties have stipulated that MEMCO took all reasonable precautions in advance of Hurricane Katrina and its actions and/or inactions did not contribute to the loss [response foreseeability]. Accordingly, MEMCO would be relieved from liability under the Freight Contract and would not be liable for the lost cargo.64

of the remainder’, James L. Howe, ‘Act of God: A Reconsideration’ Washington & Lee Law Review 18 (1963) at 340–41. Howe is commenting on a District of Columbia Case from 1961, Garner v Ritzenberg, 167 A.2d 353 (DC Munic. Ct. App. 1961). This approach is, however, not decisively substantiated in earlier or later jurisprudence, see e.g. Arkansas Valley Elec. Coop. v Davis, 800 S.W.2d 420, 423 (Ark 1990); Frederick v Hale, 112 P. 70 (Mont. 1910); Rix v Town of Alamogardo, 77 P.2d 765, 768–69 (NM 1938); see more at Binder, ‘Act of God? Or Act of Man? A Reappraisal of the Act of God Defense in Tort Law’ at 18, n 94. See, however, Johnson & Johnson v Dundas, 4 D-L.R. 624 at 638, for a judgment partially supporting the concepts proposed by Howe. 62 See In Re. Atl. Marine Prop. Holding Co., 570 F. Supp. 2d 1369, (SD Ala 2008), where a force majeure/act of god clause in contract was not evidence to say that force majeure caused the accident. See further Associated Acquisitions, LLC v Carbone Properties of Audubon, 962 So.2d 1102 (La.App. 4th Cir.7/11/07) at 1107: ‘The unexpected and unforeseen damage of Hurricane Katrina does not change the agreement between these parties; therefore, this is an agreement which can still be performed.’ 63 Conagra Trade Group, Inc. v AEP MEMCO, LLC, Slip Copy, 2009 WL 2023174 (ED La, 2009). 64 Ibid at 3–4.

Disaster responsibility 117 EVENT FORESEEABILITY

Event foreseeability stipulates an analysis of the ‘force of nature’, and thereby a test of the possibility to foresee the consequences of the natural hazard’s intersection with the social system. In order to be unforeseeable, the force of nature must at the offset not be recurring. In a 1983 case from North Carolina, the plaintiff, a private landowner, brought action against the North Carolina Board of Transportation because ‘the defendant’s structures foreseeably increased the level of flooding on the plaintiff’s property and resulted in substantial damage to its apartments on the property’.65 The defendant relied on the act of God defence.66 The court stated that: ‘[t]he liability of the defendant is controlled by the determination of whether the one hundred year flood experienced on 1 September 1974 was a reasonably foreseeable event’. The court went on to decide that a 100-year storm was a reasonably foreseeable event, and therefore rejected the defendant’s act of God defence. Similar results have been reached regarding 13-year67 and 48-year68 storms. Thus, recurring events in general fall outside the scope of an act of God. It is therefore not considered an act of God if the average rainfall had been surpassed by heavier rain 28 years before69 or in the case of a returning severe blizzard70 (see also Binder 1996: 14). In short, law institutionalises learning from the past, and thereby adjusts the level of expectation to natural phenomena. Hence, ignoring ‘clear and overwhelming meteorological warnings’71 precludes the application of the defence. Obviously, the assessment of an events foreseeability must remain concrete, and the same disaster could therefore be foreseeable in one place and yet utterly unforeseeable in another.72 65 Lea Co. v N.C. Bd. of Transp., 304 S.E.2d 164 (NC 1983) at 168. 66 The court defined act of God as: ‘An act occasioned exclusively by violence of nature without the interference of any human agency. It means a natural necessity proceeding from physical causes alone without the intervention of man’, ibid at 173–74, quoting Black’s Law Dictionary. 67 L. G. Balfour Co., 338 N.E. 2d 844 (1975). 68 Kennedy v Union Elec. Co., 216 S.W. 2d 756 (Mo 1948) at 763. 69 Fairbury Brick, Co. v Chicago R.I. & Pac. Ry. Co., 113 N.W. 535, 537 (Neb 1907). 70 McKinley v Hines, 215 P. 301 (Kan 1923) at 302: Equally severe blizzards had been observed in the past. 71 Crescent Towing and Salvage Co. v M/V Chios Beauty, No 05 – 4207, 2008 WL 3850481 (ED La Aug. 14, 2008): ‘Holding that Act of God defense did not apply to loss of vessel when carrier moored barge in New Orleans on August 28, 2005, despite clear and overwhelming meteorological warnings that Hurricane Katrina would make a direct hit on the area within twenty-four hours’; see also Conagra Trade Group, Inc. v AEP MEMCO, LLC at 4.b 72 In re Signal Intern., LLC, 579 F.3d 478, (CA5 (Miss.) 2009): barge owners invoking act of god defence after their barges broke loose during hurricane and collided with bridge. However: ‘In particular, the court found that the collision was not an inevitable accident or vis major because Hurricane Katrina, at the mooring site, was not an act of God such that no reasonable preparations could have prevented the collision and because the conditions experienced were foreseeable.’ See also Associated Acquisitions, LLC v Carbone Properties

118 Disaster Law The analysis of event foreseeability is a ‘highly fact-specific analysis’ (Kristl 2010: 333).73 RESPONSE FORESEEABILITY

Response foreseeability is a test against the standard of due care. Thus, an act of God is ‘a catastrophe which triumphs over the safeguards by which skillful and vigilant seamen normally bring ship and cargo to safety’.74 The test is basically whether the parties acted diligently during, before and after the disaster and also where new technological or knowledge-based breakthroughs pose new demands to the behaviour of the parties. It is clear that if extraordinary precautions have been taken the defence is applicable.75 In a 2010 judgment, a boat owner had ‘asked two experienced mariners to ensure that her vessel was adequately moored. Both men testified that they believed that the vessels moorings were proper’.76 This display of precaution led to the conclusion that it was ‘evident that there is nothing more Berglin [the defendant] could have done to secure the vessel in the face of Hurricane Katrina, especially in light of the fact that the dock to which the vessel was moored was destroyed and she would have become loose no matter how she was tied’.77 Thus, as in other instances of law, due care, professional help and diligence fortifies the assumption of prudent behaviour. The test is not limited to the immediate response possibilities at hand, but could also consider the general level of preparation.78 In Skandia Ins. Co.

73 74

75

76 77 78

of Audubon, 962 So.2d 1102 (La.App. 4th Cir. 7/11/07) at 1106: ‘. . . there is little question that Hurricane Katrina was a fortuitous event. Even with our foreknowledge that the hurricane was rearing its way toward the state, the damage and effects of the storm were unexpected and unprecedented. And although its damages left some obligations impossible to fulfil, not all contracts are nor should they be rendered dissolved unless the law requires.’ The cases also often end up as jury cases for exactly that reason; see for instance John W. Stone Oil Distrib. v Bollinger Shipyards, Inc., No 06–2377, 2007 WL 2710809 (EC La Sept. 12, 2007). Valley Line Co. v Musgrove Towing Serv., Inc., 654 F.Supp. 1009, 1011 (SDTex 1987) at 1012. See also John W. Stone Oil Distrib. v Bollinger Shipyards, Inc., No 06–2377, 2007 WL 2710809 (EC La Sept. 12, 2007) at 5 quoting In Petition of United States (Dammers & Van Der Heide Shipping & Trading (Antilles), Inc. v Steamship Joseph Lykes), 425 F.2d 991 (5th Cir. 1970) at 995: ‘The standard of reasonableness is that of prudent men familiar with the ways and vagaries of the sea.’ See for instance Pizzetta v Lake Catherine Marina, LLC, 995 So. 2d 26 (La. Ct. App. 2008) at 31, where the owner of a boat damaged during Hurricane Katrina while at the marina for repairs brought action against the marina and the marina’s property insurer. The marina was not held liable as depositary of the boat for damage to the boat in the hurricane, where the hurricane caused unprecedented damage and was an ‘Act of God’, and in context most relevant the marina acted with diligence and prudence by placing extra boat stands under all boats in the marina, tying stands together and removing all loose debris from area. Simmons v Lexington Ins. Co., Slip Copy, 2010 WL 1254638 (E D La, 2010) at 3. Ibid. See for instance Biloxi Yacht Club, Inc. v Grand Casinos of Mississippi, Inc., Slip Copy, 2009 WL 801635 (SD Miss, 2009): ‘the damage to appellee’s airplane was not due exclusively to natural causes, and that it could have been prevented by the exercise of reasonable care and

Disaster responsibility 119 v Star Shipping AS,79 a warehouseman holding goods for a customer in Alabama was negligent not to provide facilities capable of withstanding a hurricane80 and, in Coex Coffee Int’l,81 the lack of a preparation plan was not considered part of reasonable planning (and thus the damage was unforeseeable). A certain general preparation seems therefore to be a requirement in order to apply the defence successfully. In general terms, the central legal dispute in the application of the act of God defence is often defining the standard of reasonability or prudent behaviour.82 This search for an objectified behavioural standard limits the defence to situations where even diligent efforts ‘could not have been prevented [the damage] by any amount of foresight and pains and care reasonably to be expected’.83 In the words of the American law Professor Denis Binder (1996: 17): The test is not an objective standard of what a defendant thought; rather, it is an objective standard of what a reasonable person under similar circumstances knew, or reasonably should have known.

79 80

81 82

83

foresight on the part of the City in providing adequate ropes to tie the plane down and by the exercise of ordinary care in that respect’. In Skandia Ins. Co. v Star Shipping AS, 175 F. Supp. 2d 1228 (S.D. Ala. 2001) at 1241 n 24. Hurricane George, a category 4 hurricane passing through the Caribbean and the Mexican Golf in 1998, caused damages for estimated US$6 billion (1998 dollars). The case generally addresses the act of God defence for damaged cargo resulting from Hurricane George. The court applied the definition of act of God as ‘[a]ny accident, due directly and exclusively to natural causes without human intervention, which by no amount of foresight, pains, or care, reasonably to have been expected could have been prevented’ and/or ‘a disturbance . . . of such unanticipated force and severity as would fairly preclude charging . . . [Defendants] with responsibility for damage occasion[ed] by the [Defendants’] failure to guard against it in the protection of property committed to its custody’ at 1239, quoted in John W. Stone Oil Distrib. v Bollinger Shipyards, Inc., No 06–2377, 2007 WL 2710809 (EC La Sept. 12, 2007). Coex Coffee Int’l v Dupuy Storage & Forwarding LLC, 2008 WL 18844041; HRD Corp., 2007 WL 2050355. One historical case for instance demands ‘an irresistible and unsearchable Providence nullifying all human effort’ and in Payne v Hurwitz the judge declared: ‘An obligor is not released from his duty to perform under a contract by the mere fact that such performance has been made more difficult or more burdensome by a fortuitous event.’ He continued: ‘the fortuitous event must pose an insurmountable obstacle in order to excuse the obligor’s non-performance’. In this case, however, it was properly rather a display of proportionality as a controlling mechanism, since, although the contract was impossible to honour, it facilitated the possibility of ‘a mutual extension of the closing deadline’, ibid at 1006; see also Christopher T. Chocheles, ‘No Excuses: Hurricanes and the “Act of God” Defence to Breach of Contract Claims’ Louisiana Bar Journal 57 (2010) at 382–83. It is not an insurmountable obstacle if it is possible to find a less interfering measure – in this case a relatively small change in the contractual basis, rather than leaving the agreement all together. This approach seems perfectly lineate with the overall theoretical assumption of this volume. The case, however, in particular shows something about the nature of the Act of God. It is a defence and cannot be used offensively and it is thus a cause of action reserved to the defendant. It can therefore not be used proactively to terminate or cancel a contract. Biloxi Yacht Club, Inc. v Grand Casinos of Mississippi, Inc., Slip Copy, 2009 WL 801635 (SD Miss 2009).

120 Disaster Law As difficult to standardise as it may seem, this standard is well known to tort-lawyers as negligence. The methodological and geological scientific breakthroughs achieved over the past 200 years combined with a systematic collection of methodological and geological data means that today we are capable of foreseeing an increasing amount of the variations of nature.84 Simultaneously, our collective experience and new technological resources has made the avoidance of many of the damages historically associated with disasters possible. Everything from engineering to the implementation of a disaster culture and human response system generates increased foreseeability and an improved response capacity. These changes in our ability to foresee and shun disasters stagger the focus of the act of God defence. First and foremost, the defence now becomes a test of the preparation and response of the defendant, rather than a test of the magnitude of the disaster-hazard itself. Put differently, if the worst disaster in the history of man could be (because of our technological advances) foreseen and the damage therefore could be minimised, the defence would fall as for the damages that could have been mitigated. Even Noah would ironically not be able, had he not build the ark, to claim the flood to be an act of God since he was forewarned (Kaplan 2007). Noah’s example seems illustrative of the staggered focus in the act of God defence: going from something notoriously conceived as an event controlled by a supervening exterior force, to a consideration of reasonable human action before, under and after a disaster. In the following section, I will argue that the act of God defence has been reduced to a no-negligence doctrine and thereby ‘emptied’ of any independent function in law. 5.2.1.4 Acts of God as no-negligence85 The standard applied in the Act of God decisions seems completely inseparable from the negligence standard. Negligence is defined as ‘the failure to exercise the standard of care of a reasonable person under the circumstances’ (Binder 1996: 29), and thus seems overlapping with a standard of reasonableness as that ‘of prudent men’ discussed above.86 84 See for instance William D. Flatt and Wesley R. Kliner, ‘When the Earth Moves and Buildings Tumble, Who Will Pay? Tort Liability and Defenses for Earthquake Damage within the New Madrid Fault Zone’ Memphis State University Law Review 22 (1991–1992) at 39 for a discussion on the foreseeability of earthquakes. 85 Denis Binder describes the doctrine as ‘a no-duty defence’; Binder, ‘Act of God? Or Act of Man? A Reappraisal of the Act of God Defense in Tort Law’ at 78. 86 See also the so-called Hand formula. In United States v Carroll Towing Co., 159 F.2d 169, Judge Learned Hand proposed a formula of negligence. Negligence, according to Judge Hand, consists of three factors: risk of injury (p), gravity of injury (l) and cost/burden of precautions (b). If p * l > b an action is negligent, see ibid at 173. One could reasonably add an assessment of the success rate of the precautions taken, but I will not go into detail with the formula here.

Disaster responsibility 121 In the words of Denis Binder (1996: 79): ‘Instead of labelling the natural force an incomprehensible act of God, negligence principles allow us to conclude that no liability exists either because of the absence of a duty to control such a force, or because the requisite causation element is not met.’ Therefore, Binder refers to the act of God defence as ‘an anachronistic, mirror image of existing negligence principles’ and continues ‘the defense no longer serves an independent useful purpose and should be subsumed into the duty issue of general negligence analysis’ (Binder 1996: 4). Without going into a deeper investigation of the negligence doctrine, it seems safe to conclude from the above that the act of God defence is embraced by the negligence doctrine, or rather by the outer boundaries of negligence, what we could call no-negligence (Binder 1996: 65 f; Dobbs 2000: 474; Kristl 2010: 361). The legal excuses traditionally shielding from responsibility after disaster thereby become idle, or rather become ‘mirror-images’ of existing legal doctrines and standards. In the following, I will conclude on the investigation of the act of God defence, and analyse the consequences of the transformation of the concept. 5.2.1.5 Summing up: the development of act of God I have argued that the act of God defence has undergone a transition from a legal figure exempting legal responsibility under natural disasters, to a legal figure reflecting the existing tort principles on negligence and responsibility. The development is driven by a shift in our factual concepts, by a shift from exteriority to foreseeability. Thus, the essence of the doctrine today is a reflection of a traditional tort analysis. Binder’s poetic reference to act of God as ‘an anachronistic, mirror image of existing negligence principles’ (Binder 1996: 4) thereby seems to frame the overall development in the application of the act of God defence beautifully. Hence, the cases reviewed under the act of God defence are normalised as they employ the same concepts and rationales as all other cases. While it traditionally functioned as a general waiver of responsibility in exceptional circumstances, the doctrine today facilitates legal analysis based upon standards layered in the existing legal culture (standards of due attention and behaviour). The remaining independent function of the doctrine is to allow for a (re)distribution of responsibility in cases with strict liability.87 87 According to the 1866 British judgment Reynolds v Fletcher (1866) 1 LR Ex 265, ultra-hazardous activities are imposed strict liability. Ultra-hazardous activities: ‘[I]nvolve a risk of serious harm to others, cannot be eliminated by the exercise of utmost care, and are not a matter of common usage. Courts should consider such factors as the high degree of risk the potential gravity of harm should the risk materialise, the exercise of reasonable care, whether or not the activity is one of common usage, the appropriateness of the activity to the locality and its value to the community’. See Binder, ‘Act of God? Or Act of Man? A Reappraisal of the Act of God Defense in Tort Law’ at 60. In delivering the

122 Disaster Law In the words of a tort lawyer: Courts often speak of natural forces as if special rules are needed in those cases, but . . . the decisions comport with the general rules of negligence and proximate cause. It is thus entirely possible to drop terms such as ‘act of god’ altogether. (Dobbs 2000: 474) The change could, as already stated, be described as a shift in focus of the doctrines criteria. Act of God ‘is rapidly losing its effectiveness because it is rooted in two somewhat interrelated concepts that are no longer as immutable as was once thought: that . . . [disasters] cannot be predicted or controlled’ (Kliner 1991–1992: 39). In other words, the foundation of act of God, unforeseeability, and lack of response capacity is slowly eroding beneath the concept, as we increasingly conceive the disaster through social concepts. The traditional tort doctrines make inroads under the act of God defence.88 The conception of disaster changes ‘underneath’ the legal doctrine, rendering the liability avoidance instruments superficial and ineffective (potentially harmful) to solve disputes. This development obviously affects not only the application of the act of God defence. After the Fukushima Daiichi melt-down, a similar discussion arose in Japan. 5.2.2 Statutory exceptionalism: excuses and responsibility The Fukushima Daiichi Nuclear Power Plant is located only 177 km (110 miles) away from where the epicenter of the Great East Japan Earthquake took place in March 2011. During the earthquake, the power plant run by the electric company Tokyo Electric Power Company (TEPCO) was in a state of normal operation. The tremors of the earthquake caused a ‘total loss of off-site electricity’,89 and the emergency shutdown feature went into function immediately thereafter. Thus, all proceeded according to the emergency plan until the tsunami hit Fukushima. The tsunami wave flooded the ground level opinion of the court, Judge Blackburn agreed to waive the liability if ‘the escape was the consequence of vis major, or the act of God’; see Reynolds v Fletcher (1866) 1 LR Ex 265. Dangerous activities include for instance storage of dynamite, explosions of oil wells and use of toxics; see Olivier Moréteau, ‘Catastrophic Harm in United States Law: Liability and Insurance’ American Journal of Comparative Law 58 (2010) at 89–90. It cannot be rejected that the act of God here plays an independent mitigating role; however, if reduced to merely a liaison-doctrine (mitigating between two different basis of liability), it hardly justifies its prominent position in disaster law. Reynolds v Fletcher regarded a reservoir build on an area underlain by mines, resulting in the flooding of the mines. For reference to similar US cases see Binder, ‘Act of God? Or Act of Man? A Reappraisal of the Act of God Defense in Tort Law’ at 7, n 32. 88 See also Binder, ‘Act of God? Or Act of Man? A Reappraisal of the Act of God Defense in Tort Law’ at 37. 89 The Fukushima Nuclear Accident Independent Investigation Commission, ‘The National Diet of Japan’ (2012) at 12.

Disaster responsibility 123 of the plant, including the emergency diesel generators installed to provide back-up power to the operation of the plant, thereby resulting in the total loss of power for three out of the four units at the power plant. Owing to the loss of power, the operator lost all control of the reactors. Monitoring equipment, communications and light all depended on electricity as did, most devastatingly, the ability to cool the reactors. Furthermore, the countermeasures installed to prevent the breakdown of the cooling system in case of an emergency all depended on the availability of electricity.90 As a result, three of the reactors experienced a full melt-down and an evacuation in a radius of 20 km (8 miles) around the plant was initiated. Even now the deserted plant is a major hazard to the Japanese community. When typhoon Man-yi hit the shores of Japan in 2013, 1000 tons of polluted water from the Fukushima nuclear plant was dumped into the ocean.91 Under Japanese law, nuclear damages are subject to strict and unlimited liability.92 This means that all damage resulting from a nuclear disaster, regardless of fault on behalf of the operator, must be compensated. However, as an exception to this general dictum, the Act on Compensation for Nuclear Damage exempts damages resulting from ‘grave natural disasters of an exceptional character’.93 This type of exception is not uncommon, and in the relevant Danish Act a similar exception was removed in 2008.94 A ‘grave natural disaster of an exceptional character’ in this regard means an ‘unforeseeable, great natural disaster based on current knowledge, and must be far beyond the design basis for a reactor’.95 Even though TEPCO seemed to rely on this exception at the outset of the process, the company has now abandoned the defence in the pending cases (Morita 2012: 4). As already mentioned, the East Japan Earthquake was extraordinary in a number ways. It could very well be the most expensive event in the history of the world, and was caused by one of the most notorious natural hazards ever registered. However, the earthquake was not (legally) exceptional. Even though the disaster was magnificent in scope and magnitude, a number of Japanese legal scholars, for instance Eri Osaka, argue that ‘the Great East Japan Earthquake and tsunami do not match the description

90 Ibid at 14. 91 See e.g. Chris Irivine: ‘Fukushima nuclear plant dumps 1,000 tons of polluted water into sea’ The Telegraph (17 September 2013) http://www.telegraph.co.uk/news/worldnews/asia/ japan/10314444/Fukushima-nuclear-plant-dumps-1000-tons-of-polluted-water-into-sea. html (last visited February 2014). 92 Act on Compensation for Nuclear Damage, Act no 147 of 1961 as amended by Act No 19 of 17 April 2009 arts 3 and 4. 93 ibid art 3 (1). 94 See Law no 492 of 17 June 2008 § 7. 95 Advisory Committee on Compensation System for Nuclear Damage of the Atomic Energy Commission, Comments and Answers on the Draft Report of the Advisory Committee on Compensation System for Nuclear Damage (1998), as quoted in Eri Osaka, ‘Corporate Liability, Government Liabiltiy, and the Fukushima Nuclear Disaster Pacific Rim Law and Policy Journal 21/3 (2012) at 445, note 98.

124 Disaster Law ‘‘a grave natural disaster of an exceptional character’’, because neither the earthquake nor the tsunami were unforeseeable and/or far beyond the design basis for reactors’ (Osaka 2012: 447).96 This approach seems to be entirely in line with the development in our notions of what a disaster is, and the general emergence of disputes in the aftermath of the conflict. The rejection of the exceptionality defences serves as a perfect example of how the socialisation of our understanding of disasters generally undercuts the meaning of ‘exceptional’ vis-à-vis normal (Perrow 1984, 2011) or, in the terminology of Luhmann, how the boundary between ‘normal’ and ‘deviant’ is transgressed. Thus, the Fukushima nuclear disaster was not an exceptional or deviant event, not from a legal nor sociological viewpoint. The example of the disaster clearly envisages the dialectic relationship between our general social approach to, and understanding of, disasters and the application of equivalent legal categories.97 In the aftermath of the East Japan Earthquake, this development has more than anything paved the way for new disputes to unfold, as we shall see in the following section. 5.2.3 Sub-conclusion: excuses I have argued that the traditional excuses exempting from responsibility after disasters are based on a presumption of impossibility. As hazards become increasingly foreseeable and are increasingly understood through social concepts, the basis of the defence changes. Clauses exempting from responsibility are therefore increasingly to be understood as based on standards of no-negligence, and the clauses and doctrines are thereby intimately tied to developments in these standards. Today, this means that excuses play an increasingly smaller part in the portfolio of disaster law. In particular, the act of God defence is losing its ability to function as a satisfactory distributive mechanism, as what was prior misfortune is now replaced by potential injustice. The cases are thereby integrated with our ‘normal’ legal doctrines: negligence, fault and foreseeability, as the defences falter. The field of excuses

96 See also Hatsuru Morita, ‘Rescuing Victims and Rescuing Tepco: A Legal and Political Analysis of the Tepco Bailout’ Zeitschrift für Japanisches Recht 34 (2012) 23–43. Morita argues in a more nuanced manned that TEPCO might have a strategic interest in not calling upon the exception; see ibid at 27. The Nuclear Damage Dispute Reconciliation Committee further has clearly stated that any damage, except if stemming directly from the Great Earthquake if the nuclear accident, is the cause of damage; see Dispute Reconciliation Committee for Nuclear Damage Compensation as translated in Osaka, ‘Corporate Liability, Government Liabiltiy, and the Fukushima Nuclear Disaster’ at 439, n 56. 97 For an investigation of a similar global legal tendency in terms of insurance claims, see Sôichirô Kozuka, ‘Insurance Law Issues Due to the Great East Japan Earthquake of 2011 (Part One)’ Zeitschrift für Japanisches Recht 33 (2012) 3–11 and Sôichirô Kozuka, ‘Insurance Law Issues Due to the Great East Japan Earthquake 2011 (Part Two)’ Zeitschrift für Japanisches Recht 34 (2012) 87–93.

Disaster responsibility 125 can therefore be left for an investigation of the possible responsibility distributed after natural disasters.

5.3 Responsibility for disaster In the previous part of this chapter, I have argued that disasters as per se extraordinary belongs to a now left-behind paradigm, and in its place a continuum of legal responsibility is installed. Therefore, today, laying blame and turning this blame into legal disputes is a central consequence of understanding disasters through a social assemblage in which justice, fairness and accountability are paradigmatic components (Douglas 1992; Felstiner and others 1980/81; Shklar 1990). In the following section, I will briefly investigate how this social turn in our understanding of disasters affects the standards on which we determine responsibility in disaster situations. As I have argued in my analysis of excuses, the standard of due care develops dynamically. This is more than anything reflected in cases on the potential liability, stemming from (mis)management of disasters. Torts and penal law are perhaps the legal disciplines most sensitive to societal changes, as their central modus relies on standards layered in the legal culture rather than strict rule-based assessments. Thus, the law of torts is able to detect and incorporate injustice long before other more densely regulated legal fields, such as constitutional law or administrative law. The law of torts is therefore also a perfect field from which to observe changes in the legal culture. As I have argued throughout the volume, when the disaster becomes increasingly socialised, that is, understood through the quintessential social concepts of vulnerability and risk, our notions of justice and injustice, and thereby the accountable and the non-accountable, changes. Next I will examine the legal aftermath of three central disasters in the last decade as examples of legal responsibility: Hurricane Katrina, Fukushima Daishii and the L’Aquila earthquake. The three cases are examples of tort cases against public authorities (Hurricane Katrina) and private operators (Fukushima Daishii), as well as penal cases (L’Aquila). 5.3.1 ‘Insouciance, myopia and shortsightedness’98 The American environmental law Professor Daniel Farber accounts for three methods of compensating for catastrophic risks: private insurance,99

98 In re Katrina Canal Breaches Consolidated Litigation, 647 F. Supp. 2d 644 (ED La 2009) at 732, see below. 99 See e.g. Michael G. Faure and Véronique Bruggeman, ‘Catastrophic Risks and First-Party Insurance’ SSR (2007); Roger Van Den Bergh and Michael Faure, ‘Compulsory Insurance of Loss to Property Caused by Natural Disasters: Competition or Solidarity?’ World Competition Kluwer Law International 29(1) (2006) 25–54.

126 Disaster Law litigation against responsible private parties (torts) and obtaining compensation from the government (through tort claims; special compensation schemes100 or claims based on constitutional provisions requiring compensation for the taking of property) (Farber 2009: 1079).101 In the last decade, the number of cases brought against public institutions has exploded. In particular, cases invoked as a result of major floods have multiplied over recent decades.102 Levee-constructions and anthropogenic flood designs are favourite targets,103 although emergency plans or, rather, the lack of them can also be the basis for liability.104 From a legal perspective, these cases should relatively straightforwardly follow the traditional instruments generally applied in torts. This is, however, not entirely the case. First and foremost, a special negligence standard seems to be in play when addressing the question of public institutions’ responsibility and, secondly, a number of statutory-based immunity clauses complicate the field. It is a type of legal case inherently balancing on the delicate line between political priorities and legal decisions; and even though the two become increasingly difficult to sever as complicated disaster management regimes emerge, it is more 100 One of the obvious political solutions to a post-natural disaster situation is to install an objective compensation model, not focusing on fault, but merely on the damage. Such objective compensation models are widely accepted politico-legal instruments in response to major disasters and are commonly referred to as no-fault compensation plans. In the aftermath of the attacks on the World Trade Center in New York City on 9/11/2001, the Congress created the September 11th Victim Compensation Fund. The fund paid out US$7 billion to victims or families of victims, and the average compensation per family was a giddy US$1.8 million. One of the terms for receiving compensation (which 98 per cent of the victims or their families did) was to waive the right to file a civil action ‘in any Federal or State court relating to or arising out of September 11, 2001’ (Part III.d of the Instructions for the Compensation Form for Deceased Victims: http:// www.usdoj.gov/archive/victimcompensation/deceasedvictims.pdf. See also Daniel A. Farber, ‘Disaster Law and Inequality’ Symposium for 25th anniversary of Journal of Law and Inequality (2007)). In other words, to eliminate potential private claims the state reimburses generally. In Denmark the Storm Council (Stormrådet – see ch 5 in Law no 349 of 17/05/2000, amended by Law no 544 of 26/05/2010) offers repairs to victims from socalled storm-floods, and which is highlighted as a national example of a no-fault compensation scheme. The council decides on whether or not a storm-flood has occurred, and is financed by a compulsory overhead on fire insurance policies (cf Law no 349 § 24). 101 See Farber and Chen, elsewhere identifying three overall models for compensation after a disaster: Daniel Farber and Jim Chen, Disasters and the Law: Katrina and Beyond (New York: Aspen Publishers, 2006) xxii 348 pp at 162 ff: (a) no-fault compensation plans; (b) insurance schemes; and (c) mass tort. See also Michael Faure, ‘Towards Effective Compensation for Victims of Natural Catastrophes in Devleoping Countries’ in Michael Faure and Andri Wibisana (eds), Regulating Disasters, Climate Change and Environmental Harm. Lessons from the Indonesian Experience (Cheltenham, UK: Edward Elgar, 2013). 102 See for instance Belair v Riverside County Flood Control District, 764 P.2d 1070 (Cal. 1988); Locklin v City of Lafayette, 867 P.2d 724 (Cal. 1994); Bunch v Coachella Valley Water District, 935 P.2d.796 (Cal. 1997); Arreola v County of Monterey, 122 Cal. Rptr. 2d 38 (Cal. Ct. App. 2002); and not least In Re Katrina Canal Breaches Consolidated Litigation, 647 F. Supp. 2d 644 (ED La 2009); see also ‘The Legal Storm in Katrina’s Wake’ Washington Post (30 August 2006) http://www.washingtonpost.com/wp-dyn/content/ article/2006/08/29/AR2006082901430.html (last visited February 2014). 103 See n 102. 104 Paterno v State of California, 6 Cal. Rptr. 3d 854 (Cal. App. 4th 2003) at 865.

Disaster responsibility 127 important than ever. Although political decisions – often as expressions of prioritisation – are, in most legal systems, immune from legal pursuit no matter how irresponsible, legal decisions on interpretation, implementation or construction are subject to liability. Nothing puts these difficult balances more on the line than Hurricane Katrina did. In the US House of Representative, a Select Bi-Partisan Committee to Investigate the Preparation for and Response to Hurricane Katrina, among other things stated: It remains difficult to understand how government could respond so ineffectively to a disaster that was anticipated for years, and for which specific dire warnings had been issued for days. The crisis was not only predictable, it was predicted. If this is what happens after we have advance warning, we shudder to imagine the consequences when we do not. (Miller and others 2008: 414) New Orleans has always been preoccupied with its hazardous position. One of the first improvements made by Jean Baptiste le Moyne, Sieur de Bienville, when he founded New Orleans was to construct levees to protect the town and ‘an elaborate system of drainage canals has checkered the city since’ ( Janke 2008: 12). Thus, flood protection is not a new phenomenon for the long-suffering and hard-tried citizens of New Orleans. However, following Hurricane Katrina thousands voiced their heart-felt injustice of the mismanagement and failed planning process resulting in a devastating outcome of the hurricane. However, in spite of the general dissatisfaction the issue of attaching legal responsibility in the aftermath of the disaster remains complicated. As senator Norm Coleman exclaimed during the Homeland Security and Governmental Affairs Committee Katrina Hearing: ‘My mom didn’t raise dumb kids, and I’m a little confused as to who has the ultimate responsibility.’105 The complication of the responsibility issue in US law stems primarily from the federal immunity enacted by the Flood Control Act of 1928, establishing a national levee system in the wake of the 1927 Mississippi river flood.106, 107 In Louisiana, a case in the aftermath of Hurricane Katrina 105 As quoted in Benjamin W. Janke, ‘Government Liability in Tort under a Hundred Year Flood Plan’ Southern University Law Review 36 (2008) at 19. 106 See the Mississippi Flood Control Act of 1928, Pub. L. No 70–391, 45 stat. 534 (codified as amended by 33 USC § 702(c) (2006)) at 536: ‘No liability of any kind shall attach to or rest upon the United States for any damage from or by floods or flood waters at any place . . .’. 107 Some US states have also invoked statutory immunity; however, none to the same extent. In Louisiana ‘public entities’ are immune from liability ‘based upon the exercise of performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties’, cf. LA. Rev. Stat. Ann § 9: 2798.1 (2007).

128 Disaster Law brought the question of negligence in disaster prevention to the fore once more, and the delicate question of public decision-makers’ responsibility for failed disaster prevention. A number of investigations were made into the reasons for the failure of the flood protection system of New Orleans after Hurricane Katrina. Two reasons are particularly highlighted: first, the ‘ ‘‘funnel’’ created by the hurricane protection levees at the convergence of the south bank of the MRGO [Mississippi River Gulf Outlet] and the north bank of the Gulf Intracoastal Waterway [which] focused a torrent of water on the Inner Harbor Navigation Canal’;108 and, secondly, the levee system failed in several crucial places109 ( Janke 2008: 15). Mainly, these two causes gave rise to the major tort litigation in the wake of Hurricane Katrina in which home and business owners from New Orleans brought actions against local and federal authorities.110 In the litigation, referred to here as the MR-GO litigation: ‘local residents brought action against United States under Federal Tort Claims Act (FTCA), seeking compensation for damages incurred in the aftermath of Hurricane Katrina as the alleged result of certain defalcations of the U.S. Army Corps of Engineers (Corps) with respect to maintenance and operation of the Mississippi River Gulf Outlet (MRGO) navigational channel’.111 As MR-GO was constructed and maintained by the US Army Corps of Engineers, the army claimed to be covered by federal immunity. Federal immunity is to be understood in the strictest sense – not even in cases in which federal authorities are clearly negligent has the immunity been waived.112 Thus, the central legal aspect of the case was whether or not the MR-GO could be considered a ‘flood control project’.113 In the end, the district court held that: (1) Corps failure to maintain and operate MRGO properly was a substantial cause for the fatal breaching of levee and the subsequent catastrophic flooding; (2) Corps actions were not subject to Flood Control Act immunity; (3) due care exception to waiver of sovereign immunity 108 Committee on Homeland Security and Governmental Affairs, ‘Hurricane Katrina: A National Still Unprepared’ Special report of the Committee on Homeland Security and Governmental Affairs (Washington, D. C., 2006) at 53. 109 Ibid at 54. 110 In re Katrina Canal Breaches Consolidated Litigation, 647 F. Supp. 2d 644 (ED La 2009). 111 647 F. Supp. 2d 644 (E.D.La. 2009) at 644. 112 See for instance Florida East Coast Ry. Co. v United States, 519 F.2d 1184 (5th Cir. 1975) at 1191; Graci v United States, 456 F.2d 20 (5th Cir. 1971); Parks v United States, 370 F.2d 92 (2d Cir. 1966); Stover v United States, 332 F.2d 204 (9th Cir. 1964); B. Amusement Co. v United States, 180 F.Supp. 386 (Ct. Cl. 1960). 113 See also Recent Developments, ‘Miscellaneous’ Journal of Consumer & Commercial Law 13/2 (2010) at 103. Some years before the US Supreme Court had in a decision distinguished irrigation water projects from flood-control, and thereby circumvented the immunity clause; see Central Green Co. v United States, 531 U.S. 425 (2001); this was not, however, in a disaster situation.

Disaster responsibility 129 under FTCA did not immunize Corps from liability; (4) discretionary function exception did not shield the Corps from liability; and (5) Corps was negligent under Louisiana law, and was thus liable for damages arising from the destruction of the levee.114 In reaching its decision, the court among other things stated: It is the Court’s opinion that the negligence of the Corps, in this instance by failing to maintain the MRGO properly, was not policy, but insouciance, myopia and shortsightedness. For over forty years, the Corps was aware that the Reach II levee protecting Chalmette and the Lower Ninth Ward was going to be compromised by the continued deterioration of the MRGO, as has been exhaustively discussed in this opinion. The Corps had an opportunity to take a myriad of actions to alleviate this deterioration or rehabilitate this deterioration and failed to do so.115 Importantly, the Army’s Corps of Engineers’ negligent caretaking of the MR-GO, in the court’s view, was not policy, ‘but insouciance, myopia and shortsightedness’. Even though the Court of Appeals has since reversed the decision, the case illustrates the changing conception of disaster and responsibility in a number of ways. The judgment underlines that the main reason for the devastating outcome of Hurricane Katrina was not (only) the hurricane’s strength or suddenness. It was caused by poor levee constructions and a dysfunctional navigational system in New Orleans. The disaster was social and was addressed as such in legal terms as public authorities, in spite of an explicit immunity clause, were found liable for the damage. It is today possible to place the responsibility of disasters with public authorities responsible for the construction or maintenance of built facilities. The Corps bears responsibility for the disaster, even if a technical legal immunity clause cuts off compensation claims. This fact, in turn, creates a frenzied activity level in the re-establishment of the disaster-response system in New Orleans and forces a constant rethinking of the disaster response system. The attribution or the potential possibility of attributing responsibility thus becomes a powerful engine in a constant and never-ending movement of preparation – a driver that constantly specialises, normalises, internationalises and privatises our approach to disasters. This pursuance of a policy of ‘continuous improvement’116 driven by potential liability, in fact supports the disaster management circle of disruption and preparation. 114 647 F. Supp. 2d 644 (ED La 2009) at 644. 115 647 F. Supp. 2d 644 (E.D.La. 2009) at 732. 116 For a similar observation in health care, see Donald M. Berwick, ‘Continous Improvement as an Ideal in Health Care’ The New England Journal of Medicine 320/1 (1989).

130 Disaster Law 5.3.2 A disaster ‘made in Japan’117 Fukushima Nuclear Accident Independent Investigation Commission, the first of its kind in modern Japanese constitutional history, last year revealed its findings on the accident after 900 hours of hearings and more than 1,000 interviews.118 According to the report, the Fukushima-accident was a disaster ‘made in Japan’, which occurred as a result of a combination of particular Japanese cultural traits: What must be admitted – very painfully – is that this was a disaster ‘Made in Japan’. Its fundamental causes are to be found in the ingrained conventions of Japanese culture; our reflexive obedience; our reluctance to question authority; our devotion to sticking with the program; our groupism; and our insularity.119 In spite of the sympathy one might share with the Commission’s unselfish sacrifice of Japanese culture, it seems to be an overstatement to claim that the main reason for the disaster is to be confined within a particular element of Japanese culture. Rather, accidents such as the one in Fukushima happen all around the globe for reasons similar to the ones concluded in the report. The report clarifies and establishes a clear negligent behaviour from the involved actors, and in spite of the general depreciation of assignment of responsibility within the report,120 legal claims are numerous. After disasters generally, and especially those induced by what is traditionally referred to as technical-man-made hazards, disputes are bound to arise. Therefore, it comes as no surprise that an unprecedented number of private legal actions followed the Great East Japan Earthquake (Aronsen 2012: 285 ff; Weitzdörfer 2012).121 TEPCO has, perhaps more than any, been the symbol of a tortfeasor in the aftermath of the earthquake, and thus the attraction for numerous claims (Morita 2012). Today, TEPCO is left with a major part of the responsibility for a disaster estimated to approach US$59.3 billion (4.5 trillion Yen) in damages.122 On 9 May 2012, TEPCO received a 1 trillion Yen (US$12.5 billion) bail-out from the Japanese Government, in return for a controlling stake.123 The cash injection was necessary to avoid a collapse of the company. 117 118 119 120 121

Ibid p 9. ‘The National Diet of Japan’ at 11. Ibid p 9., According to the report, ‘the goal is not – and should not be – to lay blame’, ibid. ‘[L]awsuits . . . are piling up against TEPCO, as well as compensation claims from people who were forced to evacuate or who lost their livelihood because of the accident’; see ‘Analysis: Concerned about Fukushima compensation, TEPCO passes the buck’, The Asahi Shimbun Asian and Japan Watch (21 June 2012) http://ajw.asahi.com/ article/0311disaster/AJ201206210076 (last visited February 2014). 122 See Fukushima Press Kit – NEA (Nuclear Energy Agency). For further discussions on the applied concept of causality and potential limitations of liability, see Osaka, ‘Corporate Liability, Government Liabiltiy, and the Fukushima Nuclear Disaster’ at 448 ff. 123 The shares are to be held by a new body, the Nuclear Damage Liability Facilitation Fund.

Disaster responsibility 131 In February 2014, TEPCO had received approximately 2 million claims, and had already paid out more than 3.416 billion Yen (approximately US$28 billion).124 In August 2011, the owners of Sunfield Nihonhmatsu Golf Course in Fukushima had already filed a US$1.1 million suit against TEPCO, after which several small business operators have followed suit.125 Furthermore, business owners and citizens from the nearby city of Namie have filed suits owing to business losses,126 and claims from evacuated residents from the disaster are numerous.127 The story of a family who, following the suicide of a family member, claimed US$900,000 from TEPCO captured global media attention128 and was recently settled by TEPCO admitting culpability.129 More similar cases could follow.130 Additionally, the disaster caused citizens from other areas in Japan to question public safety and thereby potential infringements of private rights by nuclear power plants.131 Perhaps most spectacularly, a group of shareholders in TEPCO filed a 5.5 trillion Yen (approximately US$68 billion) lawsuit on 26 March 2012, alleging negligence in ignoring safety risks at the Fukushima Daiichi plant against TEPCO executives.132 Finally, a large group of citizens filed a criminal complaint against the TEPCO chairman and 32 other executives with the Prosecutor’s Office in Fukushima. The citizens claimed that the government and the TEPCO executive had displayed professional negligence resulting in injury or death.133 124 ‘Records of Applications and Payouts for Indemnification of Nuclear Damage’ (7 February 2014) TEPCO http://www.tepco.co.jp/en/comp/images/jisseki-e.pdf (last visited February 2014). 125 Ben Lewis, ‘The Legal Aftershocks of Fukushima’ law.com (26 January 2012). 126 Lucas W. Hixson, ‘Namie Business Owner Files Lawsuit against TEPCO’ Enformable Nuclear News (11 April 2012) http://enformable.com/2012/04/namie-business-ownerfiles-lawsuit-against-tepco/ (last visited February 2014). 127 See e.g. ‘14 Nuke Disaster Evacuation Zone Residents File 265 Million Yen Suits against TEPCO’ The Aminnichi Daily News (31 March 2012). 128 See e.g. Miranda Leitsinger, ‘Family to Sue over Suicide after Japan Tsunami, Nuke Meltdown’ World News on MSNBC.com (10 May 2012). 129 See ‘Tepco Admits Culpability in Fukushima Farmer’s Suicide’ The Japan Times (7 June 2013) http://www.japantimes.co.jp/news/2013/06/07/national/tepco-admits-culpabilityin-fukushima-farmers-suicide/#.Ufi4M7uXRba (last visited February 2014). 130 Ibid. 131 Lucas Hixson, ‘New Lawsuit Filed against Sendai Nuclear Power Plant – More than 100 Namie Residents Died During Fukushima Evacuations’ Enformable Nuclear News (30 May 2012) http://enformable.com/2012/05/new-lawsuit-filed-against-sendai-nuclear-powerplant-more-than-100-namie-residents-died-during-fukushima-evacuations/ (last visited February 2014). 132 Kawai, Horie, Kimura and Yamazaki, ‘The TEPCO shareholder lawsuit against TEPCO executives’ The Foreign Correspondents’ Club Japan (22 March 2012). 133 ‘1,324 Fukushima citizens file criminal complaint against TEPCO gov’t’ Japan Today (12 June 2012) http://www.japantoday.com/category/crime/view/over-1300-fukushimacitizens-file-criminal-complaint-against-tepco (last visited February 2014). See also Adam Westlake, ‘1,300 in Fukushima file criminal complaint against TEPCO’ The Japan Daily Press (11 June 2012) http://japandailypress.com/1300-in-fukushima-filecriminal-complaint-against-tepco-113891 (last visited February 2014).

132 Disaster Law Even though the complaint did not result in a prosecution,134 more criminal complaints were originally rumoured to be on the way.135 Some 10 or 20 years ago, the majority of these legal claims would have been rejected. In almost any legal system exceptional and/or unforeseeable events are exempt from liability, either as force majeure, acts of God or as exceptional circumstances. As demonstrated above, the change in social concepts now allows us to redistribute responsibility, in accordance with society’s normal distribution mechanisms.136 The courtroom becomes a societal reconciliation platform, sorting the just claims from the unjust, and thereby comes to play a major role for a given society’s resilience: how well does a given society’s legal system handle these claims? It is therefore an inherent part of major disasters everywhere that disputes arise among private parties, as well as between citizens and the state. The claims generated by disaster are not limited to claims for compensation. In the following section a spectacular penal case and the perhaps less extraordinary consequences for penal law will be addressed. 5.3.3 The L’Aquila Seven and penal law In 2012, a spectacular penal case from L’Aquila in Italy shook the world. Six scientists and one public official were sentenced to six years’ imprisonment for involuntary manslaughter. The seven, publicly referred to as the L’Aquila Seven, had served on a governmental commission tasked to assess major earthquake risks, and to inform decision-making processes and the public of these risks. In L’Aquila, the Commission had met just a week before the devastating earthquake destroyed the medieval town. After a short investigation of the available data, the commission was charged with having informed the public that there was no risk of any major earthquake taking place, contrary to the results of their own investigation and state-of-the-art research on the field.

134 See John Hofilena, ‘Fukushima Victims Incensed at Decision Not to Prosecute TEPCO Government Officials’ JDP (10 September 2013) http://japandailypress.com/fukushimavictims-incensed-at-decision-not-to-prosecute-tepco-government-officials-1035650/ (last visited February 2014). 135 Lucas W. Hixson, ‘Namie Government May File Criminal Complaints over SPEEDI Data’ Enformable Nuclear News (11 April 2012) http://enformable.com/2012/04/namiegovernment-may-file-criminal-complaints-over-speedi-data/ (last visited February 2014). See further Osaka, ‘Corporate Liability, Government Liabiltiy, and the Fukushima Nuclear Disaster’ at 458. 136 See e.g. Dagmar Hinghofer-Szalkay, Naturkatastrophen: Haftung Des Staates Für Schäden Der Opfer: Rechtsvergleichende Überlegungen, USA-Österreich (Vienna: Jan Sramak Publishing House, 2012); Issues in Legal Scholarship, Daniel Farber and Michael Faure (eds), Disaster Law (Cheltenham, UK: Edward Elgar, 2010); Faure, ‘Catastrophic Risks and First-Party Insurance’, Organisation for Economic Cooperation and Development’, Large-Scale Disasters: Lessons Learned (Paris: Organisation for Economic Cooperation and Development, 2004) at 98.

Disaster responsibility 133 The last 30 years have given us plenty of case law and scholarly discussions on the question of compensation of disaster victims that supports the idea of human responsibility for disaster; however, the question of criminal liability for natural disasters remains controversial. On the other hand, manslaughter charges in what are traditionally referred to as technical and man-made disaster examples are plentiful. Train accidents,137 shipwrecks,138 plane crashes,139 crowd management,140 mining accidents141 and fires142 have for years been the subject of legal scrutiny, followed by manslaughter charges and convictions. After the Mont Blanc tunnel fire in 2002, a criminal case against 16 involved parties,143 including companies and individuals acting in private and public capacities and the driver of the HGV, was launched in the High Court in Bonneville. A total of 13 people were found guilty of involuntary manslaughter, including the driver of the truck.144 Furthermore, in 2013 BP pleaded guilty on 11 counts of involuntary manslaughter following the explosion and fire on the Deepwater Horizon platform in 2010.145 Thus, 137 Perhaps most relevant today, see ‘Spain Train-Driver Held for “Reckless Manslaughter”’ (27 July 2013) BBC News http://www.bbc.co.uk/news/world-europe-23477316. 138 The Costa Concordia is only the latest in a long line of criminal cases mounted in the aftermath of shipwrecks; see ‘Five Guilty in Costa Concordia trial’ BBC News (20 July 2013) http://www.bbc.co.uk/news/world-europe-23388680 (last visited February 2014). 139 See e.g. Andrea Rothman and Matthew Campbell, ‘Air France Charged with Manslaughter over Fatal Airbus Crash’ Bloomberg (18 March 2011) http://www.bloomberg.com/ news/2011-03-18/air-france-charged-over-airbus-a330-crash-into-atlantic-in-2009.html (last visited February 2014). 140 E.g. the Hillsborough investigation; see Arthur Martin and James Tozer, ‘Two Hundred Police Officers Facing Probe over Hillsborough in Manslaughter Investigation that Could Be Biggest Ever’ Mail Online (13 October 2012) http://www.dailymail.co.uk/ news/article-2216713/Hillsborough-disaster-inquiry-Prosecutors-told-look-bringingcriminal-charges-police.html (last visited February 2014). Furthermore, criminal charges were recently filed against four organisers and six public officials for the mismanagement of the 2010 love parade; see ‘Germany: 10 Charged in Deaths at 2010 Love Parade’ Huffington Post (12 February 2014) http://www.huffingtonpost.com/huffwires/20140212/eu--germany-love-parade-deaths/?utm_hp_ref=style&ir=style (last visited February 2014). 141 See for instance the aftermath to the Gleision Colliery mining accident, in which the mine manager, Malcolm Fyfield, was facing four counts of manslaughter by gross negligence. See ‘Gleision Disaster: Mine Manager Charged over Four Deaths’ BBC (18 January 2013) http://www.bbc.co.uk/news/uk-wales-21081302 (last visited February 2014). 142 See e.g. the Mont Blanc tunnel fire from 2002. BP pleaded guilty on all 11 counts of manslaughter following the Deepwater Horizon explosion and fire; see e.g. Michael Muscal, ‘BP Pleads Guilty to Manslaughter in 2010 Gulf Oil Spill’ Los Angeles Times (29 January 2013) http://articles.latimes.com/2013/jan/29/nation/la-na-nn-bp-pleads-guilty-tomanslaughter-in-2010-gulf-oil-spill-20130129 (last visited February 2014). 143 Seven ATMB (Autoroutes et Tunnel du Mont Blanc) and SITMB (Società Italiana per Azioni per il Traforo del Monte Bianco) employees, the driver of the HGV, Volvo, the mayor of Chamonix, some safety regulators and a senior official of the Ministry of Public Works. 144 See for instance ‘Manslaughter Convictions Follows Mont Blanc Fire’ New Civil Engineer http://www.nce.co.uk/manslaughter-convictions-follow-mont-blanc-fire/537562.article (last visited February 2014). 145 See n 142.

134 Disaster Law criminal cases often follow major accidents and disasters. In fact, as stated in the previous chapter, case law from the European Court of Human Rights suggests that an obligation to initiate such cases might even follow from the European Convention on Human Rights.146 Following a similar line of thought,147 the British Professor Penny Green’s article ‘Disaster by Design: Corruption, construction and catastrophe’ investigates a series of earthquakes in Turkey (Green 2005). In the article, from an earlier developed theoretical instrument (Green and Ward 2004), Green sets out to identify organisational state deviance and thereby reinterpret disasters as mass human rights infringements. In doing so, Green develops a concrete criminological argument for approaching natural disasters as ‘state crimes’.148 While Green focuses on state negligence, corruption and power abuse on behalf of the Turkish authorities, the basic idea that also mismanagement of natural disasters will eventually be subject to criminal investigation is clear. Thus, the present controversy surrounding the attribution of responsibility for disasters seems, at least partially, to arise from the nature of the hazard and not the size of the calamity or the complexity of the facts. The modern conception of disaster as vulnerability depicted above has the immediate consequence that the epistemological divide between natural and man-made disasters is levelled out. When disasters increasingly are understood through social weaknesses, including through human factors, the origin of the hazard becomes decreasingly important. In other words, today ‘there is no such thing as a natural disaster’.149 The case raised in L’Aquila is in other words not isolated in the sense that it seeks to establish responsibility after disaster. Rather, it seems emblematic of a global development towards responsibility after disaster. In Jeddah, Saudi Arabia, a former municipal official and an adviser were charged with manslaughter for their role in the 2009 Jeddah flood. They face charges for lacking oversight of a water drainage project and, without public permission, for swapping a part of the project with another project.150 Furthermore, recently in another part of the world, a Chilean judge rejected 146 The form of investigation may vary according to the circumstances. In the sphere of negligence, a civil or disciplinary remedy may suffice (see Calvelli and Ciglio v Italy [GC] Application no 32967/96 § 51 ECHR 2002-I and Mastromatteo v Italy [GC] Application no 37703/97 § 90 ECHR 2002-VIII). 147 Green’s general presumption is that disasters often are systematic mass human rights violations. 148 See also for a more politico-legal contribution on international criminal law and disasters, Francesca Russo, ‘Disasters through the Lens of International Criminal Law’ in Andrea de Guttry, Marco Gestri and Gabriella Venturini (eds), International Disaster Response Law (Berlin: Springer, 2012). 149 A phrase borrowed from Chester W. Hartman and Gregory D. Squires’s book on Hurricane Katrina of the same name; see Chester W. Hartman and Gregory D. Squires, There Is No Such Thing as a Natural Disaster: Race, Class, and Hurricane Katrina (New York: Routledge, 2006). 150 See ‘City Officials in Flood Trial Face Manslaughter Charges’ Arab News (1 October 2011) http://www.arabnews.com/node/393103 (last visited February 2014).

Disaster responsibility 135 an appeal to dismiss the involuntary manslaughter charges against four Chilean government officials.151 They stand accused of failing to issue a timely tsunami alert following the 2010 Chile earthquake. According to the presiding judge Ponciano Sallés: ‘[. . .] not enough was done to avoid the catastrophic results . . .’; and he continued: ‘any reasonable analysis would conclude that the risk was greater by not evacuating the population than by doing so’.152, 153 The L’Aquila decision is therefore neither the first nor last trial testing the boundaries of criminal liability after disaster. On the contrary, it is a development driven by an awakening sense of injustice caused by a changing conception of disaster. The European Court of Human Rights in Budayeva and Others v Russia154 underlined that Article 2: ‘entails a duty for the State to ensure, by all means at its disposal, an adequate response – judicial or otherwise – so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished’.155 This could lead one to suggest that it could have been in violation of Article 2 had there been not been an enquiry or sufficient investigation into the role of the Seven after L’Aquila. As stated in previous chapter, however, the Court has allowed itself a substantial margin of interpretation in answering this question. What is clear, however, is that Article 2 encompasses a duty for Member States to establish and implement the framework to assign responsibility in the aftermath of disasters. Assigning responsibility for disasters is therefore a state obligation, and to have your case heard as a victim a human right. 5.3.4 Sub-conclusion: responsibility I have argued that with disasters being increasingly understood in social terms, public and private actors will face legal responsibility for their actions, omissions and built environment. The social turn in the understanding of disasters redistributes responsibility in the society, and thereby functions as a driver that constantly challenges the present disaster architecture. While this effect of attribution of responsibility is positive, it obviously also poses a number of challenges for the state. For this volume, it is sufficient to conclude that we have increasingly seen cases on legal responsibility in 151 See Pascale Bonnefoy, ‘Chilean Judge Upholds Manslaughter Charges Linked to 2010 Tsunami’ New York Times (16 May 2013) http://www.nytimes.com/2013/05/17/world/ americas/chilean-judge-upholds-manslaughter-charges-against-officials-over-tsunamialert.html (last visited February 2014). 152 Echoing William Shakespeare’s Julius Cesar: ‘But since the affairs of men rest still uncertain, let’s reason with worst that may befall’ (Act 5, scene 1). 153 The prosecutor according to the New York Times said: ‘If the accused had been fulfilling their duties, lives would have been saved’; see n 151. 154 See Budayeva and others v Russia (Application no 15339/02) for a more elaborate analysis and see also previous chapter. 155 Ibid para 138.

136 Disaster Law the aftermath of disasters156 and that the establishment and implementation of a framework capable of addressing this issue is today a European human right.

5.4 Conclusion: disaster responsibility Throughout this overall examination of the distribution of responsibility after disasters, I have argued that disasters are increasingly treated as normal social phenomena within law. Traditionally, no responsibility was to be distributed in disasters, as disasters were conceived as misfortunes and therefore functioned as an excuse for non-compliance of obligations and/or not offering compensation for damages suffered. Hence, damages emerging in the exception were exempted from liability. As the disaster becomes increasingly social, the rationales underneath these excuses shifts and the responsibility must accordingly be redistributed. The normalisation of disasters forces disaster managers constantly to improve the response possibilities and clarify the limits of responsibility and distribution of risk. This creates a circular movement towards the best possible preparation. On the one hand, this means that disaster risks are increasingly incorporated into decision-making processes, as public immunity doctrines are relaxed and as the domain and services of the state expand. On the other hand, however, the increasing attribution of liability creates a heavy-handed incentive for decision-makers to particularise the limits between public and private risks. This, I believe, leads to mainly three related developments for the case field. First, the legal framework regarding potential liability conflicts is increasingly specialised. Actors in the field are forced constantly to improve and refine their response and regulatory mechanisms, in tandem with the development in what is considered ‘due care’. This means that the demands to legal specification, and to the introduction of precautionary or preventive measures, are increased. In more concrete legal terms, new standard contracts are being developed, insurance policies expanded, and still more complex and comprehensive regulations being drawn up. In Denmark, two consecutive cloudbursts in 2010 and 2011 made the insurance companies change their policies in order to prevent claimants from obtaining insurance against organic materials, and anything stored less than 20 cm from the floor, etc. In simpler terms, the contracts that regulate the responsibility for disaster

156 There seems to be a difference, in particular in question of responsibility, between European and the American legal systems. Hence, there seems to be widespread reticence in the European systems, leading to a somewhat conservative and in some regards dysfunctional legal practice (as it does not satisfy the general injustice of the affected community). Part of the explanation of this difference can perhaps be found in the role of tort systems, as the progressive American tort system to some extent replaces other society distribution mechanisms, rendering a direct comparison difficult; see e.g. Moréteau, ‘Catastrophic Harm in United States Law: Liability and Insurance’ at 83.

Disaster responsibility 137 situations are becoming increasingly complicated and specialised in order to meet the new challenges of disaster situations. Secondly, the responsibility is privatised, as the cases regard not only distributive conflicts between state and individual but equally, perhaps even increasingly, conflicts between private parties. The result is an increasing hybridity between public and private actors, and thereby also lurches in the positions of public and private law in the resolution of conflicts arising out of disasters. Thirdly, the standards developing in law are no longer kept compartmentalised to a national context; they are internationalised. The whole world engaged breathlessly in the step-by-step development in Japan during the 2011 earthquake and following meltdown of the Fukushima plant, or as the streets of New Orleans were flooded during Hurricane Katrina in 2005. More than anything, these events were approached as injustice or mismanagement playing out for running cameras. These exposures of vulnerability and mismanagement affect the expectations to disaster management all over the world, and the standards for assigning responsibility are thereby internationalised. These roughly sketched developments affect the standards, the actors and the legal doctrines on which distribution of responsibility relies in the aftermath of a disaster. They do so by imposing requirements to a more refined and explicit legal design, and thereby in turn undermine the classic dichotomy of normalcy and emergency, respectively norm and exception. It poses demands to our ‘normal’157 legal systems ability to encounter the unforeseeable, and dynamically changes what is considered foreseeable. Thus, attribution of responsibility comes to function as a continuous mechanism standardising our understanding of risks, and thereby of natural hazards. The branch of law engaged in this exercise could therefore be understood as a social device harmonising and enforcing fictions on disasters, and thus come to play a major role for our ability to manage natural hazards. It could be claimed that the basic instruments of our tort system has not changed; rather, it is the way we perceive and respond to disasters that has changed. The doctrines traditionally used to separate natural disasters from other potential tort cases are being undermined by their own presumptions, and reduced to mirror images of existing tort doctrines. In that sense, the legal instruments applied can be claimed to enforce an increasingly coherent legal order, as social phenomena are understood and approached on equal terms. The emergence of new liability standards in disaster law is therefore not only a development driven by an expansion in the scope of the legal instruments, but also by the development in our society’s conceptualisation of the prudent behaviour before, under and after disasters. In other words, while the legal cultural concepts change, these changes entail that everything 157 Luhmann’s quote in ch 3 on the distinction between normal and deviant loosing relevance suddenly seems self-evident in this context.

138 Disaster Law is increasingly understood and dealt with under the normal legal framework. Disasters are being (re)integrated into present legal doctrines. In the words of de Tocqueville: ‘Nothing changes, but everything differs.’158

Bibliography Affairs, Committee on Homeland Security and Governmental (2006), ‘Hurricane Katrina: A Nation Still Unprepared’ Special report of the Committee on Homeland Security and Governmental Affairs (Washington, D. C.). Andrews, Walter, Levine, Michael, Rhett Petcher and McNutt, Steven (2007), ‘A “Flood of Uncertainty”: Contractual Erosion in the Wake of Hurricane Katrina and the Eastern District of Louisianas Ruling in In Re Katrina Canal Breaches Consolidated Litigation’ Tulane Law Review 81. Aquinas, Thomas (1265–1274), Summa Theologiae I–II. Aronsen, Bruce E. (2012), ‘The Brave New World of Lawyers in Japan Revisited: Proceedings of a panel discussion on the Japancese Legal Profession after the 2008 Financial Crisis and the 2011 Tohoku Earthquake’ Pacific Rim Law and Policy Association 21. Berwick, Donald M. (1989), ‘Continous Improvement as an Ideal in Health Care’ New England Journal of Medicine 320(1). Binder, Denis (1996), ‘Act of God? Or Act of Man? A Reappraisal of the Act of God Defense in Tort Law’ Review of Litigation 15(1) 1–80. Bullard, Robert D. and Wright, Beverly (2009), Race, Place, and Environmental Justice after Hurricane Katrina: Struggles to Reclaim, Rebuild, and Revitalize New Orleans and the Gulf Coast (Boulder, CO: Westview Press). Chocheles, Christopher T. (2010), No Excuses: Hurricanes and the ‘‘Act of God’’ Defence to Breach of Contract Claims’ Louisiana Bar Journal 57. Coleman, Jules L. (1995), ‘The Practice of Corrective Justice’ in David G. Owen (ed), Philosophical Foundations of Tort Law (Oxford: Oxford University Press). Commission, The Fukushima Nuclear Accident Independent Investigation (2012), ‘The National Diet of Japan’. Developments, Recent (2010), ‘Miscellaneous’ Journal of Consumer & Commercial Law 13(2). Dobbs, Dan B. (2000), The Law of Torts (St. Paul, Minn: West Group). Douglas, Mary (1992), Risk and Blame: Essays in Cultural Theory (London: Routledge). Farber, Daniel (2009), ‘Tort Law in the Era of Climate Change, Katrina, and 9/11: Exploring Liability for Extraordinary Risks’ Valparaiso University Law Review 43. Farber, Daniel and Chen, Jim (2006), Disasters and the Law: Katrina and Beyond (New York: Aspen Publishers) xxii 348 pp. Farber, Daniel and Faure, Michael (eds) (2010), Disaster Law (Cheltenham, UK: Edward Elgar). Farber, Daniel A. (2007), ‘Disaster Law and Inequality’ Symposium for 25th anniversary of Journal of Law and Inequality. Faure, Michael (2013), ‘Towards Effective Compensation for Victims of Natural Catastrophes in Developing Countries’ in Michael Faure and Andri Wibisana 158 See de Tocqueville’s description of how American society is at once excitable and monotonous; Alexis de Tocqueville, Democracy in America (ASGRP, 1899) at ch 14 vol II.

Disaster responsibility 139 (eds), Regulating Disasters, Climate Change and Environmental Harm: Lessons from the Indonesian Experience (Cheltenham, UK: Edward Elgar). Faure, Michael G. and Bruggeman, Véronique (2007), ‘Catastrophic Risks and First-Party Insurance’ SSRN. Van den Bergh, Roger and Faure, Michael (2006), ‘Compulsory Insurance of Loss to Property caused by Natural Disasters: Competition or Solidarity?’ World Competition, Kluwer Law International 29(1) 25–54. Felstiner, Willima L. F., Abel, Richard L. and Sarat, Austin (1980/81), ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claming . . .’ Law and Society Review 15(3/4). Flatt, William D. and Kliner, Wesley R. (1991–1992), ‘When the Earth Moves and Buildings Tumble, Who Will Pay? Tort Liability and Defenses for Earthquake Damage within the New Madrid Fault Zone’ Memphis State University Law Review 22. Furedi, F. (2007), ‘The Changing Meaning of Disaster’ Area 39(4) 482–89. Gilmore, Grant and Black Jr, Charles L. (1975), The Law of Admiralty (2nd edn Mineola, NY: West Publishing Company). Gordley, James (2004), ‘Impossiblity and Changed and Unforeseen Circumstances’ American Journal of Comparative Law 52(3). Green, Penny (2005), ‘Disasters by Design: Corruption, Construction and Catastrophe’ British Journal of Criminology (45) 528–46. Green, Penny and Ward, Tony (2004), State Crime: Governments, Violence and Corruption (London; Sterling, VA: Pluto Press) viii 255 pp. Greve, Vagn (1999), Det strafferetlige ansvar (Copenhagen: Jurist.- og Økonomforbundets Forlag). Hall, C. G. (1993), ‘An Unsearchable Providence: The Lawyers’ Concept of Act of God’ Oxford Journal of Legal Studies 13. Hall, Stephen S. (2011), ‘At fault’ Nature 477 264–69. Hartman, Chester W. and Squires, Gregory D. (2006), There is No Such Thing as a Natural Disaster: Race, Class, and Hurricane Katrina (New York: Routledge). Hinghofer-Szalkay, Dagmar (2012), Naturkatastrophen: Haftung des Staates für Schäden der Opfer: Rechtsvergleichende Überlegungen, USA-Österreich (Vienna: Jan Sramak Publishing House). Howe, James L. (1963), ‘Act of God: A Reconsideration’ Washington & Lee Law Review 18. Janke, Benjamin W. (2008), ‘Government Liability in Tort under a Hundred Year Flood Plan’ Southern University Law Review 36. Kaplan, Casey P. (2007), ‘The Act of God Defense: Why Hurricane Katrina and Noah’s Flood Don’t Qualify’ Review of Litigation 26 155–81. Kozuka, Sôichirô (2012), ‘Insurance Law Issues Due to the Great East Japan Earthquake 2011 (Part Two)’ Zeitschrift für Japanisches Recht 34 87–93. —— (2012), ‘Insurance Law Issues Due to the Great East Japan Earthquake of 2011 (Part One)’ Zeitschrift für Japanisches Recht 33 3–11. Kristl, Kenneth T. (2010), ‘Diminishing the Divine: Climate Change and the Act of God Defense’ Widener Law Review 15. Leibniz, Gottfried Wilhelm (1923), Sämtliche Schriften und Briefe. (Ed. Deutsche Akademie der Wissenschaften zu Berlin. Darmstadt/Leipzig/Berlin: AkademieVerlag).

140 Disaster Law Leibniz, G. W. (1988), Theodicy (Peru, IL: Open Court Publishing Co.). Mercante, James E. (2005–2006), ‘Hurricanes and Act of God: When the Best Defense is a Good Offense’ University of San Francisco Maritime Law Journal 18. Miller, Demond S. and others (2008), ‘Responding to Natural Disasters: An Increased Military Response and Its Impact on Public Policy Administration’ in Jack Pinkowski (ed), Disaster Management Handbook (Boca Ratan, FL: CRC Press). Moréteau, Olivier (2010), ‘Catastrophic Harm in United States Law: Liability and Insurance’ American Journal of Comparative Law 58. Morita, Hatsuru (2012), ‘Rescuing Victims and Rescuing TEPCO: A Legal and Political Analysis of the TEPCO Bailout’ Zeitschrift für Japanisches Recht 34 at 23–43. Neiman, Susan (2004), Evil in Modern Thought (Princeton: Princeton University Press). Organisation for Economic Cooperation and Development (2004), Large-Scale Disasters: Lessons Learned (Paris: Organisation for Economic Cooperation and Development) 98. Osaka, Eri (2012), ‘Corporate Liability, Government Liabiltiy, and the Fukushima Nuclear Disaster’ Pacific Rim Law and Policy Journal 21(3). Perrow, Charles (1984), Normal Accidents (New York: Basic Books). —— (2011), The Next Catastrophe (Princeton: Princeton University Press). Picou, J. Steven (2007), ‘Introduction. Katrina as Paradigm Shift: Reflections on Disaster Research in the Twenty-First Century’ in David L. Brunsma, David Overfelt and J. Steven Picou (eds), The Sociology of Katrina: Perspectives on a Modern Catastrophe (Lanham, MD: Rowman & Littlefield Publishers) xx 282 pp. Pufendorf, Samuel (2000), On the Duty of Man and Citizen in the History of Political Thought (trans. Michael Silverthorne, James Tully edn; Cambridge: Cambridge University Press). —— (2009), Two Books on the Elements of Universal Jurisprudence 1660 (ed Thomas Behme, trans. William Abbott Oldfather, Indianapolis: Liberty Fund). Russo, Francesca (2012), ‘Disasters through the Lens of International Criminal Law’ in Andrea de Guttry, Marco Gestri and Gabriella Venturini (eds), International Disaster Response Law (Berlin: Springer). Schwenzer, Ingeborg (2008), ‘Force Majeure and Hardship in International Sales Contracts’ Victoria University of Wellington Law Review 39. Shklar, Judith N. (1990), The Faces of Injustice (New Haven: Yale University Press) vii 144 pp. Stammer, Brian J. (1993), ‘“Nothing We Could Do”: The Defence of Act of God in Environmental Prosecutions’ Journal of Environmental Law and Practice 4. Tierney, Kathleen, Bevc, Christine, and Kuligowski, Erica (2006), ‘Metaphors Matter: Disaster Myths, Media Frames, and Their Consequences in Hurricane Katrina’ Annals of the American Academy of Political and Social Science (604). Tocqueville, Alexis de (1899), Democracy in America (University of Virginia: ASGRP). Verchick, Robert (2010), Facing Catastrophe (Cambridge, MA: Harvard University Press). —— (2012), ‘Disaster Justice’ Duke Environmental Law and Policy Forum 23. Weitzdörfer, Julius (2012), ‘Die Hafttung für Nuklearschäden nach japanischem Atomrecht: Rechtsprobleme der Reaktorkatastrophe von Fukushima I’ Zeitschrift für Japanisches Recht 31 61–115.

6

Disaster law

March 2011 was a turning point for Japan. The earthquake, tsunami and nuclear power-plant accident was the disaster of the century for Japan and perhaps the world. Almost 16,0001 people lost their lives, and World Bank estimates suggest that the disaster will cost the Japanese society more than US$235 billion.2 However, the triple disaster was not only a disaster ‘made in Japan’;3 it is also making Japan. Disasters’ potential to change conflict (Kelman 2012), economy (Schumpeter 2013) or political structures (Dauber 2013; Rozario 2007) are well documented, although the potential for legal reform is no less pronounced.4 Comprehensive legal reforms are being undertaken in Japan right now (Nottage 2013). The American sociologist Thomas Birkland has documented how this has been the case in the US in the last century: after disaster follows law (Birkland 1997, 2006). Today, law has come to play a major role in the way in which we understand, evaluate and mitigate disasters. In this final chapter I set out to systemise and provide perspective on the research findings of the volume. The chapter is divided into three sections. The first section, following immediately below, will summarise the main arguments and conclusions reached in the previous chapters. In the second section, I will provide a tentative overview of the theoretical field of disaster law, before in the third section offering a perspective on the findings in a broader context. 1 In fact, 15,884 people; see National Police Agency of Japan Emergency Disaster Countermeasures Headquarters: ‘Damage Situation and Police Countermeasures associated with 2011Tohoku district: off the Pacific Ocean Earthquake January 10, 2014’ http:// www.npa.go.jp/archive/keibi/biki/higaijokyo_e.pdf (last visited on 6 February 2014). 2 Victoria Kim, ‘Japan Damage Could Reach US$235 Billion, World Bank Estimates’ Los Angeles Times (21 March 2011). 3 See the Fukushima Nuclear Accident Independent Investigation Commission, ‘The National Diet of Japan’ (2012). See also ch 5. 4 The Lebanese mathematician Nassim Nicholas Taleb’s latest book Antifragile takes a step further and suggests that this change potential of disasters should be used to make affected societies stronger, and thereby create antifragile societies. Taking the example of the Greek mythical creature Hydra, Taleb suggests societies should grow three new heads every time one is cut off; see Nassim Nicholas Taleb, Antifragile (London and New York: Allen Lane/ Penguin Group, 2012).

142 Disaster Law

6.1 Findings I have argued that as our concepts of law (Chapter 1), disasters (Chapter 2) and society change so do the way we legally frame disasters (Chapters 3–5). Thus, the social turn in our understanding of disasters significantly affects the way in which we approach the phenomenon legally. I have investigated this in two regards: how law facilitates disaster responses, in particular on the transnational level; and how law assigns legal responsibility in the aftermath of a disaster. I have argued that legal and state theory traditionally has approached disasters from a dichotomy between normalcy and emergency (factually) respectively norm and exception (normatively) (Chapter 3). Hence, when a disaster that is approaching an emergency is declared, and actions done to encounter the given disaster are considered non-legal or extra-legal. This theoretical approach is reflected both in regard to the range and character of decisions made under emergencies and in the (non-)distribution of responsibility in the aftermath of disasters. Since disasters are increasingly understood as social phenomena, the idea of maintaining an enforceable dichotomy between normalcy and emergency crumbles and the legitimacy of the normative dichotomy (norm vis-à-vis exception) is challenged. Thus, the need to differentiate the natural disaster from political emergencies arise as the disaster is increasingly understood as social vulnerability rather than an external, intruding, wicked-minded disruption of normalcy. Furthermore, I have argued that as a concept of mature modern law gains ground the dichotomy between norm and exception is replaced by a fundamental legality affecting the application as well as interpretation of the traditional doctrines to control emergencies. The idea of non-legal actions is thereby difficult to legitimise in a layered legal system functioning through coherence, proportionality and rationality, rather than through a narrow concept of rules. The dissolution of the dichotomy is reflected both in the institutional and in the legal architecture. I have argued that the institutional architecture is changing in order to meet the demand to manage disasters, rather than accommodate emergencies. Today, this has integrated disaster management into social organisations as well as normative frameworks at all levels, and thereby contributes to the dissolution of the factual, organisational and normative dichotomies traditionally structuring the field. Extraordinary decisions are still taken to counter disasters: decisions with higher stakes and more severe consequences than other legal decisions. However, this makes them no less legal. When we move from emergency accommodation to disaster management the decisions made change in form and content. To be sure, disasters are no longer approached through a separate institutional architecture (a dictatorship), but are rather integrated into the function of all parts of society, and the increasing social complexity and diversification of actors in the global policy field disasters today form part of, renders the idea

Disaster law 143 of ever returning to such institutional separation still more illusory. Thus, I do not claim that, when faced with disasters, states of emergencies are no longer declared – they are. I argue that these are no longer timely regimes to meet disasters, and are simultaneously being systematically undermined by changes in our understanding of disasters, society and law. In the legal architecture, the social turn in the understanding of disasters affects how societies respond to disasters. The changed understanding of disasters is reflected clearly in European human rights law. Today, comprehensive and effective disaster regulation is a human right under the European Convention on Human Rights. The convention implies not only the obligation for states to develop and maintain disaster law, but also an obligation for states to investigate and, if necessary, sanction the mismanagement of disasters. Furthermore, I have argued that as emergency accommodation is replaced by disaster management law becomes imperative. This is no less the case on the transnational level, where regional and international legal frameworks are burgeoning. On the European level the European Union serves as a perfect example of such a regime. The Union’s Civil Protection Mechanism addresses all aspects of disaster management, and sets out to create a framework for the Union’s involvement in these. This development simultaneously impairs the need for a state of exception. Even if the entire infrastructure of a European country is affected, regional and international actors will quickly be on the ground to help and re-establish the basic infrastructure of the affected countries. To be sure, the internationalisation of disaster management also undermines the need for extraordinary disaster regimes, and thereby strengthens the continuous build-up of disaster law. Also on the global level new regimes and regulations are mushrooming. However, international disaster response law is faced with at least three serious challenges, as discussed in Chapter 4. Thus, the international community should strive to develop legal instruments able to regulate the field more coherently, both in terms of the actors under the scope of the legislation and across different types of disasters. The distribution of responsibility is equally affected by the social turn of disasters. I have argued that the excuses traditionally characterising the distribution, or rather non-distribution, of responsibility in the aftermath of disasters, are increasingly replaced by dynamically developing legal standards forcing public as well as private actors constantly to improve their disaster response and preparation. Thus, liability becomes a strong driver in internalising the social turn in the understanding of disasters into our legal system. The idea of the disaster as liability avoidance en bloc, is thereby replaced by a nuanced legal assessment based on legal principles adhering to tort law. Disasters are, also in discussions on responsibility, approached similarly with other phenomena, rather than as an exception to our normal legal order. Furthermore, I have argued that as the disaster becomes social, the responsibility for disasters must be redistributed in society. This redistribution

144 Disaster Law is occurring across the board, and thus affects all actors in the field, and penal, as well as tort law. In particular, public institutions could increasingly be subject to liability for disasters, as the limit between misfortune and (in)justice is resettling. Therefore, there have been, and I believe increasingly will be, progressively more legal conflicts regarding distribution of responsibility in the aftermath of natural disasters. Disasters are no longer excuses or non-legal gaps; they are social phenomena that must be legally approached through our normal legal system, rather than as exceptions. I have set out to investigate how this change is reflected within two case fields and thereby discussed what I consider an emblematic segment of the larger legal portfolio of law. Thus, the result of the social turn in disaster research is a juridification of what was formerly conceived of as non-legal, or in perhaps even more paradigmatic terms: the emergence of disaster law. A legal theoretical discipline focusing on the portfolio of legal norms relevant for disaster accommodation thereby materialises and replaces the state theoretical idealisation of emergencies as exceptions to normalcy. While the traditional theoretical field has been preoccupied with investigations of sovereignty, authority and exceptionality; a new field emerges preoccupied with legal interpretation, considerations of justice and discussions on the distribution of responsibility.

6.2 A theoretical field on disaster law A body of literature has emerged analysing explosive growth of regulation relating to disaster management. The volume of this body is constantly accelerating and, today, a field on disaster law could be said to exist. Disaster regulation is in the theoretical field dealt with under a number of different labels: disaster law (Baum 2007; Farber and Chen 2006; Farber and others 2010; Malloy 2008; Verchick 2010; Wells 1995); emergency law (Agamben 2005; Dyzenhaus 2006; Gross and Nâi Aolâain 2006; Hunter 2009; Ramraj 2008); risk law (Alemanno 2010; Bora 1999; Fabio 1994; Fischer 2007; Klippel 2009; Posner 2004; Sunstein 2005; Vos 2009); or catastrophe law (Sarat and others 2007). The labels seem scarcely elaborate and overlap in scope, theoretical assumptions and methodology. While the American tradition has, until now, relied predominantly on disaster studies, not least disaster sociology (also mainly emerging from the US), European scholarship has started from risk sociology (an approach also rooted in European scholarship). Even though the term disaster law therefore mainly seems to refer to US scholarship,5 I believe it to be the most descriptive of the entire enterprise, and not least this volume. 5 It seems the label has found some footing also with a European audience, e.g. the comprehensive volume Disaster Law, was co-edited by the Transatlantic team of Daniel Farber (Berkeley) and Michael Faure (Maastricht); see Daniel Farber and Michael Faure (eds), Disaster Law (Cheltenham, UK: Edward Elgar, 2010).

Disaster law 145 The positions in the field are perhaps more convincingly differentiated by their approach. This could roughly be done in a doctrinal approach aiming at describing the disaster law portfolio or specific sections hereof from a classical legal doctrinal methodology (e.g. Baum 2007; Farber and others 2010; Faure and Vanden Bergh 2006; Faure and Bruggeman 2007; Schneid 1995); a critical approach using distributive aspects (risks, response or compensation) of disasters to criticise political decisions or the architecture of law (e.g. Bullard and Wright 2009; Farber 2007; Malloy 2008; Verchick 2007, 2010, 2012); a theoretical approach addressing the foundations of emergency response and in particular law’s ability to accommodate crisis (e.g. Agamben 2005; Dyzenhaus 2006; Gross and Nâi Aolâain 2006; Sun and Jones 2013); and, finally, a risk approach, addressing legal design and law’s ability a priori to allocate major risks (Alemanno 2010, 2011; Fischer 2007; Posner 2004). The doctrinal approach to the field is well known to legal readers. It refers to the classical legal enterprise of systematising present law in order to solve potential conflicts, clarify uncertainties or contradictions within law, through the application of legal rationality, knowledge and argumentation. Within this discipline disaster law does not differ from any other legal field in terms of methodology or problem identification, and regards topics across the span of legal disciplines (covering everything from investment and insurance law to human rights and administrative law).6 Furthermore, a number of the contributions relevant to this portfolio are intended for the compartmentalised discipline they emerge from, which thereby set out to describe a particular issue within (for example) tort law, rather a general issue within disaster law. With the critical approach I refer to a primarily American tradition in legal scholarship, in which the scholar takes departure in a standard from which present law can be critically reviewed. Such investigation could stem from a concept of social vulnerability (Verchick 2012), including race (Bullard and Wright 2009), gender (Verchick 2004, 2007) or social inequality (Farber 2007) (or for that matter economical (Posner 2004) or philosophical insights (Meyer 2007; Miller 2009)). The approach therefore aims to use insights often from other disciplinary studies, to show how present law fails to incorporate or accommodate this knowledge, and thereby to criticise the state of the law. The theoretical approach refers to a tradition focusing on the foundations and concepts of disaster management. The approach can hardly be summed up definitively, but encompasses discussions on the outer limits of legal actions performed by authorities in emergencies, either by tying these to larger schemes of moral or political justification or attempting to develop new legal accommodation models.7 In particular, after the terrorist attacks

6 For a good example of the span of contributions to the disasters law portfolio, see ibid. 7 See ch 3.

146 Disaster Law on New York in 2001, numerous contributions focusing on the foundation and/or design of state powers have emerged in the discussions on global counter-terrorism and emergency management in general, and contributions have grown in number and importance (Posner 2006; Posner and Vermeule 2007; Ramraj 2008; Yoo 2009).8 This volume seems to fall mainly into this category. The risk approach draws on the broader field of risk regulation. In general, risk regulation refers to a tradition that clearly draws its ideas and basic concepts from European risk sociology, rather than American disaster sociology, and thereby a tradition striving to become synchronised with technical and scientific knowledge on risk production. It is therefore also an approach with emphasis on risk mitigation and prevention rather than disaster response. The Italian law professor Alberto Alemanno’s account of emergency risk regulation in the introduction to the edited volume Governing Disasters of 2011 (Alemanno 2011: xix) serves as a good example of this, even though he also includes responses in the portfolio. In sum, the risk approach focuses on generating politico-legal insights through technical, social and scientific knowledge. Obviously, a number of important contributions must be placed either between or as covering several of the above-mentioned approaches (see e.g. Farber and others 2010; Faure and Wibisana 2013; Sarat and others 2007). Thus, the approaches only serve as a tentative artifice to structure the variety and volume of the present theoretical field. What is clear, however, is that disasters are today the subject of an impressive variety of legal scholarship comprising into a theoretical field of disaster law; and as disaster management in general, and law in particular, becomes increasingly important, so will scholarship focusing on law and disasters.

6.3 A final perspective In September 2011 a previously mentioned, spectacular penal case was opened in L’Aquila, Italy. Six scientists and one public official were indicted for manslaughter for their public miscommunication just before the 2009 L’Aquila earthquake.9

8 In constitutional law it has, however, always been a discipline de parade to discuss the structure of emergency powers within the state; see e.g. Hans-Ernst Folz, Staatsnotstand Und Notstandsrecht (Kèoln: Heymann, 1962) 212; Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Library of Congress, 2002); Henning Koch, Demokrati: Slå Til! Statslig Nødret, Ordenspoliti Og Frihedsrettigheder 1932–1945 (Kbh: Gyldendal, 1994). 9 On 6 April 2009, the Abruzzo region was hit by an earthquake. The earthquake was rated 6.3 on the moment magnitude scale (and around 5.8 on the Richter scale). The epicentre of the earthquake was very near the historic capital of Abruzzo, l’Aquila. The number of dead was 309 and more than 1,500 people sustained serious injuries from the earthquake.

Disaster law 147 More than anything else, the case reflects the central theme of this book: how the changed understanding of disaster alters existing legal standards and drives a need for new ones. As the disaster becomes social, the need and possibility of attaching responsibility increases, and thereby initiates a politico-legal development, as well as developments in existing law. However, the case simultaneously reflects the potential collateral damage of this change, the potential of scapegoating, the risk of applying hindsight causality and the difficulty in placing responsibility in a complex setting of individuals and institutions. The main theme of this short perspective of the dissertation is the need to develop a new type of legal instruments capable of distributing the risk, blame and responsibility fairly and above all expediently within society. Thus, the need to address the challenge of developing legal systems able to facilitate the perceived injustice of the victims of a disaster, and simultaneously not to endanger the overall societal aim of creating the most effective disaster response system. In the following section, I will briefly touch upon three different aspects of this challenge under three headings: The blame cycle, A line in the sand and The rationalist fantasy. 6.3.1 The blame cycle The British professor of Psychology, James Reason, is the progenitor of a model generally referred to as the Swiss cheese model. According to this model, modern high technological systems, rather like a society, consist of several defensive layers; some engineered, some relying on persons and yet others on norms (procedures or administrative controls) (Reason 1990: 769). All of these layers should ideally be intact, and thereby shield the system from hazards. But, says Professor Reason (1990: 769): ‘in reality, however, they are more like slices of Swiss cheese, having many holes, though unlike in the cheese, these holes are continually opening, shutting and shifting their location’. The holes are caused by faults (‘active failures’), as well as by vulnerabilities in the system (‘latent conditions’). An accident or disaster occurs when the holes align and allows a hazard to pass through. According to Professor Reason, two main approaches to error management can be chosen; a person approach and a system approach. The person approach focuses on unsafe acts, that is, errors or, in legal terms, fault, while the system approach focuses on the system’s ability to foresee and integrate potential errors (fault) in the design of the system. Professor Reason’s main point is that, in order to create the safest system, we must remove focus from the person to the system approach, and thereby create as many effective defensive layers as possible. Reason’s model points to a pivotal aspect of disasters; they are usually multi-causal, although law has a tendency, applying hindsight, to seek out a responsible individual or institution. This fact seems to call for an entirely different approach to reparation of damages in the aftermath of disasters. For

148 Disaster Law society, very little comes out of attaching individual responsibility (or responsibility of certain government branches), although being a constant developer, it also leads to a closed security culture, economic ramifications10 and potentially a risk-averse disaster management system.11 On the other hand, the injustices revealed by disasters should not pass unnoticed, and mechanisms able to address such injustices are necessary. Thus, in order to develop an effective disaster management system there is a need for social systematisation of the responsibility for damages of major accidents and disasters, in a manner that does not injure the overall response system, but simultaneously sanctions wrongdoing. In other words, a balance between an effective disaster management regime and individual justice must be struck. 6.3.2 A line in the sand In the Scandinavian welfare and security state, the public system is omnipresent. Thus, in order to ensure a fair distribution of risk and responsibility, there is a need explicitly to address the limits for, and distribution of, responsibility; a need for regulation able to allocate risk between public and private stakeholders and among private stakeholders. Such regulation could for example enforce clear limits on how much rainwater the sewers are designed to be able to accommodate and thereby unambiguously stating just what society considers an acceptable risk.12 Clear legal boundaries would allow for private parties to accommodate their own risk, and thereby clearly distinguish between private and public responsibility. Such decisions demand political courage and, for as long as the issue is unaddressed in the legal framework, blame games constitute a hazard against the system itself. Thus, the changes accounted for in this book not only affect the legal framework as we know it but also impose new demands to the democratic genesis of law as such (Habermas 1997: 428). While no studies of regulation of major risks have been made in a Danish/ Nordic context, a ‘discipline’ of risk regulation has in general been emerging

10 In a discussion on the application of the doctrine of fortuitous events (a variation of force majeure) in the aftermath of Hurricane Katrina, one commentator stated: ‘To continue to take such a narrow and restrictive approach to Force Majeure claims puts parties at risk’; see Jonathan Riley, ‘Embracing the Principle of Growth: A Call for an Expansion of the Doctrine of Fortuitous Event in Lousiana Law’ Southern University Law Review 35 (2008) at 440. The claim is that the very narrow approach to the defences (and thereby flooding the courts with cases) becomes a limitation to contracting parties in disaster-prone areas and thereby an obstacle for growth. 11 Assigning too much responsibility could also seem to impose a duty to ‘over-protection’; see Kenneth T. Kristl, ‘Diminishing the Divine: Climate Change and the Act of God Defense’ Widener Law Review 15 (2010) at 357. This could also be part of the critique suggested by Shklar in more general terms, that coining an act of God as a matter of injustice encourages us to do too much. 12 A tendency also traceable at the Danish Courts; see for instance U.1985.368H.

Disaster law 149 in a larger European context, as recounted above (Alemanno 2010; Bora 1999; Fabio 1994; Klippel 2009; Vos 2009). I believe such politico-legal contributions are crucial to societies’ ability efficiently to address the challenges posed by present and future disasters and thus to develop legal instruments able to create a clear responsibility architecture for disaster response and recovery. One final problem inherent in this book’s general assumption of law’s relevance for disasters needs to be addressed. 6.3.3 The rationalist fantasy An important final perspective, or perhaps rather a reflection, is on a general presumption applied throughout this volume; the idea that disasters are foreseeable. I have met objections to this point more than on any other point when presenting my research to peers. Let me therefore take this opportunity to underline the idea: in order to maintain and develop an effective disaster response system it is essential not to fall for the deception Shklar (1990: 56) refers to as ‘the rationalist fantasy’: We need to remember that there really are misfortunes to which we must resign ourselves, lest we fall into fantasies of omnipotence and total safety. The notion of misfortune refers to the fact that there are limits to what we can accomplish, especially by technological means, for which we instantly reach in our dreams of mastery, they tend only to encourage us to avoid hard choices. Thus, it is a rationalist fantasy to assume that all future disasters can be foreseen and mitigated. We, as scholars and societies, therefore need to deal with the fact that there are still ways of nature that we cannot manipulate and that new, and unforeseeable, vulnerabilities follow from social complexity. Mitigation and adaptation are thus not finite exercises, and there is no such thing as total safety. While we have undeniably become better at modelling the ways of nature, it is nothing more than that. This poses, on the one hand, in line with the American sociologist Lee Clarke’s suggestion, new demands on our ability creatively to expand our notions of the world (Clarke 2006, 2008)13 through so-called possibilistic thinking and, on the other hand, demands that we are able to accept the unforeseeable. In legal terms, instruments able effectively to diversify between foreseeable and unforeseeable events, without hindsight (Meyer 2007), become pivotal. I do not believe that the concept of disasters outlined in this volume necessarily entails that all disasters are foreseeable, even though the emergence of 13 While yet others embrace this inherent unforeseeability in a significantly more fatalistic manner, see e.g. Nassim Nicholas Taleb, The Black Swan (London; New York: Penguin Books, 2010).

150 Disaster Law its epistemology, if you will, is rendered possible by transgressing a certain threshold of foreseeability.14 Thus, it is has never been my intention to claim that all disasters have become, or will be, foreseeable, but only that enough hazards are foreseeable to allow us to focus on vulnerability. Thus, this change of focus does not mean that we should neglect the challenge of managing what Donald Rumsfeld famously referred to as the known unknowns and the unknown unknowns.15

6.4 Conclusion I have argued that as the disaster is increasingly understood as a social phenomenon, the legal portfolio is affected in at least two regards. It imposes new demands to societies’ way of managing disasters and it redistributes responsibility. In particular, the latter gives rise to a number of responsive changes in our legal design regarding natural disasters. Future decisionmakers must not only consider how best to manage disasters, but also consider who should carry the ultimate responsibility and burden of this response. Issues of distribution and justice thereby become pivotal issues for the legal design, and for the enterprise of theorising disasters and law as such. Well now, how indeed mortal men do blame the gods! They say it is evil from us come, yet they themselves By their own recklessness have pains beyond their lot. Homer: The Odyssey 32–34

Bibliography Agamben, Giogio (2005), State of Exception (Chicago: University of Chicago Press). Alemanno, Alberto (2010), ‘From the Editor’s Desk’ European Journal of Risk Regulation 1(1) III–V. —— (2011), ‘Introduction’ in Alberto Alemanno (ed), Governing Disasters: The Challanges of Emergency Risk Regulation (Cheltenham, UK: Edward Elgar). Baum, Marsha L. (2007), When Nature Strikes: Weather Disasters and the Law (Westport, CT.: Praeger Publishers) xiii 227. Birkland, Thomas A. (1997), After Disaster. Agenda Setting, Public Policy, and Focusing Events (Washington, D.C.: Georgetown University Press). —— (2006), Lessons of Disaster: Policy Change after Catastrophic Events (American governance and public policy series; Washington, D.C.: Georgetown University Press) xviii 216 pp. 14 That we can foresee enough hazards to shift our focus onto the social aspects of the disaster. 15 In a quote addressing the alleged presence of weapons of mass destruction in Iraq, the then US Secretary of Defence, Donald Rumsfeld, said: ‘. . . there are known knowns; there are things we know that we know. There are known unknowns; that is to say, there are things that we now know we don’t know. But there are also unknown unknowns – there are things we do not know we don’t know.’

Disaster law 151 Bora, Alfons (1999), Rechtliches Risikomanagement. Form, Funktion und Leistungsfähigkeit des Rechts in der Risikogesellschaft (Berlin: Duncker & Humblot). Bullard, Robert D. and Wright, Beverly (2009), Race, Place, and Environmental Justice after Hurricane Katrina: Struggles to Reclaim, Rebuild, and Revitalize New Orleans and the Gulf Coast (Boulder, CO: Westview Press). Clarke, Lee Ben (2006), Worst Cases: Terror and Catastrophe in the Popular Imagination (Chicago: University of Chicago Press) xi 213 pp. —— (2008), ‘Possibilitic Thinking: A New Conceptual Tool for Thinking about Extreme Events’ Social Research 75(3) 669–90. Commission, The Fukushima Nuclear Accident Independent Investigation (2012), ‘The National Diet of Japan’. Dauber, Michele Landis (2013), The Sympathtic State: Disaster Relief and the Origins of the American Welfare State (Chicago: University of Chicago Press). Dyzenhaus, David (2006), The Constitution of Law: Legality in a Time of Emergency (Cambridge; New York: Cambridge University Press) xv 250. Fabio, Udo Di (1994), Risikoentscheidungen im Rechtsstaat: Zum Wandel der Dogmatik im öffentlichen Recht, insbesondere am Beispiel der Arzneimittelüberwachung (Tübingen: Mohr Siebeck). Farber, Daniel and Chen, Jim (2006), Disasters and the Law: Katrina and Beyond (New York: Aspen Publishers) xxii 348. Farber, Daniel and others (2010), Disaster Law and Policy (2nd edn Wolters Kluwer Law & Business: Cheltenham: Aspen Publishers). Farber, Daniel and Faure, Michael (eds) (2010), Disaster Law (Cheltenham, UK: Edward Elgar). Farber, Daniel A. (2007), ‘Disaster Law and Inequality’ Symposium for 25th Anniversary of Journal of Law and Inequality. Faure, Michael and Wibisana, Andri (eds) (2013), Regulating Disasters, Climate Change and Environmental Harm: Lessons from the Indonesian Experience (Cheltenham, UK; Northampton, MA, USA: Edward Elgar). Faure, Michael G. and Bruggeman, Véronique (2007), ‘Catastrophic Risks and FirstParty Insurance’ SSRN. Faure, Roger and Vanden Bergh, Michael (2006), ‘Compulsory Insurance of Loss to Property caused by Natural Disasters: Competition or Solidarity?’ World Competition, Kluwer Law International 29(1) 25–54. Fischer, Elizabeth (2007), ‘Risk Regulation and Administrative Constitutionalism’ (Oxford: Hart). Folz, Hans-Ernst (1962), Staatsnotstand und Notstandsrecht (Kèoln: Heymann) 212. Gross, Oren and Nâi Aolâain, Fionnuala (2006), Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge studies in international and comparative law (Cambridge, England: 1996); Cambridge: Cambridge University Press) xxix 481. Habermas, Jürgen (1997), Between Facts and Norms (trans. William Rehg, Cambridge: Polity Press). Homer (1996), The Odyssey (trans. Robert Fagles, New York: Viking). Hunter, Nan D. (2009), Emergency Law: Public Health and Disaster Management (Burlington, MA: Elsevier). Kelman, Ilan (2012), Disaster Diplomacy. How Disasters Affect Peace and Conflict (New York: Routledge).

152 Disaster Law Klippel, Dicthelm and Woodman, Gordon R. (eds), (2009), Risk and the Law (London New York: and New York: Routledge-Cavendish). Koch, Henning (1994), Demokrati: slå til! Statslig nødret, ordenspoliti og frihedsrettigheder 1932–1945 (Kbh: Gyldendal). Kristl, Kenneth T. (2010), ‘Diminishing the Divine: Climate Change and the Act of God Defense’ Widener Law Review 15. Malloy, Robin Paul (2008), Law and Recovery from Disaster: Hurricane Katrina (Law, Property and Society; Burlington, VT: Ashgate). Meyer, Linda Ross (2007), ‘Catastrophe: Plowing up the Ground of Reason’ in Austin Sarat, Lawrence Douglas and Martha Merrill Umphrey (eds), Law and Catastrophe (Stanford, CA: Stanford University Press). Miller, Ruth A. (2009), Law in Crisis: The Ecstatic Subject of Natural Disaster (Stanford, CA: Stanford University Press). Nottage, Luke (2013), ‘Japanese Law after the 3–11 Disasters, and ANJeL’s Anniversary Conference on Asia-Pacific Disaster Management’ Journal of Japanese Law 34(5) 1–5. Posner, Eric A. and Vermeule, Adrian (2007), Terror in the Balance: Security, Liberty, and the Courts (Oxford: Oxford University Press). Posner, Richard A. (2004), Catastrophe: Risk and Response (Oxford; New York: Oxford University Press) 322. —— (2006), Not a Suicide Pact: The Constitution in a Time of National Emergency (New York; Oxford: Oxford University Press) xi 171. Ramraj, Victor (2008), Emergencies and the Limits of Legality (Cambridge: Cambridge University Press). Reason, James (1990), ‘Human Error: Models and Management’ British Medical Journal 380. Riley, Jonathan (2008), ‘Embracing the Principle of Growth: A Call for an Expansion of the Doctrine of Fortuitous Event in Lousiana Law’ Southern University Law Review 35. Rossiter, Clinton (2002), Constitutional Dictatorship: Crisis Government in the Modern Democracies (Library of Congress). Rozario, Kevin (2007), The Culture of Calamity: Disaster and the Making of Modern America (Chicago: University of Chicago Press) x 313. Sarat, Austin, Douglas, Lawrence and Umphrey, Martha Merrill (2007), Law and Catastrophe (The Amherst series in law, jurisprudence, and social thought; Stanford, CA: Stanford University Press) 165. Schneid, Thomas D. (1995), Fire Law: The Liabilities and Rights of the Fire Service (New York: Wiley-Blackwell). Schumpeter, Joseph A. (2013), Capitalism, Socialism and Democracy (London: Routledge). Shklar, Judith N. (1990), The Faces of Injustice (New Haven: Yale University Press) vii 144 pp. Sun, Lisa Grow and Jones, RonNell Andersen (2013), ‘Disaggregating Disasters’ UCLA Law Review 60. Sunstein, Cass R. (2005), Law of Fear (Cambridge: Cambridge University Press). Taleb, Nassim Nicholas (2010), The Black Swan (London; New York: Penguin Books). —— (2012), Antifragile (London and New York: Allen Lane/Penguin Group).

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Index

Act of God 109–22, 124–5; application of (following Hurricane Katrina) 110–22; as no-negligence 120–2, 124–5; definition of 109–13; force of nature 113–4; foreseeability 116–20; sole proximate cause 115–6 Arctic 82–4; cooperation 84; council 82 Beck, Ulrich 25–7, 35, 36–7; see also risk Black Swans 27; see also Nassim Taleb Budayeva 77–9; See also European Convention on Human Rights Catastrophe 11 (see also disaster); difference from disaster 33–4; law 144 (see also disaster law) Criminal liability; see penal law Christianity 15, see also Divinity and/or God Chile Earthquake 29; trial against public officials 135 Civil Protection Mechanism 85–90; see also Union Civil Protection Mechanism Civil Protection Financial Instrument 86; see also Union Civil Protection Mechanism Clarke, Lee 29, 33, 149 Contingency, paradigm of 12, 17–9, 21, 36 Commission’s Humanitarian Office (ECHO) 91 Crisis management; see emergency accommodation Critical Legal Positivism 4–7, 9 Death and destruction 31–3 Dictatorship 53–6; constitutional 55–6; roman 53–5; see also state of emergency

Disaster 11–41; by Design 134 (see also Green, Penny); definition 11–3, 14–22, 31–7; impact 31–3; law 142–4, 144–6; management 75–105; paradigms 14–22; prevention 80, 84–5; response 75–105; research 22–31; sociology 24–37; -s without borders 81–3 Divinity, paradigm of 15–7, 21; see also disaster paradigms Dyzenhaus, David 52, 55 EADRCC 82 Earthquakes: Chile 29, 134–5; Great East Japan 1, 35, 122–4, 130–2, 141; Haiti 29, 81–2, 101, 108; L’Aquila 132–5, 146–7; Lisbon 17–9 Emergency: accommodation 41–75; law 42–56, 65–70; theory 42–59; critique of 60–70 État de siege 55–6 European Convention on Human Rights 76–80, 102 European Court of Human Rights 76–80 European disaster law 76–80, 84–93, 102 Emergency Response Coordination Centre (ERCC) 87 European Union – 84–93, 102; Civil Protection Mechanism 85–93 (see also Union Civil Protection Mechanism); humanitarian aid 81, 90–2; Solidarity 85, 88–90; and third countries 90–2 Exception 41–2, 48–53, 58–60, 65–71; concept of 65–6; critique of 60–71; theory on 41–2, 48–52, 58–72 (see also Schmitt, Carl)

156 Disaster Law Excuses 109–24; see also act of God and force majeure Executive discretion 43–53, 61–3 Executive Prerogative 45–48; see also Locke, John Fault 105–6, 110, 123, 125–36, 147; idea of 105–6; see also negligence Flood Control Act 127 Force majeure 105–6, 109–10, 112, 114, 132; see also excuses Force of nature 110, 113–4, see also act of God Foreseeability 27, 64–5, 116–20, 124, 149–50 Fukushima Daishii: see East Japan earthquake Generic hazard presumption 61–4 God 11–3, 15–7, see also Divinity, paradigm of- and Act of God Greek mythology 27 Green, Penny 146 Habermas, Jürgen 79, 82 Haiti earthquake 81–3 Haga Declaration 83 Hazards: natural 17–9, 35–6, 61–5; super 34–5; generic presumption 61–4 Helsingfors Declaration 83 Human rights 6, 67, 76–80, 96–8, 102, 134–5, 143–4; see also European Convention on Human Rights Humanitarianism 80–3, Hurricane Katrina 30, 60, 117, 109–25, 125–9, 137 Hyogo Framework for Action 95–6

L’Aquila earthquake 132–5, 146–7; trial 132–5 Law; concept of 4–7, 65–70 Legality 45–8, 55–6; 65–70, 75–6; see also Dyzenhaus Lisbon earthquake 17–9; see also disaster paradigms Lisbon treaty 87–90 Locke, John 46–7 Luhmann, Niklas 26–30, 68–70, 124 Machiavelli, Niccolò 41, 55–6 Manslaughter 132–5, 146–8; see also penal law Marquess of Pombal 18; see also Lisbon earthquake Martial law 43–5, 56–8 Mayan mythology 16; see also divinity, paradigm of Mesopotamian mythology 15; see also divinity, paradigm of Misfortune 20, 102, 106–9, 124, 136, 144, 149; see also Shklar, Judith Modern theory of disasters 24–36; see also social paradigm Mont Blanc tunnel fire 133 MR-GO 128–9; see also hurricane Katrina; litigation

IASC 96–7; guidelines 97 Indian Ocean Tsunami 86, 94 Injustice 16, 102, 106–9, 125, 127, 135, 137, 147–8 International Humanitarian Partnership 84 International disaster response law 81–3, 93–102; challenges for 100–3; inventory of 93–100

NATO 82, 99 Nature: paradigm of 17–9 (see also Contingency, paradigm of); knowledge of 17–24 Negligence 106, 120–2, 124–38 Necessity 2, 22, 41–2, 51–2, 56–8, 65, 80, 102, 107; doctrine of 56–8; state of 51 Negotiorum gestio 57, 106 NGOs and IDRL 81–83, 92–5, 100–1; guidelines 82, 94–6, 96–100, 101–2; see also international disaster response law Nordic cooperation 83–4 Norm 4–8, 32, 36–7, 53–71, 93, 95, 106–7, 110; concept of 4–7; vis-à-vis exception 59–70; see also law, concept of

Katrina; see hurricane Katrina Kolyadenko 79–80; see also European Convention on Human Rights Kuhn, Thomas; see paradigm theory

Oil spills 33, 35, 82, 101 Önerylidiz 76–7, 78, 79; see also European Convention on Human Rights

Index 157 Optimism, pre-enlightenment 16–7; see also divinity, paradigm of Oslo guidelines 99 Paradigm theory 13–4 Penal law 132–5, 147–50 Police Powers 43–5 Political: theology 50–2 (see also Schmitt, Carl); reform 153 Pope, Alexander 16–7 Possibilistic Thinking 27, 149; see also Clarke, Lee Pre-disaster conditions 29–30 Prince, Samuel 22–3 Principles, legal 6–8, 9, 41, 47, 52, 66–71, 75, 82, 85, 98–9, 121, 143 Pufendorf, Samuel 109–10 Quarantelli, Enrico 14–5, 33–4 Resilience 12, 20, 52, 60, 95–6, 132 Response 8, 19–20, 31–2, 63, 71, 75–105, 118–20, 136 Responsibility 105–38 Risk 20–22, 25–9, 34–7, 60, 70, 136 (see also vulnerability); blindness 27, 149–50; law 144, 148; regulation 144, 148; society 25–9, 36–7; theory 25–9 Roman Dictatorship; see dictatorship Rousseau, Jean-Jacques 20 Schmitt, Carl 43, 48–53, 55, 64–5, 68–9, 80 Scientific revolutions; see paradigm theory Shklar, Judith 106–9, 149; on misfortunes and injustice 106–9 Social: change 22–3, 141–2; paradigm of disaster research 19–22, turn 2–3, 11–12, 20–21, 23–5, 36–7, 42, 60, 64, 70, 106, 108, 125, 135–7, 142–3

Sovereignty 2, 12, 41, 48–52, 66, 144; concept of 48–9; theory of 48–52 (see also Schmitt, Carl) Sphere project 99 State of emergency 2, 41–3, 70–71, 142–3 State of exception; see state of emergency State theory on emergencies 41–71 Super hazards 34–5 Sustainability 20 Swiss cheese model 147–8 Tampere Convention 98 Taleb, Nassim 27, see also black swan Terrorism, why natural disasters are different from 61–5; see also war TEPCO 1, 122–4, 130–32, see also East Japan Earthquake Tort law 8, 27, 105–6, 111–22, 125–32, 135–8 Tsunami, Indian Ocean 86, 94 Tuori, Kaarlo 4–7, 9; see also critical legal positivism UN 82–4, 95–100; OCHA 99; Convention for the ‘protection of persons in the event of disasters’ 98 Union Civil Protection Mechanism 86–90, 92–3 Vis Major 110–1 Volcano 42–3, 46; Eyjafjallajökull 42–3; Grímsvötn 43 Voltaire 17–20 Vulnerability 1–2, 11–12, 19–21, 24–25, 28–31, 35–7, 60–5, 125, 134, 142, 145 (see also risk); definition 29–31; paradigm of 19–22 War, why disasters are different from 61–5