LEGAL ASPECTS RELATED TO RISK
In recent years, the EUR-OPA Major Hazards Agreement has taken a particular interest in the role of legislation providing the legal basis for risk prevention and management. The situation in this field varies greatly from one member state to another, and many states seek to draw on other countries' experience in such matters as food for thought in their own reform processes.
Nonetheless, they often confine themselves to seeking inspiration from their immediate neighbours, whose proximity facilitates contacts and the exchange of information. At the same time, hazards and disasters are not confined within national borders, and a more global approach should accordingly be adopted. Under the auspices of the Agreement and in co-operation with some of its other specialised centres, in 2001 the Higher Institute of Emergency Planning (ISPU) in Florival (Belgium) launched a comparative study of the legislation of the Agreement's member states with the aim of establishing a legal data base on risk management and identifying good practices that might be transposed to other countries.
International organisations responsible for managing major hazards
This report presents the main programmes and activities, dealing with one or more aspects of disaster management, implemented by international organisations. Special attention has been paid to activities and programmes covering Europe and/or the Mediterranean basin. Nonetheless, many organisations implement global activities (without focusing on a given region), which are also described in the report.
In view of the diversity of natural or technological disasters, the frequency with which they occur, their extent and their geographical distribution, many international organisations (whether intergovernmental or non-governmental) have developed strategies to limit the damage inflicted on both local communities and the environment. Some of these organisations have adopted specific terms of reference, whereby they assume responsibility for well-defined action areas.
Regard being had to the specific activities and programmes implemented by all these agencies, it can be seen that, overall, all the phases and areas of disaster management are covered. It accordingly seemed appropriate and advisable to distinguish the different stages at which these organisations intervene:
- prevention of major hazards and pre-disaster preparedness;
- organisation of relief operations in emergency situations;
- rehabilitation so as to restore communities' pre-disaster living conditions.
It is not always easy to decide at which point the rehabilitation stage commences - when do relief efforts cease to be a mere palliative and become more long-term in nature? Experience shows that there is no real cut-off point between the rehabilitation period and the earlier stages, and the same applies to the "return to normal" stage, one of the objectives of which is to prepare for further disasters: prevention and preparation are important components of this stage.
International organisations' activities and programmes are constantly evolving, a tendency linked to growing awareness of the need to improve risk management. This reflects these organisations' concern to adapt to increasing levels of risk and to technical progress making it possible to alleviate the consequences of disasters.
Comparative study of regulations on management of major hazards
A comparative study of regulations on management of major hazards was commissioned by the Agreement from the specialised centre in Florival (Belgium). The aim was to take stock of the legislation and practice of the Agreement's 26 member states concerning risk prevention, crisis management, rehabilitation, and controls and sanctions in the field of disaster management.
In addition to the risks existing at national level, the survey conducted covered four separate aspects:
· prevention of major hazards: competent authorities, consultation structures, emergency planning, public information;
· crisis management: competent authorities, warning systems, communication in times of crisis, operational forces;
· rehabilitation: competent authorities, compensation arrangements;
· sanction and control: competent authorities, sanctions.
Information was requested on the systems for dealing with the following hazards:
hazards: avalanches, storms, drought, earthquakes, floods, forest fires,
hazards: chemical and industrial hazards, transport and storage
Questionnaires were sent to all of the Agreement's permanent correspondents (mainly the representatives of the ministries competent for disaster management). The questions focused in particular on the competent authorities: Who is competent? What are their powers and responsibilities? What is the legislative basis for them? If a legislative basis is lacking, what powers and responsibilities do they exercise in practice?
The final document gives an idea of the existing arrangements and also of the legal shortcomings in the 26 countries covered. It is accordingly a snapshot of the existing regulations. However, its main interest lies in the use that can be made of its findings, and three avenues for exploring those findings can immediately be identified:
- drawing global conclusions valid to a greater or lesser extent for all the countries concerned,
- analysing other aspects to obtain a better understanding of the risk management situation;
- issuing possible recommendations for improving the existing arrangements.
Four main conclusions can be drawn from the study:
distribution of powers and responsibilities is extremely complex, with a
multitude of agencies
- an integrated approach covering all four aspects is lacking: crisis management is very well organised, thanks to co-ordination efforts, but there is no umbrella organisation with overall responsibility;
rehabilitation mechanisms are few and far between: rehabilitation is too often
in the sanctions and controls applied, often due to understaffing of
Comparative analysis of interministerial management of major hazards
One of the positive findings of the previous study (see B. above) was that preparation for and management of crisis situations could be deemed a success thanks to a cross-sectoral approach and to co-ordination efforts. However, other findings were less positive:
- extreme complexity in the distribution of powers and responsibilities,
lack of an integrated approach covering all four components
At present these four components are brought together mainly at non-central levels (municipal, provincial, regional and so on), and it is at those levels that all the legal requirements apply, whether they be theme-specific (particular to a type of hazard) or cross-sectoral (aspects common to all hazards). That raises the question of the need for upstream co-ordination: do legally sound models of interministerial co-ordination exist that can be used to optimise hazard management?
To answer that question, four management models were examined (corresponding to the situations prevailing in France, Belgium, Russia and Bulgaria):
1. interministerial management provided for by law
2. de facto interministerial management (as practised, but not expressly provided for by law)
3. ministerial management by a single ministry specialised in hazard control
4. coexistence of a specialised state agency and standing committees.
The study of these four models was confined to two types of risk (flooding and major chemical hazards) and was based on the previous study, supplemented by analysis of co-ordination, consultation and co-operation mechanisms. The resulting discussion paper includes:
a section describing the systems in these four countries,
a comparative analysis based on those strengths and weaknesses, together with
One disadvantage of the tendency to specialise in a single discipline observed in recent decades is that it has led to compartmentalisation. However, that approach is now increasingly called into question. The first signs of change can be observed within each specialised field as co-ordination machinery is gradually put in place: co-ordination of planning, co-ordination of prevention, integrated policies on pollution and pollution control, etc. This shows a growing awareness of the need for more synergy beyond the individual components and specialist disciplines:
č An interdisciplinary approach to risk: After years of specialisation, it is very difficult to make public officials look beyond their frame of reference, which is determined solely by the responsibilities vested in them. The same is true of scientific experts, who are unaccustomed to taking an interest in other disciplines. Simple intellectual curiosity is moreover soon discouraged, because the logic, methodologies and language used differ from one discipline to another.
The first step towards gradual implementation of a more comprehensive approach to risk management, encompassing strategy development, risk prevention, disaster preparedness and management and rehabilitation or the return to normal, is to make all the operators aware of their responsibility and role in a global effort that goes well beyond their own fields of competence.
č Integrated multidisciplinary action that respects individual responsibilities: Mere mention of the idea of co-ordination often triggers defensive reactions, as it suggests a higher level of command, to which individuals would be subordinate. Co-ordination is the key to successful emergency planning and crisis management, but extending it to the other aspects of risk management is less axiomatic: other mechanisms must be found that offer the same advantages as co-ordination (complementarity of fields of responsibility) but without its disadvantages.
The concept of an integrated approach better reflects the underlying concern to preserve specialisation in a single discipline while fostering the various disciplines' incorporation in a coherent whole, consistent with respect for their specific dynamics and logic. This means setting up machinery to restore the chronological and functional links between the various components. Co-ordination is then just one of the many means of forging those links (alongside consultation, the exchange of information, formal or informal co-operation, etc.).