Liam Bagshaw: On the role of international law in disaster risk

We spoke with Liam Bagshaw (@LMBagshaw) about his research on international law and disaster risk, what it can tell us about responsibility, and why we should begin to think of disasters as more than ‘natural’ in origin.

Liam Bagshaw is a PhD candidate at the University of Reading, UK. His socio-legal thesis, ‘Panacea or Producer? Analysing the Relationship Between International Law and Disaster Risk’ examines the role of international law in the production of disaster risk, and therefore disasters, across the world. His main research interests are disaster theory, International Disaster law, International Human Rights Law, and climate change.

Can you tell us what topics you have been working on and what you think are the most important questions these raise with regards to responsibility?

My work is primarily concerned with the relationship between international law and disasters. My research seeks to analyse the role of the law not only as a tool for the prevention of disasters, but also as being culpable in the creation of disaster risk. In doing this I am drawing on two approaches: theoretical frameworks from disaster theory on the nature and progression of disaster risk, and insights from critical approaches to international law, especially Third World Approaches to International Law (TWAIL) perspectives. I am using a TWAIL lens to highlight pathologies within international law, both historic and contemporary, and synthesising these insights with understandings of disaster risk from disaster theory to discuss their potential role in its creation.

Disasters raise a number of questions on responsibility. The first, key one, is who or what is responsible for a particular disaster. We tend to discern between human-made (the term ‘man-made’ is often used, and while this is potentially more accurate, let us not deny other genders the agency to create disasters!) disasters resulting from sources like industrial accidents (such as oil spills or nuclear catastrophes), and ‘natural’ disasters stemming from environmental phenomena like earthquakes or volcanic eruptions. However, one clear message from disaster studies has been that there is no such thing as a natural disaster; there is a human element to all disasters. 

This is best summed up by the argument within disaster studies that a disaster is the result of a hazard (for instance earthquakes, tsunamis or nuclear accidents) coming into contact with vulnerabilities in society, with disaster risk being a function of these two processes. If there are no vulnerabilities, then a hazard does not have to result in a disaster – is an earthquake still a disaster if no buildings collapse, or no one is killed? Such an idea has been prevalent within disaster studies for decades, pointing as far back as the Lisbon earthquake of 1755, when philosopher Jean-Jacques Rousseau argued that if the buildings had been less concentrated and less tall, perhaps it would have done less damage. 

While the hazard may be ‘natural’ (though climate change is increasingly blurring this distinction), the vulnerabilities within a society related to problems like social, political, and economic marginalisation are human creations. Therefore, the responsibility for a disaster lies just as much with these vulnerabilities and who or what created them as it does with the hazard that actually did the damage. The danger of the ‘natural disaster’ misnomer is that it ascribes responsibility for disasters and the misery they cause to ‘Acts of God’ or natural forces beyond human control, masking the role of human actions in the creation of disasters. If we assume disasters are divine intervention or a natural part of the world then we deny the possibility of preventing them and our own agency in their creation.

A second important question related to responsibility raised by my research concerns who is responsible for protecting people from disasters. The main current legal frameworks used in the prevention of disaster are the burgeoning field of International Disaster Law (IDL), along with relevant law from International Human Rights Law (IHRL) and International Environmental Law (IEL). While the notion of transboundary harm is considered (these frameworks place obligations on states to assist others through mechanisms such as information sharing and technology transfer), these regimes, mostly place responsibility onto individual states to protect their citizens. 

While some good has certainly come from this, one key issue is that there are many sources of disaster risk exogenous to individual states and their domestic governance. One key example is climate change, which affects all states (though in disproportionate ways) while remaining beyond the control of any single domestic government. Hazards themselves do not obey national borders, and in my own research I seek to highlight the ways in which international structures like the law and global economy which exist beyond domestic boundaries may contribute to creating vulnerability. Disaster theory argues that the distribution of disaster risk tends to be a function of power relations within a society, so it is my contention that the functioning of the global economy and actions of wealthy and powerful states often place disaster risk onto poorer ones. Therefore, a focus on individual states addressing disaster risk within their own territories is inadequate for tackling the many sources of risk that originate in structures and phenomena beyond national borders. 

You describe your approach to this issue as one grounded in Third World Approaches to International Law (TWAIL). Can you briefly explain what it is and what it entails? What responsibilities does this place on you as a researcher in the Global North?

TWAIL approaches seek to counter the parochial, Eurocentric narrative of the origin and development of international law focusing on the 1648 Peace of Westphalia and relations between European states that followed. They argue that in contrast to this, international law developed following the ‘discovery’ of the Americas and as a means to subjugate and plunder indigenous communities. For many people across the world, international law is not an apolitical framework but one that has its roots in the oppression of people and universalisation of European values. In addition to critiquing the history of the discipline, TWAIL scholars also highlight the ways that international law continues to function in the interest of wealthy and powerful states and to facilitate the exploitation of societies in the Third World.

As a white, male researcher living in a state that was one of, if not the worst, culprits of European imperialism I am very wary of being seen to be co-opting these insights and struggles for my own gain. Possessing the privilege I do, I wish to make clear that the insights I talk about are not my own experiences and I am not equipped to discuss them in the same way scholars from the Global South would be. I also need to be aware of and highlight the barriers that many scholars in the Global South experience in properly disseminating their work through a continuing system of academic imperialism which must be dismantled.

What does it mean to approach disasters as social processes? What implications does this understanding of the nature of disasters have for how you view the concept of ‘responsibility’ in your discipline and research topic? Is this view commonly held by others (researchers and/or practitioners) in your field? Why/why not?

Approaching disasters as social processes is based on ideas within disaster theory that disasters result from social vulnerabilities, and that they are not isolated events but the result of long-standing processes stretching back in time. Let us take the Chernobyl disaster as an example: While we have a time, date, and scientific explanation for the event of the disaster caused when the reactor went into meltdown, the causes that led to the Russian Revolution and establishment of a communist state, the particular social and cultural dynamics of the Soviet Union, and the geopolitical paradigm of the Cold War, all had a key role in the disaster, from the construction designs and materials used to the political and economic culture of the affected society.

In their book At Risk (2004), Wisner et al. argue that these vulnerabilities begin with root causes that may be removed from individual societies through time and/or space, based in political and economic structures, ideological hegemonies, and the legacies of specific societal histories like colonialism and conflict. It is these long-standing processes that produce and distribute the individual vulnerabilities that lead to a specific disaster; they progress down the chain of vulnerability into readily identifiable pathologies like unprotected buildings and infrastructure, fragile health, poverty, and poor social protection. 

While this is well recognised within disaster studies literature, it seems less prevalent in international law approaches to reducing disaster risk. Rather than tackling the social processes behind disaster risk, these tend to focus more on hazards and technocratic approaches to confronting these like early warning systems. There also tends to be a focus on resilience building as a means of addressing vulnerabilities rather than tackling its root causes, often structural in nature. This places the onus on individuals rather than systems and risks, treating the symptoms but not the underlying disease.

In your PhD research you argue that international law is complicit in the creation of disaster itself, rather than the mitigating factor of disasters. Why is this the case? Are there any exceptions to this where law has acted more as a mitigator than a creator of disaster?

The fundamental question of my research is what role international law has played, and continues to play, in the structuring of societies, the distribution of wealth and resources, and prioritisation of certain ideologies and schools of thought. It is my contention that international law is the framework that holds international society together, structuring relations and hierarchies between actors, and promoting certain ideologies while marginalising others, therefore playing a key role in the construction and reproduction of root causes of vulnerability such as how wealth, power, and resources are distributed, and which ideologies are institutionalised and universalised which impacts how societies are ordered.

Drawing on the work of TWAIL scholars such as Anthony Angie (especially his book Imperialism, Sovereignty, and the Making of International Law), Usha Natarajan, James Thuo Gathii, Sundhya Pahuja, and B. S. Chimni, I examine the role of the law in facilitating European colonialism, looking at the legal arguments advanced to render hierarchies and differing legal rights and powers between different communities. I argue that this process played a crucial role in codifying the power of certain states and producing inequitable wealth and resource allocations through the theft of land and resources from indigenous communities. International law also served to universalise certain ideologies, and due to communities outside of Europe being denied access to and input into international law for much of its history, it was largely Western thought that has been institutionalised by the law, with implications for the structuring of relations among humans and between humans and the environment, both of which are relevant to the creation and reduction of disaster risk.

Insights from TWAIL scholars continue to demonstrate how despite formal decolonisation, many of these pathologies within the international system remain unresolved, and therefore the underlying processes producing disaster risk also remain. International economic law is a particularly bad culprit in this regard, and I focus my attention on current foreign investment architecture to highlight the role of this in producing disaster risk by constraining states’ policy making space regarding disaster risk reduction and preventing remediation when the actions of multinational corporations produce risk that affects local communities.

Despite how my argument may come across, I am not a nihilist arguing that we should tear down the international system, nor am I claiming that international law is solely responsible for the creation of all disaster risk. Equally I do not wish to diminish the work international law can and has done in preventing disasters. I believe that it is still a useful tool for protecting people, however I wish to draw attention to the possibility that while certain areas of international law are engaged in the reduction of disaster risk, international law more widely is culpable in its creation.

The 2010 earthquake in Haiti demonstrates these dynamics. I examine the history of the country and its relationship with international law to argue that many of the vulnerabilities leading to the 2010 earthquake have their roots in the nation’s colonial past and its unjust relationship with international law. In short, I argue that international law has played a key role in the underdevelopment and impoverishment of Haiti, and in the production of vulnerabilities through its facilitation of the continual removal of wealth and resources from the local population. This began with colonial extraction and the imposition of a crippling compensatory payment by France following independence, followed in the 20th century by US and international financial institutions’ interference in Haiti’s economy. Through these processes I argue that the international community and international law bear a significant degree of responsibility for the vulnerabilities present in the Haitian state that led to the earthquake inflicting such damage. This unjust relationship between Haiti and international law was further emphasised in the earthquake’s aftermath when responding UN peacekeepers inadvertently caused a deadly cholera outbreak, a calamity the UN refused to accept responsibility for.

Reflecting on COVID-19, do you think the aforementioned flaws in international law had an impact on fatalities and illness across different regions around the globe? How so?

This is an interesting case. I think the role of international law in facilitating the colonial oppression and underdevelopment of certain states, and its proliferation of an economic ideology focused on policies like public spending cuts and an emphasis on the private sector, markets, and short-term economic gains played a part in reducing healthcare capacity and preparedness and contributed to other vulnerabilities in many states across the world. This certainly made the impact of COVID-19 worse.

However, a clearer and more overt example can be found in legal frameworks relating to intellectual property and ‘vaccine imperialism’ that resulted from the law prioritising the profits of corporations in rich countries over global public health and human wellbeing. Restrictions on the intellectual property of vaccine design and use of markets in their distribution meant that rich and powerful states were able to use their wealth to accumulate supplies far beyond their needs, while many others were left unable to access them at all, increasing the vulnerability of such communities to COVID-19. Such short-sightedness has also helped to extend the continuation of the pandemic. As the United Nations argued, no one is safe until everyone is, but the current structures of the international economy precluded this from becoming a reality. 

How do you suggest we as a society should be preparing for disasters in the future?

I think we need a greater emphasis on addressing vulnerabilities rather than just hazards. We also need to properly understand the process-nature of disasters and disaster risk, and to effectively tackle the long-reaching, underlying structures that result in these. It is not enough to just treat the symptoms or to try to improve resilience while the system itself remains unchanged – we must dismantle these long-standing processes of impoverishment, oppression, and risk creation. This is a huge task, but I do not believe we will comprehensively address disaster risk until we do so.

As a researcher, how do you think about your own responsibilities when undertaking research more generally? Have your judgments of research ethics, responsibility and/or societal impact evolved over time? Have you met any particular challenges or dilemmas in your research?

My work is generally doctrinal in nature, so there tends to be considerably less ethical considerations than there may be for researchers involved in field work or other activities. Something I am wary of is my portrayal of disaster victims. Especially when analysing at the international level and discussing structural causes beyond any individual or even a state’s control, there is a risk of painting affected people as powerless victims with little agency against systemic forces, and reducing them to statistics. However, individuals, their experiences, and the local knowledge they possess about how to manage hazards, is incredibly valuable for disaster risk reduction efforts. Despite the disadvantages faced by many communities, they have been able to go a long way towards protecting themselves and others. I think it is important to try and highlight this (to the extent I am able to).  

Do you have any advice for other students and practitioners in international law and/or disaster risk?

I do not really feel accomplished enough myself to be offering any advice! But from an international law standpoint, I would encourage people to be mindful of critical approaches and their insights, not just the dominant narrative of international law. I had little exposure to these during my LLM (in part because of modules I chose), but when I started reading around them during the first year of my PhD it completely changed the direction of my project for the better. 

Likewise, for anyone working on disasters and international law, I think it is really important to look beyond the discrete areas of the law we task with the reduction of disaster risk. A focus only on our own areas blinds us to the interactions other regimes have with hazards, vulnerability, and the creation of disaster risk.

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