Social and Legal Barriers to Improving Human Rights of Climate Change Displaced People in Bangladesh

in The Journal of Interrupted Studies

It is estimated that between 2008 and 2014, 4.7 million people were displaced due to natural disasters in Bangladesh and that by 2050, one in every seven people in Bangladesh will be displaced by climate change. The subject matter of this paper is based on a theoretical analysis of various existing social and legal barriers relating to climate displacement in Bangladesh. This article critically analyses the social and legal barriers to helping Climate Change Displaced People (cdp) by drawing on existing legal literature such as the Bangladeshi constitution and qualitative data from Bangladesh’s experience with cdp. Ultimately, this article corroborates the lack of a coherent human rights framework for cdp in Bangladesh and suggests international cooperation as a first step towards a functioning regime.

Abstract

It is estimated that between 2008 and 2014, 4.7 million people were displaced due to natural disasters in Bangladesh and that by 2050, one in every seven people in Bangladesh will be displaced by climate change. The subject matter of this paper is based on a theoretical analysis of various existing social and legal barriers relating to climate displacement in Bangladesh. This article critically analyses the social and legal barriers to helping Climate Change Displaced People (cdp) by drawing on existing legal literature such as the Bangladeshi constitution and qualitative data from Bangladesh’s experience with cdp. Ultimately, this article corroborates the lack of a coherent human rights framework for cdp in Bangladesh and suggests international cooperation as a first step towards a functioning regime.

1 Introduction

Climate change not only impacts the physical and geological environments of the earth but also directly and intensely impacts the lives and livelihoods of people (Edwards, Kerber and Wirsching, 2013). It is estimated that between 2008 and 2014, 4.7 million people were displaced due to disasters in Bangladesh and that by 2050, one in every seven people in Bangladesh will be displaced by climate change.1 Therefore, climate change profoundly affects human rights in Bangladesh. Tackling vulnerabilities and establishing human rights protection for Climate Change Displaced People (cdp) in Bangladesh is frustrated by various social and legal barriers. Socioeconomic barriers are common and connected to the overall conditions and political situation of the country. On the other hand, legal barriers are complex when establishing the rights of people in socially weaker positions, such as cdp. These sorts of barriers hinder the mainstreaming of climate change issues in national law and corresponding policy responses in Bangladesh. It is thus essential to address those barriers systematically to assure a humane treatment of cdp. Despite these practical problems in Bangladesh, cdp deserve human rights protection not only from their national government (when they are displaced internally) but also internationally (when they cross international borders) because displacement is one of the greatest effects of climate change (Tegart, Sheldon and Griffiths, 1990).

Displacement is also treated as an adaptation strategy; in this case, social barriers are comprised of various processes relating to cognitive and normative restrictions of the host society that prevent individuals and groups from seeking the most appropriate form of protection (Jones, 2010). In Bangladesh, a poor human rights record is met by socially constituted ignorance about rights due to a lack of human rights implementation agencies. Therefore, the root of these barriers remains within the political, social and cultural situation of Bangladesh. The aim of this paper is to scrutinize those barriers and address how they obstruct the initiatives of government and non-government organizations in protecting cdp in Bangladesh. This paper also argues that if the government of Bangladesh wants to establish a human rights based approach to cdp in their policy measures, then the social and legal barriers mentioned in this paper should be addressed appropriately.

The subject matter of this paper is based on a theoretical analysis of various existing social and legal barriers relating to climate change caused displacement in Bangladesh. The argument of this article critically analyses the complex phenomena of the causes and effects of the social and legal barriers, and suggests an implementable solution. This paper considers existing academic literature to establish the argument of the paper. Doing so involves, locating and analysing legal and social materials using appropriate academic disciplines while drawing on qualitative data from Bangladesh’s experience with cdp.

2 Climate-Displaced People

Although there is no standard definition of cdp, the number of cdp is increasing and they are considered the most affected by the direct effects of climate change. Therefore, appropriately naming and defining their rights is necessary. Most existing literature on climate change focuses on the vulnerabilities of the adverse effects of climate change, rather than defining the rights and status of climate-affected victims.2 However, defining cdp is complex because of the nature of their displacement. The UN High Commissioner for Refugees (unhcr) identified:

There are four main climate change-related displacement scenarios, where displacement is caused by weather-related disasters, such as hurricanes and flooding, gradual environmental deterioration and slow onset disasters, (such as desertification, sinking of coastal zones and possible total submersion of low-lying island states), increased disaster threats resulting in replacement of people from high-risk zones and social disturbance and violence related to climate change-related factors.3

The definition of the International Organization of Migration (iom) states that cdp are people who…

… for compelling reasons of sudden or progressive changes in the environment that adversely affect their lives or living conditions, are obliged to leave their habitual homes, or choose to do so, either temporarily or permanently, and who move either within their country or abroad.4

The first widely accepted definition of cdp was used by Essam El-Hinnawi of the unep in 1985. He states that…

…environmental refugees are those people who have been forced to leave their traditional habitat, temporarily or permanently, because of a marked environmental disruption (natural and/or triggered by people) that jeopardized their existence and/or seriously affected the quality of their life [sic]. By ‘environmental disruption’ in this definition is meant any physical, chemical, and/or biological changes in the ecosystem (or resource base) that render it, temporarily or permanently, unsuitable to support human life (El-Hinnawi, 1985).

There is difficulty and controversy in defining cdp, including determining who exactly is affected and what their rights are. Moreover, to claim human rights only for cdp from the government in legal form proves to be very difficult in practice, especially in Bangladesh because human rights violations have become an everyday problem. Moreover, the government’s commitment to other issues related to human rights, human security, and human development might overlap with the question of climate displacement. Again, a positive approach for climate change victims is difficult because legal uncertainty persists in Bangladesh. Since Bangladesh gained its independence, no government has shown strong political will to protect human rights. Therefore, the government may have no interest in framing human rights and duty-based law or policy measures for cdp. This implies that to claim human rights separately for the cdp is an ambitious approach at the policy level.

3 Is a Human Rights Claim for Climate Change Displaced People an Ambitious Approach?

Human rights protection for cdp is ambitious, especially in the Bangladeshi context as many other resident groups see their rights infringed upon and are not receiving adequate human rights support. Therefore, the concept (‘impacts of climate change on human rights’) does not receive sufficient political and media attention. cdp are the ultimate result of climate change, although they often do not contribute significantly to global warming.5 Therefore, as victims of climate change, they are entitled to receive human rights protection. This includes major human rights, such as the right to housing, food, water, health services and the right to privacy as well. Most notably, their right to life may be impacted if they are not adequately supported after their displacement. Violations to these rights are in theory guarded by forums such as the National Human Rights Commission Bangladesh (nhrcb). There are also some avenues in the criminal and civil legal system of Bangladesh to protect human rights violations. But cdp are relatively new victims of climate change, and their human rights are protected neither by the legal system of Bangladesh nor by the nhrcb. That all citizens of Bangladesh are guaranteed their human rights in the Constitution of Bangladesh has little bearing in practice.6 Framed in this political context, human rights claims for cdp are no longer an overly ambitious request within the social and political context of Bangladesh.

Beyond the Bangladeshi case, human rights claims of cdp have received more attention. Human movement due to environmental degradation and change is one of the ancient forms of human mobility; however, this issue has only drawn international attention in very recent times (Edwards, Kerber and Wirsching, 2013). Climate change induced displacement issues were integrated for the first time in the Cancun Agreements in 2010, which particularly referred to displacement as an adaptation strategy of humans against the adverse impact of climate change.7 The link between climate change and human rights was first suggested in 2005 through an ‘Inuit Petition to the Inter-American Commission on Human Rights’ where violations of human rights were claimed due to global warming allegedly caused by acts and omissions of the United States.8 Subsequently, the Male Declaration on the Human Dimension of Global Climate Change stated that climate change…

… has clear and immediate implications for the full enjoyment of human rights including inter alia the right to life, the right to take part in cultural life, the right to use and enjoy property, the right to an adequate standard of living, the right to food, and the right to the highest attainable standard of physical and mental health.9

The Declaration further called on the Conference of the Parties (cop) of the United Nations Framework Convention on Climate Change (unfccc) and the United Nations (UN) human rights agencies in Geneva to work with partners in assessing the human rights implications of climate change (Cameron, 2015).10 The government of the Maldives together with seventy-eight co-sponsors secured the adoption of United Nations Human Rights Council (unhrc) resolution ‘7/23 on Human Rights and Climate Change’11 which, for the first time in an official UN resolution, stated explicitly that global warming has adverse implications for the full enjoyment of human rights.12 unhrc stated that climate change ‘poses an immediate and far-reaching threat to people and communities around the world and has implications for the full enjoyment of human rights.’13 This resolution called on the Office of the High Commissioner for Human Rights (ohchr) to conduct an analytical study on the relationship between human rights and climate change.14 Subsequently, the General Assembly of United Nations (unga) explained climate change with a wide range of human rights implications.15 Therefore, human rights concerns induced by climate change related issues are well acknowledged internationally.

This international context also puts the Bangladeshi response in context. The government of Bangladesh should take appropriate measures to form a legal regime for the protection of human rights for those displaced by climate change. To this end, the government of Bangladesh should address effectively various social and legal barriers which hinder to improving human rights of cdp.

4 Social Barriers

The effects of climate change will likely force an increasing number of people to migrate from rural areas to cities and slums to seek job opportunities and access humanitarian support from government organisations and ngos.16 Living in urban slums, however, does not support the human rights of cdp due to their lack of resources and unhygienic living conditions. In addition, governments often overlook the rights of poor and socially disadvantaged people. Due to the multidimensional nature of climate change, it is very difficult to distinguish cdp from people affected by natural disasters. The lack of specific statistical information on the number of cdp is also a barrier to improving human rights because without specifying the number, these people’s vulnerability and consequently the appropriate level of human rights support cannot be determined. Many people indeed have already been displaced due to non-climatic factors and are living in the urban slum areas. Thus, it is necessary to distinguish between people displaced due to climatic and non-climatic reasons, such as crime, unemployment, and political unrest. The increasing population in Bangladesh is making the overall situation extremely difficult in terms of providing any protection measures effectively.17 In addition, the lack of political commitment, government corruption, non-transparency in decision-making, and lack of technology are further barriers to improving the human rights situation of displaced people. A recent report shows that the government allocated a significant amount money to ten fake ngos in Bangladesh for climate change purposes.18 Incidents such as this one may discourage international donors from providing financial assistance to Bangladesh. Finally, there are also academic and theoretical barriers to improving the human rights of cdp.19

The socioeconomic barriers to making climate change adaptation a more mainstream issue in developing countries include a general lack of information, weak institutions, low inclusion of stakeholders, insufficient incentives, and a lack of international financial assistance (Institute of Development, 2006). Due to all these barriers, Bangladesh cannot make significant progress in adopting climate change policies within existing poverty-alleviation policy frameworks. There is also a lack of academic research to guide policymakers in providing legal and human rights support for cdp. The problems and shortcomings of local government institutions are also barriers to introducing policies at a national level.

Climate change risk-reduction programs largely depend on donor agencies. Bangladesh is unable to face these challenges alone due to its weak economy and widespread poverty.20 There is also a significant gap between poor and rich,21 which hinders equal access to resources to assist poorer people (Raihan, 2010). There is no significant national economic plan to reduce the financial gap between poor and rich. Moreover, the huge national budget deficit is a major obstacle to the smooth functioning of development projects, like-environmental and climate change–related projects.22 Due to the financial condition of Bangladesh, it is very difficult to implement policy successfully.

Foreign grants are given to developing countries based on fiduciary and justice-based relationships, and donors want to ensure these investments are not risky (Institute of Development studies, 2010). This can place Bangladesh at peril due to the absence of coordination among various government departments on development issues. For this reason, the government focuses on development issues, while rights-based issues are overlooked. Further, the lack of accountability and transparency in government bodies, as well as some misguided policies, prevent the use of local and foreign grants to protect human rights.23 The cabinet and ministries enjoy constitutional immunity and privileges regarding the accountability of their functions, which hinders access to public funds by climate change stakeholders.24 Addressing poverty is currently the general and main focus for improving the human rights situation in Bangladesh but this might be an ineffective strategy for protecting the human rights of cdp. Indeed, receiving only aid and support would not bring any permanent solution to the human rights situation; rather, their human rights mandates must be established.

It should be noted that laws and policies that are presented as a ‘money bill’ before the legislature place increased financial pressure on the government.25 However, imposing obligations and protecting the human rights of cdp would not create any extra financial burden, as ‘money bills’ do. Rather, this depends on the goodwill of the government. Given that there is no agent bargaining on behalf of cdp, the government does not give legal recognition to cdp. While ngos could play an important role in advocating the rights of cdp, this role is inadequate because they have no legal mandate in this regard. Thus, it is necessary for the government to provide protection to cdp. This protection could primarily be given through a comprehensive legal framework that would integrate the human rights of cdp and include the duties of the government of Bangladesh.

The institutional framework in Bangladesh for climate change is not well organised and there is a clear overlap in the decision-making process by several departments and ministries. Moreover, institutional inequities and lack of institutional flexibility are social and practical barriers. Climate change displacement requires robust legal and institutional frameworks to remove weaknesses and inconsistencies. Institutional strengthening is required to ensure that countries meet the exigencies of specific United Nations Framework Convention on Climate Change (unfccc) mechanisms and foster investor confidence to provide international finance (Mason-Case, 2011). It is also necessary to raise awareness and interest for cdp in an institutional context in order to bring the issue into the mainstream national legal process. It should be noted that among the various bodies and departments of the government, the DoE and Department of Meteorology have limited influence in respect to their functioning (Institute for Development Studies, 2007).

Bangladesh requires capacity building to create and review adaptation and technology plans, and review and verify other activities mentioned in climate change documents, such as the napa. Collectively, developed countries have an obligation to facilitate a capacity-building fund or comparable mechanism for the developing world.26 This support would help developing countries such as Bangladesh to establish and implement adaptation and mitigation measures. In addition, increasing the capacity of research institutes, negotiators and policymakers, and the quality of information, including the exchange and production of information, is required in Bangladesh to enhance the capacity of its negotiators to be actively involved in international climate negotiations, especially regarding future climate change regimes.27

There is also a lack of knowledge about cdps’ rights, which is another barrier to developing a rights-based approach. It is necessary to educate local people about their rights and empower them to do advocacy work with politicians and government officials (Raihan et al, 2010). A combination of awareness and knowledge about human rights could enable cdp issues to be integrated in national policy forums. cdp should not just be viewed as recipients of aid—they should be recognised as citizens who are acting together on their problems and claiming their human rights (ibid.).

There is also a lack of coordination among various bodies of the government, a lack of information and understanding among policymakers, a lack of reliable information and adequate resources nationwide, a lack of participation of local people in disaster management programs, and an absence of effective arrangements and initiatives. The government of Bangladesh possesses vast control over the management of funds and programs, which is also another barrier to the transparency of fund management. Again, climate risk information is not properly updated with current and future climate-related national development policies in Bangladesh.

5 Legal Barriers

Beyond the above-mentioned social barriers, constitutional weakness,28 a complex legal system,29 and a lack of sufficiently skilled legal practitioners are major barriers to the implementation of human rights of cdp. As the legal system of Bangladesh does not address the human rights of cdp separately, legally it is not possible to uphold human rights that are endangered by climate change.

The injustice and inequity in Bangladesh due to climate change displacement issues are not addressed by the law commission,30 human rights commission31 or Supreme Court.32 The heads of these organisations are appointed by the government, from a pool of government supporters. Thus, these officials usually do not undertake initiatives without the consent of the government. This situation deprives people from attaining ‘remedial and distributive justice’.33 Further, it is difficult to establish the notion of justice without advocacy from existing and established national institutions. Given that cdp are among the least educated and most deprived groups, they have no opportunity to claim their rights (as aggrieved people) due to lack of awareness and their extreme financial hardship. National climate change institutions are also not in a position to consider the legal rights of cdp for they provide only humanitarian assistance. Even the members of the parliament in Bangladesh are not independent in terms of voting against the decisions of their party due to a constitutional bar, which is one of the major legal obstacles to working independently as a representative of the public.34

In addition to the aforementioned social and legal barriers, the negative approach of policy-makers regarding the displacement issue also acts as a barrier to improving the human rights of cdp. In the minds of many policymakers, displacement is a failure of adaptation (Walsham, 2010).

6 Conclusion

Political willingness and interest are key factors to formulating climate change displacement legislation in Bangladesh. In addition, a persistent lack of political consensus is observed in Bangladesh, which also forms a barrier to the formulation of law. Although it is not possible to overcome all these barriers completely, they may be possible to control if political consensus, fairness, and transparency are ensured. Therefore, policymakers should take into account social and legal barriers before formulating laws and principles regarding cdp. Despite all these barriers, a framework proposal to protect the human rights of cdp should not face large political opposition because, by supporting displaced and distressed people, the government of Bangladesh can increase its domestic and international legitimacy. Therefore, the government of Bangladesh needs a more human rights oriented approach implying new law and policy measures, or it needs to insert specific human rights provisions in existing law and policy, so that a strong human rights regime for human rights protection of cdp can be developed.

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The Constitution of the People’s Republic of Bangladesh, art 11.

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And also: 4. Human Rights and Climate Change, (1 January 2013) Ministry of Foreign Affairs, Republic of Maldives<http://www.foreign.gov.mv/v3/?p=menu_item&sub_id=50&submenu=Human%20Rights%20and%20Climate%20Change>.

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Every year, around 500,000 people from coastal and rural areas move to the capital, Dhaka. Most icdp who go to Dhaka end up in the slums of one of the most populated cities in the world. According to the iom, some 70% of slum dwellers in Dhaka moved there after experiencing some kind of environmental hardship. Cities Alliance, Climate Migration Drives Slum Growth in Dhaka (9 December 2013) <http://citiesalliance.org/node/420>.

It is estimated that the population of Bangladesh will be 170 million by 2020. World Bank, Bangladesh: Climate Change and Sustainable Development (Rural Development Unit, South Asian Region, 2000).

The article originally appeared in Green Watch, tib Finds 10 ngos Receiving Climate Fund Fake and can be accessed here http://greenwatchbd.com/tib-finds-10-ngos-receiving-climate-fund-fake (3 October 2013).

The existing academic literature is extremely limited in defining the identity of cdp in a Bangladeshi context. The ongoing international debate regarding the status of cdp is hindering reaching a conclusion on the rights of cdp.

Although the present gross domestic product (gdp) of Bangladesh is increasing and the estimated gdp growth rate for 2012 to 2103 is 6%, 31.5% of people still live below the poverty line. This large number of people is related to the risk of climate change displacement. The World Bank, Data, Bangladesh (1 January 2014) http://data.worldbank.org/country/bangladesh.

The poverty gap ratio from 1990 to 2007 was 7.44, and the projected gap by 2015 is 8.60. There is no existing state mechanism to monitor people’s income to minimise these gaps. Finance Division, Ministry of Finance, Government of the People’s Republic of Bangladesh, Bangladesh Economic Review (Ministry of Finance, 2007).

For example, the 2012 to 2013 National Budget of Bangladesh had deficits of Tk 452.04 billion, excluding foreign grants—an increase in fiscal deficit to 5% of gdp, targeted at Tk 8.9 trillion, up from a revised 4.4% of gdp in the fiscal year of 2011 to 2012. Government of the People’s Republic of Bangladesh, Ministry of Finance, Finance Division (3 June 2013) <http://www.mof.gov.bd/en/>.

Due to academic limitations, this study has not reported actual data, but an overall perception of the political situation of Bangladesh is included. Bangladesh ranks lowly in the Corruption Perceptions Index, and there have been significant allegations regarding the mismanagement of government finances in various departments. Transparency International, Corruption Perceptions Index 2012 (31 May 2013). <http://www.transparency.org/cpi2012/results>.

The Constitution of the People’s Republic of Bangladesh art 55.

The Constitution of the People’s Republic of Bangladesh art 81. Money Bill means. ‘A Bill containing only provisions dealing with…the imposition, regulation, alteration, remission or repeal of any tax…the imposition of a charge upon the Consolidated Fund.’

This corresponds to the discussion at the unfccc and the resulting Ad Hoc Working Group On Long-Term Cooperative Action under The Convention. Consider the negotiating Text, 6thsess, Item 3a–e of the provisional Agenda. It is accessible at UN Doc fccc/awglca/2009/8 (19 May 2009).

A more detailed description is given in the Asia-Pacific Network for Global Change Research, Capacity Building in Asian Countries on Climate Change Issues Related to Future Regime (Final Report for apn Capable project, No cba 2007-09nsy, Asia-Pacific Network for Global Change Research, 2007).

Environmental and human rights issues are mentioned as fundamental principles of state policy under Part ii of the Constitution of Bangladesh, which is legally non-enforceable. This situation might be treated as a constitutional weakness to enforce human rights.

Bangladesh follows a common law legal system where the litigation procedure is very complex and expensive. Moreover, due to corruption, people face harassment by staff and legal practitioners.

The Law Commission in Bangladesh has wider authority to propose and recommend law, keeping pace with present times. This commission has failed to address not only climate change displacement issues, but also other displacement issues already arising in Bangladesh. For an overview, consider http://www.lawcommissionbangladesh.org/index.htm (1 June 2013).

The National Human Rights Commission of Bangladesh is the sole national institutive to protect and advocate human rights for the people of Bangladesh. See http://www.nhrc.org.bd/about-nhrc.

The Supreme Court of Bangladesh has the power to issue certain orders and directions following the application of an aggrieved party or suo moto. There is also opportunity by the Supreme Court to establish the rights of cdp. The Constitution of the People’s Republic of Bangladesh art 102(1).

According to legal principles, justice can be given as corrective and distributive. Corrective justice means correcting wrongdoers via punishment or compensation. This is also known as ‘remedial justice’. Aristotle defined remedial justice as compensatory justice, where the role of the judge is to make the parties equal by the penalty imposed, whereby the judge takes from the aggressor any gain he or she may have secured, and subsequently restores equality. James Alexander Kerr Thomson, The Ethics of Aristotle: The Nicomachean Ethics (Penguin, 1956) 148, 149. Distributive justice is identified as performing a social or distributive function to ensure fair distribution of benefits and burdens throughout groups identified by social, racial, class or gender characteristics. Both of these forms of justice are integral to any consideration of the problem of climate change displacement. Angela Williams, ‘Promoting Justice Within the International Legal System: Prospects for Climate Refugees’ in Benjamin J Richardson et al (eds), Climate Law and Developing Countries: Legal and Policy Challenges for the World Economy (Edward Elgar, 2010) 91.

As the Constitution of Bangladesh states, ‘[a] person elected as a member of Parliament at an election at which he was nominated as a candidate by a political party shall vacate his seat if he … votes in Parliament against that party.’ The Constitution of the People’s Republic of Bangladesh art 70(b).

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Social and Legal Barriers to Improving Human Rights of Climate Change Displaced People in Bangladesh

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