1 Introduction
Human rights implications due to climate change have been an emerging issue in national and international jurisdictions.1 Among the various impacts of climate change, displacement creates multidimensional challenges in society, especially in a developing country like Bangladesh.2 Usually, the increased number of internal displacements is observed mostly from rural areas to urban areas due to multiple reasons, including employment opportunities. For example, recent research identified that farmers of Sirajgonj district of Bangladesh were forced to seek alternative livelihoods in urban areas and that Dhaka city has already received more than ten million people displaced due to climate change.3 Whenever these people arrive in urban areas, they face economic and social disparity, with limited access to resources, leading to further vulnerability.4 Their mass movement to a new location, if they are not systematically relocated, is likely to create other social disturbances, such as not getting access to drinking water, sanitation, etc. There is evidence that the increase in the number of vector-borne diseases is also the result of the adverse impact of climate change, and displaced people suffer the most from vector-borne diseases.5 When people are displaced from their usual place of living, critical human rights violations happen, and the right to life substantially declines as displaced people lose their homes and livelihoods.6
Therefore, a human rights-based approach or an HRBA is crucial in both legal and policy measures. Though an HRBA is not a prerequisite to addressing displacement in the context of disasters and climate change, the approach does help to identify the legal and policy gaps in protecting the human rights of the victims.7 An HRBA is also essential to assess the status of law, policy, and practice in line with international standards.8 It can determine the shortcomings between the responsibility and international obligation of states, especially under the international conventions on the respective subject matter. A human rights-based approach and its practice are not clearly and systematically adopted in local legislation in Bangladesh. This chapter highlights a number of human rights issues to understand the realities of law and practice of displacement in the context of disasters and climate change. This chapter then examines the existing legal and policy framework from a human rights-based approach. Secondly, the chapter identifies the shortcomings and barriers of prevention and preparedness mechanisms for displacement and recommends durable solutions which are most needed to protect climate change-induced displaced populations.
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The chapter explicitly attempts to address how far an HRBA has been ensured in the climate legislation of Bangladesh and what are the major challenges to establishing it in Bangladesh's legal system. The chapter is divided into five sections including a background discussion on the topic in the first section and a concluding discussion in the last section. Section 2 describes some forms of climate-related human mobility in Bangladesh and Sect. 3 describes the conceptual framework of HRBA along with particular focuses on the legal and policy framework. Section 4 describes various challenges to mainstreaming an HRBA in the legal system of Bangladesh.
2 Climate-Related Human Mobility in Bangladesh
Bangladesh is ranked the seventh most at risk nation in the Global Climate Risk Index 2021,9 although its contribution to global warming is meagre (around 0.48% of global emissions).10 Bangladesh’s geographical location and high population density make it one of the world’s most disaster-prone countries.11 A recent satellite altimetry data from the Department of Environment reveals that the average sea-level rise in the coastal zone of Bangladesh is 3.8–5.8 mm/year over the last 30 years, and about 12.34–17.95% of the coastal area will be submerged during this century.12 Significant hazards13 that impact the life and livelihood of the people of Bangladesh are ‘floods, cyclones and surges, tornados, earthquakes, riverbank erosion, landslides, salinity intrusion, drought, tsunamis, lightning, arsenic contamination, human-induced hazards, and health hazards.’14 For instance, in 2022 the Northeastern region (Sylhet) of Bangladesh experienced floods twice, where more than 9 million people were displaced and faced enormous human rights sufferings.15
Disasters are the main trigger of displacement in the country, particularly during the June–September monsoon season, when floods displace an average of a million people yearly.16 Moreover, increased salinity causes crop damage, low production, cropping and irrigation pattern change, limited land for agricultural production, and loss of livelihoods and biodiversity, which ultimately causes a high risk of internal displacement.17 Sea level rise and coastal vulnerability are considered the most significant threat for Bangladesh among all the disaster events.
Among the various disaster events, cyclones displace internally an average of 110,000 a year.18 The Internal Displacement Monitoring Centre (IDMC) also reported that 427,000 people were displaced as of the end of 2022.19 The flash flood of 2022 severely affected nine Northeastern districts, damaging 1133 km2 of croplands, 44,254 water ponds, and 49,885 sanitation facilities.20
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It should be noted that most of the disaster scenarios described above result in internal displacement. Internally displaced persons (IDPs) have been defined by the National Strategy on Internal Displacement Management (NSIDM) 2021 based on the definition drafted in the Peninsula Principles.21 The NSIDM defined IDP as:
Persons, group of persons, households, or an entire community who have been forced or obliged to flee or to leave their homes or places of habitual residence temporarily or permanently or who have been evacuated as a result of disasters caused by sudden and slow-onset climatic events and processes, and who have not crossed an internationally recognised State border.22
A recent research study mentioned that the human rights implication of climate change in Bangladesh is still severe and all sorts of human rights, such as the right to life and security, right to health, right to water, housing, food, sanitation, and education, were violated due to climate change.23 Women in the southwest coastal area of Bangladesh have been facing several violations of their gender rights.24 Climate change-related displacement also creates a severe impact on elderly people due to their generally weaker physical and mental condition and dependency on young adult family members.25 Therefore, the human rights of climate-affected people not only require proper addressing in the normative discourse but also in practice.
3 Conceptual Framework of an HRBA
Since the adoption of the Charter of the United Nations (UN) in 1945, human rights issues have been the key foundation of the activities of the UN.26 To respect, protect, and promote human rights have been the mandate of all the member states of the UN based on the Charter of the UN.27 Therefore, an HRBA is argued for, encouraged, and promoted at the policy level of the government as a fundamental principle of state policy, for a country such as Bangladesh.28 An HRBA could also be understood as a:
conceptual framework for the process of human development that is normatively based on international human rights standards and operationally directed to promoting and protecting human rights. It seeks to analyse inequalities which lie at the heart of development problems and redress discriminatory practices and unjust distributions of power that impede development progress and often result in groups of people being left behind.29
An HRBA is ‘expressly grounded in international human rights law that regulates the conduct of states (‘duty bearers’) in relation to the people living within the state’s jurisdiction (‘rights holders’). Principles, standards, and guidelines developed through the international system for the protection of human rights are integral to this approach.’30 This approach can be understood from the report of the Office of the UN High Commissioner for Human Rights which says:
Mere charity is not enough from a human rights perspective. Under a human rights-based approach, the plans, policies and processes of development are anchored in a system of rights and corresponding obligations established by international law. This helps to promote the sustainability of development work, empowering people themselves—especially the most marginalized—to participate in policy formulation and hold accountable those who have a duty to act … A human rights-based approach identifies rights holders and their entitlements and corresponding duty-bearers and their obligations and works towards strengthening the capacities of rights-holders to make their claims and of duty-bearers to meet their obligations.31
Major elements of an HRBA include under governance: transparency and accountability; under procedural functions: participation, consultation, and access to information; under substantive policies: express focus on Fundamental Rights, non-discrimination, and equality; and a strong focus on traditionally marginalised groups.32 These HRBA elements are important not only for the smooth realisation of human rights for the socially marginalised and vulnerable groups, but also to hold duty bearers responsible for human rights violations and guarantee remedies to the victims. So, an HRBA focuses on developing the capacities of both ‘duty-bearers’ to meet their obligations and ‘rights-holders’ to claim their rights.33 It also empowers people to claim their rights primarily under a state mechanism.34 The most crucial aspect of the approach might be in incorporating international human rights principles into national laws, policies, and institutional frameworks.
3.1 The National Legal and Policy Framework
Bangladesh has been playing an active role in international negotiations. It is a party to major climate change instruments including UNFCCC, the Kyoto Protocol, and the Paris Agreement. Bangladesh has made many legal and policy frameworks to streamline action to address climate change-related impacts in line with international mandates and commitments.
Bangladesh signed and ratified the Paris Agreement in 2016.35 The Paris Agreement requires all state parties to report regularly on their emissions and implementation and to put forward and strengthen their best efforts to mitigate climate change through the Nationally Determined Contributions (NDCs).36 Bangladesh submitted its only NDC report in 2021. However, the NDC is presumed to be a narration of the achievements, initiatives, and actions taken so far by the Government of Bangladesh against climate change and disaster without a particular focus on disaster and displacement from a human rights point of view.
It is also important to mention that for a long time, the climate change regime did not account for human rights concerns, nor did it account for the linkage between climate change and disaster. There was an explicit reference to the linkage between climate change and disaster management with the adoption of the Cancun Adaptation Framework and the Outcome Statement of the Rio + 20 conference in 2012.37 Regarding a human rights dimension, human rights issues mentioned in the Paris Agreement contain their very first mention in a climate change treaty.38 The Preamble to the Paris Agreement contains an acknowledgement ‘that climate change is a common concern of humankind’ and that ‘Parties should when taking action to address climate change, respect, promote and consider their respective obligations on human rights.’39 Based on these international commitments, a policy and legal framework on climate displacement, with a human rights-based approach, has been developed in Bangladesh.40
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The Constitution of Bangladesh:
The Constitution of Bangladesh has specific provisions to protect and promote the human rights of its citizens particularly their judicially enforceable Fundamental Rights41 as well as the Fundamental Principles of State Policy,42 which are not judicially enforceable. The Preamble of the Constitution expressly guarantees fundamental human rights and freedom, equality, and political, economic, and social justice for all citizens and the government is responsible for ensuring these rights.43 Article 11, although contained in the non-binding part of the Constitution, also guarantees these fundamental human rights and freedoms and respect for the dignity and worth of a human being.44 The Constitution, though it does not explicitly mention climate change, has provisions pertaining to the protection and care of the environment. Protection and improvement of the environment are mentioned as Fundamental Principles of State Policy.45 Moreover, provisions for ensuring necessities, such as food, clothing, shelter, education, and medical care, are also mentioned as fundamental principles.46 As climate change directly impacts those rights, therefore, the government bears a constitutional responsibility to protect them. Again, rural development and agricultural revolution,47 public health and morality,48 equality of opportunity, including the participation of women in all spheres of national life, and the right to work49 are also identified as Fundamental Principles of State Policy of the Government of Bangladesh, as are equality of opportunity in public employment,50 right to protection of law,51 and right to property.52 The right to be free from discrimination on the basis of disability is also protected as a fundamental right under the Constitution of Bangladesh.53 Therefore, the Government of Bangladesh is constitutionally responsible if the above-specified rights are directly or indirectly affected in the context of disasters, including in situations of disaster displacement.54
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Bangladesh Climate Change Strategy and Action Plan (BCCSAP), 2009.
The BCCSAP refers to all forms of human mobility, including by migration, displacement, and planned relocation (or ‘resettlement’). It highlights the need to strengthen coastal embankments to prevent coastal outmigration, riverbank erosion, and saline intrusion.55 It mentions that increased riverbank erosion and saline water intrusion in coastal areas will likely displace hundreds of thousands of people.56 It states that if sea-level rise is higher than currently expected and coastal polders are not strengthened or new ones built, six to eight million people could be displaced by 2050 and will have to be resettled.57 Specifically, the BCCSAP states that people in many parts of the country will be so adversely affected by climate change that they will be compelled to relocate, both inside and outside the country, and that close monitoring is necessary, along with adequate institutional support, for their proper resettlement.58 The BCCSAP therefore emphasises building multi-purpose cyclone shelters for coastal Bangladesh as one way to address displacement risk in sudden onset contexts.59 Notably, the BCCSAP not only identifies climate change threats but also calls for enhanced monitoring of the internal and external migration of adversely affected people and requests support through capacity building to enable their rehabilitation in a new environment.60 The BCCSAP addresses specific programmes on migration via six pillars that include developing a monitoring mechanism for internal and external migrations, developing a protocol to provide adequate support for Climate Displaced People’s (CDP) resettlement and rehabilitation, and building capacity through education and training to facilitate CDP’s resettlement in a new environment.61 The BCCSAP acknowledges the contribution of civil society, NGOs, research organisations, and development partners for its formation. However, implementation remains the government’s responsibility via internal and external financing.62 The document does not describe the details of the monitoring mechanism of the BCCSAP.63 The BCCSAP targets coastal regions as the most vulnerable area for CDP and states that the people’s livelihoods in these areas will be lost and agricultural production is significantly reduced.64 There are 44 programmes65 listed in the BCCSAP based on the six pillars66 of action.
Despite the various plans and programmes of the BCCSAP, there remain gaps between national and sectoral policies, plans, and practices, such as weak implementation processes, and coordination gaps regarding the implementation of the project activities during and after the project.67 Moreover, it was identified that only infrastructural support was provided among the victims under the project of the BCCSAP, with no other durable solutions provided.68 Less priority was given to ‘Food Security, Social Protection and Health’ with respect to project allocation under the BCCSAP’s thematic area.69
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National Adaptation Plan (NAP), 2023–2050
The National Adaptation Plan (NAP) has been prepared to fulfil the country’s obligation at the international level. The NAP has been adopted as one of the core planning and investment documents for Bangladesh to adapt to climate change up to 2050. The NAP primarily covers eight specific areas, including, ‘water resources; disaster, social safety, and security; agriculture; fisheries, aquaculture, and livestock; urban areas; ecosystems, wetlands, and biodiversity; policies and institutions; and capacity development, research, and innovation.’70 The NAP also aims to achieve six specific goals: ‘(i) ensuring protection against climate change and disasters; (ii) developing climate-resilient agriculture; (iii) building climate-smart cities; (iv) protecting nature for adaptation; (v) integrating adaptation into planning; and (vi) ensuring capacity-building and innovation in adaptation.’71 Moreover, other cross-cutting issues, such as infrastructure, health, gender, elderly persons, persons with disabilities, youth among ethnic communities, and other socially disadvantaged groups, and the private sector are also covered.72 The NAP also aims to build Bangladesh as a climate-resilient country with six national adaptation goals73 targeted to be fulfilled through ‘23 broad-scale strategies and 28 outcomes encompassing diverse aspects of safeguarding against climate-induced disasters.’74 The NAP gives importance to planned resettlement options to reduce and manage climate-induced displacement or migration.75 A few initiatives have already been taken, such as housing and shelter for landless, homeless, and displaced people under the Ashrayan (shelter) Project at Langolerhat, Rangpur, and Cox’s Bazar.76 Moreover, the Government of Bangladesh has built a few crop storage and shelters for livestock in northeastern Haor areas. The NAP also mentions the development of city climate action plans for major urban and peri-urban areas, highlighting the need to create strong resilience for urban-poor communities, particularly for the climate-displaced people.77
The NAP acknowledges that substantial financial support is required from national and international authorities to implement these strategies.78 Locally Led Adaptation (LLA) in line with the community preferences’ approach is one of the interesting approaches of the NAP, incorporating social inclusion in different adaptation interventions.79 A monitoring and evaluation (M&E) framework is suggested in the NAP to identify and assess outcomes of the implementation process, but there are no detailed provisions in this regard.80 However, a human rights focus on internal displacement remains inadequate under the NAP, as there is no clarity regarding how the LLA approach could be applied to internal displacement.
Besides the above-specified climate policies, the Government of Bangladesh has adopted a detailed legal framework governing disaster management, which is also relevant in the context of climate change displacement.
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Disaster Management Act, 2012 (DMA)
The sole legally binding instrument relating to disaster management in Bangladesh was enacted to ‘make the activities about disaster management coordinated, object-oriented and strengthened and to formulate rules to build up the infrastructure of effective disaster management to fight all types of disaster.’81 By adopting the DMA, climate change-induced vulnerabilities have been covered within the jurisdiction of the definition of disaster.82 The DMA defines disaster as an incident caused by nature, human-made, and climate change.83 The Act aims:
to mitigate overall disaster, conduct post-disaster rescue and rehabilitation program with more skill, provide emergency humanitarian aid to vulnerable communities by bringing the harmful effect of disaster to a tolerable level through adopting disaster risk reduction programs, and enact rules to create effective disaster management infrastructure to fight disaster to make the activities of concerned public and private organizations more coordinated, object-oriented and strengthened to face the disasters.84
At the institutional level, the National Disaster Management Council was established by the DMA to provide guidelines to respective departments and authorities about formulating relevant plans and policies, such as the Standing Orders on Disaster (SOD).85 The enforcement of the SOD, including effectively incorporating the displacement-related provisions into the domestic legal system, is also mentioned in the DMA.86 In the DMA, disaster-induced displacement issues are identified in section 16, where providing resources, services, emergency shelter, transport, and other facilities is mentioned as one of the responsibilities of the National Disaster Response Coordination Group.87 ‘Disaster zone declaration and participation of different forces’88 to manage disaster are also relevant provisions by which displacement and other related vulnerabilities have been addressed under the DMA.
Enacting a legally binding instrument like the DMA has made Bangladesh’s governmental responsibility to manage disasters mandatory. Based on the DMA, various policies and frameworks have been developed89 which is a significant development in the domestic legal structure, as it might help reduce disaster-related vulnerabilities, including displacement. In addition, the elements of an HRBA can be detected in various provisions of the DMA, such as, ‘protection and risk reduction for ultra-poor and underprivileged community especially the older persons, women, children and handicapped persons while providing assistance.’90 Compensation for disaster caused due to negligence or intention of persons or organisations to be granted through the civil courts has also been mentioned in the DMA.91
Nevertheless, the provisions of the DMA seem to have overwhelmed duty bearers (government) with all the responsibilities and have led to the formation of too many committees.92 On the other hand, there are no specific provisions for the rights holders (disaster-affected people) with respect to their rights and the methods of how to ensure them through appropriate mechanisms. It is relevant to note that beyond the DMA, another statutory law, namely the Climate Change Trust Act, which was adopted in 2010 attempts to ‘redress the adverse impact of climate change on Bangladesh and to take measures on other matters relating thereto’93 and one of the objectives of the Act is to ‘initiate and implement suitable action plan for implementation of special programme regarding climate change.’94 The DMA has been further enhanced by the Standing Orders on Disaster 2019.
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The Standing Orders on Disaster 2019 (SOD)
The Standing Orders on Disaster (SOD) have been prepared to determine roles and responsibilities and detailed work plans of each ministry, division, department, and agency to manage disaster-related risks at every stage of a disaster.95 The objective of the SOD is also to take necessary measures to implement emergency management in various projects and Disaster Risk Reduction-related activity. The provisions of the SOD were drafted after considering the Sustainable Development Goals (SDGs), Sendai Framework for Disaster Risk Reduction, and other international agreements.
The SOD is divided into seven chapters. ‘Disaster Risk Management Policy Structure’ is discussed in Chap. 2. Disaster risk management coordination at the national and local levels is discussed, respectively, in Chaps. 3 and 4.96 The responsibilities and functions of the ministries, divisions, departments, and agencies for Disaster Risk Management are discussed in Chap. 5. The responsibilities of field-level officials, representatives of local government, and humanitarian agencies are discussed in Chapter 6. More importantly, the role of the National Disaster Emergency Coordination and Operation Centre and humanitarian response activities are discussed in the last chapter. Although the SOD does not address any concrete measures to reduce the risk of displacement at the initial stage, it provides enhanced protection measures during evacuation and throughout displacement, which is highly appreciable.97 The SOD determines the tasks of the various committees, where performance and support of the local committees are found weaker to response and policy implementation.98 There is also evidence that a lack of interaction and coordination between the project implementation and the district, union, and upazila (sub-district) level officer and the district committees is a common scenario.99 Therefore, non-compliance of the SOD is apparent at the ground level. Disaster management has also been given a fillip with the adoption of the National Strategy on Internal Displacement Management.
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National Strategy on Internal Displacement Management (NSIDM) 2021
The National Strategy on Internal Displacement Management (NSIDM) is the sole policy document addressing displacement as a central issue in the context of disasters and climate change in Bangladesh. The specific focus of the NSIDM includes ‘disaster displacement and human mobility challenges in local, national and regional DRR strategies; to integrate strategies with regional climate change actions; and to initiate systematic data collection on disaster displacement.’100 Therefore, the approaches of the NSIDM cover cross-border displacement issues as well, although a viable action plan on regional DRR might be too ambitious. Other focus areas of the NSIDM include ‘prevention of displacement and protection during displacement, durable solutions, institutional arrangements and funding monitoring and evaluation.’101 The National Action Plan (2022–2042) to implement the NSIDM was also adopted in 2022.102 Voluntary mobility is internationally considered as a climate change adaptation strategy, which is reflected in the NSIDM.103
The NSIDM is also framed as setting out an inclusive and realistic rights-based policy framework that ensures the protection of the rights of disaster and climate-induced internally displaced persons in pre-displacement, during displacement, and post-displacement phases.104 The objectives of the NSIDM also include ‘preventive and adaptive measures to minimise the internal displacement caused by climate-related disasters.’105 One of the significant provisions of the NSIDM is outlining strategic responses as durable solutions. Suggested durable solutions of the NSIDM are:
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Return to the place of origin after the disaster is over.
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When return to the place of origin is not possible, local integration in the place of self-relocation.
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Where none of the above-mentioned solutions are feasible, in those cases, planned relocation to a third location under a government initiative.106
The NSIDM has formed departmental and sub-departmental committees for monitoring and evaluation purposes and an oversight committee with relevant national and international stakeholders.107 However, the NSIDM’s monitoring and evaluation strategy require involving more civil society members along with government officials to ensure transparency and accountability. The participation of civil society stakeholders has been mentioned, but their comprehensive role and responsibilities are not detailed in the NSIDM. The National Plan for Disaster Management 2021–2025 promulgated also covers broader aspects of disaster management.
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National Plan for Disaster Management 2021–2025 (NPDM21–25)
The National Plan for Disaster Management (NPDM21–25) is an ambitious policy document of the Government of Bangladesh with 34 core targets to build a resilient nation by 2025. The NPDM21–25 is the upgraded version of the previous policy documents, namely the National Plan for Disaster Management (NPDM) 2016–2020, 2010–2015. The NPDM 2021–25 is essentially based on the SOD 2019 and is in line with the priorities of the Sendai Framework for Disaster Risk Reduction (SFDRR) and also connected to the Asian Regional Plan for Disaster Risk Reduction (ARPDRR).108
Among the various goals the NPDM21–25 targets various strategies to reduce economic losses in every disaster, such as Disaster Risk Reduction (DRR), Humanitarian Response, and Emergency Recovery.109 The NPDM21-25 is the latest policy framework based on previous experiences in Disaster Risk Management and international DRR frameworks.110 The NPDM21-25 is also drafted to implement the Disaster Management Act 2012 and Standing Orders on Disaster 2019 and prepare the Annual Work Plans for the respective Ministries/Departments of the government and other relevant stakeholders.111 Managing displacement issues is prioritised in Priority 4 of the document which reads as follows:
Priority 4: Enhancing disaster preparedness for an effective response and to ‘'Build Back Better’ in recovery, rehabilitation, and reconstruction – Concerned action plans include strengthening forecasting and early warning systems, emergency response capacity building, sector-wise preparedness, inclusive recovery and rehabilitation, business continuity, and multi-hazard response and recovery measures.112
Under Priority 4 of the NPDM21-25 for ‘Enhancing disaster preparedness for effective response, recovery, and reconstruction,’113 a ‘NSIDM’ has been developed, and ‘effective response to disasters and related displacement, including access to safe shelter, essential food, and non-food relief supplies, as appropriate to local needs’ matters are included. However, the NPDM21-25 does not clearly focus on the measures that can be undertaken to prevent displacement when disaster strikes.114 Although Disaster Risk Reduction issues are highly prioritised in the NPDM21-25, considering the complex phenomenon of displacement, a clear focus on essential aspects of an HRBA115 is still missing. The target of the NPDM21-25 is building a resilient nation, particularly by acting to save lives and reduce economic losses in every disaster, humanitarian, and emergency response116 within the given time frame, but practically, the current trend of the NPDM21-25 indicates that it would not be able to achieve the target completely by 2025 since less than 2 years are left to achieve the same.
Other relevant policy documents of the Government of Bangladesh on climate change and disaster include the Mujib Climate Prosperity Plan (MCPP) 2022–2041, Bangladesh Delta Plan 2100 (prepared in 2018), Bangladesh Climate Change Trust Act 2010, Bangladesh Climate Fiscal Framework 2020, National Action Plan for Clean Cooking 2020–2030, Plan of Action to Implement Sendai Framework for Disaster Risk Reduction 2015–2030, Bangladesh Energy Efficiency and Conservation Master Plan up to 2030, Renewable Energy Policy of Bangladesh 2008, Bangladesh National Action Plan for Reducing SLCPs 2012, updated in 2018, Cyclone Shelter Construction, Maintenance and Management Policy 2011 (CSCMMP).
3.2 Judicial Response to Climate Change and Displacement and Reliance on a Human Rights-Based Approach
Climate change litigation issues have received global attention in the last decade through huge academic development in legal and social sciences literature.117 Due to the substantial growth of climate litigation literature focusing on case law, new emerging legal dimensions and avenues, types of actors, litigation objectives, and jurisdictions have created opportunities for climate litigation. However, there are no specific instances of climate change litigation in Bangladesh and there are no specific provisions regarding the role of the judiciary in addressing climate change-related impacts and governance.
Despite the given fact, there are options in the legal system of Bangladesh particularly through Public Interest Litigations (PILs) by which the High Court Division of the Supreme Court of Bangladesh can issue orders for protecting and promoting human rights, which are acknowledged as Fundamental Rights.118 A PIL is considered one of the most useful tools for protecting the rights of the poor and marginalised people. Therefore, judicial responses to climate change and displacement matters may be invited through a PIL, by any bonafide citizen or organisation, if those matters are considered as a violation of Fundamental Rights. This constitutional remedy through the judiciary dealing with climate change and displacement could only be initiated if the court is satisfied that no other equally efficacious remedy is provided by law.119 The higher judiciary can also take suo moto actions if any matter is drawn to its attention. Climate litigation is also possible through the mandate of Article 32 of the Constitution of Bangladesh where ‘protection of right to life and personal liberty’ has been ensured as one of the Fundamental Rights of the citizens. Moreover, if there are gaps in the domestic legislation in addressing any issue, the Supreme Court of Bangladesh may consider international conventions and protocols on that issue for appropriate guidelines and directives to be followed by all concerned until a national legislation is enacted on that issue.120 Therefore, international law could be used as a guide for interpreting domestic law, if any climate change victims file litigation against the Government of Bangladesh for failure to carry out their climate change-related obligation. The Leghari case in Pakistan,121 brought by a farmer, about failure to implement climate adaptation measures as well as the Daniel Billy case122 at the Human Rights Committee—brought by Torres Straits Islanders also about failure to take adequate climate adaptation measures, is good examples of how the rights of climate affected people were addressed under domestic jurisdiction.
4 Major Challenges to Mainstreaming a Human Rights-Based Approach in the Legal System of Bangladesh
This section examines the significant challenges of managing the issue of internal displacement within Bangladesh with a human rights focus, in the present time of globalisation. Mainstreaming an HRBA into the legal system is not an easy task for developing countries like Bangladesh, where the human rights protection mechanism remains weak. Moreover, managing climate-displaced people within national jurisdiction presents many common challenges in Bangladesh, including resources, capacity, and finance. As disaster strikes suddenly, therefore, systematic coordination among the actors to respond to the extensive and immediate action remains a daunting task. Generally, cyclones, tropical storms, and floods take a heavy toll on the coastal areas of Bangladesh. There is evidence that the disaster situation gets worse in the remote islands of the central coastline of Bangladesh because access becomes difficult due to insufficient transportation facilities.123 Therefore, people living in remote and coastal areas face more human rights suffering compared to other disaster-affected areas. Hence, an HRBA is lacking at the level of implementation, particularly for the people living in the vulnerable areas.
In addition, as discussed earlier, the primary focus of the SOD, NAP, DMA, and other relevant policy documents is to provide immediate humanitarian support for the disaster victims. Once the disaster is over, people usually go back to their original place of living from where they were displaced, because no long-term opportunities are available for them in the shelter area, such as education, health care, employment, and living conditions. Here, an HRBA becomes a pivot for mainstreaming the rights of the disaster victims to enable sustainable displacement management.124 However, the Constitution of Bangladesh only guarantees the protection of fundamental civil and political rights,125 while economic, social, and cultural rights, such as, the right to water, right to food, and right to shelter, health, and education, are not guaranteed in the Constitution of Bangladesh because those rights are Fundamental Principles of State Policy which are judicially non-binding.126 Due to this constitutional nature, the mainstreaming of the economic, social, and cultural rights of the climate-displaced people at the policy level remains challenging. On the other hand, the deep and complex relationship between climate change displacement and human rights has not been recognised so far in the legal system of Bangladesh, notwithstanding the endorsement of the approach in the NPIDM. Therefore, managing internal displacement and related issues will require long-term government plans by mainstreaming a human rights-based approach at a national policy level.
Generally, unexpected and sudden displacement results in internal disturbance, which might destabilise socio-political and economic conditions. Moreover, ensuring the core elements of a human rights-based approach, such as good governance, transparency, and accountability, in the legal system of Bangladesh, is also a challenge because of lack of political will. A recent scenario shows that only 15% of homeless people had received government support in the Sylhet district when the devastating floods affected many people.127 According to media and government sources, 40,091 houses were damaged in the Sylhet district, but it has been pointed out by civil society that the actual number was higher than the reported number.128 The local authority said that only 6000 of the 40,000 houses could be reconstructed with the government’s allocation of money.129 Therefore, the response strategy, early warning, and preparedness issues are identified as inadequate and should be strengthened.130 Another report also found that lack of transparency, accountability, and discrimination observed on the government’s part in dealing with recent disasters, particularly in respect of relief distribution and the construction of shelters and dams.131
The Government of Bangladesh has put serious effort into formulating various national plans, strategies, policies, and laws for improved and effective disaster management, yet the reality on the ground is quite different. Procedural gaps, lack of participation of the disaster-affected people in the decision-making process, inadequate consultation with relevant stakeholders, and limited access to information, transparency, and accountability remain significant shortcomings to effective disaster management.132 Moreover, integrating international human rights standards and their application in national legislation always remains one of the bigger political challenges of developing countries like Bangladesh133 because human rights violations are a frequent incident.134 Again, legal and institutional capacity buildings are also challenges to implementing an HRBA in the local legislation of Bangladesh.
5 Conclusion
An HRBA in domestic jurisdictions, like Bangladesh, still presents academic and policy challenges due to its complex and unique nature. Moreover, the legal system of Bangladesh is not fully aligned with international human rights standards. The paper mostly catalogues some of the important legal and policy documents and then provides some insight into implementation challenges. This study has also explored judicial responses to address the rights of climate change victims and various challenges to implementing a human rights-based approach at the policy level in Bangladesh. Bangladesh has made significant progress in terms of law, policy, and practice embracing various aspects of climate change and human rights. It is also one of the only countries to expressly adopt a policy on disaster displacement with an expressly human rights-based approach. Despite this development, implementation, particularly an emergency response strategy in more vulnerable areas, remains a challenge. Planned relocation for displaced people in particular is still a daunting task in Bangladesh. Therefore, integrating systematic and planned relocation with an HRBA is required in relevant climate policy action. Therefore, the implementation mechanism should be stronger, particularly at the ground level of the administration. Otherwise, the reflection of a human rights-based approach at the academic and policy levels would not bring any positive result to the victims of climate change unless and until enforcement gaps exist. Substantial Loss and Damage financing is also crucial to cope with anticipated increases in disasters and displacement, but transparent and fair management of those funds should be ensured. This study attempts to cover those issues and argues for a stronger national law, policy, and institutional framework addressing the gaps identified in this research.
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