Topic: Climate change law and Bangladesh
1. Introduction:
Climate change is a long-term change in the statistical distribution of weather patterns over periods of time that range from decades to millions of years. It may be a change in the average weather conditions or a change in the distribution of weather events with respect to an average. Climate change can be natural or caused by changes people have made to the land or atmosphere. Climate change has taken place in the past from natural causes. The term climate change today refers to changes taking place over the last hundred years from man-made greenhouse gases. The rate of change has assumed disastrous proportions and threatens every single country. And Bangladesh is no exemption. Climate change driven by global warming in Bangladesh is threatening to substantially modify important ecosystems, both marine and terrestrial, because the rate of climate change exceeds rates at which ecosystems and biodiversity they contain can adapt or migrate. Global warming threatens to destroy great swaths of biodiversity within affected ecosystems. Preservation of biodiversity and avoidance of catastrophic ecosystem collapse depend on reducing emissions of greenhouse gases and stabilizing atmospheric greenhouse gas concentrations. For lawyers, the challenge is how law can be used to achieve this goal.
2. Causes of Climate Change:
The cause of climate change is well known. The coal we burn and the oil and gas we use have led to alarming increase in greenhouse gases in the atmosphere and in increase in greenhouse effect and enhanced warming. Average temperature has increased over the past hundred years. The ten hottest years on record are all in the last 13 years.
Scientists claim that if carbon emissions grow at present rates, by 2050 carbon dioxide concentration in the atmosphere is likely to be twice and global temperature about 7° C above what it was in pre-industrial period. They say even if global temperatures rise “by only 2° C it would mean 20-30 percent of species could face extinction” and cause “serious effects on our environment, food and water supplies, and health.” From 1997 to 2008, carbon dioxide emissions worldwide from burning fossil fuels have increased 31 percent. In that period temperatures are 0.4 of a degree warmer than in the previous 12 years. The effect of greenhouse is more alarming than earlier predicted. Ice sheets in Greenland and Antarctica have lost trillions of tons of ice. In a dozen years the oceans of the world have risen by about one and a half inches. Hurricanes, droughts and wildfires have become more severe worldwide. Species from polar bear and seals to frogs and butterflies are endangered and so are pine forests in North America to mangrove forests in Bangladesh.
3. Climate Change Threats to Biodiversity:
The precise breadth and depth of potential loss of biodiversity and ecosystem resilience as a result of global warming remains subject to scientific inquiry. But that global warming is adversely affecting biodiversity is now well recognized:
Human beings are contributing to changing regional temperatures, which in turn are associated with changes in wild species. Therefore, human activities are highly likely to be contributing to the changes in regional temperatures, and these human influenced temperature patterns are significantly associated with discernible changes in plant and animal … traits.
… All studies taken together demonstrate that recent (at least for the latter few decades on the 20th century) climate changes seen at both the local and nine-grid-box scales, and observed changes in wild species, are highly likely to be forced to a considerable degree by human emissions of GHG & aerosols. [1]
The Convention on Biological Diversity Ad Hoc Technical Expert Group on Biological Diversity and Climate Change has summarized these risks as well as evidence of observed changes that verify both the current loss and the imminence of much greater loss of biodiversity.[2] According to the Ad Hoc Technical Expert Group, observed ecosystem modifications associated with global warming include as follows-
1) Changes in the timing of periodic biological phenomena (e.g., flowering, breeding, migration).
2) Changes in species distribution.
3) Changes in the form and structure (morphology), behavior and physiology of many birds, plants and insects.
4) Enlargement of the range, frequency and intensity of pests and diseases.
5) Altered patterns of precipitation, floods, droughts, water temperature, stream flows and water quality, which will adversely affect “biodiversity and the goods and services ecosystems provide.”
6) Modifications in the length of growing seasons and alteration of species composition in high northern latitude ecosystems.
7) Increased mortality of species.
8) Alterations of weather and temperature sensitive coastal and marine ecosystems such as coral reefs, some fish populations, and marine birds and mammals.[3]
4. Climate Changes in Bangladesh:
The executive director of the UN Population Fund, Thoraya Ahmed Obaid said in December 2009 that global warming could be catastrophic for people in poor countries. She claimed “We have reached a point where humanity is approaching the brink of disaster.”
Bangladesh, being a third world country, poses significant risks due to climate changes, yet the core elements of its vulnerability is primarily contextual. Between 30-70 percent of the country is normally flooded each year. The huge sediment loads brought by three Himalayan rivers, coupled with a negligible flow gradient add to drainage congestion problems and exacerbate the extent of flooding. The societal exposure to such risks is further enhanced by Bangladesh’s very high population and population density. Many projected climate change impacts including sea level rise, higher temperatures (mean temperature increases of 1.4° C and 2.4° C are projected by 2050 and 2100 respectively), evapo-transpiration losses, enhanced monsoon precipitation and run-off, potentially reduced dry season precipitation and increase in cyclone intensity would in fact reinforce many of these baseline stresses that already pose a serious impediment to the economic development of Bangladesh. A subjective ranking of key climate change impacts and vulnerabilities for Bangladesh identifies water and coastal resources as being of the highest priority in terms of certainty, urgency and severity of impacts as well as the importance of the resources being affected.
a) Climate Change Impacts on Sea Level Rise:
One of the critical variables that determine the vulnerability of Bangladesh to climate change impacts is the magnitude of sea level rise. There is no specific regional scenario for net sea level rise, in part because the Ganges-Brahmaputra delta is still active and the morphology highly dynamic. Literature suggests that the coastal lands are receiving additional sediments due to tidal influence, while there are parts where land is subsiding due to tectonic activities.[4] Since the landform is constituted by sediment decomposition, compaction of sediment may also play a role in defining net change in sea level along the coastal zone. A review of the literature and of expert opinions suggest that sediment loading may cancel out the effect of compaction and subsidence, so that net sea level may be assumed. The Bangladesh country study put the range at 30-100 cm by 2100; while the IPCC Third Assessment gives a global average range with slightly lower values of 9 to 88 cm. Higher mean sea levels are likely to compound the enhanced storm surges expected to result from cyclones with higher intensity. Even in non-cyclone situations, higher mean sea levels are going to increase problems of coastal inundation and salinization in the low lying deltaic coast.
b) Climate Change Impacts on Coastal Flooding:
The low lying coastal zone in Bangladesh is located between the extensive drainage networks of the Ganges-Brahmaputra-Meghna river system on one side and tidal and cyclone activity from the Bay of Bengal on the other. Since the 1960s a series of coastal embankments has been constructed to protect low lying lands from tidal inundation and salinity penetration. The same coastal embankments paradoxically also tend to block efficient drainage of freshwater on the other (land) side at times of excess rainfall and riverine flooding. The situation is complicated further under climate change.
c) Climate Change Impacts on the Sudarbans:
Linked to the problem of coastal flooding is the potential impact of climate change on the Sundarbans which straddle south-western Bangladesh and the adjoining coast in the India state of West Bengal. With a total area of over 10,000 square kilometers, the Sundarbans constitute that world’s largest contiguous mangrove ecosystem.
The potential impacts of climate change on the Sundarbans will only be superimposed on the baseline stresses that are already posing a critical threat to the ecosystem. Climate change is expected to have a significant effect on the flow regimes of the major rivers in Bangladesh, including the Ganges. Since the viability of the Sundarbans rests on the hydrology of the Ganges and its tributaries which supply the fresh water influx, climate change is expected to have significant impact on the Sundarbans. In addition to the altered hydrology, sea level rise will also have adverse impacts on the forest, directly through enhanced inundation and indirectly by enhancing saline intrusion in river systems.
d) Climate Change and Human Health:
The combination of higher temperatures and potential increases in summer precipitation could create the conditions for greater intensity or spread of many infectious diseases. However, risk in the human health sector is low relative to climate change induced risks in other sectors (such as water resources) mainly because of the higher uncertainty about many of the health outcomes. Increased risk to human health from increased flooding and cyclones seems most likely. Changes in infectious disease are less certain. The causes of outbreaks of infectious disease are quite complex and often do not have a simple relationship with increasing temperature or change in precipitation. It is not clear if the magnitude of the change in health risks resulting from climate change will be significant compared to current risks. It is also not clear if increased health risk will be apparent in the next few decades. On the whole climate change is expected to present increased risks to human health in Bangladesh, especially in light of the poor state of the country’s public health infrastructure.
5. Legal Response to Climate Change:
In 1992, the Convention on Biological Diversity (CBD) [5]and the United Nations Framework convention on Climate Change (UNFCCC)[6] were concluded and signed at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janeiro. However, the processes that led to their respective results were entirely independent. The CBD began with work at IUCN and proceeded under the negotiation umbrella of UNEP[7], whereas the UNFCCC proceeded independently out of work began by the World Meteorological Organization and pushed by the Intergovernmental Panel on Climate Change and others. [8]
The UNFCC focuses on reducing the concentration of greenhouse gas emissions in the atmosphere to avoid the dangers associated with rapid global warming. The treaty, without imposing any binding targets and timetables, sought to push developing countries like Bangladesh, to craft GHG emission reduction plans, assemble emission data and inventories, proceed with essential research, and begin the process of agreeing on what level of anthropogenic greenhouse gas emissions are dangerous, and then establishing specific, binding targets and timetables for reducing GHGs to avoid reaching the dangerous levels. Underpinning the treaty was the concept that market mechanisms should be used to minimize the cost of emission reductions. Because GHG are dispersed throughout the world’s atmosphere within weeks of their emission, the location of emissions, emissions reductions or sequestrations is irrelevant to warming; it is the total atmospheric concentration that is important. Thus, the climate change legal regime envisioned, from the start, the trading of emissions reductions as a central implementation approach. Some pilot concepts were included in the UNFCCC, but full-fledged market mechanisms would be subject to further negotiations. These negotiations, which would flower into protocols to the UNFCCC, would establish emissions targets and timetables, details of trading regimes, and international bodies to oversee the implementations of these commitments. The UNFCCC also recognized the “common but differentiated responsibilities” of all the nations of the world. Initially, only developed nations would face requirements, but ultimately all nations would be required to contribute, to the extent they were able, to the challenge of mitigating climate change. The UNFCCC also included an “additionally” obligation- a commitment of the developed world to provide financial resources over and above existing foreign aid to help developing countries like Bangladesh, address GHG reduction.
The general procedural terms of the UNFCCC established a Conference of the Parties, which would meet regularly to negotiate concrete protocols to supplement the more general provisions of the UNFCCC. A secretariat was established to support this work. The nations adopting the UNFCCC knew that its commitments would not be sufficient to seriously tackle climate change.
The international and legal regime covering climate change is governed by two major treaties,[9] the Convention to Regulate International Trade in Endangered Species of Flora and Fauna (CITES) [10]and the CBD. Under CITES, the party nations agree to a list of species that are endangered, ban all importing and exporting of any specimen of a protected species, [11] and adopt domestic laws to enforce the trade prohibition to retain equilibrium in climate.
The CBD makes no mention of climate change, although some of its provisions contain ideas broad enough that they could be read to support efforts to mitigate or adapt to impacts of climate change.[12] By contrast, the CBD’s silence on climate change even though it was drafted simultaneously with the UNFCCC, and both were signed at UNCED in Rio de Janeiro, undercuts any argument that the CBD language was intended to include climate change within the ambit of the treaty. The only direct reference in the CBD to other international law is the requirement that the CBD be implemented “with respect to the marine environment consistently with the rights and obligations of States under the law of the sea.”[13]
Although the two treaties could be “mutually reinforcing…such mutual reinforcement is not automatic.”[14] However, that requires that requires moving beyond the specifics of sustainable developments of biodiversity. The principles of sustainable development articulated in the Rio Declaration,[15] Agenda21,[16] and the Johannesburg Declaration permit this, but do not in their own terms mandate the cross-fertilization, nor do the principles announce how the ideas of global warming and biodiversity should link or what field takes priority in conflicts emerge.
So it can be said that, the relationship between the CBD and UNFCCC is that there is mild, informal, sporadic evidence of each being aware of the other. In the climate change analyst world, the IPCC has regularly included impacts of warming on ecosystems and biodiversity in its assessment reports as one of the categories of adverse effects rapid climate change will cause. However, biodiversity is largely missing as an analytic component of policy prescriptions in mitigation and analysis.
6. Climate Change and Environment Laws in Bangladesh:
The majority of environmental laws in Bangladesh were passed under substantially different population and development conditions. For example, the Factories Act of 1965 and some other health protection laws were designed before industrial pollution and hazardous substances became serious concerns. The Environment policy of 1992 of Bangladesh has recognized the need for a better and comprehensive approach to address climate change and environment issues. Very few of the elements of the Environment Policy, however, are yet to be translated into laws. The only legislation which specifically deals with environment issues is the Bangladesh Environment Conservation Act (ECA) 1995. The act was passed for conservation and improvement of environmental standards and for controlling and mitigating environmental pollution. It however, provides very few substantive obligations relating to environmental clearance from the Department of the Environment, and any person affected or likely to be affected by such activities can apply to the Director General seeking remedy of environmental pollution or degradation. [17] The major limitations of the Act are its silences on the standards, parameters, emission levels and management elements based on which the environmental clearance should have been applied and obtained. The Environmental Conservation Rules, 1997, were promulgated in furtherance of the objectives of the ECA, 1995. Among Bangladeshi sectorial laws, environmental issues are seldom referred to, and when they are there, those are of no real substance.
7. Key Constraints for Effective Implementation of Environment Law:
The formulated environment law although fairly rich in content is not supported by necessary actions of implementation.
1) Inconsistency with other policies.
2) Lack of inter-sectoral coordination.
3) Lack of regulatory and institutional capacity.
4) Limitations of the environment laws.
5) Outdated environmental laws as well as ignorance about these laws.
6) Non-punitive approach of laws.
7) Politician-Polluter nexus.
8) Fewer amounts of funding and investment for implementations policies regarding climate change.
8. Conclusion:
It can be said that climate change is making the world warmer, it is raising sea level and aggravating natural disasters which will hit countries like Bangladesh the most. Most of Bangladesh, the seventh most populous country in the world, is less than 40 feet above sea level. Also the consumption pattern of Bangladesh has its effect on climate change. The situation should worsen as demand increases from increased population. So to keep the climate balanced for better living, Bangladesh should take necessary steps for implementations of laws regarding climate changes.
Bibliography:
- Terry Root et al., “Human-modified Temperatures Induce Species Changes: Joint Attribution.” 102 J. National Academy of Sciences (2005), 4767.
- Nicholas, A. R. (2005).“IUCN as catalyst for a Law of the Biosphere: Acting Globally and Locally.” 35Envtl. L. 249 273-4.
- Houghton, J. (2004). Global warming: The Complete Briefing (3rd Ed.). (pp. 242-246). New York: Cambridge University Press.
- Jeffry, A. M.(1993) Energy and Biodiversity, note 48, at 41.
- Nicholas, A. R. (Ed.). (1993). Agenda 21: Earth’s Action Plan. Publisher: Ocean Pub.
- Hamid, S.A. (2010, November 5). Save the world, change your lifestyle. The Star Magazine, pp. 24, 25.
- http://taberlaw.wordpress.com/
- http://www.hunton.com/practices/practice_detail.aspx?gr_H4ID=1087
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[1] Terry Root et al., “Human-modified Temperatures Induce Species Changes: Joint Attribution.” 102 J. National Academy of Sciences (2005), 4767.
[2] Convention on Biological Diversity Ad Hoc Technical Expert Group on Biological Diversity and Climate Change, Biological Diversity and Climate Change, UNEP/CBD/SBSTTA/9/INF/12 (30 September 2003)
[3] Ibid. at 31-32.
[4] Huq et al. 1996
[5] 31 I.L.M. 818 (1992) (signed 5 June 1992; entered into force 29 December 1993).
[6] 31 I.L.M. 849 (1992) (signed 29 May 1992; entered into force 29 March 1994)
[7] Nicholas A. Robinson, “IUCN as catalyst for a Law of the Biosphere: Acting Globally and Locally.” 35Envtl. L. 249 (2005), 273-4.
[8] John Houghton, Global warming: The Complete Briefing 3rd ed., (Cambridge University Press,2004), 242-246
[9] There are other treaties that address specific species or ecosystems, but CITES and CBD are the two general, overarching conventions.
[10] 12 I.L.M. 1085; 993 U.N.T.S. 243 (1973)
[11] CITES Article III
[12] For instance, Article 6 urges Parties to “integrate…the conservation and sustainable use of biological diversity into relevant sectoral and cross-sectoral plans , programme and policies.”
[13] CBD Article 22, paragraph 2.
[14] Jeffry A. McNeelay, Energy and Biodiversity, note 48, at 41.
[15] United Nations Conference on Environment and Development, Rio Declaration on Environment and Development, 879 U.N. Doc. A/CONF. 151/5/Rev. 1 (1992).
[16] Nicholas A. Robinson, ed., Agenda 21: Earth’s Action Plan (Ocean Pub., 1993).
[17] Section 4, 6-12 of the Bangladesh Environment Conservation Act, 1995. Section 15of the Act provides that the penalty for breach of any provision of the Act may extend up to 5 years’ imprisonment and/or one hundred thousand taka in fines.