The governance analysis focuses on around 80 pieces of legislation and policy relevant to the sources of ecosystem services (including water and land use management, fisheries, and environmental protection) and to the protection and improvement of livelihoods (e.g. human rights and rural development). Identification of the areas of relevant law is linked primarily to the conceptualisation of the relationship between ecosystem services and poverty alleviation and the factors mediating between these. As seen in Chap. 4, these were identified as access and entitlements, mobility and urban areas, community and informal institutions and health. This wide range of factors is both affected and governed by a vast spectrum of legal and policy frameworks, so limiting the scope to the key elements only is imperative for the preliminary analysis.
Areas of governance of potential relevance are therefore identified. Access and entitlement to resources are governed primarily by the framework for apportioning rights of use and access to water resources, along with property rights and land tenure. These are also influenced by rights to use and access forests for timber and non-timber forest products, with any frameworks allocating rights to fish. In many areas, local customary legal and institutional systems have not yet been supplanted by more formal sources, especially in relation to resource entitlements (e.g. land, water, fisheries—Freestone et al. 1996), so must also be considered. The quality and extent of resource use entitlements are critically dependent upon the extent to which resources can be protected; understanding the governance context for pollution control and environmental management is consequently required. In relation to broader questions of mobility and health, the existence of appropriate human rights regardless of location is a crucial consideration, in both substantive and procedural form, with access to information rights underpinning the latter, forming part of the foundation for the wider cross-sectoral governance context. Land use planning capacity is also a concern with respect both to access and entitlements, but also in relation to urban areas and disaster risk management. The prevention, management and alleviation of disasters are increasingly addressed through holistic governance frameworks, the quality of which can drastically affect population vulnerability and resilience. Finally, access to justice and remediation (including through local courts) is imperative for the enforcement of rights and obligations under each of the foregoing categories.
2.1 The International Context
Not all relevant legislation or policy will be set out in detail here—nor does space allow a detailed analysis of the international legal framework. There are certain key areas of law that are particularly important for both ecosystem services and poverty alleviation, however. The first are those legal frameworks concerning freshwater
, which are central to the ecosystem services within the study area (Rieu-Clarke and Spray 2013), addressing both quantity, flow and quality considerations. At the international scale, the GBM system is characterised by a general absence of a pan-watershed agreement (despite some bilateral arrangements further upstream), and none of the basin states have ratified the UN Watercourses Convention (UN 1997) or the UNECE Water Convention (UNECE 1992) although the latter has been open to states outside the UNECE area since 1 March 2016. A draft agreement on the use of the Teesta River has also yet to be signed, despite having been in existence for a number of years, and there is no formal agreement on shared groundwater. This leaves only the Farakka
Treaty (1996), though this is limited in its application as it applies only to the dry season, contains no provisions on water quality, applies to only two riparian states and affects one of the basin rivers alone.
In addition, and to some extent, bridging the gap between ecosystem services and livelihoods are legal frameworks relating to human rights. Bangladesh has ratified both of the international human rights covenants, respectively, on Economic, Social and Cultural Rights (ICESCR 1966) and on Civil and Political Rights (ICCPR 1966), some of which have been transposed through the country’s 1972 Constitution. The situation as regards human rights for migrants
, especially those internally displaced for whatever reason, is less secure however (Allan et al. 2015).
2.2 National Governance and Implementation
At the national level, while legislation and policy exist, the general level of inter-sectoral coordination and legislative coherence, with notable exceptions, is rather discouraging. In addition, there are a number of barriers to the effective implementation and the age of legislation in many cases worrying. Examples include the Environment Policy of 1992 (its environmental impact assessment elements remain guidelines only) and the failure to translate the cross-sectoral Coastal Zone Policy of 2005 into practice. There are also a number of examples where primary legislation is in place, but is hobbled by the absence of implementing guidelines, subordinate legislation or rules required for it to have any impact (see, e.g. the Groundwater Management OrdinanceFootnote 1).
While the age of legislation is not in itself always problematic, there are areas where policy priorities have moved significantly globally over the past 20 or 30 years, and the pace of change is in fact increasing. Environmental protection and human rights are two such areas. In neither case is there much evidence of significant legislative shifts in Bangladesh over the past 20 years, and, in the context of forest management in particular, much of the land use management regime and compulsory purchase frameworks (where private land is expropriated for public purposes) continue to be heavily influenced by approaches from the British colonial period. Water resource management is something of an exception here, with the recent Water Act of 2013, although the detailed rules needed for implementation are yet to reach the statute book.
An allied issue relates to reporting and monitoring. The Planning Commission of Bangladesh contains a division that is dedicated to the implementation, monitoring and evaluation of public sector development projects, indicating the value that the government puts on ensuring that projects do what they are intended to do, at least initially. However, some of the indicators used by this division are problematic. For example, those relating to environmental sustainability correspond only loosely with what might be regarded as best practice (see, e.g. Bell and Morse 2008): forest coverage, length of waterways that are navigable all year round, number of cyclone shelters, what are described as the number of rural communities with disaster resilient habitats and community assets, and reductions in case backlogs in courts
Clear criteria are needed to ensure accountability and transparency, but the level of detail necessary for this is not so apparent in some Bangladeshi legislation. For example, with respect to groundwater extraction, the criteria guiding decisions on permits for sinking tube-wells are very vague (Groundwater Management Ordinance 1985, s.5(4)), leaving decision makers almost unfettered discretion. This is compounded by serious restrictions on the ability of disappointed applicants to appeal against these decisions, including with respect to time restrictions. The balance between the length of time available for challenging decisions and the consequences of those decisions may be inappropriate. The Acquisition of Waste Land Act
of 1950 provides an example. The authorities have the right under the Act to compulsorily acquire what is defined as ‘waste land’ for certain public purposes. Objections to such acquisition must be raised within 15 days of notification being made, at a limited number of places and only then by those who may have a right of compensation for the land being taken, taking no account of literacy or access to the appropriate information. Land tenure in Bangladesh is vulnerable to the rapid erosion processes on the GBM, and although legal provision for khas land appears to favour the poor, the reality of the application of the State Acquisition and Tenure Act 1950 (as amended) is that the poor are at the mercy of richer farmers (FAO 2010). Land tenure especially is further complicated by the influence of local customary frameworks, through the operation of the samajFootnote 2 and adjudication of disputes (including those relating to land) through shalish2 tribunals (Lewis and Hossain 2008).
This latter point is also symptomatic of a more general trend towards asymmetry between the rights, powers and obligations of the government (and its officials) and the public. State authorities are given a significant degree of discretion in their decision making, and this is especially noticeable again when the consequences of a decision are weighed against the degree to which the decision is open to challenge. The Embankment and Drainage Act (1952) endows the engineer with extensive powers to enter into and to acquire land that is relevant to the construction of public embankments
. Similarly, the determination of land as being ‘waste land’ for the purposes of the Acquisition of Waste Land Act, and the very broad definition of ‘public purpose’, and the lack of clarity in relevant criteria, leave a great deal of latitude to decision makers. Where, as in the case in the latter Act, access to the civil courts as a means of obtaining redress is expressly forbidden, the balance of power is very definitely on the side of the authorities. This compounds the general lack of participation and the marginalisation of the poor that takes place despite the increasing number of references to participatory approaches that appear in policy documents and legislation.
The lack of coordination and cooperation within and between ministries is a recurring theme within the literature and in interviews conducted as part of the project stakeholder engagement, but is also evident in the separation of different policy frameworks. This is compounded by a fragmented legal regime and inconsistencies within laws and regulations (Afroz and Alam 2013). Different aspects relating to the management of the Sundarbans, for example, are governed by separate legal regimes. The Forest Department (part of the Ministry of Environment and Forests—MoEF) is responsible for implementing the Forest Act 1927, and another wing of the same Ministry, the Department of Environment, is responsible for implementing the Environment Conservation Act 1995. The Department of Fisheries (part of the Ministry of Fisheries and Livestock) is responsible for monitoring fish stocks, but the Forest Department (MoEF) issues permits for fish collection inside the mangrove forests. These separate regimes create challenges for management and difficulties for the control of fish stocks (Iftekhar 2010). They also suggest that the quality of governance of ecosystem services and the corresponding ability of people to enjoy the benefits the service provides may vary across social-ecological systems (see Chap. 22).
Frustratingly, however, it is also clear that cross-sectoral coordination is possible and practicable in Bangladesh, with the disaster management framework providing an excellent example of this. As shown in Fig. 6.1, policy and legislation were developed in close chronological proximity, appropriate institutional arrangements put in place rapidly, and the system now appears to work well.
The lack of enforcement financial and technical capacity also has a severe impact on implementation and management in Bangladesh. The effectiveness of legislation is compromised by the lack of enforcement (Afroz and Alam 2013), and this creates a large gap between the de jure commitment and the de facto reality.