IV. Bangladesh’s Obligations Related to Human Rights and the Environment

Protecting Human Rights in the Context of Business Activity

Governments are obligated to protect their citizens from human rights abuses, including those connected with business activity. In practical terms, a government’s obligation to protect human rights in the context of business activity “requires taking appropriate steps to prevent, investigate and redress such abuse through effective policies, legislation, regulation and adjudication.”[218] Governments are also obligated to effectively enforce that legal framework once it is in place, to prevent abuse, and to ensure accountability and redress where abuses do occur.[219]

Health

The right to highest attainable standard of health is found in article 25 of the Universal Declaration of Human Rights and in international treaties binding upon Bangladesh, including the International Covenant on Economic Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC).[220] The Constitution of Bangladesh states that improving public health is one of the state’s primary duties.[221]

Occupational Health

The ICESCR requires that states, in order to realize the right to the highest attainable standard of health, shall take the steps necessary for the “prevention, treatment and control of… occupational and other diseases.”[222] It also recognizes “the right of everyone to the enjoyment of just and favorable conditions of work” including “safe and healthy working conditions.”[223]

The Committee on Economic Social and Cultural Rights (CESCR), tasked with interpreting the ICESCR, has affirmed states’ obligations to protect the health of its workers. It has noted that the right to health includes an obligation on states to ensure:

[p]reventive measures in respect of occupational accidents and diseases [and]… the minimization, so far as is reasonably practicable, of the causes of health hazards inherent in the working environment.[224]

The CESCR has also noted that the right to health will be violated by the state’s “failure to enforce relevant laws.”[225]

Bagladesh’s Labour Act (2006) requires that factories be clean and well-ventilated.[226] Effective measures must prevent the accumulation of dust and fumes that are “likely to be injurious or offensive to workers.”[227] Factory inspectors have the power to compel employers to improve buildings or machinery that could be dangerous to human life or safety.[228] Dangerous machinery must be fenced and employers must ensure and maintain automatic off-switches.[229]

All workers are entitled to sick leave with full wages for 14 days in a calendar year.[230] All workers who suffer personal injury due to employment are entitled to compensation.[231]

The act grants labor inspectors broad powers to investigate, including the powers to enter premises and inspect records “at any reasonable time.”[232]

The Labour Act (2006) has a number of criminal offences intended to punish those responsible for endangering worker health and safety. A breach of the Labour Act causing death, grievous bodily harm, or any “injury or danger to workers” is punishable by terms of imprisonment and/or fines.[233] It is also an offence to fail to give notice of an accident.[234] There is also a “catch-all” offence that allows “whoever contravenes or fails to comply with any provisions of the Act, or any rules or scheme made under it” to be prosecuted.[235] All criminal prosecutions under the Labour Act must take place in the Labour Courts.[236]

Environmental Health

The ICESCR requires that states, in order to realize the right to the highest attainable standard of health, shall take the steps necessary for “the improvement of all aspects of environmental and industrial hygiene.”[237]

The CESCR, in the General Comment 14 on the Right to Health, has interpreted the ICESCR to include:

[T]he requirement to ensure an adequate supply of safe and potable water and basic sanitation [and] the prevention and reduction of the population’s exposure to harmful substances such as radiation and harmful chemicals or other detrimental environmental conditions that directly or indirectly impact upon human health.[238]

The CESCR has also explained that governments violate the right to the highest attainable standard of health if they fail to regulate the activities of corporations to prevent them from violating the right to health of others. This includes “the failure to enact or enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries.”[239]

The right to health encompasses the right to healthy natural environments.[240] This right involves the obligation to “prevent threats to health from unsafe and toxic water conditions.”[241] The CESCR considers “failure to enact or enforce laws to prevent the contamination and inequitable extraction of water” a violation of the right to water.[242]

Bangladesh’s Labour Act (2006) requires that all establishments have effective measures for the disposal of wastes and effluents generated by manufacturing processes.[243]

Bangladesh’s Environmental Conservation Act (1995) prohibits all industrial units from operating without an environmental clearance certificate.[244] The Department of Environment’s director general, or his or her delegate, has wide powers to enter premises, search buildings, collect air, water, and soil samples, and seek the assistance of law enforcement forces or utility providers to ensure compliance with his or her orders.[245]

Environmental and Health Information

The CESCR has stated that a “core obligation” of states under the right to the highest attainable standard of health is:

To provide education and access to information concerning the main health problems in the community, including methods of preventing and controlling them.[246]

Bangladesh’s obligation regarding the right to water and sanitation concern the quality and availability of water, as well as its accessibility. According to the CESCR, accessibility includes the right to “seek, receive and impart information concerning water issues.”[247]

Bangladeshi law protects the right of the public to access existing environmental information.[248] Internationally, it is acknowledged that freedom of information is critical to environmental protection and realizing the right to health. As Fatma Zohra Ksentini, special rapporteur to the sub-commission on prevention of discrimination and protection of minorities, noted as early as 1994:

The Special Rapporteur also considers that the right to information includes the right to be informed, even without a specific request, of any matter having a negative or potentially negative impact on the environment. It is clear to the Special Rapporteur that the right to information imposes a duty on Governments. It is also clear to the Special Rapporteur that the right to information imposes a duty on Governments to collect and disseminate information and to provide due notice of significant environmental hazards.[249]

Health and the Right to an Effective Judicial Remedy

The Constitution of Bangladesh guarantees every citizen the right to protection of the law.[250] However the High Court has repeatedly observed that the government is not implementing Bangladeshi law with respect to the Hazaribagh tanneries. In 2001, the High Court ordered some factories categorized by the Department of Environment as heavily polluting—including 176 tanneries—to install means to treat their effluent within one year. In that decision, the High Court observed:

In spite of the Constitutional commands and the provisions of the [Environmental Conservation] Act and the [Environmental Conservation] Rules, a hiatus remains between the letters of law and the implementation thereof in the field of environmental pollution due to unresponsiveness of the apathetic concerned officials.[251]

In 2009, the High Court repeated its order that heavily polluting factories must treat their effluent and specifically ordered the Hazaribagh tanneries to move out of Hazaribagh. It again noted that the government was not implementing Bangladeshi laws.

In order to save the city and its inhabitants, the government in exercise of its constitutional duties ought to have taken appropriate measures long ago to curb the [tannery] pollution but apparently it did not, leading to the present disastrous situation.[252]

In international law, the right to health also entails the right to an effective remedy for violations of the right. The CESCR considers that:

Any person or group victim of a violation of the right to health should have access to effective judicial or other appropriate remedies at both national and international levels.[253]

By failing to respect the High Court and implement its rulings, the government has deprived people suffering health problems due to Hazaribagh’s tanneries of effective judicial remedy.

Water

In 2003 the CESCR agreed upon General Comment 15 on the right to water. The CESCR states that “the water supply for each person must be sufficient and continuous for personal and domestic uses.” These uses include not only drinking water but also water for personal and household hygiene and food preparation.[254] The CESCR further states that water for each of these uses must be safe, meaning “free from micro-organisms, chemical substances, and radiological hazards that constitute a threat to a person’s health.” Water should also be of “an acceptable colour, odour and taste for each personal or domestic use.”[255]

In July 2010, Bangladesh voted in the UN General Assembly to “[recognize] the right to safe and clean drinking water and sanitation as a human right that is essential for the full enjoyment of life and all human rights.”[256] In September 2012, the UN Human Rights Council affirmed the human right to safe drinking water and sanitation as legally binding and derived from the right to an adequate standard of living.[257]

In addition to its overarching obligations to ensure the realization of the right to water, Bangladesh is also bound to fulfill obligations towards specific vulnerable groups. Through the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) states parties agreed to “ensure to women the right … to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communication.”[258] The Convention on the Rights of the Child similarly includes a provision wherein states parties shall “take appropriate measures” to provide to children “adequate nutritious foods and clean drinking water.”[259] The Convention on the Rights of Persons with Disabilities (CRPD) also mentions measures “[t]o ensure equal access by persons with disabilities to clean water service.” Bangladesh is a party to all three conventions.[260]

After a mission to Bangladesh in 2009, the special rapporteur on the human right to safe drinking water and sanitation, Catarina de Albuquerque, expressed several concerns about the availability, quality, and accessibility of water and sanitation in Bangladesh, stating:

I am distressed by the lack of wastewater treatment in Bangladesh. Faeces, urine and industrial waste are polluting the rivers and other surface water of Bangladesh, and threaten the quality of drinking water as well as the overall environment.[261]

She reiterated these concerns in a 2010 report to the Human Rights Council:

The [Bangladeshi] Government also indicated its intention to switch its supply [from groundwater] to surface water; however, surface water is reportedly very polluted and there are very few treatment plants to make water potable.[262]

Among the special rapporteurs’s other concerns was the lack of comprehensive testing of water quality throughout the country.[263]

Bangladesh has made political commitments to fulfill its obligations under the right to water. Bangladesh’s National Water Policy (1998) and the National Sanitation Strategy (2005) recognize water and sanitation as human rights.[264] Bangladesh set itself goals of reaching universal access to safe drinking water by 2011 and universal access to improved sanitation by 2013, but is falling short of these commitments.[265]

Hazardous Child Labor

International law does not prohibit children from carrying out work as such. However, the UN Convention on the Rights of the Child and the ILO Worst Forms of Child Labour Convention, both ratified by Bangladesh in 1990 and 2001 respectively, prohibit employing children under 18 in work that is likely to be hazardous or harmful, or to interfere with the child’s education.[266] Work is prohibited if “by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.”[267]

Bangladesh’s Labour Act (2006) considers a child to be under 14 years old.[268] Employing children (i.e. those under 14) is prohibited although “the law allows a child 12-years-old or older to be employed in such light work as not to endanger his health and development or interfere with his education.”[269]

Adolescents (by this law, those 14 or over, but under 18) may work in factories, but not for longer than 5 hours a day and 30 hours a week.[270] Adolescents must be given proper instruction and training and supervision for work involving machines.[271] Employment of a child or adolescent in contravention of the act is punished with a fine of 5,000 taka ($61).[272]

Bangladesh’s National Child Labour Elimination Policy (2010) commits the government to the elimination of hazardous child labor by 2015. It does not list those jobs considered hazardous for children, although it stresses that work is hazardous if (among other criteria) children are working more than five hours a day, if the work creates pressure on physical or psychological health, or if the child works in an unhealthy environment.[273]