The uncertain future of nascent environmental laws in Afghanistan

Afghanistan is in turmoil. The abrupt withdrawal of US forces triggered by a deal between former President Trump and the Taliban, and executed in recent months by President Biden has caused chaos on many fronts. Many societal achievements of the past two decades are in ruins.

Among the ashes of the old Afghan state may be several recent environmental legal frameworks, such as a 2007 environment law, a 2009 water law and a 2014 minerals law. J ‘ve spent several years studying the development and implementation of these laws.

There is not yet a clear picture of what the new government and legal structure will be in Afghanistan – will there be an inclusive government? Will it be controlled only by the Taliban? Public statements by the Taliban seem to show their intention to form an emirate under the Taliban’s extreme version of Islamic law or Sharia, which is not generally supported in other Islamic countries.

sharia law

Sharia refers to a general code of life that all Muslims must follow during their lifetime. It is based mainly on the Islamic text, the Koran, the Sunnah and the Hadiths (words and deeds of the Prophet Muhammad). But Sharia is subject to wide interpretation.

Will extremist Taliban interpretations of Islamic views alone guide a new government on the environment? Or will elements of the 2007 environmental law remain in one form or another? No one can tell at this point. Islamic texts include many references to environmental protection that encourage good management and conservation of natural resources, as in the following hadith: “Do not withhold superfluous water, as this will prevent people from grazing their livestock.” (Bukhari 40:543).

Afghan law

Afghan law under the most recent government was a mix of state laws, regionally accepted customs, such as Pashtunwali, Pathan law, and religious laws under Sharia. In rural Afghanistan, decisions were made primarily by councils of respected elders called ‘shuras’ or ‘jirgas’.

Charles H. Norchi, a professor at the University of Maine School of Law, said that for “centuries, Afghan law has been more customary than coded.” Norchi, who spent time in Afghanistan during the occupation of the Soviet Union, also wrote that the primary source of law throughout history has been a mixture of tribal customs and beliefs and religious laws.

Afghanistan’s environment must be protected

Afghanistan’s environment has been devastated by armed conflict, which began in 1978, just before the invasion and occupation of the Soviet Union in 1979, and continues to this day.

One of the legacies of the Soviet occupation and subsequent conflict is that Afghanistan is one of the most heavily mined countries. nations on earth. Buried ordnance kills around 10-12 people every day and destroys countless acres of arable land.

Nearly 80% of Afghans depend on agriculture and natural resources for their sustenance and sustenance. Preservation and restoration of the environment is therefore not a luxury, it is essential, and strict laws are too.

After the fall of the Taliban in 2001, Afghanistan’s environmental institutions and legal frameworks were virtually non-existent. These institutions had to be built from scratch through partnerships with international organizations, such as UNEP (United Nations Environment Programme), at the request of Prince Mostapha Zaher, grandson of the last king of Afghanistan, Mohammad Zahir Shar.

Mining law

A legal framework around mining revenues that benefits all Afghans is crucial. The sector has the potential to transform the Afghan economy and the daily lives of Afghans. Afghanistan is rich in rare earth minerals, oil and gas, marble, talc, gemstones and many other natural resources.

But the sector has lacked transparency, experienced extreme corruption and human rights abuses, such as child labor. Even with the 2014 mining law and its revisions, the EITI (Extractive Industries Transparency Index) removed Afghanistan in 2019 because it did not meet transparency requirements.

Corruption at the highest levels of government has plagued Afghanistan’s mining sector for the past two decades. It was recently reported that environmentally destructive surface mining at a sensitive Buddhist archaeological site in Loghar province at the Mes Aynak copper mines, which has been the subject of a huge outcry, could be reconsidered by Chinese mining MCC Group. There are currently no clear mining regulations in place to safeguard ancient Buddhist cultural heritage, human rights or the environment.

Water Laws – Ancient and Modern

A 2004 Afghan Irrigation Policy and 2009 Water Law sought to integrate traditional customary water laws (the Mirab system) into a modern framework. Afghan agriculture depends on a complex system of irrigation based on the sustainable “Karez” system of sloping underground canals, which dates back 4,500 years and relies on local water guardians called “Mirabs” to resolve disputes.

The Mirabs make decisions based on a manual dating back to the 1400s, the “Taximot Hakobe Ab”, by Abdul Rahman Jami, especially in the western regions of Afghanistan. This is a detailed instruction manual, containing irrigation designs and calculations for water flow rates. The Taximot is not published; a copy is held by the Ministry of Energy and Water in Herat and most villagers do not have access to it, making public knowledge of it extremely difficult.

One can only hope that for the Afghan people, a clear and just form of inclusive government and laws that benefit all Afghans are implemented. But there is cause for serious concern given the history of the Taliban in Afghanistan.

This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.

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Author Information

Elisabeth Hessami is an environmental lawyer and a lecturer at Johns Hopkins University. She is also the author of numerous articles on Afghanistan, Afghan law, natural resources and armed conflict. She is a member of the IUCN World Commission on Environmental Law (Specialized Group on Peace, Security and Conflict).