The Uncertain Future of Afghanistan’s Nascent Environmental Laws

Sept. 2, 2021, 8:01 AM

Afghanistan is in turmoil. The abrupt withdrawal of U.S. forces set in motion 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 gains of the past two decades are in ruin.

Amongst the ashes of the former Afghan state may be several recent environmental legal frameworks, such as a 2007 environmental law, a 2009 water law, and a 2014 minerals law. I have 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 solely by the Taliban? Public statements from the Taliban seem to show intent to form an emirate under the Taliban’s extreme version of Islamic or Shari’ah law, which is generally not supported in other Islamic nations.

Shari’ah Law

Shari’ah law refers to a general code for living that all Muslims should follow during their life. It is based mainly on the Islamic text, the Qur’an, and the Sunnah and Hadith (sayings and deeds of the Prophet Muhammad). But Shari’ah is subject to wide interpretation.

Will the extremist Taliban interpretations of Islamic views alone guide a new government on the environment? Or will elements of the 2007 environmental law remain in some form? No one can say at this point. Islamic texts do include many references to environmental care that encourage good stewardship and conservation of natural resources such as from the following Hadith, “Do not withhold the superfluous water, for that will prevent people from grazing their cattle."(Bukhari 40:543).

Afghan Law

Afghan law under the most recent government was a mix of state law, regionally accepted customs, such as Pashtunwali, the law of the Pathan, and religious laws under Shari’ah. In rural Afghanistan, decisions have been made primarily through councils of respected elders called “shuras” or “jirgas”.

Charles H. Norchi, a professor at the University of Maine School of Law, has said that for “centuries, the law of Afghanistan has been more custom than code.” Norchi, who spent time in Afghanistan during the Soviet Union occupation, also wrote that the primary legal source has throughout history been a mix 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 Soviet Union invasion and occupation in 1979, and continues to this day.

One legacy of the Soviet occupation and the conflict that followed is that Afghanistan is one of the most heavily landmined nations on earth. Buried munitions kill an estimated 10 to 12 people each day and destroy countless acres of arable land.

Nearly 80% of Afghans depend upon agriculture and natural resources for their livelihoods and sustenance, so preserving and restoring the environment is not a luxury—it’s critical—and robust laws are, too.

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

Mining Law

A legal framework around mining revenues, which benefits all Afghans, is crucial. The sector has the potential to transform the Afghan economy and the lives of everyday 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, has experienced extreme corruption, and human rights abuses, such as child labor. Even with the 2014 mining law and revisions, the EITI (Extractive Industries Transparency Index), removed Afghanistan in 2019 as it was not meeting requirements for transparency.

Corruption at the highest levels of government has plagued the Afghan mining sector over the past two decades. It has been recently reported that environmentally destructive open-pit mining at a sensitive Buddhist archaeological site in Loghar Province at the Mes Aynak copper mines, which faced tremendous outcry, may be reconsidered by the state-owned Chinese mining operation 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 the 2009 water law sought to integrate traditional customary laws on water (the Mirab system) with a modern framework. Afghan agriculture depends upon a complex system of irrigation based upon the sustainable “Karez” system of sloping underground channels, which dates back 4,500 years and relies on local water guardians called “Mirabs” to resolve any disputes.

Mirabs make decisions based upon a manual dating from the 1400’s, the “Taximot Hakobe Ab”, by Abdul Rahman Jami, particularly in western regions of Afghanistan. It is a detailed instruction manual, containing irrigation designs and calculations for water flows. The Taximot is not in publication; one copy is held by the Ministry of Energy and Water in Herat and most villagers have no access to it making public knowledge of it extremely difficult.

One can only hope that for the people of Afghanistan, a clear and just form of inclusive government and laws that benefit all Afghans are implemented. But there is cause for grave concern considering 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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Elizabeth Hessami is an environmental attorney and a faculty lecturer at Johns Hopkins University. She is also the author of many articles on Afghanistan, Afghan Law, natural resources, and armed conflict. She is a member of the IUCN-World Commission on Environmental Law (Specialty Group on Peace, Security, and Conflict).

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