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WATER POLITICS

Via the Wilson Center’s New Security Beat, an article on Afghanistan’s water crisis and possibility of hydro-diplomacy to help:

“Kabul be zar basha be barf ne!” This ancient proverb—“May Kabul be without gold rather than snow”—refers to snowmelt from the Hindu Kush Mountains, a primary source of Afghanistan’s water supply. To recover from years of armed conflict, Afghanistan needs a stable water supply, but its sources are increasingly stressed by severe droughts. The Norwegian Refugee Council estimates that today, 2 out of 3 provinces are impacted by drought, putting two million people at risk of hunger. Improving the country’s water governance—the social, legal, and administrative systems that guide how water is distributed and used—may help it avoid both internal and regional conflicts by stabilizing its economy and its citizens’ livelihoods.

Reliable water management is a critical factor for any improvements in Afghanistan. As much as 80 percent of the nation depends upon agriculture  for their livelihoods. Water is also needed for the country’s mining sector and for drinking water for its rapidly growing population. Poor rainfall, depleted snow packs, crumbling irrigation infrastructure, and weak water governance further stress water supplies and increase the risk of conflict. How the country handles these disputes could impact its political stability and relations with neighboring nations.

Afghanistan’s 2009 Water Law

Conflicts over water in Afghanistan are often resolved through both formal and informal customary and tribal means. Enacted in 2009, the Afghan Water Law sets forth a complicated permit system to regulate water use. It establishes a river basin management system, involving several ministries, with a strong focus on stakeholder participation. A 2015 UN study found that even though the Water Law creates a detailed regulatory scheme, it has not yet been fully implemented throughout the nation. Most farmers still prefer to depend on the tribal/customary laws, which are administered through local village water masters (Mirabs) who still command a great deal of respect.

The 2009 Water Law gives deference to Afghan traditional law and the “praiseworthy customs and traditions of the people.” However, some experts criticize the Water Law for deferring too much to customary law, which is undefined, not clearly codified, nor subject to judicial review. One major challenge to implementing formal law is the general distrust of the judiciary in Afghanistan. Some farmers in remote provinces feel its capacity is limited. The local Mirab—who is usually a fellow villager—may be more familiar and trustworthy than a judge. However, Mirabs have limited enforcement mechanisms, and are vulnerable to corruption and intimidation. Some villagers complain that Mirabs are simply not able to stand up to powerful actors like local warlords.

Managing Water: Afghanistan’s Traditional Mirab System

Like the nation itself, Afghanistan’s water governance structure is a complex, but fascinating, mix of ancient tribal laws, Islamic laws, and modern jurisprudence. Traditionally, communities have maintained local irrigation systems. As the snow packs melt in the spring, the villagers meet with their Mirab to discuss irrigation plans and issues.

The village Mirab is a usually a key actor in resolving local water disputes between farmers or entire communities. The local Mirab is elected by the local council or Shuraand is usually paid by local landowners. While the system may vary slightly between provinces, most of the time the Mirab acts in conjunction with local farmers (and sometimes with a regional government or law enforcement representative) to determine water rights. While the Mirab’s decisions are usually respected, sometimes Mirabs face intimidation and abuse in retaliation for their decisions. Without strong support from local government or police, Mirabs have no means to enforce their decisions.

In some instances, these decisions are based on tribal customs estimated to be more than 4,000 years old. A 15^th century text known as the Taximot Hakobe Ab, by Abdul Rahman Jami, is still used by Mirabs in western regions today. 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. How, then, can decisions that rest upon this text be reviewed?

A Spider Web of Custom, Corruption, and Conflict

Due to the years of war and unrest, Afghanistan has not been able to fully utilize its water supplies.  As it begins to repair its irrigation infrastructure and construct dams, tensions are flaring with neighboring countries, such as Iran, that share common waters. Afghanistan lacks effective hydrodiplomacy treaties with its neighbors, aside from a disputed agreement with Iran. As tensions rise, could Mirabs be vulnerable to bribery and corruption, particularly since it is almost impossible to verify the laws they use and they are not subject to judicial review?

How effective is this spider web of custom, tradition, and recent jurisprudence in a nation experiencing extended conflict? As water grows increasingly scarce, it is bound to be used as a weapon. Recently, in the southern province of Uruzgan, fighters loyal to the Taliban allegedly blocked the flow of water to farmers’ lands as a tool to force compliance with their demands. Where the Taliban blocked water flows, farmers incurred great economic losses. In the past, conflicts like these have escalated into regional inter-province disputes.

To Avoid Conflict, Use Hydrodiplomacy

Going forward, the Afghan government could take several steps to encourage better water governance. First, it should fully implement the Water Law in all basins and establish the relevant councils outlined in the law. Enforcing compensation or other remedies when crops are damaged and ensuring a process with some oversight from the judiciary would also instill more confidence.

Depending upon an ancient system of customary law may be more functional, but it lacks codification, transparency, enforcement mechanisms, and formal review. Distributing copies of the Taximot Hakobe Ab widely could improve people’s understanding of the customary laws. However, attempting to implement a more centralized system of water management without including Mirabs could cause significant disruption, especially in the provinces.

Increasing the reach of the formal judiciary would improve the situation. Drafting clear treaties with neighboring countries and updating the existing treaty with Iran could advance better hydrodiplomacy in the region and help stave off internal and external conflict as water resources grow increasingly scarce. Developing an effective and transparent legal framework for water governance—one that is organic and fits the country’s unique needs—is an important step on the nation’s path towards self-reliance.