Afghanistan

Afghanistan continues to struggle to overcome decades of war and civil strife. Its political context remains complex and dominated by the Taliban insurgency, narcotics production, weak governance and incomplete rule of law. After more than fifteen years of state building Afghanistan remains a fragile state. Population displacement within and outside of Afghanistan, internal land use conflicts, changes in national political and economic ideologies, weak natural resource governance, variable climatic conditions (including drought), climate changes and land grabbing have resulted in a complex and unsettled land ownership and management situation. Land rights are perceived to be highly insecure and disputes are widespread. This instability undermines prospects for the greater investment needed to increase agricultural productivity, sustainably manage natural resources and enhance economic recovery in both rural and urban areas. It also increases the vulnerability of millions of Afghan households, especially women and children, to poverty and exploitation.

Since the Bonn Agreement in 2001, the Government of the Islamic Republic of Afghanistan (GIRoA), with assistance from the international community, has worked to: (1) restart economic growth, especially in the agricultural sector and through the rehabilitation of irrigable land; (2) develop local institutions capable of meeting the population’s health and education needs; and (3) strengthen land tenure security through improvements to the legal framework, the implementation of a country-wide land survey, mapping and registration system, and the regularization of land rights in informal settlements. But economic growth and political stability will not be achieved unless and until the GIRoA removes constraints on access to land (especially urban and irrigated agricultural land), provides functional mechanisms to resolve disputes among competing claimants and provides tenure security to owners, lessees and all of those along the continuum of land rights holders in Afghanistan.

A new Constitution enacted in 2004 sought to establish a legal framework for property rights that safeguards the right of individuals to own property. The 2007 Land Policy addressed bottlenecks in land rights administration and the overlapping authority of institutions and was followed by the 2008 Law on Managing Land Affairs, which lays out principles of land classification and documentation, governs settlement of land-rights disputes and encourages commercial investment in state-owned agricultural land with opportunities for long leases. The strategic vision for the Afghanistan Independent Land Authority (ARAZI) is to provide a balanced approach between (a) pro-poor land administration services in support of individual and collective tenure security through land registration, and (b) land allocation and the provision of land to support private sector investment in infrastructure, natural resources, agriculture and industry. The Ministry of Justice, however, estimates that 90 percent of Afghans continue to rely on customary law and local dispute-resolution mechanisms. Local customary systems are stressed by the need to manage the layers of competing interests: populations have moved to urban areas to avoid conflict and seek livelihoods, and populations displaced by earlier conflicts have made efforts to reclaim both rural and urban properties.

Afghanistan’s development depends to a large extent on the efficient use of its land resources. Demand for agriculture land and for commercial development is high. Natural resources (including extractives) and agriculture are the main sectors with the potential to drive the required growth. However, water is scarce and decayed infrastructure systems remain key challenges for the country. The discovery of extensive mineral resources will put more pressure on the land sector. Mineral resources increase the value of land, intensifying the need to resolve competing claims, to secure land rights for local populations (paying particular attention to protecting the rights of the most marginalized members of communities) and to protect against potential negative impacts, such as large-scale land transactions without local involvement.

There is a strengthening global trend towards improved governance of land tenure, as reflected in the adoption and dissemination of the United Nations’ Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (VGGT). It is critical that Afghanistan develops an effective and transparent land, governance, administration and management system with the capacity to respond to all users’ needs in ways that provide a stable, secure, land and property rights system for citizens and potential investors in ways that preserve and protect the country’s natural resources.

The international community continues to reaffirm its support to the Government of Afghanistan. At the NATO Warsaw Summit in July 2016, development partners pledged 4.5 billion USD per year in security grants for the next four years, while at the Brussels Conference on Afghanistan in October 2016, the international community pledged 3.8 billion USD per year in civilian donor grants for the same period. The sustained high levels of support indicate broad confidence amongst the international community in Afghanistan’s development prospects and in the significant progress the Government has made towards achieving reforms. At the same time, the goals of land policy, findings from the recently completed Land Governance Assessment Framework (LGAF), and substantial efforts by the country’s leading independent land authority, ARAZI, indicate several actionable steps to advance a stable land rights system in Afghanistan.

Afghanistan is a country under pressure. Fourteen million Afghans, nearly half the population, are extremely poor or vulnerable to extreme poverty. More than 80 percent of the population and nearly 90 percent of the poor live in rural areas, and agriculture plays an important role in their livelihoods. The country’s farmland, pastures, forests and water resources have suffered from successive years of extreme drought and extended conflict. Poppy production is on the rise. Cities have expanded rapidly over the past decade without effective spatial plans and with limited access to formal land and housing. The result has been informal, low-density sprawl, increasing socio-spatial inequality and significant infrastructure deficiencies. Approximately one-third of Afghans live in five city regions: Kabul, Jalalabad, Mazar-i-Sharif, Herat and Khandahar, as well as 28 strategic district municipalities, making these regions crucial for social, economic and territorial transformation. More than half of the returning refugees are unable to return to their place of origin because they have no land or their land has been taken in their absence. In many areas, displacement and disintegration now characterize a society that had historically been defined by networks of reciprocity that guaranteed individual security and social support. Widows, female-headed households and nomadic communities are the most vulnerable.

Development of a legal, land administration and institutional framework to secure and enhance tenure security has been underway over the past 15 years. While statutory laws and institutions seek to improve state land rights, support for private and customary land rights is less robust in formal law. Islamic law (Shari’a) and customary law dominate land relations in Afghanistan; the Civil Code recognizes the application of customary law with regard to land rights. Further legal reforms are required to harmonize law with the 2007 National Land Policy, provide for increased land tenure, identify the varying types of land holdings and tenure arrangements, address land grabbing and support land management at the local levels. Amendments to the Law on Managing Land Affairs have been proposed and include provisions to fight corruption and enable inclusion of customary documents as proof of ownership. These efforts are, to a degree, hampered by a tenure system that is complex and opaque, and the long period of war and political instability has further complicated the land tenure system. Land rights for Afghan citizens in both urban and rural areas remain insecure, especially for women despite helpful Shari’a law and the country’s Constitution, especially as regards inheritance and more formalized land rights respectively. The structural issues underpinning women’s lack of land access and land tenure insecurity include: illiteracy; low female employment; a weak and ineffective judicial system to enforce land laws; absence of awareness of laws; lack of physical access to legal documents; and prohibitive law enforcement mechanisms.

Land administration in Afghanistan is complex, involving many formal (statutory) institutions and governance structures, as well a variety of informal (non-statutory) institutions especially those that are involved in the resolution of land issues and disputes. In general, the current institutional framework for land management and administration is not considered inclusive or pro-poor, despite some government efforts. Outdated systems, overlapping responsibilities, lack of capacity at local levels, conflicting systems for land ownership and uncertain or incomplete legal frameworks, compounded by decades of conflict and widespread displacement have resulted in competing claims to land. ARAZI, the country’s leading independent land authority, is tasked with maintaining records with respect to all land, both public and state, including maps, surveys, ownership records and land transactions and has been working earnestly to improve land administration. Despite these legal and policy advances, serious practical challenges remain to administering and managing land in Afghanistan. Land grabbing, or “land usurpation,” and concomitant informal development in both the urban and rural sectors by returnees, armed actors and powerful elites, remain largely unaddressed. Returnees from neighboring countries continue, with more than half a million crossing from Pakistan alone in 2016, after decades out of the country. However protracted conflict, extended periods of drought and deterioration of the rural economy have undermined Afghanistan’s historically strong centralized institutions and allowed for the rise of regional power structures, some of which are extra-legal.

Legal and land administration institutions lack both the capacity and the authority to manage land and natural resources. For example, the country has ample water resources if effectively conserved, but the capacity to store, use and manage them is weak. However, the Government has taken important steps in improving water management. It has acknowledged that access to water is a right of the people and the Afghanistan National Development Strategy (ANDS) identifies water infrastructure as one of the key priorities. Afghanistan’s forests are seriously threatened despite their essential use for households for wood for fuel and construction, land for cultivation and grazing livestock and forest products such as nuts, tubers, fodder and fibers. Timber is in high demand on the international market and in neighboring Pakistan. Although commercial timber harvesting is illegal in Afghanistan, a systematic smuggling industry exists. Uncontrolled logging, urban encroachment and ineffective forest management have decimated Afghanistan’s forests. Tree coverage declined by almost 3 percent per year between 2000 and 2005. If current trends continue, all forests are likely to disappear in the next 30 years. The implications for deforestation and severe climate change are grave; drought is likely to be regarded as the norm by 2030, rather than as a temporary or cyclical event. Whereas water and forests are scarce resources, Afghanistan has abundant mineral resources, though most have not been successfully explored or developed.

At least 24 potentially world-class mineral deposits have been identified as “Areas of Interest,” which represent both the mineral and its geographic location. The Afghan Ministry of Mines and Petroleum (MoMP) has indicated that the annual income through mining could reach as high as 3.5 billion USD, covering 77 percent of the total core budget of the Afghan government. Despite the potential in the sector, it remains undeveloped due to poor access, lack of energy and water, which is needed in mining operations, weak governance and insecurity. The government has sought to sustainably exploit its mineral resources and became a candidate for the Extractive Industries Transparency Initiative (EITI) in 2009.

In much of the country, local elites, warlords and political factions control land and natural resources through a combination of physical force and customary legal regimes that reflect deeply entrenched power structures. Afghanistan’s population faces constraints on access to land, insecurity of tenure and the depletion of natural resources. The resurgence of the Taliban, continued conflict and growth of the opium poppy industry have created barriers to development. In many cases, reconstruction and development are taking place in a conflict-management context as opposed to a post-conflict setting.

Afghans have been enduring the adverse consequences of forced displacement for decades, with Afghanistan having the largest number of its people living as refugees in protracted exile of any country in the world. It is estimated that 2.5 million registered Afghan refugees remain in neighboring countries, with possibly an equal number of undocumented migrants with similar protection needs in Iran and Pakistan. Internal displacement is also significant problem, with an estimated 1.2 million internally displaced persons (IDPs) in need of humanitarian assistance. The return of displaced people has been unevenly spread in terms of time and location, creating disproportionately large challenges to the absorption capacities of some districts and provinces. While the local impact of a massive influx of refugees on particular areas and their capacity to reintegrate these refugees depends on a range of factors, there is a real risk that shocks resulting from the influx have increased competition for resources or exacerbated pre-existing causes of conflict.

LAND USE

There are 65 million hectares of land in Afghanistan, of which: 7.8 million hectares are agriculture lands; 30 million hectares are pastures; 8 million hectares are desert; 1.9 million hectares are forests; and 17.5 million hectares are mountains, rivers shores and rocky areas. According to ARAZI, less than 30 percent of properties in urban areas and 10 percent of properties in rural areas have been registered by official institutions of the state. More than 80 percent of the population and nearly 90 percent of the poor live in rural areas, and agriculture plays an important role in their livelihoods. Uses within agricultural lands are spatially diverse, ranging from intensive irrigated crop systems, in which farmers practice multiple cropping, to extensive livestock systems in dryland areas, to illicit opium poppy production. Opium production remains a significant feature of agricultural land use. The total area under opium poppy cultivation in Afghanistan was estimated at 201,000 hectares in 2016, a 10 percent increase from the previous year. Strong increases were observed in the Northern region and in Badghis province where the security situation has deteriorated since 2015. Ninety-three percent of opium poppy cultivation takes place in the Southern, Eastern and Western regions of the country (ARAZI 2014; World Bank 2014; UNODC 2016).

Kabul houses approximately 41 percent of the urban population. Kabul and the four regional hubs of Herat, Mazar-i-Sharif, Kandahar and Jalalabad are home to 69 percent of the total urban population. Cities have expanded rapidly over the past decade without effective spatial plans and limited access to formal land and housing. The result has been: informal, low-density sprawl; increasing socio-spatial inequality; and significant infrastructure deficiencies. Many of Afghanistan’s urban challenges have a clear land use dimension, including land grabbing, inefficient use of land, tenure insecurity in informal settlements (70 percent of dwelling stock), limited access to well-located land for housing by middle- and low-income households, insufficient land for economic activity and undeveloped land-based financing for local service delivery (GIRoA 2015b; GIRoA 2014b; Popal 2014).

In both rural and urban areas, over twenty years of civil conflict have left Afghanistan heavily contaminated with land mines and unexploded ordinances (UXO’s). A 2012 study by the Mine Action Coordination Center of Afghanistan further estimates that there are 5,489 hazardous areas remaining in Afghanistan, affecting 563 sq. km and 1,847 communities (MACCA 2012; GICHD 2012).

LAND DISTRIBUTION

Afghanistan’s total land area is about 652,090 square kilometers. The population is estimated at 34 million people. Of the 78 percent of the population that lives in rural areas, roughly 20 percent are classified as nomadic. Agricultural land accounts for 58 percent of the total land area, but only 12 percent is useable farmland, with the balance pasture land, which supports the country’s large nomadic and semi- nomadic population and its livestock. Forests make up 1.3 percent of the country’s total land area. Deforestation is occurring at a rate of 3 percent per year. Roughly 0.3 percent of the total land area is designated as protected.

Afghanistan has more than 40 ethnic groups, the largest of which is the Pashtun (53 percent of the population), generally residing in the eastern and southern regions. The Tajiks in the northeast (17 percent) and Turkic groups in the northern plains (20 percent) are the second- and third-largest groups (ADB 2014; World Bank 2014).

Unequal land distribution has a deep history; successive governments in Afghanistan have adopted land allocation policies as a means of rewarding patrons and consolidating power. Recent efforts to address continued inequities in landholdings began in 1978 when the communist government initiated new land reforms that reduced the ceiling for land holdings, allowed the state to seize excess land without paying compensation and provided for free distribution of land to landless and poor households. Decades later, to counter the continued widespread distribution of public lands the Government issued Decree 99 in April 2002 to freeze distribution of public land. Despite these efforts, land continues to be illegally occupied or controlled by powerful interests (Gebremedhin 2007).

Distribution of land holdings in the agricultural sector, which accounts for 90 percent of the country’s manufacturing vis à vis agro-processing, employs 60 percent of the total Afghan workforce, and generates 25 percent of GDP, is especially problematic. Sixty percent of agricultural holdings are less than one hectare and represent 22 percent of croplands meaning that land fragmentation has implications for both demand for land for agricultural expansion and the risk of lower land ceilings for those who rely on land for food security and livelihoods (Alden Wiley 2003; Gebremedhin 2007; Afghanistan Reconstruction Trust Fund 2017).

Approximately one-third of Afghans live in five city regions: Kabul, Jalalabad, Mazar-i-Sharif, Herat and Khandahar, as well as 28 strategic district municipalities, making these regions crucial for social, economic and territorial transformation. On average, 46 percent of total land area within the city regions is agricultural land, of which approximately 81 percent is irrigated for agriculture, reaffirming the relatively stable and central role of agriculture in these regions. Industrial land use comprises only 3 percent of built-up area. Within built-up areas, 40 percent of this land is residential. Most residential areas are irregular or informal housing developments. Socio-spatial exclusion and inequality are pervasive in all city regions. Living conditions are poor and those who are internally displaced are not integrated within the cities. For example, in the Herat city region, over 25,000 people are living in protracted displacement situations, without formal recognition of land or housing rights, despite the fact there is sufficient land, which is estimated to total more than 66,000 hectares of land within the five city regions (GIRoA 2016b; UNAMA 2015; World Bank 2017).

During the past 15 years more than five million Afghan refugees have returned to their country, to both urban and rural areas. Most of the repatriates have not been able to return to their own homes due to insecurity. The government of Afghanistan has built townships in, for example, the eastern Nangarhar and Herat provinces and has provided ownership documents of residential plots to tens of thousands of returnees. However, many returnees assert that they have not yet received their designated land plots and the government-built townships lack essential services. Land usurpation, or land grabbing, by powerful individuals in these townships is widespread. Reports of land allocations to political and economic elites suggest that state land distribution in Afghanistan continues to be employed to reward patronage, solidify political loyalty and exercise and control power (GIRoA 2012c; LandAc 2016; Barshodost et al 2017).

It is important to note the de facto land distribution that has occurred in the country. The chaotic political scenarios of the 1990s dominated by the mujaheddin and Taliban led many wealthier farmers to leave their lands during the various episodes of the war, trusting their land to relatives or simply abandoning it. Individual militia commanders have accumulated lands informally in a context of lawlessness prevailing in many parts of the country right after the demise of the Taliban. Finally, swift accumulation of wealth through poppy cultivation and opium trade is believed have led to some re- concentration of lands (Maletta 2007).

The objective of current state land distribution efforts is to ensure sufficient and fair designation and distribution of state lands for infrastructure, state revenue-producing projects, agriculture and commercial activities, residential needs in urban areas and humanitarian requirements for adequate shelter including vulnerable populations such as IDPs and returnees. A combination of weak legislation, ill-considered resettlement schemes, strong ethnic and tribal ties and de facto enduring systems of customary tenure have limited distribution reforms’ intended impact. Specifically, a lack of overarching and integrated national policy on state land distribution, a lack of transparency and oversight by the institutions and government officials involved in land distribution, ineffective subnational governance, and limited desirable land (i.e., land that is fertile proximate to roads, infrastructure and economic opportunity) in urban, peri-urban areas, has constrained legitimate state efforts (Gaston and Dang 2015; UNAMA 2015; World Bank 2016b).

LEGAL FRAMEWORK

The Afghanistan Constitution, passed in 2004, authorizes personal land ownership (except by foreigners) and protects land from state seizure unless the seizure is to secure a public interest and the owner is provided with prior and just compensation. In addition, the Constitution mandates land and housing distributions under certain conditions. The Law on Managing Land Affairs (LML) of 2008 sets forth the basic framework for land administration and management in Afghanistan. The LML sets out definitions for various land types and classifications, requirements for land deeds and principles governing: allocations of state land; land leasing; land expropriation; settlement of land rights and restoration of lands; pastureland management; and civil and criminal penalties for land usurpation. The law recognizes Shari’a and defers to applicable principles of Shari’a in some areas. Issues that are not covered by the LML are governed by the country’s Civil Code, which in large measure reflects the Hanafi school of Shari’a. Customary law dominates land relations in Afghanistan and the Civil Code recognizes the application of customary law with regard to land rights. Customary law is in large measure consistent with Shari’a, and Shari’a permits the practice of customary law so long as it does not interfere with tenets of Islam. Customary law systems vary but share the following characteristics: use of customary village councils (known in Dari as shura, or jirga in Pashtu) that employ mediation and arbitration techniques of dispute resolution; the application of principles of apology and forgiveness; and the concept of restorative justice (GIRoA 2004; GIRoA 2008; GIRoA 1977).

In urban areas, the Municipality Law of 2000 contains provisions applicable to regulating and governing land within municipalities. ARAZI has responsibility for urban land management and administration by as set forth in the provisions of the LML (UN Habitat 2015; GIRoA 2000b).

While statutory laws and institutions seek to secure state land rights, support for private and customary land ownership rights is less robust in formal law. The current land framework fails to sufficiently address and balance private ownership rights with the state’s need to obtain and access land for infrastructure and revenue-producing projects, such as mining. Expert reports have discussed the need to reform the LML to reflect the vision and mandate establishment of the newly independent ARAZI, harmonize law with the 2007 National Land Policy, provide for increased land tenure, identify the varying types of land holdings and tenure arrangements, address land grabbing and support land management at the local levels. Amendments to the LML have been proposed and include: provisions to fight corruption; inclusion of customary documents as proof of ownership, which can then be treated as formal land ownership; and streamlined land leasing processes (UNAMA 2014; Alden Wiley 2012; ARAZI 2012).

TENURE TYPES

There are three categories of land with accompanying methods to transfer. These include:

1. Private Land—Land individually held without title, with a non-recognized title or with state formal title, as well as collectively held land without or with customary title or with documentation issued by previous government regimes. Transfer of private land can occur through sale, inheritance or compulsory land acquisition.
2. Public Land—These lands include pastures (allocated for public use), forests, graveyards, roads, green areas, playgrounds; schools, universities, and hospitals. Public land is essentially state-owned land with a purpose designated by government Ministries or municipalities. These lands cannot be sold, leased, transferred or exchanged without a compelling case for reuse or repurpose.
3. State Land—Includes forests, protected land, arid and virgin land (registered as state land and any land that is deemed public but is not registered in the book of government lands). Only arid and virgin land can be leased or sold provided certain conditions (Land Act 2016).

RESOURCE QUANTITY, QUALITY, USE AND DISTRIBUTION

Agriculture is one of the country’s main economic drivers with estimates that up to 80 percent of its people derive their livelihoods from the sector. Despite its importance, water scarcity and decayed infrastructure systems remain key challenges for the country, even with relatively abundant of water resources. Afghanistan lies within the heart of one of one of the region’s largest freshwater regions, the Hindu Kush Himalayan regions. Its major river systems are the Amu Darya, the Helmand, the Harirud and the Kabul. Only the Kabul River, joining the Indus system in Pakistan, leads to the sea. All four rivers cross international boundaries. These water resources are unequally distributed. The Amu Darya Basin, including the Harirud and Murghab Basin and non-drainage areas, covers about 37 percent of Afghanistan’s territory and contains about 60 percent of the water flow. It is one of the longest rivers in Central Asia and forms part of the country’s borders with Tajikistan, Uzbekistan and Turkmenistan. The Harirud-Murghab represents about 12 percent of Afghanistan’s water resources and is centered in Herat, an intensely irrigated region of Afghanistan. The river flows through Iran, ending in Turkmenistan, and acts as a border between Afghanistan and Iran and further between Iran and Turkmenistan. The Helmand River Basin forms the Afghan-Iranian border for 55 kilometers and water is used primarily for irrigation. The Kabul River flows through Afghanistan and Pakistan and represents approximately 26 percent of the available water resources in Afghanistan. Annual precipitation is robust at 165,000 million cubic meters and there is adequate water flow due headwaters in its high mountains (Reigart and Wegerich 2010; Schroeder and Ure 2015; Yildiz 2017).

The country, however, lacks the capacity to store, use and manage those water flows and ranks among the weakest in the world in storage capacity. Drinking water supply and water for irrigation is the priority for the Afghanistan government, but the challenge of obtaining safe and reliable supplies of water in Afghanistan is heightened by the fact that water-resources data collection was suspended around 1980 due to war, conflict and the Soviet invasion. Subsequently, much of the institutional knowledge relating to water resources was lost and most of the country’s water monitoring equipment was destroyed, resulting in a dearth of technical capacity, infrastructure and modern equipment necessary for effective hydro-geologic investigation of potential water resources. Meanwhile, scientists estimate that the need for water in the Kabul Basin will increase by six-fold over the next 50 years, as levels of available water decline due to increasing temperatures and climate change. Only 27 percent of the country’s population has access to improved water sources and it goes down to 20 percent in rural areas, which is among the lowest percentage in the world. The percentage of people with access to improved sanitation facilities is at 5 percent nationwide and only 1 percent in rural areas. In Kabul, 80 percent of the people lack access to safe drinking water and 95 percent lack access to improved sanitation facilities (Yildiz 2017; Hessami2017; Duran 2015).

RESOURCE QUANTITY, QUALITY, USE AND DISTRIBUTION

Afghanistan’s forest area comprises 2.1 percent of total land area. Forest types include evergreen coniferous forests covering approximately 1.3 m hectares of land, the largest collections of which are located in Dewagal Valley, Kunar, Nuristan, Paktia, Khost and Paktica Provinces. Evergreen fleecy leaf forests are found extensively throughout the country. Broad leaved deciduous forests and other broad-leaved forests are found scattered throughout the country. Man-made forests, mostly poplar and willow, comprise 70,000 hectares of land. The government has recognized four natural sites as areas requiring special attention—Band-e-Amir National Park, Big Pamir Wildlife Reserve, Teggermansu Wildlife Reserve and the Wakhan Conservation Area. In 2009, the country’s first national park, Band-e-Amir, was established. To have an impact on biodiversity, the size of protected area size will need to be increased and measures put in place to ensure sustainability (Cropwatch, ND; World Bank 2015; UNDP 2017).

RESOURCE QUANTITY, QUALITY, USE AND DISTRIBUTION

Although Afghanistan has abundant mineral resources, most have not been successfully explored or developed. The most recent and modern sector analyses were undertaken through joint geologic activities from 2009 to 2011 between the U.S. Geological Survey (USGS), the U.S. Department of Defense Task Force for Business and Stability Operations (TFBSO), the then Ministry of Mines, which is now the Ministry of Mines and Petroleum (MoMP), and Afghanistan Geological Survey (AGS). The country possesses a wide range of mineral resources, including: base and precious metals; construction minerals; nonmetallic minerals; oil and gas; precious and semiprecious stones; and rare-earth elements. Critical industrial metals such as lithium are also present. Precise mineral production data are not readily available due to 1) numerous undocumented artisanal and small- to medium-scale mining operations throughout Afghanistan and 2) limited access to the mines to verify reported data because of the security situation. In general, large-scale mining is undertaken for chromium, copper, gold, iron, steel, iron and marble. Mineral resources as chromite, coal, gypsum, lime, marble, natural gas, salt and talc continue to be exploited through artisanal and small- to medium-scale mining (Choi 2014; GIRoA 2012; Peters et al. 2013; USGS 2013).

Untapped mineral resources are estimated to be worth more than 1 trillion US dollars, though the figure is disputed to be either higher or lower, depending upon the source. The potential for at least 24 world-class mineral deposits have been identified as “Areas of Interest,” which represent both the mineral and its geographic location. For example, these areas include Badakshan (gold), Balkhab (copper), Haji-Gak (iron), Northern Aynak (copper, cobalt and chromite), Zarkashan (copper and gold), Kundalan (copper and gold), Khanneshin (carbonatite) and Dusar-Shaida (copper and tin). Mineral resources in general are located along two corridors: The first runs from Herat in the far west to Badakhshan in the northeast and contains significant deposits of iron, gold, copper, barite, coal and gemstones. The second corridor, the southern extension of the Tethyan Eurasian Mineral Belt (TEMB), covers a thin strip of southern Afghanistan and extends north-east through Helmand, Kandahar, Zabol and Ghazni provinces. This belt contains numerous copper, gold, molybdenum, zinc, lead and chromite deposits. Many mineral resources are also located near the north-east border of Pakistan (The Telegraph, 2010; World Bank 2016; GIRoA 2012).

The Afghan Ministry of Mines and Petroleum has indicated that the annual income through mining could reach as high 3.5 billion USD, covering 77 percent of the total core budget of the Afghan government. However, despite the potential in the sector, it remains undeveloped due to poor access, lack of energy and water, which is needed in mining operations, and the challenges of having such a diversity of mineral resources that require different exploration approaches, mining and metallurgical techniques (Loewenstein 2014).

One of the biggest challenges, however, is security. War and neglect have led to underproduction of mineral resources, unlicensed operations and smuggling, and untapped energy resources. Unexploded ordnance and land mines in mineral-producing areas have deterred development. Along the border of Pakistan, warlords and local elites have taken control of and expanded mineral operations. Thus, illegal mining is rampant throughout Afghanistan, with more than 2,000 such sites raising money for the insurgency. There is massive mineral theft by the Taliban, particularly in Logar Province. According to MoMP, many of these resources are smuggled out of the country, which is affecting the country’s economic growth and stability (Peters et al 2014; USGS 2013; World Bank 2016).

In the context of declining aid, the extractives sector is the country’s primary focus to increase government revenue and to generate foreign exchange income. Public investments required to mobilize the mining sector would cost around 350 million USD per year (World Bank 2016).

LEGAL FRAMEWORK

Under the Constitution, Afghanistan’s underground minerals belong to the State. The most recent Mineral Law, adopted in 2014, governs the ownership, control, prospecting, exploration, exploitation, extraction, marketing, sale and export of minerals on the territory of Afghanistan. Previous versions of the law have been amended many times, but these amendments have not served to stabilize the sector. Consistent with the Constitution, the Mineral Law provides that all deposits of minerals on or under Afghanistan or in its watercourses are the exclusive property of the State. A surface land interest does not include rights to minerals. The Ministry of Mines and Petroleum (MoMP) is authorized to grant mineral rights in accordance with the provisions of the law. The Mineral Law refers many key issues foresolution by other, largely undrafted regulations, thereby providing ample space for corrupt actors to abuse the system. The Income Tax Law of 2009, Environment Law and Investment Law regulate different aspects of the manning sector as well (GIRoA 2014; Paiman 2017).

In principle, legal mining activities can occur only under a contract issued on behalf of the state by the MoMP. Royalties are negotiated separately for each contract and are specified in the contract, though some broad guidelines for different minerals are in place. In addition, mining enterprises, like other businesses, are required to pay tax on their profits, in accordance with the country’s income tax law.

However, the Mineral Law does not clearly delineate the amount of royalties to be paid, leaving this issue to be dealt with in subsequent law. The Mineral Law and the Environment Law require mining companies to conduct a social and environment impact studies before beginning extraction. Perceived deficiencies in the legal framework have been noted, including the absence of transparency in the bidding process and allocation of licenses, enforcement of requirements and terms contracts and clear penalties for violations of the Mineral Law (GIRoA 2014; Hart Group 2017).

A new set of amendments to the 2014 Law have been advocated for and proposed as of 2017. These amendments seek to stabilize and increase transparency within the sector and include: publication of project-level payment and production figures; a public register of extractive sector companies; enhanced controls on owners; provision for local employment in mining projects; mechanisms to improve community monitoring of mining projects such transparency in ownership, royalties and financial information (Integrity Watch Afghanistan 2017).

TENURE ISSUES

Under the Mineral Law, MoMP can grant mineral rights to individuals and entities who are Afghanistan citizens or citizens of foreign countries legally entitled to reside or do business in Afghanistan. By law, high-ranking state officials, magistrates, lawyers, members of the armed forces, police and other public employees cannot hold mineral rights. In fact, mining companies that obtain contracts tend to be owned by politically connected persons, including, in many cases, members of the Afghan parliament (MPs), their family members, their associates and power holders with access to armed groups and their networks (GIRoA 2014; Bird and Noorani 2017).

The Mineral Law (Article 19) provides for five types of mining licenses: the reconnaissance license, for assessment of mines; the exploration license, for digging and determining a mine’s volume; the exploitation license, for extraction (maximum of 30 years with the possibility of an extension); small-scale mining license; and the artisanal license. The last two types of licenses are issued specifically for unique classes of small mines. In principle, a transparent and competitive bidding process for exploration and exploitation licenses is articulated. Bid evaluations are based upon: technical and financial capabilities of the bidder; proposed socio-economic benefits; environmental protection; potential government revenues; and introduction of new technology. The owner of an exploration license is required to prepare an Environmental and Social Impact Report (ESIR), feasibility study and environment protection plan. Mine operators in all cases are required to submit their exploration plans to MoMP first for approval and then are expected to submit their findings and the various studies before an exploitation license is granted. Parties can lose their rights under the Mineral Law if they fail to pay license fees, fail to abide by the terms of the mineral right granted or fail to conduct exploration or extraction activities as contracted. Mining contract provisions for the most part are not observed (GIRoA 2014; Bird and Noorani 20).

Despite the legal framework, it is estimated that illegal mining operations outnumber legal ones by a factor of five to six. Poor security and MoMP’s lack of capacity to monitor remote locales are two of the underlying factors. The reasons for rampant illegality are complex, but the post-2001 Afghan government has been politically penetrated by networks of power holders with their own access to the means of organized armed violence—whose members are involved in, or at least benefiting from, ongoing mineral exploitation. Thus, illegal mining operations are run by, inter alia, local residents, security agencies and provincial officials, anti-government forces and local warlords (Noorani 2015; Paiman 2017).

GOVERNMENT ADMINISTRATION AND INSTITUTIONS

The Ministry of Mines and Petroleum (MoMP) is responsible for functions relating to mineral exploration, licensing, development and mining. MoMP is obliged to regulate mineral activities in accordance with the 2010 Mineral Law. MoMP’s duties include: formulating and implementing policies (including promoting private-sector investment); proposing to the Council of Ministers the classification, declassification or reclassification of an area as prohibited for mineral activities; granting, transferring and canceling mineral rights; supervising mineral activities of public entities; and assessing and ensuring the collection of royalties. MoMP can engage in exploration and extraction of minerals by itself, through other public entities or in association with the private sector. The role of MoMP has changed from a mining entity to a facilitator for providing opportunities for the private sector (GIRoA 2014; Paiman 2017).

MoMP has three deputy ministers and numerous departments, including Legal, Policy, Inspections, Surveying, Cadastre, Geology and Survey and Small-scale mining, among others. The Policy Department coordinates foreign assistance and contracts; the Cadastre Department determines the volume of mines, processes the contracts and collects revenue; the Inspection Department monitors and evaluates the implementation of contracts; the Legal Department develops the contracts and provides legal services; the Geology Survey Department conducts geological survey and collects mines’ information; and the Small-Scale Mining Department organizes the affairs of small mines. The Mineral Law provides for the establishment of an Inter-Ministerial Commission to monitor bidding processes, approve mining contracts, grant exemptions from surface rent and approve the royalty rate (GIRoA 2017; GIRoA 2014).

The Mining Law establishes a Mining Cadastre within the MoMP. The cadastre is responsible for assessing fees for the processing of applications for mineral rights, reviewing and processing applications for mineral rights, executing the technical and environmental evaluation of applications for mineral rights, registering mineral rights granted and refused, registering rights terminated, extended or transferred, registering security interests and developing Cadastral Survey Maps. The Mining Law creates an Environmental Protection Department within MoMP for the protection of the environment in connection with mining activities. The Environmental Protection Department is responsible for the technical evaluation of mitigation and rehabilitation plans, Environmental Impact Statements and Environmental Management Plans. The Department also monitors compliance with environmental requirements and cooperates with other state agencies that are responsible for protection of the environment, the social welfare of the local populations and natural and cultural heritage The National Environment Protection Agency (NEPA) is authorized to evaluate the environmental aspects of mining contracts. If the environmental standards are not observed, NEPA has authority to reject the license and/or contract, but NEPA usually lacks the information needed to take such an action and furthermore is subject to pressure from powerful outside interests (GIRoA 2014; Paiman 2017).

MoMP’s Inspection Department and Provincial Inspection Units are responsible for monitoring and inspecting the mining sector, including tracking compliance with contract terms and measuring the amount of minerals extracted. Civil-society organizations and local residents can play a valuable watchdog role as well but lack any official standing. In addition, Parliament’s oversight role is weak to nonexistent, further centralizing authority in the hands of MoMP (Hart Group 2017).

GOVERNMENT REFORMS, INTERVENTIONS AND INVESTMENTS

In March 2017, President Ghani nominated a new Minister of Mines and Petroleum after a year-long vacancy in the position. Civil-society organizations welcomed the nomination, which they hope will lead to greater reforms, transparency and efficiency. The Government became a candidate for the Extractive Industries Transparency Initiative (EITI) in 2009. EITI is founded on principles to put natural resources to prudent use for the benefit of citizens in a transparent and accountable manner by disclosing the revenue that a State has received from the sector and the payments made by a company to the State. A candidate country for the EITI has to implement the seven requirements of EITI to become a compliant country. Afghanistan has completed the five-year cycle for implementation of the EITI, but it has still not been granted compliant status. Afghanistan has produced five reconciliation EITI reports, but most of them are deficient and have been critiqued by civil society for lacking data (Nourani and Brueckeri 2016; Hart Group 2017).

DONOR INTERVENTIONS AND INVESTMENTS

USAID’s Mining Investment and Development for Afghanistan Sustainability (MIDAS) Project 2013-2017 assists the Afghan Government to responsibly develop the nation’s mining industry by improving its ability to plan, design and implement mining concessions through transparent tender processes. MIDAS’ goal is to make Afghanistan’s mining industry a key source of government revenues and expand the skilled labor force to include women playing a role in the mineral development. MIDAS guides the Afghan Government to implement legal and regulatory reforms for the industry, providing technical assistance to MoMP. Initiatives within MIDAS include assisting the Afghan Government to develop transparent bidding processes, contracting procedures to adopt and implement mining laws and regulations according to international best practices and helping MoMP develop expertise in data analysis and mineral deposit management (USAID 2016).

GIZ has been active in Afghanistan’s mining sector by way of programs such as the Academic Mining Education in Afghanistan (AMEA) Project 2014-2017. The project aims to overhaul the technical content of educational courses relating to mining align them to the needs of the labor market, economy and administration so that the revenue-generating potential of the raw materials sector can be utilized to the full. In addition to technical and practical training for teaching staff, courses of direct relevance to the mining industry are being developed and integrated into the curricula. Regional partnerships are intended to facilitate academic networking with the international research and teaching community. The two-year ‘Govern4Afg’ project 2015-2017 was also launched by German and Afghan partners to establish a platform for policy dialogue on governance topics, including good mining governance. The project includes assisting the MoMP and Ministry of Finance in developing standardized accounting, reporting and auditing system will help improve governance of the natural resources and avoid loss of revenues. Finally, the Promotion of Mineral Governance Project 2013-2016 provided theoretical and practical training for the staff of the MoMP, equipping them with the necessary technical skills to identify mineral resource deposits and for the sustainable use of those resources (GIZ 2016).

LAND DISTRIBUTION

The purpose of land distribution in Afghanistan is to provide for the transfer of land to private persons (including landless farmers), government ministries and municipalities. In theory, the objective of a state land distribution scheme is to ensure sufficient designations and distribution of state lands for purposes including infrastructure, state revenue-producing projects, ministerial (governmental) requirements, agriculture, commercial activities, residential needs in urban areas and humanitarian requirements for adequate shelter for the populace, including vulnerable populations such as IDPs and returning refugees. State land eligible for distribution includes land not required for state purposes and excludes forests, pastures, mines, monuments and land within areas designated urban land.