the code pastoral of the islamic republic of mauritania

Electronic copy of this paper is available at: http://ssrn.com/abstract=906985

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Mauritania Pastoral Code hww

1

THE CODE PASTORAL

OF THE ISLAMIC REPUBLIC OF MAURITANIA

RETURN TO THE SOURCES:

REVIVAL OF TRADITIONAL

NOMADS' RIGHTS TO COMMON PROPERTY RESOURCES.

Hans-Werner Wabnitz1

1 Dr.jur.Albert-Ludwig Universität, Freiburg/Brg; LL.M. Tulane,

New Orleans, LA; former Senior Counsel, Africa Division, Legal Department of the International Bank for Reconstruction and Development and International Development Association, Washington DC, (World Bank), www.worldbank.org responsible for, inter alia, Mauritania, Mali and Niger. Drafts have been discussed with staff of the World Bank and Gesellschaft fuer technische Zusammenarbeit (GTZ), the German development aid agency, Eschborn, www.gtz.de. A summary has been presented to the International Symposium, Montpellier, France, on May 17-19, 2006: �At the frontier of land issues: Social embeddedness of rights and public policy�. Contact: [email protected].

Electronic copy of this paper is available at: http://ssrn.com/abstract=906985

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INDEX Abstract

I. Economic and Administrative Context Economic context Administrative context

II. Ownership v. Use rights III. Overview of the Mauritanian Code pastoral

Objective of the Code Pastoral resources � water, salt licks Avoidance of conflict

IV The Code as best practice V Application of the Code � Prospects VI Environmental regeneration fostered by the Code

In general In particular The desert�s seed bank Migratory birds Indigenous crocodiles

VII Compliance with International Conventions VIII Comparable Legal Developments in Sahelian Countries

The Malian Charte pastorale The Code rural of Niger

IX Conclusion

Annex: The Sources of Muslim Law � a Short Definition of Sharia

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Tradition is not to watch over ashes. Tradition is keeping the flame alive.

Henry David Thoreau. ABSTRACT

Herders are generally neglected by country- and donor administrations, despite their economic importance: nomadic livestock raising accounted for 75% of Mauritania�s agricultural output, but received only 10% agricultural budget and donor support in the 1990�s. In the past there were few specific regulatory protections of nomadic economic activities.

This paper outlines the content and impact of the Code Pastoral

(2000, effective 2004) of the Islamic Republic of Mauritania (Mauritania) and qualifies the law as a prime example of adapted, effective, legislature. The text recognizes the traditional common property regime for nomads on pastoral lands, classified as public domain (Art 9, 13), and validates use-rights, a shift from exclusive ownership rights.

The law is pragmatic, having been drafted by herders themselves,

in defense against the increasing rangeland of farmers. It builds on traditional rules and Islamic law (sharia, see Annex). Thus the right to mobility (Art. 10) and access to pastoral resources (Art. 11) have priority. The motives of the legislation declare nomadism �comme vecteur d�un systeme de valeur culturelle�.

Clarity characterizes the Code. The 46 short articles define its

objective, legal and customary notions, lay down basic principles and rights and provide for realistic, self-executory conflict resolution procedures. Appeal to state tribunals is envisaged as last resort.

Herder�s associations and donors promote the �new-old�

legislation within the population through sketches, pictogrammes, poems and songs. Early feed-back justifies a positive prognosis for its application.

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La législation de la Mauritanie avant la mise en vigueur du Code Pastoral ignore les spécificités du pastoralisme: le code forestier fut copié des pays tropicaux, le droit foncier reproduit la propriété exclusive du droit romain. Ces règles ne sont pas applicables à l�élevage. Situation d�autant plus étonnante si on sait que le pastoralisme représente plus de 75% de la richesse agricole mauritanienne.

Les pasteurs se sont donc associés pour mieux défendre leurs

droits contre l�envahissement constant par les paysans de l�espace pastoral et ont formulé « leur » Code Pastoral. C�est ce Code qui est expliqué dans cet article.

Le texte frappe par sa clarté, brièveté et par la beauté du langage.

En seulement 46 paragraphes le Code clarifie son objectif, définit des principes de base et réglemente la solution des conflits � prévoyant le recours aux tribunaux comme ultime ressort.

Le Code peut se passer de solutions détaillées, puisqu�il peut se

référer a des procédures connues des pasteurs, comme les priorités d�accès à l�eau et les dédommagements, qui sont « inscrites » dans la tradition et dans le droit Islamique. Par l�introduction de la médiation et de l�arbitrage, le Code compte sur la pression sociale pour garantir son exécution, au lieu de dépendre du pouvoir de l�état (absent), car ce que la population reconnaît comme �juste et bon� est devenu droit. Le Décret d�application prévoit des conventions locales autorisant des accords villageois sur l�utilisation de l�espace.

La dissémination du Code sous forme de poème et de

pictogramme familiarise les populations avec les anciennes règles devenues droit. Le Code fut approuvé par le Parlement en 2000, publié en 2002, et son Décret d�application fut publié en 2004.

I. THE ECONOMIC AND ADMINISTRATIVE CONTEXT

THE ECONOMIC CONTEXT.

Agriculture represents up to 30 % of GDP for Sahelian countries and income for a majority of the population. About 75% of agricultural activities involve livestock raising. In Mauritania, the figures were 27 % and 71%, respectively in 1996. In comparison, mining contributed 1%

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less to GDP: 18 % versus 19%2. Even so, livestock raising received far less funds by donors and government than sedentary agriculture 3.

The Code is the first law regulating nomadic livestock raising in

Mauritania. This is remarkable, because "the pastoral system"4, based on mobility (regular east-west movements and annual north-south migration, la transhumance5) constitutes the economic activity best adapted to arid areas. Only mobility enables the exploitation of scarce, widely scattered and shifting water resources, grazing grounds and salt licks. Mobility ensures the sustainability of cattle production while preserving the ecosystem.

THE ADMINISTRATIVE CONTEXT.

Traditionally, nomads were the ruling elite in the territory now

2 Mauritanian Office National de la Statistique (ONS) - as

reported by E. Boehnert and Ould Khtour D. (1999, unpublished). Substantial stakes in gold and diamond fields in the north of the country, and especially oil discovery off-shore of Chingetty, have changed the relative economic weight of activities recently.

3 The World Bank funded agriculture with approx. 150 million

USD over the last 30 years. Of five credits, only one was dedicated to herders, disbursing only about 10 million USD. Recently herders received more attention, see: J. Hall and Le Gall, F: WEST AFRICAN PILOT PASTORAL PROGRAM (WAPPP): PROGRAM ACHIEVEMENTS AND FOLLOW-UP (1997) : http://www.pppoa.org (last visited Nov. 2006)

4 Defined by A. M. Bonfiglioli in: "AGRO-PASTORALISM IN CHAD AS A STRATEGY FOR SURVIVAL", World Bank Technical Paper Nr. 214 (1993), box 4 page 29, as: "The pastoral system is an economic production system based on the herd, [�] considered as capital, an element of wealth, and as a factor of production�susceptible to produce revenue. At the heart of this system the pastors search for strategies to satisfy, in an unstable environment, a minimization of risk objectives [...]"

5 �transhumance� was defined in an earlier draft of the Code as: �la �transhumance� est le mouvement cyclique et saisonnier des animaux en vue de l�exploitation des ressources pastorales d�un territoire donnée �. (Art.3, alinéa 4, version 1998); see also the definition in the Mali Charte pastorale, fn 70, see fn 16 at the end and page 14.

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known as Mauritania. Livestock, notably camels, were the backbone of the region�s survival. The nomads� culture evolved around the herd. Rainfall, finding grazing grounds and watering places dominated life.

The arrival of the French changed this. A sedentary colonial

power, the French administration distrusted nomads because they are difficult to identify, let alone to tax, they cherish freedom and are quarrelsome.

The Mauritanian administration has inherited this attitude of

distrust.6 Neglect of herder�s interests has been further aggravated by misguided donor intervention. Donors funnel their money through the sedentary administration. Encroachment of planters into range-land areas, unsuitable for rainfed agriculture, was the consequence. This trend is responsible for substantial productivity loss 7.

6 See G. Conac, LE DEVELOPPEMENT ADMINISTRATIF DES ETATS

D'AFRIQUE NOIRE, in: G. Conac (editor) Les Institutions Administratives Des Etats Francophones d'Afrique Noire, Paris, (1979) p. X: "Les systèmes administratifs coloniaux obéissaient tous à une logique de la domination. Il s'agissait avant tout d'assurer la sovereignité de l'Etat colonisateur. Visant le maintien de l'ordre public et de la défense des intérêts métropolitains, ces administrations étaient par nature autoritaires". Conac continues to describe that the independent governments adoted the institutions and regulations of the colonial power, fearing otherwise desegregation (p. XV, XXX); this assessment is shared by A. Daddah, LA MAURITANIE EN PANNE DE MODERNISATION, Revue Internationale Des Sciences Administratives (1997) p. 199 sequitur: "La greffe institutionnelle opérée durant la phase coloniale et au cours des premiers années d'indépendance s'est traduite par l'émergence des traits partagés par nombre d'administrations africains. Au plan endogène, notamment, la logique d'une administration omnipotente et monopolisant la gestion des ressources nationales [�] a graduellement conduit à l'hypercentralisation [�] de l'administration et du pouvoir [...]" (p. 200).

7 H. E. Dregne and Chou, N. T. GLOBAL DESERTIFICATION

DIMENSION AND COSTS, in DEGRADATION AND RESTORATION OF ARID LANDS (H. E. Dregne ed., (1992)) quoted in: Dryland Degradation and Poverty, contribution by S. J. Scherr, University of Maryland, to the World Bank sponsored Round Table "DRYLANDS, POVERTY AND DEVELOPMENT�, June 15 and 16, 1999 in Washington, DC., Summary of Proceedings, edited Nov. 1999, page 69, 70. Scherr expressly renders "conversion of rangelands to grain production" responsible for accentuated land degradation.

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Until recently the literature on dryland agricultural development

ignored pastoralism. However, the value of nomadic livestock rising is slowly being recognized, as they are using marginal resources and "turn wasteland into food"8.

Established legal traditions also account for the neglect of

herders.

II. OWNERSHIP V. USE RIGHTS

Roman law formed the western mind as to the meaning of �ownership�: an exclusive possession of a res, the right to do whatever one pleases, including willful destruction, to the exclusion of everybody else. This notion also applies to land. The �owner� may, at his sole discretion, exclude third parties from the use of his land, even if he has no need for the land himself. Such legal system serves agrarian societies with sedentary farmers well. Intensive agriculture requires capital investments and work, and therefore needs protection against strangers harvesting fruits they have not sown.

Given the influence of the Roman law on the French Code

Napoleon of 1801, it is only natural that the French colonial power imposed this legal system on Mauritania. Such an approach is ill-suited, however, for a population following a nomadic lifestyle.

Nomadic use rights may be defined as �permission to use a

common resource intermittently.� The concept of exclusivity is unknown. Whether the resource base stretches over a vast area and is unstable (e.g. grazing areas) or whether it is fixed, (e.g. watering places and salt licks) not one single person or clan is entitled to exclusive use of it, because its accessibility may be critical for the survival of other users and their herds. Exclusiveness is also not required for the effective use of the resource. A given resource may be sparse, while being also abundant, because scattered over a wide geographical area and renewable over time, if used �reasonably�. The periodic nature of the resource makes it abundant when it exists (following rains), but too scarce for survival of

8 A.-M. Frérot, "IMPACT DE LA RÉFORME FONCIÈRE SUR LA GESTION DE L'ESPACE PASTORAL EN MAURITANIE" in Options méditerranéennes, Série A: Séminaires méditerranéenes, # 32 (1996) p 39 sequitur; see also E. Mwangi and Dorn S.: BITING THE BULLET: HOW TO SECURE ACCESS TO DRYLAND RESOURCES FOR MULTIPLE USERS, CAPRI Working Paper No. 47, (2006).

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anyone depending on its exclusive use alone (during draughts). Nomadic use rights illustrate that property rights are power

relations between people. Each tribe may exploit specific grazing grounds, possibly far apart, and which may differ according to season and rainfall. However, several tribes may share the same watering station for their livestock. �Access� therefore does not mean free access for all: who is authorized is regulated by tradition and custom.9

A common property management regime, subject to well defined

rules of access, guarantees optimal resource use, a "fair" sharing of exploitation, to enable regeneration, critical for survival. According to the "property-rights-theory" of the 1960s, social controls over the use of resources in short supply define such optimal regulation10 . These controls are established by traditions embodied in the Muslim law sharia via principles consistent with common sense and equitable burden sharing. Necessity of survival and fear of transgressing a religious prohibition enforce these rules.

The sharia recognizes five principles:11

9 The so-called �curse of the commons� therefore does not apply here.

10 D. W. Bromley and Cernea M.M: "THE MANAGEMENT OF COMMON PROPERTY NATURAL RESOURCES" World Bank discussion Papers # 57 (1989), p.48,: �The Swiss summer pastures are "collectively owned" but can hardly be described as degraded; this points to a fundamental issue [�] the summer pastures of Switzerland are collectively owned precisely because they are of low productivity [�]. Notice that we did not say that such pasture lands are of low productivity because they are collectively owned. In other words: common management is the most appropriate form of ownership for optimal efficiency in use.� (emphasis mine).

11 As regards the relevance of sharia principles, some doubt may arise due to the fact that the express reference to Islamic law in the June 14, 1999 (second to last) draft of the text (Objet, Art 1: La présente loi portant code pastoral en République Islamique de Mauritanie, a pour objet: 1: La définition, conformément a la Chaaria islamique et a ses pratiques coutumières, les principes d�une gestion rationnelle de l�espace pastoral mauritanien, de manière a y assurer la préservation et la promotion du pastoralisme dans le cadre d�une évolution dynamique du développement rural. 2: [�]) and Art 16 (Le séjour des animaux dans les espaces vitaux des agglomérations rurales telles que prévues par la réglementation en viguer, est régi par la Chaaria.) has been omitted in the first case, and replaced by loi in the second case in the final version of the Code. However, upon request, the author has been told that these

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First, recognition of collective use rights to pastoral resources (le

caractère collectif et l'usage commun des ressources pastorales).12 Second, recognition of the protection of vital space around

villages (la protection de l'espace (et, en partant, des ressources)

are only formal editing changes and do not touch the substance.

Indeed, the applicability of sharia principles to all legal issues has been set forth in the 1991 Constitution (Ordonnance, 91-022 (July 20, 1991, J.O edition speciale du 30 juillet 1991, amended June 25, 2006). The Constitution is preceded by a recital which proclaims, inter alia, :"[...] Considérant que la liberté, l�égalité et la dignité de l'Homme ne peuvent être assurées que dans une société qui consacre la primauté de droit, soucieux de créer les conditions durables d'une évolution sociale harmonieuse, respectueuse des préceptes de l'Islam, seule source de droit, et ouverte aux exigences du monde moderne, le peuple mauritanien proclame, en particulier, la garantie intangible des droits et principe suivants: � " (emphasis mine).

Also, the civil law refers to sharia as the final resource if specific regulations are not found: Ordonnance Nr.: 89-126 du 14 septembre 1989, portant Code des Obligations et des Contrats, (J.O. édition spéciale du 25 octobre 25, 1989, modifiée par loi No 2001.031 du 7 février 2001 (Ministère de la Justice, mars 2005) : Art.: 1179 (dispositions finales) : "Pour combler les lacunes de cette ordonnance, il est fait référence au rite malékite. Pour lever toute équivoque dans la version française de ce texte, la version arabe fait foi." (the latter stipulation complies with Art. 6 of the Constitution (2006, unchanged from 1991) �la langue officielle est l�Arabe�. See also Art.: 455, final article of chapter iv , on evidence by witness: �Pour tout ce qui n�est pas été prévu dans ce chapitre, il est fait référence au rite Malékite (sic)�. This clause serves as interpretation to articles 451 � 454, which regulate the validity of a witness pursuant to his �honorabilité� � which, under Islamic law, might exclude the witness of women.

12 Hadith by the Prophet Mohammed: water, pastures and fire are collective property (fire meaning firewood) �Les gens sont associés à trois choses: l�eau, le fourrage et le feu�, Abu Dawud Ibn Majah and Al Khallal, in: Verset Coraniques, Hadiths et Extraits des Conventions Internationales Relatives a l�Environnement, Ministère du Développement Rural et de l�Environnement, Mauritanie, compiled by C. A. Ould Cheikh, Mint Die L, Fichter J. & Thies F.D.(2006). Hadith means a saying of the Prophet Mohammed and is considered a source of law (see Annex).

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vital(es) de la cité - Hima. Nomadic camps must not be installed in this zone.

Third, prevention of damages to planted fields by stray livestock. Fourth, the right of a nomadic herder during the annual migration

(transhumance) to spend three nights within the vital space of villages, an exception to the rule which protects the Hima.

Fifth, joint responsibility of herder and farmer to exercise

vigilance in the protection of livestock and crops. State law regulating natural resources such as land, forest and

water in Mauritania followed the rules of exclusive ownership, disregarding the time-honored customary and sharia principles, resulting in hardships for the herder.

Access to land by traditional use rights was de facto and de lege

confiscated by the state in favor of exclusive ownership. The central authority thus intended to demonstrate its power by redistributing land to sedentary farmers. Since the state appeared as the source of rights, these were derivative rights, stripped of all cultural and religious content. It left the space otherwise available to herders vulnerable to �trespassing� by farmers through progressive encroachment of (unsustainable) fields into grazing zones.

Forests are regulated by Mauritanian Law No 97-007 of January

20, 1997 (Code forestier). Article 32 prohibits livestock to enter such recognized forest. This ban applies only to nomadic herders, because the legislation allows exploitation by flocks of neighboring village populations.

Water use is regulated in a more comprehensive and inclusive

manner. The Code d'eau (Ordonnance 85-144 of July 4, 1985) protects access of everyone, not just herders, to surface waters by declaring them public goods (domain public).13 Conversion to private property by decree

13 The conflict of interests between farmers using receding waters of

ephemeral lakes in the east of Mauritania (Hodh Al Gharbi) called Tamourt, for flood recession agriculture, and nomads who water their herds there gave rise to disputes among donor� supported projects (GIRNEM, funded by GTZ, and PGRNP, funded by the World Bank), favoring, respectively, the herders or the farmers (the latter through financing fences around the Tamourt �Goungel�). Eventually passages for the herds were negotiated.

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is not excluded, however, and it is left to ministerial discretion to define the limits of the public interest.

Recently initiatives to accommodate both, the interests of

nomadic herders and those of sedentary farmers have sprung up. Several West African herder's associations created a representative association (L�Union Inter-africaine des Organisations Professionnelles de l�Elevage � (U.I.O.P.E.) formally constituted in December 1999 in Nouakchott, Mauritania�s capital city. The drafting of appropriate legislation is one of the objectives of this associative movement.

III. OVERVIEW OF THE MAURITANIAN CODE PASTORAL

The Mauritanian Code Pastoral reflects Mauritanian traditions.

The drafting was preceded by country-wide, in-depth appraisals of the situation "in the field". Representatives of all interest groups concerned were consulted. It is therefore supported by its� stakeholders and sponsored by the Ulema 14.

The Code is a well-written piece of legislation.15 It is short (46

two or three line articles), concise, easy to read and understand and well structured. It reflects the drafters� priorities: a clear policy outline upfront and an emphasis on conflict avoidance. If conflicts do occur, a realistic path is provided for their resolution. The intent to avoid armed conflict prompted the legislation. It is an age-old issue16.

14 Ulema are the authorities of Muslim faith.

15 drafted by a team of Mauritanian herders, jurists and (Islamic law) jurisconsults, well versed in French law and the sharia, advised by technical experts. For the text see: www.glin.gov or www.glin.mr (last visited Jan. 2007).

16 See the murder of the peasant Abel by the herder Cain in THE BIBEL, 1Mose4; see THE KORAN, Sourate 21, The Prophets (Al-Anbiyâ), verse 78: �And remember David and Salomon � [how it was] when both of them gave judgment concerning the field into which some people�s sheep had strayed by night and pastured therein, and [how] We bore witness to their judgment�. (Translation by Muhammad Asad: The Message of the Qur�an, Dar Al-Andalus, Gibraltar (1980)).

Cp. also the story in the film �Shane� (1953) by George Stevans with Alan Ladd, and �Rio Bravo� (1959) by Howard Hawks with John Wayne and Steve Martin, or �Lucky Luke - Les barbelés des prairies� (Morris & Goscinny, 1967).

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THE OBJECTIVE OF THE CODE

The objective of the Code is a rational administration of the Mauritanian grazing range (espace pastoral), strengthening herder�s rights. The principal concepts and rights of herding are defined. Thus, Art 10 stipulates the mobility of herders and access to pastoral resources. Pastoralism is defined as livestock raising based on permanent or seasonal mobility17, and herders are those keepers of livestock who depend on mobility for reaching �pastoral resources�. These are defined in Art 4 as water (above and below surface level), grass and tree or brush grazing areas (pâturages herbacés ou aériens), and salt licks (les carriers d�amersal et les terrains à lécher). Pastoral resources are common goods, accrued to the nation18. The area in which these goods occur, l�espace pastoral, defined in article 5, is public domain and reserved exclusively for mobile livestock keeping19. The Code emphasizes this essential

On a more serious note, the war between Mauritania and Senegal,

or rather the civil-war-like killing of citizens of the respective other country in the spring of 1989 was triggered by a violent conflict between nomadic Mauritanian herders and Senegalese peasants on the banks of the Senegal river in the vicinity of Bakel.

This incidence recalls the legislation of Sheikou Amadou, émir of the Islamic state Dina, in the inland delta of the river Niger (1818 � 1864). The centerpiece of his code of 1821, also called Dina, establishes the rules for the annual crossing of the river by Fulbe (Peuhls in French) herds, militarily protected, into the pasture land of the (hostile) Bambara. The calendar and the modalities are respected to this day (see: A.H. Ba and Daget, J: L�EMPIRE PEUL DU MACINA (1818-1853) pp 64, 65, Paris, premiere ed 1955; J. Pagot: ANIMAL PRODUCTION IN THE TROPICS, pp 446 sequitur (with pictures), Paris (1985)).

Local conventions, entered into between the transhumant and and the population of his expected trajectory, regulary updated to reflect shifting power relations, ease potential tensions (see: T.J. Basset and Kone, M: GRAZING LANDS AND OPPORTUNISTIC MODELS: the political ecology of herd mobility in northern Cote d�Ivoire, contribution to the Montpellier Symposium. see fn 1 www.mpl.ird.fr/colloque_foncier/Communications/Resumes.pdf (last visited Nov. 2006). 17 Art 7, Art 3. 18 Art. 8 :�Le principe de la communauté des ressources est de droit� ; Art 9 : « Les ressources pastorales [�] appartiennent à la Nation, [�] ». 19 Art. 5, 13. A close reading of the definition reveals, though, that the

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principle by stipulating expressly that any appropriation of pastoral resources by an individual person or entity is illegal20.

This protection extends to necessary access-ways to a particular

resource21. Obviously, a particular resource, even though technically common property, cannot be exploited by the public when access is blocked by surrounding private property. Article 11 defines �access to the resource� as a guaranty of free access for the herder and his animals �special circumstances defined by law excepted. Article 6, furthermore, protects this access right by a lien (servitude).

Anticipating the possibility of large scale development schemes,

the Code prohibits such public enterprises if they are likely to harm the vital interests of the herders22.

The Code avoids the issue of expropriation against

compensation23 by simply attributing specific use rights to herders, instead of ownership. Also, the articles conferring these use rights expressly provide for their execution within �the limits of the law�24. This precaution ought to forestall potential claims.

The Code thus creates a hybrid new right: neither full common

property- nor exclusive property right: it is a common property right granted by the state through a law, distinct from mere recognition of a pre-existing right, but based on and closely modeled after it, and created in favor of a specific socio-economic group.

PASTORAL RESOURCES � WATER, SALT LICKS

Water is the most precious pastoral resource. Articles 21 through 27 regulate and protect access to water by livestock. The principle of free

editing process was not quite as smooth as would be desirable. Whereas Art 5 defines l�espace pastoral pursuant to its functions, Art 17 of the Implementation Decree opens the possibility of defining such area by decree. Art 9 and 17 of the Decree allow for other legal restrictions which may, however, not infringe on pastoralism. A sensible interpretation overcomes such hurdles. 20 Art. 14: "toute forme d'appropriation exclusive de l'espace pastoral est illégale". 21 Art 5 alinéa 2, Art. 6 , Art 11 and Art.15. 22 Art 12. 23 Constitution of 2006, Art.15 24 Art. 6, 7, 10, 11, 12.

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access to a water source is already established in Art. 4, where "les eaux superficielles ou souterraines" are included in the definition of "resources pastorales", free access to which is guaranteed by Art. 6 and Art. 11. The Code defines in Article 24 places where water accumulates, and which serve to water herds as being of utilité pastorale. Such utilité pastorale occurs automatically by law. However, artificially created watering points destined specifically for the use by herders (infrastructures hydrauliques et points d'eau à vocation pastorale) have to be declared as such by administrative act. Such water points may not be physically altered by private works to impede herder's access25.

Private water hauling installations on public wells automatically

become public goods, guaranteeing access for herder's animals26. The same policy of unrestricted access for livestock applies to salt

licks (carrières d�amersal). These may not be privately appropriated or managed, (Art 27), built-over, or otherwise rendered inaccessible (Art 28) 27.

AVOIDANCE OF CONFLICT

The Code�s center piece is its chapter five: Gestion Des Conflits Pastoraux comprising eleven articles (Art 33 - 44).

The Code strives to avoid potential conflicts between herders and

settlers, and conflicts among different groups of herders28, through separation of the conflicting parties wherever possible. Should conflict arise, it is to be settled through arbitration. Going to court is only ultima ratio. (Art 39).

Avoiding conflict through separation: The authorité administrative may regulate through Arrêté specific

uses in specific geographical areas. E.g. Article 33, allows for the prohibition of planting in certain pastoral zones. Inversely, the installation of campsites in proximity to agricultural zones may also be forbidden (Art. 37). These regulations may also be enacted for certain periods of the year. The Implementation Decree encourages local

25 Art. 25 26 Art.22 27 Accessibility to saltlicks is treated like accessibility to water due to a Hadith : J�ai demandé au Prophète [�] la concession de la mine de sel de Maarib, qu�il m�accorda. Mais les gens dirent qu�elle est comme de l�eau de la source. Il revint alors dur sa décision. Al Beyhaghi dans SOUANE EL KOUBRA Tome 3, in Verset Coraniques [�] fn 12. 28 Art. 44.

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conventions among the stakeholders to regulate land use (Art. 17). Conflict avoidance through separating incompatible users is in

particular encouraged by articles 18 (authorizing the Hakim to regulate by Arrêté the planting of fields or the establishment of camps, respectively, also with only temporary force); 19 (regulating areas of permanent installation through development plans), 20 (establishment of villages in zones with potential for pastoral uses), 25 (regulating activities in the proximity of watering points), and 29, (establishing rules protecting salt licks).

If conflict does occur, however, it is to be resolved first through

negotiations among the parties (à l�amiable).29 Should these direct negotiations not lead to settlement, the second step is the appeal to a lower and, by the loosing party, to a higher arbitral commission consisting of representatives of the parties and the administration closest to the place of discord30. Only if both arbitrations fail, the third step authorizes submission of the case to the local court (tribunal de Moughata) 31

The arbitral commissions are small and designed to find

compromise. Each commission renders its verdict on the spot. Compensation is to be granted to the aggrieved party by the other party pursuant to article 37.

If the conflict does go to court, judgment is rendered within

fifteen days. The local level commissions respect the principle of

decentralization. The speedy rendering of decisions mirrors the sharia courts, which deliver judgment session tenante, and serves the parties� interests for reestablishing peace. According to Elisabetta Grande: "What matters is the group, and what is important is either peace within the group or between one group and its neighbors. After all,� the legal process is designed to re-establish social peace in order to prevent feuds" 32.

The Mauritanian tradition of informal conflict resolution, based

29 Art. 33, first sentence. 30 Art. 35 through 38 31 Art. 39 32 E. Grande, ALTERNATIVE DISPUTE RESOLUTION, AFRICA AND THE STRUCTURE OF LAW AND POWER: THE HORN IN CONTEXT; 1999 Journal of African Law, pp. 43, 63.

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on moral persuasion rather than forced execution, embodied in the Code�s rules, distinguishes between the following outcomes: 33

Itidhar: withdrawal of the complaint, and mutual exchange of excuses;

T'arguiba: symbolic amends through praise of the injured party and offering of gifts;

Sorba: collective excuse of the transgressor's clan through the visit of an important delegation to the opposed party;

Tawid: indemnification in kind or through money. Conflicts may also arise among herders themselves, because of

improperly installed campsites resulting in the commingling of livestock, or the blockage of another herd�s access to their watering site. Such conflicts are to be resolved by a separate commission pursuant to article 44, created ad hoc by local Arrêté.

The rules of conduct during transhumance, the period most likely

to generate conflict, are precisely established by tradition in Mauritania: Lemrah specifies the roaming zone of the herd during the night

next to the tent of the herder/owner; Metlag specifies the most direct access path for the livestock from

camp to the grazing ground in the morning, and its return in the evening. This corridor has to remain open.

Elmessyah specifies the nocturnal grazing area. Elmirad indicates the space between the camp and the water

source. No camp may be set up there. Tradition requests from herders mutual respect, hospitality and

positive intervention to prevent conflicts. Every herder must install his camp so that his animals, on their march to pastures and watering spots, do not cross, commingle or otherwise interfere with the animals of another camp.

At the water hole tradition also regulates use priorities. Human

needs are served first, (Rwaya or Kharza ); followed by needs of herds in emergency situations. Next come cattle, then sheep and goats, finally camels. In the case of watering holes installed by villagers, the same sequence is followed, but with village needs� taking priority. When two herds arrive at the well at the same time, these rules apply, with the needs of the herd that arrived first taking precedence over a herd arriving

33 These references to sharia and those following have been provided by Isselmou Abdel Kader, member of the drafting committee for the Code, to the author in Nouakchott in 1999.

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later. The drafters of the Code had confidence in the adherence to

�their� law because of: * predictability. The text clearly stipulates what rights are granted

to whom, while remaining flexible in addressing issues of conflict through reliance on customary regulations, known to the population.

* simple institutions to implement, oversee and execute its

regulations. Execution is key to any law. Imported texts and court systems generally prove to be a poor fit with local culture, tradition, learning experience and budgetary resources, and therefore fail. By allowing regress to court only as �last resource� the Code reduces this risk.

The arbitration rules of the Code split responsibility for solving

conflict between the two existing centers of power: the state authority (through its local representative), and the stakeholders themselves (the litigants). Combined, they are obliged to compromise, thereby reducing friction between locals and the central power. This system also tends to guarantee the respect of established rules, since both sides limit each other�s leeway in reinterpreting them.

The appropriate combination of content with adapted institutional

support characterizes the Code. It fosters the self regulating powers of society by providing the space, flexibility, rules and institutions tailored to their needs. The society can live by its own principles, and solve its problems first from within - a �bottom-up� approach. State authority only assures the respect of the rules. It does not impose new foreign obligations, or unfamiliar institutions to which the victim has to resort in order to right a perceived wrong. The Code thus embodies a concept phrased by Stephen Cornell and Joseph Kalt 34, that institutions only work, when the system of power sharing and power generation provided therein closely corresponds to the inherent traditional understanding of

34 S. Cornell and Kalt J. P., (Professors at the University of Arizona and Harvard, respectively): "WHERE'S THE GLUE ? INSTITUTIONAL BASES OF AMERICAN INDIAN ECONOMIC DEVELOPMENT" (presentation at the World Bank spring 2000). See by the same authors: SOVEREIGNTY AND NATION BUILDING: THE DEVELOPMENT CHALLENGE IN INDIAN COUNTRY TODAY; Joint Occasional Papers on Native Affairs No 2002-03; Native Nations Institute / The Harvard Project on American Indian Economic Development: www.jopna.net/pubs/JOPNA03_sovereignty.pdf (last visited Nov. 2006)

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what is considered "the norm". "They key lies in culture: it is only the implicit and informal contracts of culture that stand out as the meta-enforcers of a society's mechanism of control and organization" [...] "Cultural norms are the glue that holds a society's formal and informal institutions of social control and organization together" � "successful tribes have institutions that not only provide a match between cultural norms and formal structures; they are also adequate to the task at hand"35.

Thus the perceived weakness of the Code, namely that the content of rules of behavior underlying judgment in the arbitration procedure are not expressly spelled out, really constitutes its strength. Through reliance on traditional knowledge, comprising culture and sharia, the drafters have combined content regulation with an institutional framework apt to enforce this regulation, acceptable in the cultural environment of its applicability. This approach marks the Code�s difference from the existing legislation. Ordinarily legislation follows "the simplifying logic of the state shared by colonial and post-colonial leading elites�, (and falls victim to) the illusion �that enactments are the law, and that an enactment backed by the power of the state is enough to solve problems �."36

However, the Code not only captures existing custom, regulations and law. It carries them forward through inclusion within a coherent and binding form. It gives tradition structure and life, respecting the wisdom that, "in a traditional, very highly structured society�behavior cannot be modified except within the framework of already existing conventional social constraints".37

The Code embodies another, almost revolutionary, notion: that

different regulatory principles may be applicable to the same issue in different localities within the national territory. The colonial doctrine, adopted by the successor state, holds, that an issue has to be regulated uniformly across the entire national territory. Land- or water rights and obligations would have to be the same for everyone. This does not suit issues of land use where ecological situations differ widely (highly

35 pages 10, 16 and. 22, respectively, of the paper delivered at the World Bank, preceding fn. 36 E. Grande: supra, Fn 32, at p. 64; Cp. C. Levi-Strauss, TRISTES TROPIQUES: �Chez les muselmans comme chez nous, j' observe la même attitude livresque, le même esprit utopique et cette même conviction obstinée, qu'il suffit de trancher les problèmes sur le papier pour en être débarrassé aussitôt. » 37 A. M. Bonfiglioli, supra, fn. 4, page v, speaking of the "Sahelian agropastoralists in Chad". I would like to add "and cultural conditioning".

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valuable oasis- and irrigated lands, shifting rainfed pastures, dryland and desert) and strong traditional attachment to land persists, deeply embedded in customary and religious beliefs, which vary pursuant to ethnic affiliation.

Uniformity of law creates benefits only when the law attaches to

identical facts, and is backed by strong executory force (effective courts). This is not the case in Mauritania. By applying different rules tailored to different circumstances, the Code, accomplishes an eminently sensible thing. It adapts the law to reality. 38

IV. THE CODE AS BEST PRACTICE

The Code may be considered �best practice� in legal writing because of:

1) normal language, following the Hadith of the Prophet

Mohammed: �always speak to the people in such a way that they can understand you�39;

2) short and precise articles; 3) clear structure: policy choices are set out first, definitions of

notions with traditional/legal context are provided, and implementation arrangements are all organized in logical sequence;

4) content is culturally embedded in the society's tradition (as

opposed to an imported ideology); 5) fair balance of interests of competing parties - nomadic herders

versus sedentary farmers; 6) simple, context adapted institutions that take advantage of

existing facilities and personal already on site. There is no need for additional equipment, works, training or funds.

V. APPLICATION OF THE CODE - PROSPECTS

38 The Code only applies to areas qualified as espace pastoral, hence

not to oasis� or irrigated areas. 39 Amadou Hampate´Bâ: "VIE ET ENSEIGMENT DE TIERNO BOKAR, Ed.

Seuil, Paris (1980) p. 127.

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The Code has been ratified following six months of discussion in

the National Assembly and the Senate 40 on the 26th of July 2000 and was published on the 15th of July 2003.41 The implementation decree considered necessary for application42 was published on March 16th 2004 43.

Official implementation started only in mid-2004. GTZ and World Bank funded projects integrate its content into their projects and actively promote knowledge about the law through sketches, pictogram�s, community gatherings and other appropriate interventions.44

However, this may entail a long process, as a 2005 report by

PADEL/ICARDA45 reveals. The flipside of reliance on tradition is, that also newly developed habits are given room, namely that the population does not apprehend any new legislation unless it is brought to their doorstep through ateliers, workshops and training sessions, and the local authorities, expecting per diems, react likewise. As the authorities are either not inclined to promote the Code or lack the funds and logistics to do so, dependence on donor-funded project work will cause some time to pass before full awareness and application.

But the innovative feature of expressly authorizing local

conventions on land use, with force against the administration, (Art 17

40 Such debate is unusual in Mauritania and demonstrates the

heightened interest the parliamentarians took in the text. 41 Following intervention by the World Bank. 42 This interpretation is not shared by the author, but also held by a

majority of French lawyers. 43 Following pressure by the World Bank. 44 Programme ProGRN �Natural Resources Management�

www.eco-consult.com/glc/ (visited Jqan 2007) in the regions Guidimagha and Hodh el Gharbi, (the successor project to GIRNEM, �Projet de Gestion des Ressources Naturelles de l�est de la Mauritanie�, which closed in 2004); World Bank project « Community based watershed management project� (2005).

45 C. Dutily-Diane and El Mourid M.: IMPLEMENTATION OF THE

PASTORAL CODE: towards the emergence of a local convention, Ministère du Développement Rural et de l�Environnement, Mauritania / PADEL / ICARDA (December 2005).

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Decree46) stipulated by the Implementation Decree might promote faster adoption: Art 18 even exhorts the administration to encourage (favoriser) the emergence of such conventions. Donors rely on this tool to promote awareness of the Code and implementation of their community-based projects47.

Sustainable natural resource exploitation has to start at the

community level. Changes result from �[�] conservation practices and investments, and collective action�, says Sara Scheer48, in particular when they entail consciously embracing traditional behavior. The Code heeds this recommendation.

The Decree thus confirms a �bottom-up� approach encouraged by

46 Art 17 Implemetation Decree: Les conventions locales font foi entre utilisateurs directs devant les institutions municipales et administratives.

47 K-P Kirsch-Jung and Soeftestad L.T.: REGULATING THE COMMONS IN MAURITANIA: Local agreements as tool for sustainable natural resource management, with a discussion on pp.12 ff. of the Decree, Presentation at the 10th. Biannual Conference of IASCP, Bali, June 2006. www.indiana.edu/~iascp/bali/papers/Kirsch_Jung_Karl.pdf; (last visited Jan. 2007). see also: C. Graefen, Kirsch-Jung K-P. & Banzhof M (ed.): LES IMPACTS SOCIO-ECONIMIQUES DE LA GESTION DECENTRALISEE DES RESOURCES NATURELLES; la contribution des conventions locales a la lutte contre la pauvrete. GTZ publication (2005), see : www.gtz.de/lamin (last visited Jan. 2007) for further references. According to Kirsch-Jung, the local conventions have totally reduced illegal wood-cutting and charcoal preparation in the areas they cover, by giving �governance� back to the local users. A major success in the resource-scarce habitat.

48 S. J. Scherr supra, Fn 7, at p. 70; Likewise, the Fourth Regional Workshop on Natural Resource Management in West Africa held in Niamey, October 12-17, 1998, recommended in its conclusions, inter alia, to "strengthen the capacities of communities to play their role in the planning and implementation of natural resource management actions as well as to enhance their responsibilities"; see also J. Lindsay: DESIGNING LEGAL SPACE: Laws As An Enabling Tool In Community-Based Natural Resource Management, Plenary presentation at the International Workshop on Community-Based Natural Resource Management (the World Bank, Washington DC May 10-14, 1998) (John Lindsay is senior lawyer with the Development law service of the FAO, Rome, Italy)

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some World Bank49 projects and sanctions the user conventions generated by those projects. Due to the shortcomings of the administration in general and lack of funds in particular, the burden of training and promotion of said local conventions rests with donor-funded projects. While such investment is to be appreciated, it also highlights a crucial weakness in the concept of land management of the drylands: practical coordination of such conventions. Encouragement of multiple use of space is the right approach, and the assumption that the local users know best how to go about it, based on their experience and tradition is to be welcomed. Human nature being less than ideal, however, power grabbing and greed by stronger neighbors may in practice result in the extension of newly contractually legitimized extension of spheres of use rights to the detriment of others, if the administration does not mediate and plans ahead of time, as it is in theory called upon to do. Then, of course, most damage was caused in the past by government agents working for their own profit. The world not being ideal, it is probably best to let the local population work out their power equilibrium, as they always have.

Reports about express adherence to the rules of the Code � as

opposed to the us et coutumes underpinning its regulations, are not yet known to the author50, neither arbitral decisions based on its Chapter V.

The author is confident that the Code will be honored, following

discussions with local stakeholders in Mauritania, because the law embodies current wisdom on dryland management, namely to empower

49 Second Livestock Project (1985); Rainfed Natural Resource Management Project (1994).

50 For studies analyzing the regulatory framework of the code and its Decree, putting forth some judgment on the implementation issues, problems and chances, see, inter alia: Khtour, D.O.: DROIT SUR TERRE AUX HOMES DES NUAGES, elaboration et application du code pastoral mauritanien; in: Elevage et gestion des parcours au Sahel, implications pour le developpement. Edited by E. Thielkes, E. Schlecht and P. Hiernaux, Verlag Ulrich E. Grauer, Beuren/Stuttgart (2001). Mohamed Ahmed M.M.O and Sommerhalter T.: THE PEOPLE OF THE CLOUDS IN SEARCH OF THEIR RIGHTS, First experience with the application of the Mauritanien Pastoral Code, GIRNEM (2003); C. Hesse MANAGING THE RANGE: whose responsibility, whose right ? Paper presented to the regional workshop on �Les approches de la gestion des pâturages et les projets de développement: quelles perspectives ?� Niamey, Niger, 2-6 (October 2000); and the PADEL/ICADA report (fn 45).

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local people to actively protect their own environment51. A parallel may be drawn with the philosophy underlying current

natural resource protection, via "conservation by the people", in the words of James Murombedzi52: involve the people who live in the area as guardians, heighten their consciousness of the value of the environment for their cultural identity, if not any longer for mere survival, and turn the sustainable use into a monetary resource, either through guardian salaries, sale of local products or tourism. The Arabian Oryx Project in Oman53, a UNESCO World Natural Heritage Site, is such example: threatened with extinction by poaching, a project to reinsert oryx was initiated by Sultan Quabus in 1982, with the local tribe of the Harasi as their guardians. The exclusion of a neighboring tribe (Benu Janabah) created friction and caused some destruction Hence mutual understanding of sharing the benefits of the �resource use� have to be reached, akin to the local conventions proposed by the Code.

The design of the St. Katherine Natural Protectorate, established

in 1996 in the Sinai, may serve as another example that, by analogy, the Code will be respected. The protectorate included, from the beginning, the local Bedouins as guardians of flora and fauna. The "community guards" (haris al biyah) are selected because of the esteem they are held in by the tribe, their familiarity with the region and its wildlife, and their commitment to preservation and restoration. The scheme relies on a concept adapted from traditional tribal law, 'urf�, a rule indicating that the protection of a certain area or species is the task of one particular

51 CAPRI Working Paper No. 47, see fn. 8.

52 52 J. C. Murombedzi, Program Officer in the Community and Resource Development Program of the Ford Foundation in South Africa, Plenary Presentation at the May, 1998, Washington D.C. Workshop: THE EVOLVING CONTEXT OF COMMUNITY-BASED NATURAL RESOURCES MANAGEMENT IN SUB-SAHARAN AFRICA IN HISTORICAL PERSPECTIVE (1998) (on file with author). The four steps in the historical evolution of environmental protection processes: (i) conservation against the people; (ii) conservation for the people; (iii) conservation with the people; and (iv) conservation by the people. (emphasis by the author). 53 www.oryoman.com (last visited Nov. 2006); J.A Spalton, Lawrence M.W. & Brend S.A.: ARABIAN ORYX REINTRODUCTION IN OMAN: SUCCESSES AND SETBACKS. Oryx 33(2) (1999), 168-175; D. Insall, OMAN, in D. Mallon, and Kingswood, S. (eds.).: Antelopes Part 4: North Africa, the Middle East and Asia p 69. IUCN Global Survey & Regional Action Plans, Gland & Cambridge (2001).

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individual, and its destruction or infringement considered as aggression on his personal honor, making the violator liable to pay him damages. 54

VI. ENVIRONMENTAL REGENERATION FOSTERED BY

THE CODE A. IN GENERAL

The Code fosters mobility, essential for herders in drylands with sporadic and erratic rainfall, north of the "isohyète 400 mm", the limit for rainfed crops. The espace pastoral regulated by the Code lies primarily in the east of Mauritania, encompassing the Wilayas (provinces) of Hodh el Gharbi, Hodh Ech Chargui and Assaba. The area is characterized by sparse grass cover and isolated occurrence of tree and bush. Valleys and plains grow intense grass coverage following rains, with multiple species and beautiful flowers that grow quickly and bear fruit, but to return to barrenness within weeks.

The nomads are familiar with the ecological particularities of

these drylands. They realize the necessity to protect the vegetative cover on which their herds rely. They practice �tetrag�, meaning that an area must not be overgrazed to the point where plants are unable to regenerate by producing seeds, are second nature to them. Before overgrazing occurs, the herd moves on.

Tradition also dictates that water resources be exploited

prudently. The nomads will not let their beasts drink where wells are in danger of running dry. This follows from the principe de zesou et ghab according to which resources should never be totally depleted, but allowed to regenerate, and according to which there should always be something left for the most needy in case of emergencies.

Grass actually thrives when grazed: The animals fertilize the

ground through their droppings, a cropped plant regenerates faster when not left exposed to the dehydrating forces of sun and wind, and some species of grass, bushes and trees thrive on the saliva of the animals, underscoring the symbiosis.

If la vocation de l�homme s�est parfaire la nature, the nomad

embodies this adage. They do improve on the environment, being integrated into its biological cycles. They prevent desertification. The

54 J.J.Hobbs, SINAI'S WATCHMEN IN THE WILDERNESS, ARAMCO WORLD, May/June 1999, at p. 12, 18�20.

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Pastoral Code thus promotes an activity fully compatible with sustainable environmentalism.

One word of caution, however, may be in order. The ideal nomad

or �Bedouin� does not really exist any more, sedentarisation, the lure of fast money through spoliation of the environment and the influx of immigrants, have all changed the cultural context. Degradation by local people occurs, otherwise there would have been no need to create the parks mentioned above, or to legislate the rules set forth in the Code, in the first place. Hence the necessity of sustained project work to promote the Code, in view of the given constraints of the administration, primary addressee to implement its own laws through appropriate institutions. Time will pass. But the familiarity with the content of the regulations facilitates their adoption and observation.

B. IN PARTICULAR The drylands of eastern Mauritania harbor precious natural

resources, which are threatened by encroaching farmers: (1) the desert�s seed bank; (2) migratory bird sanctuaries and (3) indigenous crocodiles.

The desert�s seed bank Contrary to common perception, the Sahara desert has not moved

south in recent times, but oscillates. The density of the acacia flava forest around the city of Timbedra, for instance, meets the same description given to it by authorities of the colonial administration in 1912. The same holds true regarding the density of the fauna around the well of Fougues which was dug under the Sultanat Oulad M'Barek in the 18th century55.

Variations of dry spells and more humid periods alternate 56 and

55 55 A. W. Ould Cheikh, ELEMENTS D'HISTOIRE DE LA MAURITANIE, Institut Mauritanien de Recherche Scientifique, Centre Culturel Français, Nouakchott p. 110 (- no date -). 56 see, e.g. Washington Post Jan. 20, 2000 "Running hot and cold", p. 1 & A11: "[�] it is possible that [Pacific Decadel Oscillation] PCD phase effects such remote events as rainfall in China and the periodic droughts in the Sahel region in Africa. Rainfall in the Sahel has been low for 20 years" Leetmaa (Ants Leetmaa, head of the National Oceanic and Atmospheric Administration's Climate Prediction Center) said, "but started coming up in 1994". The accelerated warming of the earth over the last decade may alter these facts, but make preservation of the wetlands even more important.

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following rains green grass reappears. This ability of grasses to regenerate after prolonged dry spells (bushes and trees are adapted to sustain dry spells thanks to their extensive root systems and by shedding leaves) is due, in a large part, to the endurance of the seeds in the ground. The southern frontier of the Sahelian dunes along the route de l�espoir from Noaukchott to Nema is rimmed by ephemeral, flat but extended lakes. These wetlands, boosting large acacia trees and bushes, are called �Tamourts�. They have existed since millennia. These wetlands preserve the humidity of the soil even during the most severe draughts. They preserve the seeds, and also shelter fauna and other flora which can readily re-populate the drier places around them at the next rains.

Recession crop farming, however, and untimely drainage of these

lakes for irrigation threatens this revival cycle of nature and risks depletion of the water table beyond its natural regeneration capacity and ecological cycles. Farming around the Tamourts also deprives the herder of a watering place, of course, taking hundreds of kilometers of surrounding grasslands out of the economic and ecological cycle.57 Planting in lands too dry for sustained farming greatly accelerates desertification 58.

Reckless exploitation of the Tamourts, a millennia-old resource,

saps the vegetation�s regenerative vigor, hurts its resistance during dry spells. Articles 23, 26 and 27 of the Code provide for procedures to prevent the construction of permanent hydraulic facilities that would reduce the water levels of these lakes and wetlands.

2. Migratory birds The Tamourts are important feeding grounds and resting places

for migratory bird species, such as the European stork. The migration of the European stork stops at the Tamourts of the southernmost fringe of

57 See for a dispute between farmers and herders around the Tamourt �Goungel� close to Aioun Al Atrouss in the years 2002-04 supra, fn 13.

58 See S. J. Scherr, supra, Fn 7: � [. . .] many of the global �hot spots� for land degradation are in the drylands, threatened by salinization, nutrient depletion, conversion of rangelands to grain production.�(emphasis by the author) Id. at 3 (quoting S.J. Scherr & Yadav, S. : Land Degradation in the Developing World: Implications For Food, Agriculture and the Environment to 2020, Food, Agriculture and the Environment Discussion Paper 14 (International Food Policy Research Institute ed., 1996)).

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the Sahara, while other continue southward to more plentiful grounds. The Tamourts, like the Natural Park of the Banc d'Arguin, at the north-west coast of Mauritania59, constitute an important ornithological �hot spot�. The promotion of its regional biodiversity has not yet received the local and international attention and protection it deserves. By species and quantities they would qualify to be protected under the Ramsar Convention 60.

3. Indigenous crocodiles. The Tamourts are home to an indigenous crocodile species61 that

has survived there for thousands years from the days the area received more average rainfall. Needless to say, this species is acutely endangered if its habitat is drained for cultivation and dries up. Hunting by farmers who have immigrated from Mali further threatens the species, whereas the local herders never bothered them. If the Tamourts were left alone in their natural state according to the principles set forth in the Code, the herds would benefit, and the survival of this rare species would be protected.

59 T. Monod, L'ILE D'ARGUIN, Paris (1983); République Islamique de Mauritanie, Parc National du Banc D'Arguin, Rapport de Coordina (Mars 1997); see also E. Mahe, CONTRIBUTION A L�ETUDE SCIENTIFIQUE DE LA REGION DU BANC D�ARGUIN (1985), (unpublished doctoral thesis, Académie de Montpellier, Université des Sciences et Techniques du Languedoc) (on file with author). 60 www.ramsar.org (last visited Jan. 2007)

61 On recent findings concerning these crocodiles see: T. Shine, Boehme W., Boehme H., Nickel H., Thies D.F., and Willms T.: REDISCOVERY OF RELICT POPULATION OF THE NILE CROCODILE CROCODYLUS NILOTICUS IN SOUTH-EASTERN MAURITANIA, WITH OBSERVATIONS ON THEIR NATURAL HISTORY; in Oryx, Vol. 35 No 3, July 2001, p. 260, with pictures; P. Lluch, Robin, S. and Lescure, J.: LE CROCODILE DU NIL, CROCODYLUS NILOTICUS LAURNETI, 1768 DANS LE TAGANT, in Bull. Soc. Herp. Fr. (2004) 111-112: 5-23; see E.W. Bovill : THE GOLDEN TRADE OF THE MOORS, 1978, p. 14, 183, citing Herodotus, THE HISTORY IV; these crocodiles are �cousins� of the ones surviving in permanent lakes in Chad, and the mountains in the west of Mauritania around Atar. See National Geographic at : http://news.nationalgeographic.com/news/2002/06/0617_020618_croc.html?fs=www3.nationalgeographic.com&fs=plasma.nationalgeographic.com (last visited Jan 2007).

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Next to the protection of the herder�s economic base, one of the main anticipated benefits of the Code would therefore be the preservation of "the intrinsic value of biodiversity"62, and the protection of ecosystem integrity. Indeed, there will not be pastures worth protecting if the local environment cannot regenerate according to its ecological cycles and access to them would be rendered a moot issue. Thus the Code complies with and heeds - quasi en passant � the admonitions of the three major environmental conventions, namely the Convention on Biological Diversity, the Convention on Climate Change and the Convention to Combat Desertification.

VII. COMPLIANCE WITH INTERNATIONAL CONVENTIONS

The three UN environmental conventions: - on Biological Diversity, the UN Framework Convention on Climate Change and the UN Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly on Africa, all have the same basic purpose: sustainable environmental protection in order to preserve and foster human survival within the environment63.

The objectives of the Convention on Biological Diversity64,

(Art. 1) include: "[�] the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits [�]"

The objective of the Convention on Climate Change65 (Art 2):

62 I. Seralgedin, at the time Vice President Special Programs of the

World Bank, "CULTURE AND DEVELOPMENT AT THE MILLENIUM", Photodocumentary to accompany an exhibition, The World Bank, introduction, p. 10 (September 1999).

63 For graphic descriptions of the disasters befalling human society when ecological determinants are ignored see: J. Diamond, COLLAPSE, How Societies Choose to Fail or Succeed, Viking, 2005.

64 Convention on Biological Diversity, Rio de Janeiro, June 5, 1992; www.biodiv.org/convention/articles.asp (last visited Jan. 2007). Mauritania signed on June 12, 1992, and ratified on August 16, 1996.

65Climate Change Convention, New York, May 9, www.unfccc.int/essential_background/convention/background/items/1349.php (last visited Jan 2007); Mauritania signed on January 20, 1994 and

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"[�](allow) a time-frame sufficient to allow ecosystems to adapt naturally to climate change, [�] to enable economic development to proceed in a sustainable manner."

Article 2 of the Convention to Combat Desertification66 has as

objective: "[�] to combat desertification and mitigate the effects of drought [�] through effective action at all levels [...] with a view to contributing to the achievement of sustainable development in affected areas."

All three conventions apply to arid Mauritania. The Code heeds

the conventions� objectives by establishing a framework for exploitation of natural resources consistent with the preservation of the local ecology, and by protecting natural habitats against destruction through farming.

VIII. COMPARABLE LEGAL DEVELOPMENTS IN SAHELIAN COUNTRIES

Mauritania�s Sahelian neighbors share to various degrees its ecological characteristics, nomadic livestock raising, traditions and beliefs and have likewise developed, or are in the process of developing, legislation addressing pastoralism67

A. THE MALIAN CHARTE PASTORALE.

The Malian Charte Pastorale has been promulgated in 2000, but has not yet been formally implemented, because its implementation decree has not yet been published 68. The text was preceded by intensive in-field preparatory work. It is a clear, precise, and yet detailed law of 71 articles. The Mali Charte pastorale pursues the same policy and protects the same values as the Mauritanian Code pastoral, namely 69:

ratified on June 12, 1994.

66Convention to Combat Desertification, Dec. 26, 1996, www.unccd.int/convention/menu.php (last visited Jan 2007); Mauritania signed December 26, 1996, and ratified on Aug. 7, 1996.

67 Burkina Faso, Chad, Guinea and Senegal, all either have enacted, or are in the process of enacted pastoral legislation. I shall only discuss Mali and Niger here. 68 Last checked by the author in June 2006. 69 Exposé des motifs, p 2.

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(1) mobility of herds; (2) sustainable use of the resources; (3) equitable access to the resources; (4) decentralization and participative management of ressources

pastorals required for the survival of the herders' animals (5) recognition of the tasks and responsibilities of herder's

associations; (6) peaceful exploitation of the resources, and the avoidance of

conflicts. The Charte distinguishes itself from the Mauritanian Code in a

number of ways. First, it contains more elaborate and detailed definitions: e.g. it

defines transhumance70 and cross-border movements (déplacements internationaux) 71.

Second, all stakeholders have to agree on the path of the

transhumance, and its calendar. The pathways (pistes pastorales) are specifically protected72 against encroachment by farmers.

Third, the Charte stipulates in its Art. 36, that classified forests

are open to herders in accordance with the regulations leading to their establishment. In addition, these forests are accessible in hardship times either through ministerial decree or a decision of the respective local administrative entity in charge. The Charte allows access into protected areas, primarily reserved for local use, if at all, also to "foreign" herds, not belonging to the community. This is a remarkable gesture of generosity.

As does the Mauritanian Code pastoral, the Charte contains

detailed conflict avoidance and -resolution provisions73. As in Mauritania, the text provides for extra-judicial solutions à l'amiable. However, the emphasis and the tone differ:

the Code provides for an appeal to a state tribunal as ultima ratio

70 Art. 3 (4): "La "transhumance" est le mouvement cyclique et saisonnier des animaux en vue de l'exploitation des ressources pastorales d'un territoire donné". The movement of animals within the territory, districts and villages of Mali is also regulated, Art. 19-26. 71 Art 28 though 31. 72 Art. 60 through 62. See supra Fn 5 and p. 14. The inclusion of these clauses have been praised in regional workshops and Mauritania may re-insert a definition (see supra, fn 5) 73 Titre VII, art. 71 through 76.

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- when all other negotiated avenues have been exhausted, 74 whereas the Charte provides for judicial procedure as the normal conflict solution method, which must be preceded by a consultation effort 75. The different approach is more likely to foster the communal solution in the case of Mauritania, and render the consultation effort a mere formality in Mali.

Overall, Mali's Charte reveals a less liberal approach than the

Code. The Charte places more reliance on state authorities by making actions and permissions dependant on agents of state agencies. The Code by contrast acknowledges that the rights which herders request are already vested in them in principle, the state simply lends its authority to their protection.

Though this may appear a rather intangible difference, it is a

decisive one, which reflects on the mentality of the respective governments (councils of ministers), parliaments and drafting teams: practitioners in Mauritania, professionals in Mali. Another reason may be that the Mauritanian Code expressly relies on traditional rules and implicitly on the sharia, and therefore does not need to regulate a variance of cases, whereas the Mali Charte seemingly tries to cover the subject matter comprehensively. 76

This outcome is ironic because Me. Hubert Ouadrago, a co-

drafter of the Charte, justified the term "charte" instead of "code" by arguing that �charte� conveys more a flexible guideline whereas �code� implies comprehensiveness77. It appears that the opposite result has been

74 Art. 39 Mauritanian Code Pastoral. 75 Art. 71 Mali Charte Pastorale

76 For instance: Art. 18 provides for the herders' obligation to alert the authorities to brush fires; art. 22 forbids the blockage of a recognized path for animals; Art. 25 notes that the herd in movement needs to be accompanied by <a sufficient number of herders> - all seemingly obvious rules in the self interest of herders and farmers alike.

See also: Art. 31: "Les pasteurs accèdent aux pâturages et les exploitent conformément aux dispositions ci-après" - and it follows a number of regulations (until art. 45) stipulating various kinds of possible uses - differentiated by resource (grasses, trees, fields, bourgoutiers, and property type (forêt classé, bourgoutières communautaires, etc.).

And compare with the style of the Mauritanian text, for instance: Art. 6: « Le droit d'accès aux ressources pastorales est entendu comme la garantie pour le pasteur de la liberté de passage vers la ressource naturelle [�]".

77 Email from Hubert Ouadraogo, to Isselmou Abdel Kader (co-drafter of the Code) and John Hall, (at the time task manager for the Mauritanian

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achieved.

B. THE CODE RURAL OF NIGER

In Niger the Code Rural 78, together with a number of implementation decrees 79, with notably the Decree "fixant le statut des Terroirs d'Attache des Pasteurs from January 199780 regulates herder's rights, obligations and interests. .Contrary to the other two laws, the Code Rural does not only address herders, but also regulates all rights in

pastoral World Bank projects) (Sept. 28, 1999) on file with the author. The Council of Ministers contemplated to call the text �loi�.

78 Ordonnance No. 93-015, March 2, 1993, "fixant les Principes

d'Orientation du Code Rural (No. 622.3 Recueil des Lois & Règlements, 2nd. ed., 1994) (Niger).

79 Laws and Decrees (not exhaustive) governing the rural sector in Niger cited here for information only to indicate the wide scattered and differentiated range, resourced by Moussa Yacouba (lawyer, legal counsel auprès du Secrétariat Permanent du Code Rural du Niger, when visited by the author in 2001):

- Ordonnance, 93-015, Fixant les Principes d�Orientation du Code Rural (March 2, 1993) (Niger);

- Order No. 93-01 of March 2, 1993, portant régime de l'Eau; - Order No. 196-067 of November 9, 1996, portant Régime des

Coopératives Rurales ; - Decree No.96-430/PRN/MAG/EL of November 9, 1996,

déterminant les modalités d'application de l'ordonnance portant régime de coopératives rurales ;

- Decree No. 97-006/PRN/MAG/EL of January 10, 1997, portant réglementation de la mise en valeur des Ressources Naturelles Rurales;

- Decree No. 97-007/PRN/MAG/EL of January 10, 1997, fixant le statut des terroirs d�attache des pasteurs ;

- Decree No. 97-008/PRN/MAG/EL of January 10, 1997, Portant organisation, attributions et fonctionnement des institutions chargées de I'application des principes d'orientation du Code Rural ;

- Decree No.97-367/PRN/NIAG/EL of October 2, 1997, déterminant les modalités d'inscription des droits fonciers au Dossier Rural ;

- Decree No. 97-368/PRN/N41AE/E of October 2, 1997, déterminant les modalités d'application de l'Ordonnance n"93-014 du 2 mars 1993 portant régime de l�Eau.

80 Decree No.: 97-008/PRN/MAG/EL, January 10, 1997.

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relation to land tenure and natural resource exploitation.81 The law has been researched and prepared since 1985. As is the

custom in francophone countries, numerous national and international ateliers, round tables and workshops have been held, discussing proposals and drafts. The resulting text, however, is inadequate at least as far as livestock raising is concerned. Respective clauses are scattered over a number of regulations. The governments� purported intent is to concentrate all regulations pertaining to �land� in the Code Rural, thereby guaranteeing cohesiveness among them and facilitate access to them in one place. A noble objective. However, with the ambition to regulate every detail, the result would either be an unwieldy code, or the multitude of scattered decrees we have now.

More disturbing than the form is the heavy hand of the state

evident in the letter and the spirit of the law. For example, whereas Art. 5 of the Code Rural proclaims the principle that all rights to natural resources are equally protected, whether they originate in traditional rights or written law, Art. 3 of the Decree of January 10, 199782 stipulates: " Les ressources naturelles font partie du patrimoine commun de la Nation. Une obligation de mise en valeur pèse sur toute personne titulaire des droits reconnus par la loi sur l'une quelconque de ces ressources." and its Art. 13 continues, with a certain logic, "les communautés pastorales qui ne respectent pas les obligations légales ou réglementaires de mise en valeur peuvent être privées de leur droit de jouissance prioritaire".

A detailed procedure is set up for state agents to supervise these

provisions and to order sanctions, if required 83. This of course, recalls socialist supervision by �big brother�, but more to the point, offers perfect legitimacy for the hassling of the local population by government employees, in particular as the concept of �mise en valeur�, coded for planters, leaves ample room for discretion when applied to livestock herders.

81 Since about 2000 numerous endeavors are underway in Niger to legislate specifically for herders. Mamalo Abdoul, Directeur auprès du Secrétariat Permanent du Code Rural du Niger has delivered a presentation in 2006 at the Montpellier Symposium (see Fn. 1) outlining that a draft text is now in its final stages. A summary is available at: www.mpl.ird.fr/colloque_foncier/Communications/Resumes.pdf (last visited Jan 2007)

82 Decree Nr. 97-006/PRN/MAG/EL 83 Articles 36 sequitur.

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IV. CONCLUSION In Sahelian countries we can see a trend to draft legislation

setting out rules for nomadic herders and their livestock, based on traditional law. This is positive trend. Recognition of community-based, common property resources' management concepts is essential for the preservation of the renewable, yet scarce, natural resources in the area. It is also essential for the survival of herders and their animals. The legislation not only secures the economic base for mobile livestock agriculture, north of the 400 mm/a isohyète much more profitable than planting (be it rainfed or irrigated), but also serves to protect the environment. Further, recognition of use rights granting access to the resource, as opposed to exclusive ownership rights, is more appropriate to achieve these goals, and more adaptive to the Sahel's particular environment. At the same time such legislation complies to a large extent with the obligations under the three international conventions aimed at protecting the environment.

The Mauritanian Code pastoral convinces because of its clarity of

language laying out clear policy priorities. The Code is the more liberal of the three texts discussed, confirming mobility and access to pastoral resources as a traditional, pre-existing right. While also based on the custom prevailing in their countries, the Malian Charte pastorale allows for more discretion of the administration to regulate herders' movements, and the Niger Code rural appears to make the exercise of the rights subject to administrative approval. This would seem like a gradient form the more liberal to the more authoritarian approach, changing the liberty of the herder to access �his� resource into a revocable permission by the state.

The Mauritanian Code pastoral embodies its own executory

regulations by relying on existing structures, involving state authorities only to the extent that their co-management responsibility is engaged. Through reliance on customary rules and behaviorisms, and the principles of sharia, the Mauritanian Code avoids the enumeration of lengthy casuistic regulations. With only 46, short articles, complemented by 28 articles of its implementation decree, the Mauritanian legislation is by far the shortest and most appropriate legislation in the Sahel.

Hans-Werner Wabnitz

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ANNEX

The Sources of Muslim Law � a Short Definition of

"Sharia"

The term sharia (�the way�) describes the body of Islamic Law, the rules and principles that derive from a variety of sources, hierarchical in nature and grouped into two categories: the perfect, immutable and divine law of God as revealed to the Prophet Mohammed in the Koran; the Sunna (the binding authority of the Prophet�s decisions, as reflected in his actions) including the Hadiths (the binding authority of the Prophets dicta), on the one hand, and the sum of human comprehension of these on the other hand, namely the fiqh (�understanding�) divided into Idjmâ ( consensus of the community of scholars) and Ijtihad (�effort� in finding the right solution by a scholar, based on the primary sources). The concept of law in Islam differs fundamentally from the western understanding of law. To the Muslim mind, particularly the Arab Muslim mind, religion and law are inseparable. Whereas the modern western understanding of society, framed by two centuries of Enlightenment, naturally considers religion and law, Church and State as two separate spheres of life and cherishes their separation as one of the main accomplishments in liberating the individual, a cornerstone for the organization of the public space (e.g. loi de la laicité de 1905 in France), the Muslim sees both spheres converge to guide the daily life of the faithful. Mohammed himself was Prophet and Commander in Chief, founder of a religion and a state. In his reign religious belief is not a private affair, but the glue of the community, since he is the leader of the community of believers (oumma). Under this worldview the state is not meant to simply guarantee peace, security, property rights and individual freedom, but to facilitate and protect the exercise of the faith. The Caliph, the wordly and spiritual leader of the faithful, successor of Mohammed, directs prayer as imam and enforces the sharia. However he has no authority to interpret the texts, the latter being the reserve of the legal scholars or oulema. The exercise of the faith in common public ritual is cherished as reinforcement of the faith and of a sense of community. Laws, regulations and guidelines for human behavior in private, in public and

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for the community itself all converge around the basic values of the Muslim faith, worldly regulations and sacred rules both form an integrated whole.

Thus Islamic Law has to be understood and interpreted keeping in mind that it is a value system first, essentially, the word of God himself. As such it is immutable, eternal, and not subject to omission or extension. This does not preclude the application of Islamic law in a secular state, but the holistic claim to guide all aspects of human behavior, moral and social, remains a guiding principle. �The sacred law of Islam is an all-embracing body of religious duties rather than a legal system proper; it comprises on an equal footing ordinances regarding cult and ritual, as well as political and(in a narrow sense) legal rules� (Joseph Schacht in �THE ORGINS OF MOHAMMADAN JURISPRUDENCE�, Oxford, reprint 1975, Preface).

Similarly, Amadou Hampaté Ba, begins the definition of sharia

with the enumeration of the five pillars of Islam, namely: shahada, the profession of the faith (in the unity of God and Mohamed as his Prophet); salat the prayer five times a day; zakat, the duty for exercising charity; saum, fasting during the holy month of Ramadan, the tenth month in the Islamic calendar; and hadj, the pilgrimage to the holy Kaba' in Mecca once in a lifetime. (VIE ET ENSEIGNEMENT DE TIERNO BOKAR, Le Sage de Bandiagara, Seuil, 1980, p. 130, Fn. 1). This aura of sanctity (cp the introduction to the Medjelle, below on page 8) renders legal disputes delicate, because the opponent is easily accused as �apostate�. A non-believer is considered unable to understand the Koran. In both cases the opposing argument s disqualified.

From early times on Islamic scholars have developed a great deal

of thought, skill and philosophical endeavor to escape rigidity, justify reasonable interpretation of the law in order to arrive at acceptable conclusions for a specific issue. A certain methodology (usul al-fiqh � the roots of the law) of interpretation has to be respected, foremost the hierarchy of the sources of the law (comparable to the architecture of Constitution versus law versus Decree). These sources and their ranking are laid down in the Koran itself:

"Oh you believers! Obey God and obey the Messenger and

those of you who are in charge of affairs. If you have a dispute concerning any matter, refer it to God and to the Messenger" (Surate 4, "Women", lines 59 ff. which is interpreted to refer to, in this order: (1) the Koran (obey

God); (2) the Sunna and Hadîth (the messenger); (3) the Ijma (those [...] in charge of affairs) and (4) the Ijtihad.

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interpretation based on all of the three other sources. (Mohammed Hashem Kamali, PRINCIPLES OF ISLAMIC JURISPRUDENCE, (rev. ed.) Cambridge, (1991) p. 10

This last source of law, the weakest, provides flexibility to adapt

interpretation to changing circumstances. The �doctrine of necessity� (mabda� ad-darura) eases such adaptation, comparable to the concept of equity in the common law or the �general terms� in German law (Generalklauseln), it allows for solutions in a given situation which would normally contradict formal law. Islamic law or sharia is therefore rather a body of thought than a code or a collection of statutes. As will be seen in the following, differences among the various schools of legal thought, and the contemporary struggle for an Islamic renaissance all evolve around the concept of ijtihad.

(1) The Koran is the holy book of Islam, bedrock of its faith. It is

the word of God as dictated by archangel Gabriel to Mohammed, the Prophet, over a period of some twenty years. The beauty of the language is considered proof of divine origin. (This beauty is, however, disputed by some Orientalists). The Koran has been compiled from memory within twenty years of Mohamed's death in 632 by his followers.

The Koran is collection of stories and exhortations, moral precepts,

polemics and threats against the adversaries of the new faith, which are neither poetry, nor prose, the Sura. They are organized not by subject or date, but length: the longest ("the cow") being the first. Because the Koran is the word of God, it's true meaning cannot be translated. Difficulty of translation also resides in the fact that in Arabic the meaning of a word may change according to context, the occasion, or audience. Consequently translations of the same Sura, by different interpreters in the same language, or in different languages, sometimes have almost nothing in common.

(2) The Sunna and the Hadîth are the sum total of all the

teachings of the Prophet Mohammed, comprising the lessons his behavior taught his followers. The strength and legal persuasiveness of a rule thus derived at depends on the credibility of the witness who first reported the rule, and every learned jurist thereafter who has used this specific rule.

The Sunna - custom or the "beaten path" � referred initially to the customs and tradition prevalent among the tribes, but was restricted under the influence of the scholar Idris al Shâfi�i in the 8th century to the behavior and acts of the Prophet, which the faithful have to imitate (Noël J. Coulson, �A HISTORY OF ISLAMIC LAW�, Edinburgh, 1964, French edition, Presses Universitaires de France, 1995, p. 40, 60) (the word "sunnite" derives from this definition of the group of the (orthodox)

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faithful. The term was keyed for those �who followed tradition� when a majority recognized the Omayid Caliph Moawiyyah ibn Abi Sufian in Damascus following the battle at Siffin in 656 with its ensuing arbitral decision. The opposing minority followed the fourth Caliph Ali ibn Abou Taleband thereby became �shia� (shi at Ali partisans of Ali).

In the years following the consolidation of the various legal schools and their competition for influence and power, many such Hâdiths and rules supposedly rooted in the sunna are said to have been invented or quoted out of context (Schacht, supra, pp. 151 ff; Kamali, supra,pp. 65 ff.). The shia legal doctrine disregards Hadiths and Sunna reported by the first three Caliphs (see below) which causes a major gap within this source.

(3) Consent (Idjmâ, of all faithful) is the behavior and the opinion

of the Prophet's most faithful followers, and generally, the learned - initially those of Medina (the city in which Mohammed lived). The legal force of this source of wisdom has been sanctioned by Mohamed himself, who once said that "my followers will not unanimously agree on an error". (Saïd Ramadan.: �SHARÎ�A - ISLAMIC LAW : ITS SCOPE AND EQUITY�, French translation Al Qalam, Paris, 1997, p. 113, quoting Mustafa Zayid, AL-MAÇLAHA, pp. 121-127.) The early legal schools do not rely on this doctrine, however, the validity of which has been disputed, and it is held by some that the doctrine was developed later only to avoid dispersion of legal thought.

(4) The own, considered legal reasoning (Ijtihad) - this is the least

persuasive source of law, obviously. It implies the opinion of a scholar, his well researched and inner conviction, reflecting the morality of Islam (an mujtahid). The legitimacy of this source is also based on a Hadîth of the Prophet: when he sent his student Mo'az boun Jabal to Yemen to preach, and relied on his considered opinion - because he trusted his student to be able to draw the correct conclusions from the other three sources of law. (Saïd Ramadan, supra p. 89). The legal reasoning has to follow a certain established methodology, applying qiyas, analogical deductions. The scholar needs to scrutinize each source in sequence to find the solution; if this fails, he examines weather all sources seen together provide an answer; he then proceeds to analogy, following the same path; and only if this also fails he may invoke his own opinion, �refined and disciplined by the intense and profound contemplation of the law in its entirety�. Herbert J. Liebesny: THE LAW OF THE NEAR AND THE MIDDLE EAST, State University of New York Press, NY, p.19 (1975).

It is not an easy matter to destill the correct advise for appropriate

conduct from these sources. A tension exists between the Koran and the Prophet's teachings on the one hand, holy and final, any deviation being

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susceptible to be punished as heresy, and, on the other hand, sources interpreting those, themselves amenable to a wide array of interpretations. Besides, the references to strictly legal injunctions, as opposed to moral or social guidelines in the Koran itself, are relatively limited: 70 verses concerning family law; 70 verses concerning civil law; 30 verses concerning penal law; 13 verses concerning procedural law; 10 verses concerning (administrative and) constitutional law; 25 verses concerning international law and 10 verses concerning economic and financial law: 228 Surates out of a total of 6.219 (Ramadan, supra, p.48). A correct interpretation will bear in mind that one of the principle teachings of Mohammed was tolerance - to always strive to do the right thing, and not to follow a dogmatic rule.

Not surprisingly, several schools of legal interpretation developed

over time around the quest of finding the correct answer to questions concerning individual, or community conduct. The treaties of Islamic scholars or jurisconsults combine theoretical discussions of doctrine and compendiums of case law. The better know sunni schools are four:

(1) the oldest is the school of Malik bin Anas, based on his work

AL-MOWATTA (Around 770 AD). The book contains interpretations of the Koran, the Sunna, the customary law of Medina and it's interpretation by their scholars. The teachings are rather orthodox and dogmatic. This is the rite malekite followed in Mauritania (and Upper Egypt, North Africa and Sudan).

(2) Almost at the same time another school developed in Syria and

Iraq, represented by Abou Hanifa. This school admits the personal judgement upon consideration of analogies as a valid source. The Sunna is not restricted to custom in Medina. The rite hannafite is more tolerant and adaptable than the former (followed mostly in Turkey, India and China (spread by the Ottoman empire).

(3) somewhat later (810 AD) Ach Châfi attempted to reduce the

subjectivity of judgment in the finding of the right decision by admitting only the consensus of a given group of scholars on a specific topic as source of law besides the Koran and the Hadîth. In its application, this method (rite chafite) allowed his followers to develop legal doctrine by initiating discussion on a topic within the learned community and then preserving the emerging consensus as new law. (followed mostly in Lower Egypt, Arabia (Hedjaz), Yemen, Palestine and East- and Central Africa).

(4) the forth of the legal traditions was founded by Ahmed bin

Hanbal around 830 AD. It is more rigorous, hostile to innovation, considering Koran and sunna as only valid sources of law and admitting

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"judgement" only in extremis. The rite hanabalite flourished in the twelfth century in Syria and Iraq and is now followed in Arabia (Nedj).

Whereas these schools do not differ fundamentally, their

followers soon entered into intense competition about minor, interpretative matters, which mixed legal rigor, religious zealotry and support in power struggles among the various Islamic branches and dynasties. The theoretical and doctrinal door through which individual variations entered the debate was the question of admissibility if ijtihad, the autonomous reasoning and the definition of the qualities of character required to authorize anyone to engage in such exercise.

The shia developed their own schools. Although the basic tenets of

the belief of both groups are the same, the shia distinguish themselves by the recognition of a clergy (the ayatollahs), and a separate interpretation of the sharia. Orthodox sunnis consider the shia heretics, but a 1959 fatwa of the Grand Sheikh of Cairo�s al-Azhar University, the foremost seat of sunni doctrine and learning (founded by the shia dynasty of the Fatimids in the 12th. Century) recognized mainstream Shiism as a legitimate school of thought.

The three most influential shia schools are: the Jafari, the Usuli,

and the Akhbari. They distinguish themselves in arcane doctrinal differences. The main point of discord is the authority, or not, to use ijtihad in adapting religious and legal doctrine to contemporary circumstances, the dominant Usuli school being the more liberal, and politically active, whereas the Akhbari school is more restricted.

All schools embrace the so-called doctrine of The Twelvers, (ithma

ashariya) which teaches the believe in twelve rightful Imams (leader of the faithful), beginning with Mohammeds� son-in-law and cousin Ali ibn Abou Taleb, husband of his daughter Fatima Zahra, and ending with the death in 941 of the twelfth imam Muhammad Al Mahdi. He is also called Muhammad Al Muntzar, the �awaited�, because he decreed on his deathbed that no further imam should be appointed, the faithful ought to await his reappearance on judgment day. He is therefore revered as the �hidden� imam. Due to persecution by the Abassid Caliphs (the two foregoing imams were imprisoned; the holy mosque built over their tomb in Samarra has been destroyed on 22. February 2006 by sunni Al-Quaida fanatics), he had already spent his life in hiding, communicating with his followers through messengers or �babs� (doors).

The line of the twelve imams is disputed among various schools,

and central to their respective definition. The concept of The Twelvers is followed by about 80% of shia muslims and state religion in Iran since 1979.

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(1) Jafar As-Sadiq (665 � 699), the sixth iman, also known as �the

truthful� was respected for his wisdom and religious knowledge. He is the founder of the Jafari school. He taught Abu Hanifa and Malik ibn Anas, who proceeded to found their own (sunnite) schools of legal thought. The main difference between the madhab Jafari and the sunni schools consists in:

- the rejection of those �hadiths� reported through the first three imams and their teachings: Abu Bakr, Omar and Othman, all considered hostile to Ali ibn Ali Talib, whom the shia revere as the first imam;

- the concept of �infallibility� to the rulings of the Twelve Imans and Mohammed (obviously) but also his daughter Fatima Zahra, wife of Ali.

The Jafari school accepts the opinion of a contemporary learned legal scholar (�of known virtue�, a mujtahid) as guidance for the ordinary faithful. In essence this is a confirmation and an extension to the legitimacy of ijtihad.

The scope and legitimacy of ijtihad constitutes the distinction between the other two shia schools, who were founded in Persia in the 17th. century. Legal thought is interwoven with political aspirations, drawing legitimacy from historic context.

(2) The Usuli (usul-i-fiqh means principles of jurisprudence)

school is the dominant line of thought to-day. It embraces the concept of taqlid and makes liberal use of ijtihad. Political activity is encouraged for the legal scholars (an active caste of priests, the ayatollah).

(3) The Akhbari (communicators of tradition) restrict ijtihad

during the time when the twelfth imam is hidden (i.e. from the tenth century to to-day), proclaim a strict adherence to the teachings of the twelve imams only and consider that jurisconsults ought to abstain from exercising power.

The so-called Traditionalists enforced a conservative trend in the

11th. century, fearing too much liberty of interpretation, by insisting on the fact that all rules have to be traced back directly to either the Koran or a transmitted word or act by the Prophet, (back to the roots) gradually stymieing all further legal development. This is called �the closing of the door� of ijtihad and ushered in centuries of intellectual starvation and decadence. (Kamali, supra, Preface xvii, pp. 386 ff.; Coulson, supra, p.71). Jurisprudente did continue, though, rendered by cadis or muftis, and were incorporated into the handbooks of the respective legal schools.

A number of Islamic sects have developed their own set of

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guidelines for their faithful. The Sufi are mystics, drawing mostly shia followers. Wahabism in Saudi Aabia, at the other end of the spectrum, is orthodox, rigorous and agressive; in West Africa the Mourids and the followers of Sheikh Tidjani preach to large communities. These and other sects combine their own tribal custom with the more generally accepted teachings.

A revival of legal doctrine through interpretation occurred

in the later half of the 19th century driven by Muslim intellectuals who wanted to resurrect Islamic independence and line of thought, spurred on in opposition to western, and Christian, doctrine and hegemony (and economic and military success). As was the case following the development of the early legal schools, the interpretation of the law was closely mingled with religious outlook and attempts to attain political power. The proponents were motivated by the correct understanding that simple imitation of western ways, technology and administration would not lead to true modernization, unless the underlying values were also transposed. Since they opposed such adaptation and assimilation, they attempted to revive the Islamic philosophy by an opening of ijtihad � adaptation of the old rules to new circumstances.

Among the first were the Iranian Jamal al-Din �al-Afghani�,

(1839-97); the Egyptian Muhammad Abdu (1849-1905); the Egyptian journalist Rashid Rida (1865-1935); the Indian poet and philosopher Muhammed Iqbal (1876-1938); followed by the Egyptian teacher Hasan Al-Banna (1906-49, the founder of the Muslim Brothers, (concerning their genesis and current history see: Le Monde of 14 January 2002: �focus� p. 22.) The Egyptian Saïd Ramadan (1926-1995), installed in Geneva since 1958, father of Tariq Ramadan, Professor in Geneva and Oxford, continued the trend of intellectual liberalization of the doctrine.

Dedicated to an internal renaissance of Islam, drawing on the

strength of the openness of the teachings of the Prophet, (when viewed against his contemporary background, the customs of polytheistic Bedouin), these men tried to develop a moral and legal doctrine able to withstand the western onslaught and become a unifying and inspiring force for the Muslim world again. However, fiercely attacked by religious conservatives and political opponents (who held power) alike, these attempts to open ijtihad were soon replaced by many followers with violence: President Sadad of Egypt was assassinated in 1981 by Muslim Brothers ; Abdullah Azzam, a Muslim Brother, founded one of the resistance movements against the Russian invasion of Afghanistan in Peshawar where Osama Bin Laden became his most infamous student. Violence nourished by religious fanatism turned into terrorism � opposite to, but equally destructive as religious fundamentalism. Both search and obtain justification for their violent acts through their own particular

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reading of the Koran or the �source� (hence �Al Quaida�, the source), construing their own unholy fundamentalist doctrine, such as Omar ibn Mahmoud Abou Omar, jurisconsult and imam in London, founding member of Al Quaida�s committee for delivering fatwas justifying the murder of innocent civilians.

In Europe the liberal revival of Islamic thought also found

followers, among which Muhammad Asad alias Wolfgang Weiss, (1903 � 1996) who transcribed the Koran into English and added extensive interpretations (THE MESSAGE OF THE QUR�AN, translated and explained by Muhammad Asad, Dar Al-Andalus, Gibraltar, 1980). Characteristically the motto he chose for the first page says: �For people who think�. The Tunesian, Mohamed Talbi, defends the adaptation of sharia to modern reality: �PLAIDOYER POUR UN ISLAM MODERNE�, Desclée de Brouwer (1998). The French, Malek Chebel, defends the same approach in his �MANIFESTE POUR UN ISLAM DES LUMIÈRES� (Hachette Littérature, 2001), namely the adaptation of Islamic law to modern times, and notably the recognition of equal rights for women.

Recently a number of Muslim women associations have

been started in recent times to make this struggle their own. A number met at the 2nd International Congress on Islamic Feminism in Barcelona Nov 3-5, 2006 (see http://www.middle-east-online.com/English/?id=18136 (last visited Jan. 2007). Heba Raouf Ezzat, Professor of political science at the Cairo University, defends an opening of Islamic doctrine and women rights. She co-authored an article: TOWARDS AN ISLAMICALLY DEMOCRATIC SECULARISM (in Faith and Secularism, Rosemary Bechler (ed), a British Council Counterpoint book, Bedford, UK, (2006). See also the site of Irshad Manij, a Canadian Muslim engaged in the fight for equal rights, author of the book �MUSELMANE MAIS LIBRE�, Livre de Poche, Paris, 2006, at. : http://www.muslim-refusenik.com (last visited Jan. 2007).

The moderate and tolerant Topkai Declaration of July 2nd. 2006,

drafted by Tariq Ramadan in the name of a majority of Muslim leaders to promote mutual understanding, exchange and respect, and notably condemning all form of violence may well be interpreted as a sign that indeed the doors of ijtihad are opening up again and that the struggle for equal rights of women may not be as painful as it sometimes seems to be. See : http://www.arabia.pl/english/content/view/74/16/ (last visited Jan. 2007).

The fact that Islamic law finds its� roots in the immutable word of

God, does not, in legal doctrine, hinder the enactment of modern laws through parliaments and the ensuing obligation of Muslims to respect

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these laws. As only relatively few strictly legal precepts have been given in the Koran, and the sunna and Hadîths necessarily restrict themselves to topics relevant at the lifetime of the Prophet, new issues may be addressed by new laws � provided they do not contradict the basic Islamic tenets.

In the Mauritanian Constitution (see Fn 11) this duality is

expressed in its� Preamble: �Confiant dans la Toute Puissance d�ALLAH, le

peuple mauritanien proclame [�] �Fort de ses valeurs spirituelles et du

rayonnement de sa civilisation, il proclame en outre, solennellement, son attachement à l�Islam et aux principes de la démocratie [...] �

�Considérant que la liberté, l�égalité et la dignité de l�Homme ne peuvent être assures que dans une société qui consacre la primauté du droit, soucieux de créer les conditions durables d�une évolution sociale harmonieuse, respectueuse des préceptes de l�Islam, seule source de droit, et ouverte aux exigences du monde moderne [�]� (emphasis mine), and see : Art 4: � La loi est l�expression suprême de la volonté du people. Tous sont tenus de s�y soumettre. », and Art 5 : � L�Islam est la religion du peuple et de l�Etat. � Furthermore, Art 1179 of the Code des Obligations et des Contrats (see Fn 11) stipulates: �Pour combler les lacunes de cette ordonnance, il est fait référence au rite malékite. Pour lever toute équivoque dans la version française de ce texte la version arabe fait foi. �

In the late 19th century the Ottoman Empire, in an effort to modernize its administration and economic exchanges, codified the sharia pertaining to civil law and commercial law, the so-called �Medjelle�. The codification orients itself at western codes and transforms the compendia of fiqh islamique, which consisted in collections of case law. The civil code (which calls itself Loi Sacrée) begins with a definition in its Art 1:

�La science du Droit Musulman (ilmi fikih) est la connaissance des préceptes de la Loi Sacrée par rapport à leur application aux actions humaines. Les dispositions de la Loi Sacrée se rapportent à la vie future et comprennent la matière du culte, ou bien concernant la vie temporelle et se divisent en trois catégories, à savoir : 1. Le mariage. 2. Les obligations en général et les conventions, 3. Les peines. Selon la volonté divine, la Création doit subsister dans l�état ou elle se trouve jusqu'à l�époque fixée par les décrètes suprêmes ; [�] »

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Despite this obvious and repeated reference to the sacred, Art. 2 copies a stipulation of the French code civil:

�Art 2: Pour apprécier une action on doit en rechercher l�intention. C�est-à-dire, l�appréciation qu�on fait d�une action doit s�appuyer sur le but qu�elle avait en vue. (cp Code Napoléon, art. 1156).

French translation of the Turkish text, dated 1.er Muharram 1287 AH (1871 AD), published in 1881 as appendix to the �Legislation Ottomane d�Aristarchi�.

The Madjelle was the law of the country in Iraq until 1951, when a

new Civil Code was enacted on 18 September 1951, (Off. Gazette #3015, dated 8 September 1951) and compiled from two sources, the Islamic sharia as edited through the �Majallat Al Akhma Al �Adliyya�� and the Civil Code of Egypt. The Ottoman Code is still in force, in amended form, in Syria and Palestine. The Syrian civil code of 18. Mai 1949 (Décret legislative # 84; copying the Egyptian Civil Code of 1949) postulates the inverse order of priority to the Mauritanian Constitution:

Art 1: �1) [�]

2) A défaut d�une disposition législative applicable, le juge statuera d�après les principes du droit musulman et, à son défaut, d�après la coutume, et, à son défaut, suivant le droit naturel et les règles de l�équité. �

In Tunesia, a civil code (among others) was enacted under French

sponsorship in 1906, edited by David Santillana and an illustrious group of Islamic jurisconsults, (les muftis et qadis des deux rites hanéfites et malékites - Doctoral theses by Sana Ben Achour, dated 24 January 1996, currently Professeure agrégée de droit à Tunis, Secrétaire générale de l�Association Tunisienne des Femmes Démocrates).

Santillana went on to work also on the reforme of the Civil Code of Maroc (see: V.J. Moneger, BIOGRAPHIE DU CODE DES OBLIGATIONS ET DES CONTRATS, DE LA RECEPTION A L�ASSIMILATION D�UN CODE ETRANGER DANS L�ORDRE JURIDIQUE MAROCAIN, in : Revue marocaine de droit et d�économie du développement 1984 Nr : 7, Nr.19 and following.

In Mauritania efforts to harmonize Islamic law with modernity,

adopt it to contemporary life, and simultaneously present it in accordance with western methodology, continues (Mohamed Mahmoud Ould Mohamed Saleh, (Professeur agrégé de droit à l�Université de Nouakchott et à l�Université Sophia-Antipolis à Nice, avocat : DROIT DES CONTRATS EN MAURITANIE (especially Sections I and II, serving as introduction), Publication of the Ordre National des Avocats, Nouakchott, Mai 1996).

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Also in Mauritania, open-minded jurisconslts, such as Hamden Ould Tah, Mohammed Salem Ould Adout, have, despite the strict tenants of the malikite school, not hesitated to use the �doctrine of necessity� to arrive at reasonable results. For instance, in the late 1990s a fatwa authorized the consumption of frozen chicken meat, even though the birds had not being slaughtered according to the established ritual and were therefore haram, forbidden, when the prizes for local meat where unattainable for the poor and Chinese chicken cheap and abundant. Another fatwa authorizes Mauritanian waiters abroad to serve alcohol to their clientele, if otherwise their families would have no source of income.

It is regrettable that the compilation of these fatwas, while

widely known among the people, are ignored by the establishment, not published in Arabic, let alone French, and generally not evoked in discussions of societal- or legal reform. This behaviour undermines efforts to harmonize both legal strands, the so called modern and the Muslim law.

The Code Pastoral of Mauritania, however, is a vivid example of a

successful effort of adaptation Islamic legal tradition to changing realities within the modern context. The beauty and the difficulty of interpreting the law in Islam is best illustrated by a poem of the Persian philosopher and mystic El-Roumi : �Le livre de Dieu repose sur quatre bases: L�expression, l�allusion, les plaisanteries, les vérités.

L�expression est pour le peuple ; L�allusion pour les gens distingués ; Les plaisanteries pour les saints ; Les vérités pour les prophètes. »

Djalal El-Din El-Roumi (605-672H/1207-1273AD)

HWW (18 XII 06)

All websites visited November , 2006

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the code pastoral of the islamic republic of mauritania