The study aims to analyse and identify the loopholes in trade and IPR in Afghanistan. Hence the study shall be doctrinal research. Under doctrinal research, a blend of the following techniques has been used to achieve the research objectives. The data and information for the study shall be based on primary and secondary data collection methods.

Primary data will be obtained from the Afghanistan constitution and statutory laws, WTO and TRIPS Agreement; secondary data will be obtained from research papers, journals, magazines, websites and annual publications of the UN, WTO and TRIPS Council. The scheme of the present is limited to highlighting the IPR and trade status of Afghanistan before August 2021.

Introduction
Since intellectual property rights are a new concept within modern positive law, Islamic law makes no clear or particularly precise provision for them.[1] Accordingly, almost all Islamic countries, including Afghanistan, have adopted and applied secular laws to regulate commerce, administration and tax issues.[2]

While the Islamic legal system does not expressly provide legal protection for intellectual property rights,[3] one can nonetheless conclude from the main principles and sources of the Islamic law that Sharia, in general, does indeed provide support for the protection of intellectual property rights.[4]

At the beginning of this discussion, in order to examine the extent to which Islamic law makes provision for intellectual property rights, it would be useful to shed some light on the sources of Islamic law and its hierarchy. As stated in the previous section, Islamic law has primary sources (Quran and Sunnah) and secondary sources (consensus (Ijma), analogy (Qiyas), custom (Urf) and public interest (Masalaha Mursalah)).

These sources are not examined in detail here since they are not the primary subject matter of this research.[5] Notwithstanding, understanding the sources of Islamic law overall will help the reader to understand the position of Islamic law on the legal protection of intellectual property rights in particular. [6]

In the following, the sources of Islamic law are examined briefly.[7] It should be noted that Islamic law has yet to directly address the legal protection of intellectual property rights in its jurisprudence. Like with other issues, such as criminal, commercial and administrative law, regulating intellectual property rights is the responsibility of the government.[8] This governmental authority is bestowed by the secondary sources of Islamic law.[9]

However, concerning the legal protection of intellectual property rights,[10] Islamic scholars are divided into those who oppose such protection and those who are in favour of it. The former hold the perception that, in the Sharia, ownership of property is limited to "tangible objects not [�] intangible" objects.[11]

They also claim that there is no precedent in the Quran, Sunnah, and Islamic jurist's points of view that intangible property,[12] such as intellectual property, be regarded as a form of private property and be eligible for selling and purchasing. In addition, according to this notion, knowledge in Sharia does not belong to one person, and no one can prevent others from acquiring it as that would lead to a monopolization of knowledge that Islam does not recognize or approve.[13]

Furthermore, there is another perception, namely that "Sharia does not accept IP as it is a tool imposed by the West,[14] which would be no benefit to the Muslim community."[15] Furthermore, the opponents of intellectual property claim that the primary sources of Sharia (Quran and Sunnah) do not provide for the legal protection of intangible things.[16]

They also claim that intellectual property rights are "against Sharia as long as the laws permit the owner to impose restriction on the end user after selling the item containing the intellectual creation".[17] Likewise, other scholars argue that protecting intellectual property impedes other people from benefiting from knowledge.[18]

According to them, this impediment stands in opposition to the Sunnah.[19] Prophet Mohammad said that "the one who conceals knowledge would appear on the day of resurrection as reined in a bridle of fire". This Hadith is directly related to a rejection of copyright protection.[20]

The proponents of protecting intellectual property rights argue that "there is nothing in Sharia that enjoins or contravenes protecting and enforcing intellectual property rights and the Muslims should abide by their contracts and laws applied in their countries".[21]

In addition, there are certain arguments in the Islamic jurisprudence which justify the protection of intellectual property rights.[22] Islamic scholars, by referring to the Islamic sources, recognize intellectual property rights as a concept involving personal rights, money/wealth rights and property rights.

By and large, Sharia acknowledges the right of a person to "accumulate and generate wealth and the right of ownership and possession".[23] It has been recognized that a person has the right "to reap the fruit of his labour and effort".[24] Therefore, intellectual property is considered as a legal personal right.[25] Property is sacred under Islamic law. Moreover, Islamic law recognizes private property and ownership.[26]

Accordingly, a person who owns intellectual property deserves to collect and receive the benefits from that property.[27] Likewise, Islam has adopted the right of a person to have money and wealth as parts of his property or assets, and people have the right to collect such money and wealth by legal means. Therefore, intellectual property, as a form of wealth, is eligible for protection. Resorting to illegal means for collecting wealth is strongly prohibited in Islam.[28]

Most importantly, intellectual property is considered a type of property. According to Islamic law, all kinds of property originally belonged to God, but have been granted to people. Therefore, the Quran recognizes the rights of private ownership, and trespassing against another's property is thus considered a violation of Sharia.[29]

It is noteworthy that two main religious opinions, or Fatwa, concerning the protection of intellectual property rights have recently come from the Council of the Islamic Fiqh Academy[30] and the Fatwa Committee of Al-Azhar University.[31] The Council of the Islamic Fiqh Academy, regarding the protection of intellectual property, issued the following opinion (Fatwa), which is an important source for the modern governments to issue statutory laws and regulations for protection of intellectual property rights and trademarks. [32]

The Fatwa states: "Business name, corporate name, trade mark, literary production, invention or discovery, are rights belonging to their holders and have, in contemporary times, financial value which can be traded.[33] These rights are recognized by Sharia and should not be infringed".[34] The Fatwa also recognizes intellectual property rights as financial rights:[35]

"It is permitted to sell a business name, trade mark for a price in the absence of any fraud, swindling or forgery, since it has become a financial right". Regarding copyrights and patents and their owners, the Council of Islamic Fiqh states the following: "Copyrights and patent rights are protected by Sharia. Their holders are entitled to freely dispose of them.[36] These rights should not be violated".[37]

This Fatwa shows that Islamic law indeed recognizes and seeks to protect all forms of rights pertaining to intellectual property.[38] At the same time, the Fatwa Committee of Al-Azhar University issued an opinion in 2000 and 2001, which states that "Islam gives the owner the freedom to dispense of the property owned thereby as he wishes; no other person may dispose of, copy, enjoy, use or attribute such property thereto without the prior consent of the owner, whether for compensation or not".[39]

This Fatwa shows that intellectual property is considered property, and that its owner has sole authority and rights to benefit from it. One important issue should be noted.[40] According to Islamic principles, intellectual property rights, as part of property, do not relate to or depend on "the entity of the owner or his religious beliefs". Consequently, the property rights equally apply to Muslim and non-Muslim owners of property.[41]

In fact, while Sharia does not explicitly and clearly recognize and protect intellectual property rights, referring to different sources of Islamic law reveals that the notion of protecting intellectual property has been acknowledged by Islamic scholars.[42] In reality, there are no explicit provisions in the main sources of Sharia that limit the ownership of property to tangible assets.

Therefore, in Sharia, the word "property" has a broader meaning encompassing both tangible and intangible objects. Moreover, different sources of Sharia law (Sunnah, Ijma, Qiyas, Maslahah, and Urf) authorise the state to enact laws and regulations for the protection of property in general, and intellectual property in particular.[43]

Afghanistan Tyrst with World Trade Organization

Afghanistan acceded to the WTO on 29 July 2016, as its 164th Member, following 12 years of accession negotiations.[44] The WIPO Establishing Convention of 1967 was signed in 2005. These agreements are enforceable in Afghanistan, and according to Article 7 of the constitution,[45] the government of Afghanistan should abide by them.[46]

Furthermore, Articles 12 and 14 of the Law on International Treaties and Conventions (LOITC) oblige the government of Afghanistan to observe the international treaties and conventions that have been signed by the Afghanistan government.[47] Afghanistan has not signed any multilateral or bilateral agreements on the legal protection of intellectual property.[48]

Conclusion
The existing study found that laws relating to Intellectual Property Rights and WTO in Afghanistan are scanty. The article found that the impact of the WTO agreement, its advantages and future implications in Afghanistan, considering the present uncertainties, are lacking. Afghanistan suffers from political uncertainties,[49] declining international grant support, and continued insecurity.[50]

All aspects that affect the direct form of the worsening economic crisis are not measured by previous studies and failed to provide useful recommendations and solutions to alleviate the reduction in trade caused by the crisis.[51]

The existing study has identified that the WTO agreement has a positive effect on the import,[52] export, market and economic growth of Afghanistan, and the TRIPS agreement has an impact on the copyrights,[53] trademarks,[54] patents, Industrial designs,[55] utility models,[56] integrated circuits[57] and geographical indications.[58]

End-Notes:

1. Sayed Qudrat Hashimy, Impact of WTO Agreement Accession on Trade and a Few Intellectual Property Rights in Afghanistan, Available at SSRN 4291992, 51 (2021).
2. Heba A. Raslan, Sharia and The Protection of Intellectual Property, p. 498.
3. Sayed Qudrat Hashimy, Protecting Geographical Indications in Afghanistan (2022).
4. Amir H. Khoury, Ancient and Islamic Sources of Intellectual Property Protection in the Middle East: A Focus on Trademark. IDEA, The Journal of Law and Technology, Vol. 43 (2003), p. 202. [hereinafter Amir H. Khoury, Ancient and Islamic Sources of Intellectual Property Protection in the Middle East].
5. Hashimy, supra note 1 at 12.
6. Id. at 34.
7. Id. at 14
8. Id. at 23
9. Steven D. Jamar, The Protection of Intellectual Property Under Islamic Law, 21 Capital University Law Review, 1079 (1992), p. 1094. [hereinafter Steven D. Jamar, The Protection of Intellectual Property Under Islamic Law]
10. Sayed Qudrat Hashimy, China's Belt-Road Initiative and Investment Strategies: A Two Pillar Approach to Afghanistan, 12 International Journal of Science and Research (IJSR) 449 (2023)
11. Sayed Qudrat Hashimy, Impact of COVID-19 on the Trade in Afghanistan, 6 SSRN Electronic Journal 52, 9 (2021)
12. Hashimy, supra note 1
13. Heba A. Raslan, Shari'a and the Protection of Intellectual Property, p. 502
14. Sayed Qudrat Hashimy, An Analysis of Naked Licensing in the Case of Trademark Law in the US, UK And India, UK And India (January 3, 2022) (2022).
15. Hashimy, supra note 11.
16. Ezieddin Mustafa Elmahjub, Protection of Intellectual Property in Islamic Shari'a and the Development of the Libyan Intellectual Property System. PhD thesis. Queensland University of Technology (2014), p. 65. [hereinafter Eziddin Mustafa, Protection of Intellectual Property in Islamic Sahria]. Available at: https://www.google.com.af/?gws_rd=cr,ssl&ei=hkuSVuj7A4f8swG_lbnQAw#q=protection+of+intellectual+property:+Its+re ality+and+Its+Shari%27a+Rule, Accessed on 19th June 2021.
17. Heba A. Raslan, Shari'a and the Protection of Intellectual Property, p. 502.
18. Sayed Qudrat Hashimy, Impact of COVID-19 on the Trade in Afghanistan, Available at SSRN 3984854 (2021)
19. Ezieddin Mustafa Elmahjub, Protection of Intellectual Property in Islamic Shari'a, p. 65
20. Ibid
21. Heba A. Raslan, Shari'a and the Protection of Intellectual Property, p. 502.
22. www Org/Jef, Sayed Qudrat Hashimy & Jackson Magoge, Role of WTO in the Promotion of Trade and IPR in Afghanistan, Volume 7 1 (2022).
23. Id.
24. Sayed Qudrat Hashimy, Impact of WTO Agreement Accession on Trade and a Few Intellectual Property Rights in Afghanistan, 46 (2021), https://papers.ssrn.com/abstract=4291992 (last visited Feb 9, 2023).
25. Amir H. Khoury, Ancient and Islamic Sources of Intellectual Property Protection in the Middle East, p. 164.
26. Sayed Qudrat Hashimy, Protection of Video Games under Indian and the United States of America Copyright Law, SSRN Electronic Journal (2022).
27. Hashimy, supra note 3
28. Javaid Iqbal and others, Intellectual Property Rights in Islam, p. 160
29. Amir H. Khoury. Ancient and Islamic Sources of Intellectual Property Protection in the Middle East, p. 166, Arabic link: http://www.iifa-aifi.org/
30. Fatwa Committee of Al-Azhar University, Available at http://www.islamopediaonline.org/websites-institutions/al-azhar-university-fatwa-committee-cairo-egypt, Accessed on 14th July 2021.
31. Hashimy, supra note 1 at 45
32. Hashimy, supra note 18.
33. Sayed Qudrat Hashimy & Emmanuel Elimhoo Kimey, Protection of Digital Contents under Indian Copyright Law in the Light of International Conventions, 5 1302 (2022).
34. Sayed Qudrat Hashimy, Impact of WTO Agreement Accession on Trade and a Few Intellectual Property Rights in Afghanistan, Available at SSRN 4291992 (2021).
35. Hashimy, supra note 1
36. Islamic Fiqh Academy. Resolutions and Recommendations of the Council of the Islamic Fiqh Academy 1985-2000, First edition, 2000, p. 89. Available at: https://uaelaws.files.wordpress.com/2012/05/resolutions-and-recommendations-of-thecouncil-of-the-islamic-fiqh-academy.pdf
37. Sayed Qudrat Hashimy, Impact of WTO Agreement Accession on Trade and a Few Intellectual Property Rights in Afghanistan, SSRN Electronic Journal, Oct. 10, 2021.
38. Heba A. Raslan. Shari'a and the Protection of Intellectual Property, p. 503
39. Hashimy, supra note 35 at 12
40. Amir H. Khoury, Ancient and Islamic Sources of Intellectual Property Protection in the Middle East, p. 166.
41. Sayed Qudrat Hashimy & Jackson Simango Magoge, The Legal Implications of, (2021), https://papers.ssrn.com/abstract=4012335 (last visited Feb 9, 2023).
42. Bashar H Malkwai, Intellectual Property Protection from a Shari'a Perspective, Southern Cross University Law Review, Vol. 16 (2013), p. 94. [hereinafter Bashar H Malkwai, Intellectual Property Protection from Sharia Prospective].
43. Hashimy, supra note 24 at 19.
44. Sayed Qudrat Hashimy & Jackson Simango Magoge, Role of WTO in the Promotion of Trade and IPR in Afghanistan, Journal of Economics and Finance (DRJ-JEF) (2022).
45. Hashimy, supra note 3.
46. Id.
47. Org/Jef, Hashimy, and Magoge, supra note 22.
48. Sayed Qudrat Hashimy, War Crimes in Afghanistan, 26 World Affairs 24 (2022).
49. Hashimy, supra note 3.
50. Sayed Qudrat Hashimy, The Recognition and Legitimacy of the Taliban Government: A Conundrum in International law, 26 World Affairs 40 (2022).
51. Hashimy, supra note 3.
52. Hashimy and Kimey, supra note 34.
53. Org/Jef, Hashimy, and Magoge, supra note 22.
54. Hashimy, supra note 35.
55. Hashimy and Magoge, supra note 45.
56. Id.
57. Hashimy, supra note 3.

Written By:

1. Sayed Mahdi Sadat Nasiri, Student at ILS Law College, Pune
2. Mohammad Rasikh Wasiq, Student at ILS Law College, Pune