Written by Ramsha Hashmi
First year, B.Com LLB, Tamil Nadu National Law University
Source: Business Standard
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
President Biden announced the withdrawal of the United States troops on April 14th, 2021.
On 15th August , 2021, the Taliban forces entered Kabul, the Afghan Government fell almost instantly and President Ashraf Ghani fled the country. Within nine days of seizing the first provisional capital, the Taliban had taken control of the entire nation of Afghanistan.
“As the world watched, a member of the Taliban took down the flag of Afghanistan hanging within the palace walls, rolled it up and set it to the side” articulates journalist Ruby Mellen of the Washington post.[1 ]And with that, the 20 years of illusion of democracy had slipped out of sight of the nation along with the departing US troops.
The International community had braced themselves with the possibility of Taliban resurgence following US withdrawal; few could have anticipated the swiftness of the insurgency. Czech President Milos Zeman labelled it "cowardice", adding that "the Americans have lost the prestige of a global leader".
With over a month of Taliban control, the global community is at a juxtapose with the status of the Taliban forces in Afghanistan.The legal recognition of the newly formed Taliban government remains uncertain and highly polarizing.
Classification of ‘Recognitions’:
At the very onset it is important to make a clear distinction between the state and the government of Afghanistan.The legal recognition of a state stands mutually exclusive from the recognition of its government. States which are under illegal occupation or even under the control of terrorists continue to exist as states. Therefore, the state of Afghanistan continues to exist as a legal personality notwithstanding the takeover by the Taliban.
It is absolutely imperative to recognise governments as most international laws are geared towards regulation of states, and Taliban being widely accepted as a non-state actor does not fall under the ambit of these regulations, hence a gross lack of accountability. Furthermore, distinguishing political recognition from legal recognition is important.
Political recognition of a state or government means that the recognizing state is willing to enter into political and other relations with the recognized state or government. From a legal standpoint however, political recognition stands unimportant as it primarily focuses on bilateral agreements, treaties and political relations between states.
The question stands around the legal recognition of the Taliban Government under international law.
To come to a conclusion on the status of the Taliban Government, understanding the ambit of international law and what it says about legal recognition of governments is important.
The discussion around international law being a law in the technical sense is inconclusive due to the lack of enforceability. Sovereign states cannot be compelled by any international law or statute, it is legally binding only by agreement in the form of international documents like multilateral or bilateral treaties. However, States cannot deviate from Jus Cogens (peremptory norms) and erga omnes obligations (obligations towards everyone) whether or not they have explicitly agreed to do so. Jus Cogens as defined by the Vienna Convention on the law of treaties, article 53, are norms from which no derogation is permitted. States have agreed on certain principles that fall under the ambit of Jus Cogens such as abolition of slavery, apartheid, genocide, crimes against humanity and there is no conflict regarding their status.
Other forms of codified international law and their binding nature are subject to agreement by the states themselves.
General international law is primitive law and is highly decentralized, unlike the technically developed and established national or domestic laws.
There are no established organs authorized to execute legal procedure of concrete facts as determined by the law. Hence, the enforceability of international law is completely at the mercy of sovereign states, barring a few statutes and conventions, especially a domestic matter like the legitimacy of the government. Article 2(7)- “Non-intervention in domestic affairs by the United Nations” also very clearly states that the United Nations has no authority to intervene in matters within domestic jurisdiction, status of governments being a domestic affair.
Having established that, theoretically, international law distinguishes de jure and de facto recognition of governments. De Jure governments are legitimate lawful governments, conventionally having come to power in accordance with the procedure established by the law of the land i.e. the constitution of the state. De facto governments, or governments by a matter of fact are those governments who may not have come to power in compliance with the legal process of the land but is in actual possession or authority of the state.
On September 13th, 2021, Secretary of State Antony Binkers said during a congressional hearing that the Taliban is the de facto government, as a product of their upper hand in the civil war.
Applicable International Law Theories in the case of Taliban:
There are primarily three schools of thoughts that can be discussed in references to the Taliban Government and the legal recognition of governments under international law in contemporary times.
Doctrine of Self Determination-
The first being the Doctrine of Self Determination. Self Determination as protected by the United Nations Charter and International Covenant on Civil and Political Rights denotes the legal right of people to decide their own destiny. The core principle, arising from customary international law but also recognized as a general principle of law, and is enshrined in a number of treaties. Proponents of this school of thought will vehemently argue against the legal recognition of the Taliban Government following a multitude of protests, most recent and notable being the protest organized by Afghan women on 8th September, 2021 at Dashti-e-Barchi neighborhood of Kabul, against the all-male interim government constituted by the Taliban and their crackdown on women’s right.The general air of dissatisfaction was also seen by a frenzy of afghan people attempting to flee the country, migrating to airports in large numbers as seen from within 24 hours of the fall of President Ghani’s government.
Clearly, the Doctrine of Self Determination cannot provide legal recognition to the Taliban government.
The second and most popular ideology derives its essence from self-determination, that is the rising democratic entitlement of the global political standards. Democratic government and legitimate government have become interchangeable phrases, with the scale tilting towards democratic legitimacy as global legal norms of recognition conventions. There exist non-democratic governments like Saudi Arabia that enjoy De Jure recognition. However the component becoming a pre-requisite is the will of the people, which brings us back to the first school of thought and makes it inapplicable in granting Taliban government De Jure recognition. It is to be noted that recognition of insurgents as a belligerent power resembles more the recognition of a community than the recognition of a body of individuals as a government. This holds true for insurgency driven by the people and does not stand relevant in the case of the Taliban insurgency, which goes against collective opinion of the nation state.
Test of Effectiveness-
The final school of thought focuses on the factual test of effectiveness. The Montevideo Convention of the rights and duties of states codifies declarative theory of statehood as accepted in customary international law. It lists the attributes of a state with the existence of an effective government exercising authority of a territory independently from any other state and incapacity to enter relations with other States.
In this doctrine of effectiveness, the methods by which a government comes into power is wholly immaterial, but rather puts emphasis on the effectiveness of the government and places importance on command rather than consent. It proposes the habitual obedience of people and effective lawlessness. This doctrine is rightly popular amongst scholars due the absence of a stipulated time duration to test the effectiveness of the government.
Applying the doctrine to the newly formed government of Afghanistan doesn’t provide us with a definitive status of their legal recognition. Taliban appears to have territorial control over most of the country however its competing sub groups and lack of discharge of internal duties puts its effectiveness into question; a question that will only be answered by the passage of time.
Other countries who faced a similar dilemma:
We can look to Lebanon and its Hezbollah Coalition government for reference. The Hezbollah, which has been recognised as a terrorist militia by most countries including the United States even though it integrated into the Lebanese Government in 1992 with 8 of its members getting elected to the parliament. In the most recent elections, it has 13 out of 120 members in the parliament and forms a coalition government with the Amal Movement. It is still referred to as a non-state actor by the United Nations.
The case of Hezbollah shows that territorial control and democratic elections may not be sufficient for governments to get recognition under international law.
However, the acceptance of governmental authority stems from the practice of U.N. organs. The Taiwan-based Government of the Republic of China initially represented China in the UN. In 1971, however, the General Assembly adopted Resolution 2758106 which recognized: “The representatives of [the Government of the People’s Republic of China] as the only legitimate representatives of China [and expelled] the representatives of [the Government of the Republic of China (Taiwan)] from the place which they unlawfully [occupied] at the United Nations and in all the organizations related to it.”The underlying reason for the General Assembly’s pronouncement was the fact that the Government of the Republic of China controlled only a fraction of the Chinese territory and thus could not make a legitimate claim to represent the entire Chinese state. Hence a clear precedence has been set that territorial acquisition and control provides a degree of legitimacy to actors. Only time can provide clarity on the status of the newly formed Taliban Government and with it, the future of the state of Afghanistan.
Therefore, there can be no conclusive answer to the question of the legal recognition of the Taliban Government under international law, yet. The passage of time, the disposition of the Taliban and the reaction of the international community will set in stone the future of the Afghan state and its people. Meanwhile we can watch how the Taliban government and its actions will unfold ,with a bated breath, events that will surely go down in history.
 Ruby Mellen, The shocking speed of Taliban’s advance:a visual timeline, Washington Post, 16th August, 2021, https://www.washingtonpost.com/world/2021/08/16/taliban-timeline/
 Gaurav Yadav, Recognising Taliban Rule?Tale of Two Theories in International Law, Live Law, 16 September, 2021, https://www.livelaw.in/columns/international-law-afghanistan-taliban-rule-181760#_ftn13
 Recognition in International law, Theoretical Observations by Hans Kelsen, Harvard University
 Crisp Introduction to International Law by Fatima Mujawar, first edition, 2016
 Amanda Macais, CNBC, 13 September 2021, Secretary of State Blinken calls Taliban ‘the de facto government of Afghanistan’ https://www.cnbc.com/2021/09/13/secretary-of-state-blinken-calls-taliban-the-de-facto-government-of-afghanistan.html
 Legal Information Institute, Cornell University, https://www.law.cornell.edu/wex/self_determination_(international_law)
 Masoud Papalzai, Taliban Fighters use whips against afghan women protesting against all male interim government, CNN, 9 September, 2021 https://edition.cnn.com/2021/09/08/asia/afghanistan-women-taliban-government-intl/index.html
 Supra 6
 Kali Robinson, What is Hezbollah?, Council on Foreign Relations, updated on 1st September 2020; https://www.cfr.org/backgrounder/what-hezbollah
 Vidmar, Jure, States, Governments, and Collective Recognition (November 1, 2013). Chinese (Taiwan) Yearbook of International Law and Affairs, Vol. 31 (2014), Forthcoming; https://ssrn.com/abstract=2482997
1. Ruby Mellen, The shocking speed of Taliban’s advance:a visual timeline, Washington Post, 16th August, 2021, https://www.washingtonpost.com/world/2021/08/16/taliban-timeline/
2. Gaurav Yadav, Recognising Taliban Rule?Tale of Two Theories in International Law, Live Law, 16 September, 2021, https://www.livelaw.in/columns/international-law-afghanistan-taliban-rule-181760#_ftn13
3. Recognition in International law, Theoretical Observations by Hans Kelsen, Harvard University
4. Crisp Introduction to International Law by Fatima Mujawar, first edition, 2016
5. Amanda Macais, CNBC, 13 September 2021, Secretary of State Blinken calls Taliban ‘the de facto government of Afghanistan’
7. Legal Information Institute, Cornell University, https://www.law.cornell.edu/wex/self_determination_(international_law)
8. Masoud Papalzai, Taliban Fighters use whips against afghan women protesting against all male interim government, CNN, 9 September, 2021 https://edition.cnn.com/2021/09/08/asia/afghanistan-women-taliban-government-intl/index.html
9. Mark Lowen, Afghanistan Crisis: How Europe’s Relationship with Joe Biden turned Sour, 3rd September 2021, https://www.bbc.com/news/world-europe-58416848
10. Kali Robinson, What is Hezbollah?, Council on Foreign Relations, updated on 1st September 2020, https://www.cfr.org/backgrounder/what-hezbollah
11. Vidmar, Jure, States, Governments, and Collective Recognition (November 1, 2013). Chinese (Taiwan) Yearbook of International Law and Affairs, Vol. 31 (2014), Forthcoming, https://ssrn.com/abstract=2482997