Taliban Govt: What Does International Law Say About Recognising It?

An “international diplomatic engagement” policy with countries like Afghanistan is a must in a globalised world.

With the ascendance of the Taliban militia in Afghanistan after the horrible events of the last few weeks, policymakers worldwide have to think about their future relationship with the new Taliban leadership. Some states have reacted rather positively to the regime change in Afghanistan, such as Russia; some cases openly explored the possibility of recognising the new regime — the Chinese Ministry of Foreign Affairs’ spokesperson Zhao Lijian’s said in a press briefing on August 18 that “It is a customary international practice that the recognition of a government comes after its formation”.

Others seem reluctant to follow the same line. In particular, President of the European Union (EU) Commission, Ursula von der Leyen, declared that the EU would not accord recognition to the new Taliban regime.

Consequently, there arises a question: what does international law say about recognising the government of the Taliban?

Recognition of Govt vs Recognition of State

The recognition of states and their legal effects form a cornerstone of international legal studies. A compendium of instances allows scholars and international lawyers to contest the modes of recognition of states and governments as per their geopolitical and geostrategic convictions. However, the recognition of governments is debated a bit less despite its dominant political consequence.

James Crawford speaks about the legal entity of the government that “…recognition of government and state may be closely related, they are not identical. Non-recognition of a particular regime is not necessarily a determination that the community represented by the regime does not qualify for statehood. Non-recognition of a government may mean that it is not regarded as a government in terms of independence and effectiveness or that the on-recognizing state is unwilling to have normal intergovernmental relations with it (sic).”

It is important to note here that the Taliban will not establish a new state. Though the ‘Islamic Republic of Afghanistan’ will be known as the ‘Islamic Emirate of Afghanistan’, it will not change its legal entity.

Its population and territory will also remain the same. Thus, when Zhao Lijian reflects a conceivable recognition, or when Ursula von der Leyen defends non-recognition, these factors keep the integrity of Afghanistan intact.

However, the recognition or non-recognition of governments has become extinct for a specific time in the past. For example, the UK proclaimed in 1980 that “…we have conducted a re-examination of British policy and practice concerning the recognition of governments. It has included a comparison with the practice of our partners and allies (sic).” The German government operates the same policy. The Academic Services of the German Bundestag expounds that “it has been the German state practice for years for recognising only the States and not Governments (sic)”.

Yet, recognising a government might be obligatory in maintaining the international law continuity and municipal political stability after a regime change. However, in a state of militia intervention, civil war, or a contentious election, the recognition of a government under international law cast a huge impact.

Recognition Practice & Legal Leeway

The legal leeway of recognising or not recognising governments must be realistic as to why Germany, the UK, and their allies and associates recognise states and not governments.

Lord Carrington opined against recognition while stating that “the practice of recognition has occasionally been misconstrued regardless of explanations to the contrary, our ‘recognition’ interpreted as implying approval(sic)”.

Lord Carrington’s assertion hits the centrality of the debate on why not recognising governments should legally be a leeway. It involves the dichotomy between pragmatic control by political power and its legitimacy. Therefore, should the scheme of inter-governmental relations recognise only power, or should legitimacy be regarded as a reason when attending inter-state relations? While there are positive arguments to make legitimacy a prerequisite for recognising governments, it gives the impression that political power was the conclusive factor for recognition for a long time.

The recognition of governments has to be conditional on legitimacy as enunciated in the Tobar Doctrine, but the Estrada Doctrine opposed this in the 1930s while advocating to go without any recognition. However, the crystallised policy of non-intervention has fast-tracked the waning of recognition in the post-World War II era.

In recent times, there has been an inevitable variation in the recognition practice; for example, in Venezuela, few countries have not recognised ex-President Nicolas Maduro and recognised the Opposition leader Juan Guiado as a stopgap President of Venezuela.

In the case of Syria and Libya, recognition practices give reasons to anticipate a revival of legitimacy characteristics of the policy of non-recognition. Therefore, the possibility of government recognition in Afghanistan requires a re-look from a legal angle. Thus, the question is: will the recognition practice of governments get legitimacy as the Taliban militia captured power by the use of force?

What's the Impact of Recognition?

The impact of non-recognition of a government is different from the non-recognition of a state. The recognition of a government is legally not indispensable for diplomatic relations. It is broadly customary that revolutionary regime change does not make a case under Article 43 of the UN Convention on Diplomatic Relations. It does not stop the diplomats from discharging their diplomatic duties. Thus, the diplomatic missions in Afghanistan can continue to perform their diplomatic obligations under international law even without recognising the Taliban government.

But international law certitude alone is not sufficient for the diplomatic corps in Afghanistan. It also requires a “politically determinate authority” whose writ runs across the Afghan nation.

Due to volatile political circumstances, they are bound to ask for additional guarantees from the new regime for their safety and well-being. It is equally important to underscore that international transactions among the nation-states (read Afghanistan) require ambassadors and high commissioners to carry out their functions; therefore, who has the mandate for their appointments.

Consequently, I find a non-conformist legal necessity for recognition and legitimacy sensitivities in the ‘diplomatic pragmatism’ as I call it. Diplomatic pragmatism must weigh between ‘de facto’ recognition and ‘de jure’ recognition of the government in Afghanistan. Diplomatic pragmatism goes with the ‘de facto’ recognition in the present geostrategic scenario in Afghanistan for the international community.

Moreover, ‘de facto’ recognition provides leverage to the international community to engage the Taliban regime regardless of any adverse legal and diplomatic consequences. Thus, a pragmatic diplomatic engagement with the Taliban regime may ensure the enforcement of their promises about respect for diversity, guarantee for services and jobs for all Afghan citizens, keeping their counterterrorism commitments and working with the western jurisdictions to ensure free economic aid, failing which they cannot afford international isolation once again.

A Way Out

Under the above discussion, it may aptly be argued that the Taliban regime must get international recognition due to geopolitical reasons and geostrategic dynamics. At the same time, recognising the Taliban government in Afghanistan under international law is possible. It will enable political and diplomatic discussions with the Afghan nation for providing the required global and regional wherewithal to establish lawful governance architecture. It will also allow an enabling environment for diplomats, representatives of IOs, civil society stakeholders, and human rights defenders to implement the ongoing development and infrastructural projects and human development engagements.

Recognising the Taliban regime in Afghanistan will entail a recognition practice that revives legitimacy thresholds beyond the diplomatic texts. Thus, an “international diplomatic engagement” policy with countries like Afghanistan and North Korea has become a must in a globalised world.

(Dr. Nafees Ahmad is an international law & human rights expert and teaches at South Asian University-New Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)