To recognise Taliban or not?

By Nagaland Post | Publish Date: 9/16/2021 1:21:44 PM IST

 Whenever a new individual comes to power in China or North Korea, the recognition of their govts is never questioned despite the absence of democratic legitimacy.

Much has been made of the tortuous hurdles faced by the Taliban in obtaining international recognition as the government of Afghanistan. It has been asserted that India should wield its recognition powers punitively, refraining from conferring governmental status on the Taliban to rebuke it for previous acts of terrorism. Equally, arguments have been proffered that the Taliban’s violent takeover of Afghanistan and its protracted history of human rights abuses are sufficient grounds to repudiate its governmental status. There appears to be a belief that international recognition of the Taliban ought to be withheld until sufficient guarantees are obtained from them that they will be willing to comply with international law. Some have even suggested that a de facto recognition may be extended to the outfit, to enable minimal diplomatic engagement, but that de jure recognition (i.e. legal recognition) should be withheld as leverage to avoid any ‘adverse consequences’ at the hands of this regime.

To anyone working in the field of public international law, such conversations are perplexing. They seem to misunderstand the nature and purpose of recognition.

The recognition of governments is not a legitimacy-conferring exercise whereby the entity granted recognition is absolved of all past wrongs and welcomed into the international community with open arms. To the contrary, recognition simply acknowledges a political reality: that a particular entity possesses effective control of the territory of a State. Nothing more and nothing less. As such, not only is withholding recognition of the Taliban government a futile exercise that achieves little more than political posturing, it might actually be counter-productive to those who wish to hold the Taliban legally accountable for their actions.

Effective control or democratic legitimacy

In the Tinoco Arbitration case, Great Britain sought to uphold concessions granted to it by a revolutionary Costa Rican government perceived to be illegitimate by the international community at large. However, as the arbitrator noted in that case, “when recognition vel non of a government is by such nations determined by inquiry, not into its de facto sovereignty and complete governmental control, but into its illegitimacy or irregularity of origin, their non-recognition loses something of evidential weight on the issue with which those applying the rules of international law are alone concerned…[s]uch non-recognition for any reason, however, cannot outweigh the evidence disclosed by this record before me as to the de facto character of Tinoco’s government, according to the standard set by international law”.

The standard referenced in the preceding quote is that of effective control. Whichever entity possesses factual control over the territory of a State is the government of that State and ought to be recognised as such. International law does not look towards the means through which a particular entity comes to power in this assessment; instead, recognition hinges on “demonstrable and sustainable effective control over the majority of the territory and over the state institutions”. Although there was a brief instance in the late 20th century that seemed to augur the emergence of a new requirement for democratic legitimacy, with the non-recognition of governments established through military coups in Haiti in 1991 and in Sierra Leone in 1997, it was short-lived. As Professor de Wet has argued, subsequent practise by States on this requirement has been ambivalent, with governments that came to power through illegitimate means routinely gaining international recognition, including in São Tomé and Príncipe (2003), Côte d’Ivoire (2010), Mali (2012) and Egypt (2013). Indeed, whenever a new individual comes to power in China or in North Korea, the recognition of their governments is never questioned despite the absence of democratic legitimacy. As a result, there is nothing to indicate that the sole requirement for governmental recognition in international law has ever been displaced. Effective control remains the only decisive factor in determining whether an entity has acquired governmental status. After the fall of Panjshir Valley, there is little doubt that the Taliban now have effective control over the territory of Afghanistan. Therefore, there are no compelling legal reasons to withhold recognition of their governmental status.

Recognition creates accountability

There are also strong political reasons that support extending legal recognition to the Taliban government. For better or for worse, international law is a system primarily geared to regulate the conduct of States. As a non-State actor, the Taliban will remain poorly regulated through international law. However, by recognising the Taliban as the government of Afghanistan, new avenues for accountability open up. Recognition enables diplomatic engagement with the Taliban, with the possibility of concluding treaties that bind the latter entity to enforceable human rights and anti-terror commitments. Simultaneously, through Art.10(1) of the Articles on State Responsibility, recognition of the Taliban as the government of Afghanistan makes its actions attributable to the State of Afghanistan, creating a mechanism for international legal responsibility to be borne by it. This means that it can now be brought to justice for breaches of customary human rights law, humanitarian law, and for sponsoring terrorism. Moreover, for those who fear the worst, if the Taliban government were to perpetrate violence beyond its borders, recognising it as the government of Afghanistan enables third States that suffer such attacks to respond against them in self-defence. Notably, Art.51 of the UN Charter only creates a right of self-defence against an armed attack perpetrated by a State. No such direct right to take armed action exists for violence perpetrated by non-State actors, which is what the Taliban would be were they not to be recognised.

By withholding recognition, the Taliban’s actions are left in a legal vacuum with little accountability. On the other hand, by recognising them as the government of Afghanistan, India and the international community have an opportunity to make the Taliban shoulder international legal responsibility for its actions.

Vanshaj Jain is a DPhil candidate and Rhodes Scholar at the University of Oxford. Views are personal.

(As published by The Print)

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