What happens now to the question of recognition of the Afghan government - an analysis
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The Taliban Regime 2021 - Struggling for recognition
- State and Government: In August 2021, the Taliban swept through Afghanistan, and the State collapsed like a pack of cards. Murmurs began about the need for it to gain "recognition" from other countries.
- State and government: A "State" is an organized political community acting under a government (particular group of people that controls the state apparatus). Recognition of a ‘Government’ is different from recognition of a ‘State’ under international law. Given the violent past of the Taliban, and the fact that Afghanistan is already a recognised state, the issue is of recognition of present Taliban regime (the government).
- Why seek recognition: Recognition of a government is vital in international law to know who the governing authority of the State is. That authority carries out domestic and international legal obligations relating to diplomatic relations, rights protection, etc.
- The State and government generally work in tandem, in any nation. The recognition is easier if the change of government within a state occurs with political transfer of power through legal means.
- But the Taliban have ousted the sitting government using unconstitutional means / extra-legal methods. Hence recognition will now depend on the countries’ political considerations and geo-strategic interests.
- Principles of recognition: To recognise a government means to determine whether it effectively controls the state it claims to govern. That should ideally include -
- Control over the territory (or a part of it), national institutions, the banking and monetary system, etc.
- Control over a majority of the population
- A reasonable possibility of permanence
- It is immaterial how the new government occupied office (whether through civil war, revolution, or a military coup). So the Taliban would be recognised as the government as it effectively controls Afghanistan.
- Democratic legitimacy: Recognition of a government depends on whether it is the legitimate representative of the people it claims to govern. So, governments that capture power through non-democratic means should not be recognised by states. The Taliban regime, despite exercising effective control over Afghanistan, lacks democratic legitimacy and thus would fail to be recognised as the legitimate representative of Afghanistan. This is not to say that China, Russia, Pakistan and some more may actually grant it recognition.
- International law: Under prevailing law, there are two modes of State recognition that confer legitimacy upon the said State.
- "De Facto recognition" may be based on the effective control theory alone but it can be revoked at any time.
- "De jure recognition" is non-conditional, final and irrevocable and a State will have absolute rights and obligations against other states. De jure recognition is largely based on the democratic legitimacy doctrine and on compliance with Article 1 of the Montevideo Convention.
- What nations may do: The doctrine of democratic legitimacy is widely employed by countries who would refuse de jure recognition of the Taliban. Also, if the Afghan President, Ashraf Ghani, who fled the country when the Taliban entered Kabul, were to announce a government in exile, it could be recognised as the de jure government. Many countries had recognised Yemen’s Abdrabbuh Mansur Hadi government in exile since 2015 (de jure, not de facto) as rebellious separatists acquired power in Yemen through illegal means. Nicolás Maduro's government in Venezuela is not recognised by several countries due to the alleged lack of democratic legitimacy. But it would still be consistent with international law if Russia and China formally recognise the Taliban regime due to its effective control of Afghanistan.
- India's call: Given the Taliban’s brutal past, its extremist ideology, and absence of democratic legitimacy, India may refuse legal recognition. However, India will still have to find a way to engage with the de facto Taliban government given India’s huge investments in Afghanistan, and for multilateral dealings such as the SAARC.
- EXAM QUESTIONS: (1) Explain the difference between recognition granted to a State and to a Government. (2) What is the difference between "de facto recognition" and "de jure recognition" granted to a government? Analyse. (3) What is India's stance on granting any kind of recognition to the Taliban regime? Explain.
#Afghanistan #Taliban #State #Government #InternationalLaw
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