View: Taliban and the future of Afghanistan
With the Taliban effectively taking over control of most parts of Afghanistan, countries will have to decide whether to formally recognise a new government in that country, and, if they do, under what conditions.States usually no longer need to explicitly recognise new governments formed in accordance with the country’s own internal procedures. In practice, the question of recognition only arises when the new dispensation has been formed in violation of its own internal procedures, for instance, a coup d’état. In such circumstances, recognition is relevant, as it confirms the status of the new government to assert rights and incur obligations of international law on behalf of the State. This is especially the case when there is a competing government in existence, as with Afghanistan.Accordingly, recognising States would mean expecting the new government to carry out the State’s international obligations under treaty and customary international law. Moreover, only the new government can assume rights and obligations on behalf of the State.Domestically, too, recognition can assume relevance, as municipal courts in many countries refuse to accord legal personality to governments, if their respective States do not formally recognise them. This can have implications on whether the new government can avail immunity available under international law, have access to courts of foreign countries, etc.Recognition — or non-recognition — of governments in international law is, however, fraught with complications. Not least because recognition is fundamentally a political act that has legal consequences. As a result, States often accord or withhold recognition to further their own foreign policy objectives.The traditional test for recognition has been the exercise of effective control over the territory of the State. However, since the end of the Cold War, ‘effective control’ is no longer a determinative criterion. Other factors such as the readiness, and willingness, of the new government to carry out its obligations under international law, and, more controversially, its democratic legitimacy have emerged. In a sense, the evolution of criteria reflects the need of States to preserve their discretion in recognising foreign governments with a view to align with their own foreign policy goals.The situation with the Taliban is somewhat unique. While it cannot be contested that they are now in effective control of the majority of Afghanistan, it is still doubtful that they satisfy the other criteria. Also, despite channels of communication with governments of countries that include India, China and the US, Taliban remains designated a terrorist organisation under UN Security Council Resolution 1267 (1999). The same resolution records with deep concern, Taliban’s grave record of humanitarian and human rights violations, particularly their discrimination towards women and girls.As regards the criterion of democratic legitimacy, the forcible takeover of control from the elected Ashraf Ghani-led government by use of military force, and the pushbacks in parts of Afghanistan, reveals a very possible lack of legitimacy in terms of popular support for the Taliban. Any question of recognition is complicated by the fluid nature of the situation on the ground.Then there is the question of whether any competing government remains in Afghanistan. Although Ghani has fled the country — with the Taliban reportedly extending their amnesty to him — deposed vice-president Amrullah Saleh has claimed to be the ‘legitimate caretaker president of Afghanistan’. In such a scenario, it is unclear what form or nature of government will ultimately form in Kabul.The international community must, therefore, tread carefully. UNSC in its August 16 statement called for the establishment of a new government that is ‘united, inclusive and representative’, including with full, equal and meaningful participation of women. India, along with a host of other countries, has reaffirmed at the Doha conference that it will not recognise any government in Afghanistan imposed through military force.The Taliban is claiming to have changed, ostensibly offering amnesty to former government officials and claiming that it will form an inclusive government that will respect women’s rights ‘within the bounds of [their interpretation of] Islamic law’. After years of isolation, Taliban itself is yearning for recognition, and the international assistance attached to it. It is keen to disabuse the notion of it as a terrorist organisation so as to have international sanctions imposed on it removed.However, while countries like Pakistan, China and Russia appear to be in favour of ultimately recognising the Taliban government, countries with a commitment to democracy such as India should remain wary of granting it early recognition. It’s only after US troops leave Afghanistan that one will gauge Taliban’s real intent in the weeks and months to follow.
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