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Topsy-Turvy Journey of the Taliban Recognition in International Law: What Next?

Published online by Cambridge University Press:  07 March 2025

Abhishek TRIVEDI Open the ORCID record for Abhishek TRIVEDI [Opens in a new window]
Abhishek TRIVEDI*
Affiliation:
Institution of Eminence, University of Delhi, Delhi, India School of Law, BML Munjal University, Haryana, India
*
Emails: abhishektrivedi2011@gmail.com, abhishek.trivedi@bmu.edu.in
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Abstract

The Taliban’s forceful control of Kabul resulted in severe criticism by the world community and has consequently raised a pertinent question about its recognition in international law. Though a few countries publicly denied recognition to the Taliban government, many countries have (re)-started engaging with it by concluding bilateral treaties and (re)-opening embassies without recognition. Besides, countries have put several “conditions”, such as respect for human rights and a promise to form an “inclusive government”, before they will recognize the Taliban government. This note maps out these “conditions”, along with different proposals states have proposed concerning recognizing the Taliban government. It identifies the possible legal consequences of these “proposals” for the institution of recognition of government in international law. The note finally argues that though a recognition decision is largely political, it should nevertheless be regulated by international law to the extent that it would help avoid adverse international legal consequences.

Keywords

Afghanistanconditions for government recognitiongovernment legitimacygovernment recognitionTalibanUnited Nations

Information

Type
Notes and Comments
Information
Asian Journal of International Law , Volume 15 , Issue 2 , July 2025 , pp. 209 - 222
Copyright
© The Author(s), 2025. Published by Cambridge University Press on behalf of The Asian Society for International Law.

In September 2021, the world community witnessed political turmoil in the state of Afghanistan wherein the Taliban usurped the power by force.Footnote 1 The process of taking control over Afghanistan by the Taliban raises crucial questions of international importance, which can broadly be covered under the international legal themes of government recognition, human rights violation, refugee crisis, civilian protection, terrorism, and the representation of Afghanistan before the international community of states and international organizations (IOs). This note focuses on the legal aspects concerning the recognition of the Taliban government in international law. The question of recognition of government does not usually arise, except to deal with the legal consequences of a recognition decision when the successive government comes into power unconstitutionally or when different authorities claim to be the government of a state.Footnote 2

Since the recognition of a government is political, states have the discretion to decide whether or not to recognize a government of another state.Footnote 3 In doing so, states most often rely on the doctrines of “effective control” and/or “universally accepted value system” (or “democratic legitimacy”) before deciding whether to recognize a new government.Footnote 4 These two doctrines are largely developed through divergent state practice, which has yet to culminate in binding customary international law (CIL). In the absence of any international treaty rules and well-defined rules of CIL on government recognition, states may be left with unfettered power to make recognition decisions in light of their vested interests and preferred ideological inclination.Footnote 5

Though recognition is a national political act, its international legal implications are manifold. For instance, if the Taliban government remains unrecognized, it will create hardship for Afghanistan regarding its representation before IOs, such as the International Criminal Court and the United Nations (UN), among others. The question of whether or not to recognize the Taliban government will also complicate the processes of entering into diplomatic relations, deciding the question of state/diplomatic immunity, concluding multilateral/bilateral treaties, and entailing international responsibility for any breaches of international law. Therefore, the question of government recognition becomes important under international law and international relations.

The Taliban usurped power by force and thus formed a government unconstitutionally and undemocratically. It constitutes a reason why countries are hesitant to recognize it, even though they are engaging and willing to engage with it further. State practice concerning recognition of the Taliban differs: while a few countries have publicly denied recognition, many are engaging with it without bestowing recognition.Footnote 6 Considering the divergent state practices and the fact that countries have set different “conditions” for the recognition of the Taliban, it is argued in the literature that the case of the Taliban highlights the “idiosyncratic and arbitrary nature of recognition”.Footnote 7

Against the background highlighted above, this note argues that the question of government recognition cannot be left completely in the hands of political powers. Rather, it must be regulated by international law in order to help avoid adverse international legal consequences. It is further argued that the UN General Assembly (UNGA) has an important role to play in that respect. Since the states have put “conditions” before the Taliban government can be recognized, this note analyses how these “conditions” relate to the international legal practices concerning government recognition. It then proceeds to highlight the possible adverse international legal consequences of these different international legal practices for the institution of government recognition in international law.

I. (Non-)recognition of the Taliban government: state practice and legal consequences

Until now, no state has recognized the Taliban government de jure: does it mean that states wish to isolate the Taliban in international relations, or that they do not wish to publicly endorse the Taliban due to its tarnished human rights record? States’ practice differs on this question. Initially, countries from both the Global North and the Global South, like the US, the UK, Germany, Pakistan, China, Uzbekistan, Qatar, India, Norway, Tajikistan, Turkey, and Turkmenistan, “reaffirmed that they will not recognize any government in Afghanistan that is imposed through the use of military force”.Footnote 8 IOs, like the UN and the European Union (EU), also appear to hold the same position.Footnote 9

While some countries, such as Canada, Spain, France, and the UK, have publicly declined to recognize the Taliban government and have suspended their diplomatic relations with it,Footnote 10 others, such as Pakistan, China, Russia, Iran, Qatar, Turkey, and Turkmenistan, have continued to establish diplomatic relations with it.Footnote 11 Other countries, like India, Japan, Indonesia, the United Arab Emirates, and Saudi Arabia, were initially dealing with the Taliban through back channels, but later reopened their embassies for limited purposes to provide humanitarian aid and better engage with the Taliban government.Footnote 12 It makes one point clear: that some states want to engage with the Taliban government, at least for some reasons. However, the extent to which they engage with it differs, due to its non-recognized status in international law.

Of the states that are engaging with the Taliban government, most of them, mostly from the Global North, have put several “conditions” for its recognition. These “conditions” include: requiring the Taliban to form an “inclusive government” (including a mechanism to ensure representative and transitional government),Footnote 13 to respect the basic human rights of all (especially of women and minorities),Footnote 14 to comply with international obligations generally, to commit to not harbour terrorist groups or to allow the state’s territory to be used for purposes against the security of other states particularly,Footnote 15 and to take measures to combat terrorism and drug-related crimes.Footnote 16 Not all of these “conditions” appear to be grounded in a specific international legal rule. The condition of forming an “inclusive government”, for instance, falls outside the positivist and consent-based understanding of international law. Further, these “conditions” do not address the situation of adverse international legal consequences, such as the potential violation of the principle of non-intervention, in cases where two competing authorities claim to be the government of a state.

The state practice that revolves around the abovementioned “conditions” suggests that the “conditions” imposed are selective and indicate a diverse international legal practice which varies from proposing the idea of “collective recognition” to “collective non-recognition”. None of the countries imposing “conditions” have advocated for the idea of “abolition of the institution of government recognition” in the Taliban case. States have imposed these “conditions” regardless of whether they have advocated for the proposal of “collective recognition” or “collective non-recognition”. For instance, Pakistan (which advocated for “collective recognition”) and Western countries, like the UK, (which advocated for “collective non-recognition”) both imposed these conditions. The fact that many states that have imposed conditions (irrespective of which proposal they have advocated for) are still engaging with the Taliban government signifies that the “conditions” are largely political and not necessarily grounded in any specific rule of international law. The following section discusses these proposals and their relevance to the institution of government recognition.

A. Proposal of “collective recognition”

In the Taliban case, Pakistan, for instance, advocated for “collective recognition”.Footnote 17 Similarly, Malaysia, Belarus, and the Czech Republic preferred a collective/united position through their respective regional IOs, such as the Organization of Islamic Cooperation, the Collective Security Treaty Organization, and the EU.Footnote 18 The concept of “collective recognition” could be appreciated in some situations since it acknowledges the reality that a state cannot be kept isolated from the rest of the world indefinitely.Footnote 19 However, it may also amount to legitimizing the acts of a government that would otherwise be viewed in a poor light.

The problem of “collective recognition” is twofold. First, it imposes external “conditions” without adequately appreciating the reality that, like in the case of the Taliban, states continue to have diplomatic relations with the Taliban government even though it has yet to fulfil its promises of protecting the human rights of its people, especially women.Footnote 20 Second, it is practically difficult, though it may be desirable, for all states to form a united position and bestow “collective recognition”. This is quite visible in the Taliban case, where states are dealing with it differently and through different channels, but without bestowing “collective recognition”. Moreover, the process of “collective recognition” is also political since it is not guided by any rule of international law. Similar to “collective recognition”, one can argue that the issue of government recognition is to be addressed through a “multilateral recognition” process. However, in this regard, a UN memorandum noted in 1950 that “states have refused to accept any such rule [of multilateral recognition] and the United Nations does not possess any authority to recognize either a new state or a new government of an existing state”.Footnote 21 Moreover, a recognition decision by IOs does not necessarily mean “collective recognition” by all its Member States, given the fact that IOs possess a separate legal personality from that of the individual member, and that the Member States may have split opinions or divided votes concerning competing entities each claiming to be a legitimate government.Footnote 22

B. Proposal of “collective non-recognition”

In contrast to “collective recognition”, there appears to be a notable state practice concerning “non-recognition”, where states decline to recognize a new entity formally and publicly.Footnote 23 The underlying reasons for non-recognition vary from considering a new entity dangerous for international peace and security, to escaping public criticism, to realizing that there is “no need” for government recognition since the entity exercises effective control, and also to avoiding the “insulting practice” (a term used by Estrada)Footnote 24 of interference in the internal affairs of a state.Footnote 25

In the Taliban case, the Prime Minister of the UK proposed that all states should form a “united position” and should not recognize the Taliban government.Footnote 26 Initially, many states, like the USA, the UK, Germany, New Zealand, Switzerland, and Mexico, preferred the policy of not recognizing a government formally and publicly, as most of them believed in recognizing states only, not governments.Footnote 27 However, it appears from the Taliban case that many countries seemed to change their policy slightly when they publicly announced that they would not recognize the Taliban government until it had fulfilled certain “conditions”.Footnote 28 Besides state practice, the UNGA and the UN Security Council (UNSC) have also required, on five different occasions, that states not recognize a government coming into power unconstitutionally, undemocratically, and by violating the human rights of its people. These five different occasions include the situations of Namibia (1973),Footnote 29 Rhodesia (1979),Footnote 30 Windhoek (1985),Footnote 31 Haiti (1991),Footnote 32 and Honduras (2009).Footnote 33 The UNGA and the UNSC, however, appear to be almost silent on the question of the legitimacy and recognition of the Taliban government.

The idea of “collective non-recognition” may be relevant to a situation where it is not clear which entity is truly exercising “effective control”, because in such a situation, if any entity is recognized as the government, it may have the international legal implication of interfering in domestic matters. This idea, however, does not address a situation, like the Taliban, when an entity is supposedly exercising “effective control” and states are engaging with it but do not wish to recognize it for other select reasons. Furthermore, the policy of non-recognition does not account for how the recognizing state will decide the legal status or the true identity of a government where two or more competing entities claim to be the government.

Does this mean that the institution of government recognition should be abolished completely and the resolutions of the UNGA and the UNSC are ineffective in addressing the situation? The next sub-section discusses the argument for the abolition of the institution of recognition.

C. Abolition of the institution of recognition

Though no state has explicitly advocated for the idea of “abolition of the institution of government recognition” with reference to the Taliban government, this sub-section discusses the idea of abolition because the Taliban case reminds us that there is no need to abolish the institution of government recognition. Relevant literature and state practice highlight that an institution of government recognition could be abolished since it appears to be “unnecessary” following the principle of state continuity and the permanence of the nation’s identity, which subsists and remains the same regardless of internal changes occurring within a state.Footnote 34 In this direction, the Mexican government (via Foreign Minister Estrada) first expressed its interest in the abolition of government recognition as it insults and offends the sovereignty of other nations.Footnote 35 However, an argument for abolition does not align with relevant state practice, nor does it address the practical problem of deciding which authority should be treated as a government when competing claims are put forward. It also does not address adverse international legal consequences flowing from decisions of recognition. Abolishing the institution of government recognition also carries a risk of political abuse by powerful nations and may be misused as a tool of intervention.Footnote 36 Moreover, in a globalized world, with increasing interdependence among states, it becomes necessary that countries adopt an effective recognition policy since the institution of recognition performs several useful functionsFootnote 37 and the question of government recognition becomes significant in dealing with the international legal consequences of a recognition or non-recognition decision.Footnote 38

Considering the useful functions of the institution of recognition and the fact that the possible ways of addressing issues of recognition as proposed by states in the Taliban case carry a risk of misusing the institution, the author argues that though the recognition decision is largely political, such a decision should nevertheless be regulated by international law to the extent it helps avoid any adverse international legal consequences. Below, the note maps out these consequences, before exploring the role of the UN in addressing such consequences by determining the legitimacy of the Taliban government.

D. The implications of recognition/non-recognition of the Taliban government

This section maps out four adverse legal implications arising out of the non-recognition of the Taliban government. The first relates to concluding multilateral treaties, establishing diplomatic relations, and seeking state/diplomatic immunity. In the Taliban case, the decision of whether or not to recognize the Taliban government will have legal consequences in terms of who can conclude multilateral treaties, access domestic courts of other states, and claim state immunity to the head of a state. Uncertainty may also exist regarding recognizing Afghanistan’s legislative, executive, and judicial acts in the domestic legal system of other states.Footnote 39 And, in the event that two competing authorities claim to be the government of Afghanistan in the future, the recognition decision will have implications regarding who should establish diplomatic relations with other nations. Diplomatic relations constitute the cornerstone of the international legal system and provide a fertile ground for strengthening “friendly relations”.Footnote 40

The second implication of non-recognition relates to the legal question of who can claim and access offshore assets and state property abroad.Footnote 41 It becomes complicated if two competing authorities claim offshore assets. Afghanistan has foreign assets of more than $9 billion located in different banks in the USA and Europe.Footnote 42 The USA has frozen $500 million belonging to local Afghans who have accounts in private banks of Afghanistan.Footnote 43 The recent state practices of the USA and the UK reveal that only recognized governments can claim offshore assets.Footnote 44 For instance, concerning Venezuela, two competing authorities – Nicolas Maduro on the one hand and Juan Guaido on the other – claimed Venezuela’s gold reserves stored in the Bank of England. In this case, the London High Court in 2022 rejected the claim of the Maduro government to gain control over more than $1 billion gold assets reserved in the Bank of England.Footnote 45 Notably, the London High Court ruling has serious implications since it was based on two factors: first, it relied on the UK government’s official position recognizing Guaido as the legitimate authority of Venezuela; second, it explicitly denied recognizing Venezuela’s Supreme Court judgments in the UK.Footnote 46 The cumulative effect of the judgment was to accord recognition as a head of state to a person that has no “effective control” over the territory of Venezuela. Concerning US law, it follows “divergent approaches” when dealing with the access of unrecognized governments to the US courts.Footnote 47 For instance, an unrecognized government does not have access to courts and state property located in the USA, except for the limited purpose of dealing with commercial transactions and enforcing private rights.Footnote 48 Second, similar to the UK courts, the US courts also rely on the executive statement of the US government on whether or not to grant state/diplomatic immunity to the unrecognized government and its officials.Footnote 49 However, the US courts may adjudicate a matter involving an unrecognized government if the executive statement is silent about the status of the government in question.Footnote 50

Notably, the Taliban is still struggling to access its funds frozen by the USA.Footnote 51 Despite the UN human rights experts’ urge to the USA to release foreign assets of Afghanistan to meet the humanitarian needs of locals,Footnote 52 the USA appears to be sceptical about the misuse of funds by the Taliban in favour of its soldiers and supporters. A lack of trust in the Taliban, and its unrecognized status in international law and international relations, may further create problems for Afghanistan not only in accessing foreign assets but also in providing basic services to its people.

The third relates to the representation of Afghanistan before IOs. Since only the government is entitled to represent its state before IOs, representation becomes relevant to carrying out the mandate of the concerned organization. If Afghanistan is a member of the UN, it should have representation through its government in the routine functioning of the UN. Since this note finds in the next part that the Taliban would not be represented at the UNGA, a question arises – which authority should the UN regard as the government of Afghanistan for diplomatic, trade, international and regional security, and other similar purposes? Further, in the absence of a “uniform rule” and a “systematic process” to assess the legitimacy of a government, there is a risk that the UN and its other organs, subsidiary bodies, and specialized agencies may adopt “conflicting decisions”.Footnote 53

The fourth implication of recognition or non-recognition relates to the principle of non-intervention in Afghanistan. The most challenging international legal consequence that flows from the recognition decision is who can invite foreign (military) assistance/intervention and how to ascertain the international legitimacy of such an intervention. For instance, if the Ashraf Ghani government declares government-in-exile and invites foreign military intervention in Afghanistan, it would not be legally justifiable nor politically feasible for the intervening foreign state to defend its action of intervention if a large number of states oppose the same, and the intervening state fails to get support and solidarity of the global community. Similarly, if the Taliban government invites foreign intervention, such an intervention may lose its legitimacy since the Taliban government is neither recognized by countries nor is its status clear in international law.

This intervention situation can be understood with the examples of Russia and France. In 2014, at the request of ousted Ukrainian President Yanukovych, whose government was not internationally recognized, Russia intervened militarily in Ukraine. The intervention was criticized by states and regarded as illegal.Footnote 54 Conversely, when France intervened in Mali in 2012 at the request of the ousted Malian President, the intervention had “international political support” from other states and the UNSC.Footnote 55 France was able to justify the intervention as it appeared to be legitimized by international political solidarity.

Similarly, the Afghanistan situation may become complicated if the Taliban and the government-in-exile simultaneously invite two different states to intervene in Afghanistan. This situation would undoubtedly have implications for the intervening state under Article 2(4) of the UN Charter.Footnote 56 But the moot question remains the same, that is: on the invitation of which authority in Afghanistan can a foreign state intervene? The situation of intervention needs to be understood in a broader context when some states are engaging with the Taliban as a de facto government, whereas other states, such as the USA, treat it as a non-state actor.Footnote 57 However, in either case, any foreign (military) intervention may constitute a possible violation of the principles of non-intervention since the Taliban is seemingly exercising “effective control” in Afghanistan and the doctrine of “effective control” is supported by widespread state practice and is considered to be a corollary of the principle of territorial integrity in international law.Footnote 58

All the highlighted points above make it clear that it is necessary that the issue of government recognition be regulated by international law to the extent that it can help avoid adverse international legal consequences. Since there is no treaty or well-settled rules of CIL on government recognition, it remains a moot question how international law will dictate recognition decisions. Though de facto recognition of the Taliban government could be appreciated initially since it legitimizes states’ engagement with it without formal recognition,Footnote 59 de jure recognition is necessary in the long run to avoid adverse international legal consequences of recognition decisions.

Since states are hesitant to recognize the Taliban government de jure, the role of the UNGA becomes relevant. The next part argues that, although the Taliban’s control over Afghanistan and its attitude towards the people may be problematic, the UN should start dealing with the Taliban as a matter of concern; if not for the Taliban, but surely for Afghans. In this direction, the next part discusses and critically assesses two strategies of UN engagement.

II. The role of the UN in the Taliban recognition

A. The role of the Credentials Committee of the UN

The Credentials Committee of the UNGA applies the credential process to check the eligibility of delegates sent by Member States to represent them at the Assembly’s sessions.Footnote 60 While explaining the scope of the Credentials Committee, the UN Legal Counsel clarified that the Credentials Committee does not decide the question of “recognition” or any “substantive issues concerning the status of governments”.Footnote 61 Therefore, the question of recognition or representation forms a distinct subject matter that the Assembly could decide as a separate agenda.

However, there have been a few instances where two authorities submitted their respective credentials, and a question arose as to which credential/claimant represented the true government of the state. These instances include Afghanistan from 1997 to 2000, Cambodia in 1997, Guinea-Bissau in 2012, and Afghanistan and Myanmar in 2021. In such cases, the practice of the Credentials Committee is that it prefers to defer the decision. As a result, the credentials of the previous government often continue to represent the state.Footnote 62

Concerning Afghanistan, the Taliban submitted its credentials on 20 September 2021, claiming to be a new representative of Afghanistan. However, the deposed government-in-exile also submitted competing credentials on 14 September 2021.Footnote 63 Here, the Credentials Committee decided to defer its decision on representation, without indicating which credential would represent Afghanistan.Footnote 64 It nevertheless certainly means that the Taliban’s credentials will not represent Afghanistan in the UNGA. In 1996, the Credentials Committee also had an opportunity to consider the credentials of the Taliban when it usurped power in October 1996. From 1997 to 2000, the Rabbani-led deposed government and the Taliban submitted their respective competing credentials, but the Credentials Committee continued to defer its decision, with an understanding that previous credentials representing Afghanistan would continue “provisionally” to participate in the functioning of the UNGA.Footnote 65 Here, the Credentials Committee allowed, in effect, for the credentials of the Rabbani-led government to represent Afghanistan from 1997 to 2000. However, the current situation of the Taliban seems to be different from that of 1996, given that currently, the Taliban appears to be interested in seeking international recognition by strengthening its diplomatic ties with many countries. The practice of the Credentials Committee is not uniform in the case of Afghanistan. While from 1997 to 2000 the Credentials Committee allowed the credentials of the democratically elected Rabbani-led government to remain provisionally in place; in 2021, it simply deferred its decision without saying anything further. In sum, the scope of the UNGA’s Credentials Committee is limited to just considering whether to accept new or sometimes competing credentials submitted by a new government instead of considering the matters of government legitimacy.Footnote 66

Does this mean that an institution of recognition is completely outside the purview of the UN and international law? An answer to this question need not necessarily be negative since the recognition decision may have adverse international legal consequences, and states are under an obligation to avoid these consequences if such consequences are the direct result of their recognition decision.Footnote 67 Keeping this in mind, the next part discusses the role of the UNGA in addressing the Taliban’s legitimacy.

B. The role of the United Nations General Assembly

The UNGA may be an appropriate forum to first address the issue of government legitimacy because it can consider the views of all Member sStates and pass a resolution determining the legitimacy of the Taliban.Footnote 68 The UNGA is empowered to “discuss any questions or any matters within the scope of the [UN] Charter” including the question of government legitimacy, and “may make recommendations” in the form of a resolution to the Member States accordingly.Footnote 69

However, it is not certain how effective the UNGA resolutions may be, considering their non-binding nature in international law. It further remains a moot question whether and to what extent the UNGA’s resolutions, recognizing the legitimacy of a democratically elected (de jure) government and condemning the authoritarian (de facto) government, affect the right of a Member State to establish diplomatic relations, or less than that, to enter into any formal exchanges with the de facto government. In the Taliban case, many countries are engaging with the Taliban government, however, without recognizing it de jure. In such a situation, whether the UNGA’s explicit urge “to recognize no government other than that of constitutionally and democratically formed government”Footnote 70 would alter a well-established understanding that it is the state’s prerogative to decide the question of government recognition and that international law to a larger extent is silent on it remains unclear. As for the UNSC’s resolutions, they are, unlike the UNGA’s resolutions, binding upon all the Member States. However, the UNSC resolutions do not provide general guidelines about government recognition in international law since they are adopted in a particular context to address a specific situation under Chapter VII of the UN Charter.Footnote 71 Moreover, the UNSC’s choice in determining that a particular situation is a “threat to international peace and security” is selective and political, which is also evident from its complete silence on the question of recognition of the Taliban.Footnote 72

In sum, to begin with, the UNGA is an appropriate platform to discuss the issue of the Taliban’s legitimacy, though its resolutions are non-binding. The UNGA may pass a resolution positively determining the legitimacy in favour of the Taliban government considering two broad factors. First, the Taliban government continues to hold “effective control” over most of Afghanistan’s territory ever since it usurped political power in 2021, with mass support of the people and without any adversarial claim from another competing authority for more than two years. It signifies that the Taliban government appears to be satisfying the extra-legal aspect of domestic legitimacy within Afghanistan. As for democratic legitimacy, the practice of the UNGA seems to not be uniform. Yet, it can and should determine, with certain caveats, the legitimacy of the Taliban government. It is observed that, after the Haiti conflict of 2009, there were more than eight African regimes that came to power by coups and were allowed to address the UNGA without any objection by the African Union or the UN.Footnote 73 This note identifies five situations when the UNGA asked states not to recognize a government coming into power unconstitutionally and undemocratically. These situations include the situations of Namibia (1973), Rhodesia (1979), Windhoek (1985), Haiti (1991), and Honduras (2009). However, none of these situations needs to necessarily be compared with the situation in Afghanistan. In almost all these situations, competing claims were put forward, whereas there appear to be no such serious competing claims in Afghanistan at present. Moreover, the continued evolving practice concerning the engagement of states with the Taliban government demonstrates a setback for the emerging doctrine of democratic legitimacy.Footnote 74

Second, the Taliban government seems genuinely interested in seeking international recognition by establishing diplomatic relations with neighbouring countries and concluding bilateral treaties. Similarly, the fact that many states are engaging with it signifies that the issue of government recognition aligns with the idea of community interest, because only the government is entitled in international law to represent the state for all its conduct in international relations and to perform all necessary and mutually interconnected functions in the field of trade, aviation, and other human activities.Footnote 75 It further signifies that the Taliban government seems to be gradually gaining international legitimacy and the political solidary of many countries, even though countries have set “conditions” before they will bestow de jure recognition. Notably, these “conditions” are largely political and not necessarily grounded in international law.

Based on the facts highlighted above, the UNGA should step in and decide the legitimacy of the Taliban government since the issue of Taliban recognition cannot be left unanswered for a long time as it may have far-reaching adverse international legal consequences in the long run. Therefore, there is a general duty of states (and a mandate of the UN) to address in advance such adverse international legal consequences arising out of any recognition decision. This general duty arises from the doctrine of “effective control”, which is grounded in the international law principle of territorial integrity.Footnote 76 The doctrine of “effective control” helps to avoid situations of premature or prolonged recognition in which case there may be a risk of invoking state responsibility for the violation of the principle of non-intervention by states that recognize a government not in “effective control” to the detriment of a government exercising “effective control”.Footnote 77 Such a duty could also be inferred by subsequent legitimization by states of acts of a new government seeking recognition.Footnote 78 Therefore, even in the absence of settled practice concerning the criteria of government recognition in general, and regardless of the diverse state practice concerning the recognition of the Taliban government in particular, the status of the Taliban government needs to be positively fixed to avoid any such adverse international legal consequences of recognition decisions in the future.

III. Conclusion

This article finds that though many countries are dealing with the Taliban through diplomatic channels or back doors, none of them recognize the Taliban government de jure. In the absence of a treaty and CIL, countries’ practices of government recognition are diverse and keep changing over time. In the Taliban case, while some countries prefer “collective recognition” of the Taliban government, others prefer “collective non-recognition” until it fulfils certain “conditions”, a few of which are not necessarily grounded in international law. None of the countries seem to argue in favour of abolishing the institution of government recognition. Since a recognition decision may have adverse international legal consequences, it cannot be left completely unanswered in international law. Therefore, the recognition decision, though part of state foreign policy, should nevertheless be guided by the rules of international law to the extent that it helps avoid adverse international consequences and helps reduce the chances of misuse or arbitrary use of the institution of recognition.Footnote 79 Here, the UNGA should step in and pass a resolution positively determining the government’s legitimacy in favour of the Taliban government in light of its “effective control” over the territory of Afghanistan and considering the fact that countries are engaging with it on several fronts, including diplomatically and by concluding treaties. If such an engagement continues without recognition, it may risk deepening adverse international legal consequences in the long run. Therefore, a policy decision on whether or not to recognize the Taliban government should be guided by a general duty of states to avoid any adverse international legal consequences of their act of recognition decision.

Acknowledgements

The author is grateful to the editors of this journal and the panellists of the Junior Scholar Workshop for their comments.

Funding statement

None.

Competing interests

The author declares none.

Dr Abhishek TRIVEDI is currently pursuing a Maharshi Kanad Post-Doctoral Fellowship, Delhi School of Climate Change and Sustainability, Institution of Eminence, University of Delhi, Delhi.

This article constitutes a part of the author’s presentation with the title “Recognition of the Taliban Government and the Challenges for International Law: Proposing ‘Framework Convention’ on Government Recognition in International Law”, presented at the “Junior Scholar Workshop of the Asian Society of International Law Conference – Kazakhstan, 23 May 2024”. The author is grateful to the editors of this journal and the panellists of the Junior Scholar Workshop for their comments. The author can be accessed at: abhishektrivedi2011@gmail.com.

References

1 Madiha AFZAL, “Around the halls: The Taliban retakes Afghanistan” Brookings (16 August 2021), online: Brookings <https://www.brookings.edu/blog/order-from-chaos/2021/08/16/around-the-halls-the-taliban-retakes-afghanistan/>.

2 M.J. PETERSON, Recognition of Governments: Legal Doctrine and State Practice, 1815–1995 (London: MacMillan Press Ltd., 1997), at 13–16.

3 James CRAWFORD, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2012) at 197.

4 International Law Association, Recognition/Non-recognition in International Law, (Johannesburg Conference, 2016) at 3–5.

5 M Scott MEACHUM, “Joining the Club? The Politics of Government Recognition” (2022) 9 Questions in Politics 1–16; Peterson, supra note 2 at 51 (states exercise wider areas of discretion for two purposes: to promote some values in the international system by specifying some criteria as necessary for recognition, and to advance their individual interests by granting or refusing recognition).

6 Haroun RAHIMI and Mahir HAZIM, “International Law and the Taliban’s Legal Status: Emerging Recognition Criteria?” (2023) 32(3) Washington International Law Journal 228 at 235–6; Muhammad FAHEEM and Minhas Majeed KHAN, “Recognition of the Taliban Government in Afghanistan and International Community” (2022) 42(1) Strategic Studies 81 at 86–95.

7 Seyfullah HASAR, “Recognition of Governments and the Case of the Taliban” (2024) 23 Chinese Journal of International Law 73 at para. 55.

8 Ibid., at para. 46.

9 Ibid.

10 Julie GORDON, “Canada will not recognize Taliban as Afghan gov’t—PM Trudeau” Reuters (17 August 2021), online: Reuters <https://www.reuters.com/world/asia-pacific/canada- will-not-recognize-taliban-afghan-govt-pm-trudeau-2021-08-17/ >; Isabelle KHURSHUDYAN, Reis THEBAULT and Gerry SHIH, “U.S. allies and adversaries are holding off for now on recognizing, aiding the Taliban” The Washington Post (20 August 2021), online: The Washington Post <https://www.washingtonpost.com/world/2021/08/20/afghanistan-taliban-international-recognition-aid/>

11 Ahmad B. KHALIL, “The Rise of Taliban Diplomacy” The Diplomat (3 January 2021), online: The Diplomat <https://thediplomat.com/2017/01/the-rise-of-taliban-diplomacy/>

12 Hasar, supra note 7 at para. 23.

13 Ibid., paras. 14, 46, 49 (Russia, China, and many European countries have set this condition).

14 Ibid., paras. 46–50 (almost all states have set this condition).

15 Ibid., paras. 55, 83 (mentioning that many states, like the USA, have set this condition before the recognition of the Taliban government).

16 Ibid., paras. 46, 49, 50 (Russia and the European countries have set this condition).

17 Sajjad HUSSAIN, “Recognition of Taliban in Afghanistan has to be ‘collective effort’ by countries in region: Pak PM Khan” The Print (15 February 2022), online: The Print <https://theprint.in/world/recognition-of-taliban-in-afghanistan-has-to-be-collective-effort-by-countries-in-region-pak-pm-khan/833040/>.

18 Hasar, supra note 7 at para. 53.

19 Peterson, supra note 2 at 174–5; Brad R. ROTH, Governmental Illegitimacy in International Law (Oxford: Oxford University Press, 1999) at 196–200; Rebecca BARBER, “The Role of the General Assembly in Determining the Legitimacy of Governments” (2022) 71 International Comparative Law Quarterly 638.

20 Hasar, supra note 7 at para. 23; Rahimi and Hazim, supra note 6 at 240 (noting that persistent serious human rights violation by the Taliban is the legal and practical impediment to it getting international recognition).

21 Legal Aspects of Problems of Representation in the United Nations, Memorandum prepared for the Secretary-General, UN Doc. S/1466, 5 SCOR, Supp. (Jan–May 1950), at 18, 22.

22 Stefan TALMON, Recognition of Governments in International Law with Particular Reference to Governments in Exile (New York: Oxford University Press, 1998), at 173–4; Jure VIDMAR, “States, Governments, and Collective Recognition” in Ying-jeou MA, ed., Chinese (Taiwan) Yearbook of International Law and Affairs, Volume 31 (Brill, 2013), at 136–59.

23 Peterson, supra note 2 at 178–82; Talmon, supra note 22 at 3–7; International Law Association, supra note 4 at 5–7.

24 Philip C. JESSUP, “The Estrada Doctrine” (1931) 25(4) American Journal of International Law 719.

25 Hasar, supra note 7 at paras. 10–12.

26 Rowena MASON, “Boris Johnson Urges International Unity over Taliban as He Recalls Parliament” The Guardian (15 August 2021), online: The Guardian <https://www.theguardian.com/politics/2021/aug/15/boris-johnson-urged-to-recall-parliament-over-afghanistan-crisis>.

27 Hasar, supra note 7 at para. 13.

28 Hasar, supra note 7 at paras. 10–17 (mapping relevant state practice of non-recognition, especially concerning the Taliban government).

29 Question of Namibia, GA Res. 3111(XXVIII) (I), UN Doc. A/RES/3111(XXVIII) (I) (12 December 1973), paras. 1, 11. Later, the UNGA also “strongly” deplored the policies of those states which continued to maintain diplomatic, economic, consular, and other relations with South Africa to the extent that it purported to act on behalf of Namibia. The UN’s specialized agencies and other organizations were also asked to ensure the “representation and participation” of Namibia in their official works/sessions. See Question of Namibia, GA Res. 3295(XXIX), UN Doc. A/RES/3295(XXIX) VI (13 December 1974), at preambular recital 11, para. 1.

30 Southern Rhodesia, UNSC Res. 448 (1979), at para. 3.

31 Namibia, UNSC Res. 566 (1985), at paras. 3, 4.

32 The Situation of Democracy and Human Rights in Haiti, GA Res. 46, UN Doc. A/RES 46/7 (1991), at paras. 1, 2.

33 Situation in Honduras: Democracy Breakdown, GA Res. 63, UN Doc. A/RES/63/301 (2009), at paras. 1, 2, 3. The UNGA condemned the coup d’état as it disrupted the constitutional and democratic order and endangered democracy and the rule of law in the country. The coup d’état was also criticized by other international organizations such as the Organization of American States (OAS) and the European Union (EU). As a result, Honduras was suspended from participating in the working of the OAS in 2009. Finally, the UNGA demanded “immediate and unconditional restoration of the legitimate and Constitutional Government of the President of the Republic of Honduras, Mr José Manuel Zelaya Rosales”.

34 Peterson, supra note 2 at 178–82; Talmon, supra note 22 at 3–13.

35 Peterson, supra note 2 at 178.

36 Hersch LAUTERPACHT, Recognition in International Law (Cambridge: Cambridge University Press, 1947), at 161; Philip Marshall BROWN, “The Legal Effects of Recognition” (1950) 44 American Journal of International Law 61 (mentioning that “recognition has been the football of diplomats who have made it mean anything that suited their purpose. It has certainly been grossly abused as a weapon of diplomatic pressure and intervention. It has in many cases proved to be an insoluble puzzle to the courts whose decisions have been sometimes conflicting and confusing”). Peterson also mentions that lack of regulation on government recognition opens room for the possibility of using governments using recognition or non-recognition to extend its own purposes. See Peterson, supra note 2 at 49–50.

37 M.J. PETERSON, “Political Use of Recognition: The Influence of the International System” (1982) 34(3) World Politics 3.

38 Peterson, supra note 2 at 2; Roth, supra note 19 at 152–8; Jure VIDMAR, “Explaining the Legal Effects of Recognition” (2012) 61(2) International and Comparative Law Quarterly 361.

39 International Law Association, supra note 4 at 12; Talmon, supra note 22 at 148–50.

40 Vienna Convention on Diplomatic Relations, 1961, 500 U.N.T.S. 95 (entered into force 24 April 1964) [Vienna Convention on Diplomatic Relations], art. 3; Vienna Convention on Consular Relations, 1963, 596 U.N.T.S. 261 (entered into force 19 March 1967) [Vienna Convention on Consular Relations], art. 5.

41 Talmon, supra note 22 at 191–96; Peterson, supra note 2 at 142.

42 Lynne O’DONNELL, “Afghanistan Still Wants Its Frozen Funds” Foreign Policy (21 July 2022), online: Foreign Policy <https://foreignpolicy.com/2022/07/21/afghanistan-taliban-economy-reserves-central-bank-finance/>.

43 Ibid.

44 Hasar, supra note 7 at para. 25; Colin WARBRICK, “British Policy and the National Transitional Council of Libya” (2021) 61 International Comparative Law Quarterly 247 at 259–62.

45 Marc JONES, “London’s High Court rules against Venezuela’s Maduro in $1 billion gold battle” Reuters (29 July 2022), online: Reuters <https://www.reuters.com/world/britains-high-court-rules-against-venezuelas-maduro-latest-gold-battle-2022-07-29/>.

46 Ibid.; see also The British Arab Commercial Bank plc v. National Transitional Council of the State of Libya, ex parte Foreign and Commonwealth Office, Declaratory Judgment of 2011, [2011] EWHC 2274 (Comm). In this case, the issue was whether the diplomats of the Gaddafi government or the representative of the NTC should have covered the funds held by the Libyan embassy in the UK. The court held that since the NTC representatives are the only accredited officials of Libya in the UK, only they can access the funds. For cases of a similar nature, see Sierra Leone Telecommunication Co Ltd v. Barclays Bank Plc, [1998] All ER (D) 66; Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA, [1993] 1 QB 54.

47 International Law Association, supra note 4 at 14–16.

48 Ibid., at 15.

49 Ibid., see also Knox v. Palestine Liberation Organization, Decision of 1 March 2004, [2004] 2 Federal Supplement 306, at 441–3.

50 Ibid., see also Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, Decision of 7 November 1968, [1968] Federal Supplement 293.

51 Bibi Amina HAKIMI, “Central Banks Says It Has Limited Access to Foreign Assets” TOLOnews (5 April 2023), online: TOLOnews <https://tolonews.com/afghanistan-182841>

52 UN Human Rights Office, “Afghanistan: UN experts call on the US Government to unblock foreign assets of central bank to ease humanitarian impact” (25 April 2022), online: OHCHR <https://www.ohchr.org/en/press-releases/2022/04/afghanistan-un-experts-call-us-government-unblock-foreign-assets-central>.

53 Recognition by the United Nations of the Representation of a Member State, GA Res. 396(V), UN Doc. A/RES/396(V) (14 December 1950) (mentioning that it is “in the interest of the proper functioning of the organization that there should be uniformity in the procedure applicable” to determine the representation of a Member State in the UN.); Barber, supra note 19 at 638–9 (highlighting two instances when two different entities represented Myanmar before the UN. First, in 2021, while the civilian government represented Myanmar at the UNGA, while the military junta was a representative before the Human Rights Council. Second, in 2022, the military junta represented Myanmar before the ICJ, whereas the civilian government was still a representative before the UNGA).

54 Olivier CORTEN, “The Russian Intervention in the Ukrainian Crisis: Was Jus Contra Bellum ‘Confirmed Rather than Weakened’?” (2015) 2(1) Journal on the Use of Force and International Law 17.

55 Mali, UNSC Res. 2100, UN Doc. S/RES/2100 (2013).

56 Anne SCHUIT, “Recognition of Governments in International Law and the Recent Conflict in Libya” (2012) 14 International Community Law Review 382 at 399 (Article 2(4) of the UN Charter prohibits a state from using armed force against another State until and unless it is invited to do so).

57 Hasar, supra note 7 at para. 66 (quoting a statement of the USA representative in the UN Human Rights Council meeting concerning the situation of human rights in Afghanistan, that the USA is “committed to promoting accountability for human rights abuses by non-State actors in Afghanistan, including the Taliban”).

58 Schuit, supra note 56 at 385.

59 Ibid., at 386.

60 Credentials of Representatives to the 25th session of the General Assembly, Statement by the Legal Counsel submitted to the President of the General Assembly at his request, UN Doc. A/8160 (11 November 1970), at paras. 2, 4.

61 Ibid., at para. 3.

62 Report of the Credentials Committee, UN Doc. A/76/550 (1 December 2021), at para. 9.

63 UNGA, supra note 60, at para. 8.

64 Ibid., at para. 10.

65 Barber, supra note 19 at 641.

66 Barber, supra note 19.

67 Notably, these consequences generally occur in situations of either premature recognition, or a prolonged delay in recognition, of a government. Therefore, the legal basis of states’ obligation to avoid these consequences lies in the fact that there exist legal duties to avoid a premature or prolonged decision to recognize an authority that does not enjoy “effective control” to the detriment of another authority enjoying “effective control”. These legal duties are simple logical derivatives of the “effective control” rule because this rule is considered a corollary of the principle of territorial integrity in international law. See Peterson, supra note 2 at 49; Schuit, supra note 56 at 385.

68 Barber, supra note 19 at 638–9 (mentioning that the UNGA can collectively determine the status of a government in relation to the representation of states in international bodies); Roth, supra note 19 at 133–5 (outlining the UN mechanism that potentially enables the international community to articulate rules and practices coherent enough to constitute a body of law on government recognition).

69 Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI (entered into force 24 October 1945) [UN Charter], art. 10.

70 See Situation in Honduras, supra note 33.

71 See Southern Rhodesia, supra note 30; Namibia, supra note 31 (mentioning the relevant resolutions of the UNSC concerning collective non-recognition of governments).

72 Martin BINDER, The United Nations and the Politics of Selective Humanitarian Intervention (Reading, UK: Palgrave Macmillan, 2017) at 241–61 (finding the selective humanitarian intervention the UNSC has made globally).

73 Erika DE WET, “From Free Town to Cairo via Kiev: The Unpredictable Road of Democratic Legitimacy in Government Recognition” (2015) 108 American Journal of International Law Unbound 201.

74 Hasar, supra note 7.

75 P.K. MENON, “The Problem of Recognition in International Law: Some Thoughts on Community Interest” (1992) 59 Nordic Journal of International Law at 263; Herbert W. BRIGGS, “Community Interest in the Emergence of New States: The Problem of Recognition” (1950) Proceedings of the American Society of International Law 174 (Briggs emphasized that the issue of recognition has been increasingly becoming a matter of community interest due to rapid changes relating to trade, aviation, radio, and other aspects of human life in the contemporary world).

76 Peterson, supra note 2 at 48–9; Schuit, supra note 56 at 385.

77 Peterson, supra note 2 at 49–50; Schuit, supra note 56 at 399–402.

78 Hersch LAUTERPACHT, “Recognition of Government: I” (1945) 45 Colombia Law Review 815 (Lauterpacht argues that if a new government enjoys “effective control” over the state’s territory, with a reasonable likelihood of stability and the support of the bulk of the population, other states are under a legal duty to bestow recognition on it since international law empowers a sovereign state such that it is legally entitled to be represented in the international relations/politics by its government).

79 Meachum, supra note 5; Peterson, supra note 2 at 154–72 (highlighting how states use the institution of government recognition for several purposes, including pursuing their own vested interest to influence the policies and survival of a government seeking recognition).