Dealing with the Devils: Should the International Community Recognize the Taliban?
Introduction
As 2021 comes to a close, arguably the most pulverizing moment of the year could be the Taliban takeover of Afghanistan.[1] The unsettling defenestration of the democratically elected government in Kabul by Islamist factions caught democracies and civic societies completely off guard and left others scrabbling for new approaches to tackle the pustule that now festers the very life of the Afghan people.[2]
The takeover, inter alia, also brings to life an extremely contentious issue in International Politics – the ‘recognition of a rogue state’.[3] The lynchpin of this quagmire lies in the age-old schism between evaluating the effectiveness of a regime (in exercising control over the area it occupies) and evaluating the “moral sanctity or legitimacy” of the regime (based on the principles they wish to run the state on).[4]
In modern times, recognition of a government is quintessential for the survival of a state. Without express recognition by other member states, the state concerned will not be able to enter international treaties. The absence of recognition furthermore hampers a government’s ability to receive foreign aid for businesses in the country to trade with the world and carry out overseas transactions.[5] Further, with the turn of the 19th century, the recognition of a country also invoked certain diplomatic connotations. The non-recognition of the Soviet Union in the aftermath of the Russian Civil war by the Capitalist West was more than a diplomatic snub; it was a disapproval of the Communist Republic’s existence.[6]
In this regard, it is pertinent to note that recognition of a government is different from the recognition of a state. According to Justice Crawford in his book, The Creation of States in International Law, ‘governments may change, or the internal legal regime may get replaced, but the state as an entity continues’.[7] A State’s decision to recognise a government is a matter of pure discretion and is premised on larger political gains.[8]
The ‘Effectiveness’ Test
The ‘effectiveness’ test posits that it is important to consider whether the government seeking recognition has effective control over the state’s territory. The criteria for determining effective control of territory can be inferred from the following:[9]
● The government’s stability,
● The acceptance of the government by the people
● The prospect of permanence.
It should be noted that under this test, it is immaterial whether the government came to power through unconstitutional means or not.
A case to be noted in this regard is Tinoco Arbitration,[10] wherein the military regime seized power in Costa Rica. While the regime was not recognized by either the US or the UK and was eventually ousted within a short period of time, a dispute arose regarding the concessions granted by the regime on oil exploration to a British company. The new government nullified Tinoco’s contracts, which included an oil concession granted to the British company.[11]
The sole arbitrator in this case, Justice William H. Taft, in stating the importance of the ‘effectiveness’ test held that, since the Tinoco administration was in effective control of the country, it was a valid government. Recognition by other states thus became immaterial in this regard.[12]
The ‘Legitimacy’ Test
The Tobar Doctrine, colloquially referred to as the ‘democratic legitimacy test”, posits that ‘governments which have come into being through undemocratic or extra-constitutional means should not be recognised, until such change has been accepted by the people’.[13] The ‘legitimacy’ test maintains that the manner and means by which the government came to power, alongside popular support from the people, is quintessential for recognising the validity of a state.[14] Furthermore, the doctrine emphasises that the government assuming power through extra-constitutional means should not be recognised.
The Case of the Two Chinas: An Eerie Precedent
Before delving into the crux of the problem presented before us, it is imperative to take note of the UN General Assembly adopted Resolution 2758, tabled in 1971.[15] UN Resolution 2758 recognised the representatives of the government of the People’s Republic of China as the only legitimate representatives of ‘China’, thereby delegitimizing the diplomatic claims of the Republic of China, situated on the other side of the Straits, in the island of Taiwan.[16] For historical perspective, both the Republic of China and the People’s Republic of China came into being after a grueling Civil War that spanned nearly half a decade in the direct aftermath of the Second World War. Both were led by dictators, Chiang Kai-shek and Mao Zedong respectively, and promoted totalitarian ideologies, even though the former was more open to the idea of ‘democracy’ and ‘Western values’.[17]
One of the main considerations before the committee was the underlying fact that the Government of the Republic of China controlled only a fraction of the Chinese territory and thus could not make a legitimate claim to represent the entire Chinese state. Thus, it can be reasonably construed that in a situation where the doctrine of “effective control” is at loggerheads with the “legitimacy of the government”, the former shall prevail in international law, thereby setting an extremely important precedent.[18]
On a strict application of the aforementioned principles and in light of the precedent set through UN General Assembly Resolution 2758,[19] wherein the principle of ‘effective control’ was granted primacy, it can be plausibly construed that a state can recognise the incumbent Taliban regime in Afghanistan, as eventually the recognition of a state is the discretion of the state.[20]
It is, however, pertinent to note here that the horrors of the Chinese Civil War pale in comparison to continuing atrocities committed by the Taliban to Afghan women and ethnic, sexual, and religious minorities.[21] A testament of the same harrowing account can be the erasure of the Afghan Hindu and Sikh minorities[22] in a fashion similar to the persecution of Jews during the Spanish Inquisition[23] and the Holocaust[24]. Thus, while the recognizing nation shall not be in violation of any customary or otherwise international law, the same cannot be said about “conscience”.
To Recognize, or not to Recognize?
While there is no straightjacketed response as to whether any country should recognize the regime change or not, however, the discussion of the Tobar Doctrine is extremely important for the course of our discussion.[25] Some of the more notable instances of the application of this doctrine were the cases of Venezuela,[26] Haiti,[27] and more recently Sudan (wherein clashes between pro-democracy activists and military forces continues to this date) where the international community did not recognize governments established through military coups and instead sided with an ousted, yet democratically elected government[28]. Therefore, even though these governments ‘effectively’ lacked the control of the country they seek to represent, they were still offered legitimacy by the international community.[29] In some cases legitimacy by the international community has been a political consideration, such as in the case of the anti-Assad Syrian opposition by the US, and its Western allies.[30] Further, it has long been contested by the academic community that countless non-democratic regimes in Africa and the Middle East enjoy recognition from the international community and that ‘a customary law norm on the non-recognition of governments established anti-democratically has not yet emerged with effective control remaining a major criterion for legitimacy’.[31]
However, the rupture of diplomatic relations of Iran with its erstwhile Western allies following the 1979 Islamic Revolution offer a more promising tale, wherein sanctions were imposed and diplomatic ties were ruptured following the suspension of democratic and human rights in Iran.[32] In further recent developments in the context of Afghanistan, the EU Parliament, while recognizing the de facto control of the Taliban over the country, remarked that ‘operational engagement will continue’, as per the necessities, but there will still not be any official recognition.[33]
As a state practice, it has been commonly observed that in cases where the government assuming power does so through unconstitutional means, a temporary recognition is granted followed by a de jure recognition. ‘De facto recognition involves a hesitant assessment of the situation, an attitude of wait and see, to be succeeded by de jure recognition when the doubts are sufficiently overcome to extend formal acceptance,’ wrote Malcolm Shaw, a scholar of International Law.[34] A rather diplomatic alternative for the international community can be to tacitly confer an “implied recognition”.[35] An implied recognition does not per se indicate that a state is granting de facto (temporary) or de jure recognition (permanent) to a government, but is more evidentiary to have granted a de facto recognition on lines similar to the stance taken by the EU Parliament on the issue of the recent developments in Afghanistan.[36] An implied recognition also offers a hesitant assessment of the situation, and an attitude of ‘wait and see’, while keeping the opportunity of a de jure recognition open. Thus, conferring an implied recognition (which is latent de facto recognition) will allow a state to act in accordance with its own interests before according any permanency to their recognition.
Guest Authors Atul Alexander & Ishan Khare
[1]Staff Writer, 'Taliban are back - what next for Afghanistan?' (www.bbc.com, 2021) https://www.bbc.com/news/world-asia-49192495 accessed 16 December 2021
[2] Staff Writer, 'One Month Since Taliban Takeover: Here’S Everything That Has Happened In Afghanistan' (The Indian Express, 2021) https://indianexpress.com/article/world/taliban-kabul-afghanistan-us-7513327/ accessed 16 December 2021.
[3] Petra Minnerop, 'Rogue States – State Sponsors Of Terrorism?' (2002) 3 German Law Journal.
[4] ibid.
[5] Atul Alexander, 'Recognising The Taliban Government: What’s At Stake For India – And The World' (Scroll.in, 2021) https://scroll.in/article/1006993/recognising-the-taliban-government-whats-at-stake-for-india-and-the-world accessed 4 December 2021.
[6] John Spargo, 'The Soviet Union: The Question of Recognition' [1930] University of California Press http://www.jstor.org/stable/45336232. accessed 16 December 2021.
[7] James Crawford, The Creation Of States In International Law (Oxford University Press 2007)
[8] ibid 6.
[9] ibid 7.
[10] Cornelia Hagedorn, 'Tinoco Concessions Arbitration' [2006] Max Planck Encyclopedias of International Law [MPIL].
[11] ibid.
[12] ibid 5.
[13] Charles L. Stansifer, 'Application Of The Tobar Doctrine To Central America' (1967) 23 The Americas.
[14] ibid.
[15] 'Chinese Expert Refutes Attack From US And Taiwan Politicians Against UN Resolution 2758 - Global Times' (www.Globaltimes.cn, 2021) https://www.globaltimes.cn/page/202110/1237189.shtml?id=11 accessed 16 December 2021.
[16] ibid.
[17] Donggil Kim, 'Stalin And The Chinese Civil War' (2010) 10 Cold War History.
[18] Brian Hilton, '“Maximum Flexibility For Peaceful Change”: Jimmy Carter, Taiwan, And The Recognition Of The People's Republic Of China' (2009) 33 Diplomatic History.
[19] ibid 15.
[20] ibid 9.
[21] 'Taliban Abuses Cause Widespread Fear In Afghanistan: Human Rights Watch' (ANI News, 2021) https://www.aninews.in/news/world/asia/taliban-abuses-cause-widespread-fear-in-afghanistan-human-rights-watch20210923183213/ accessed 16 December 2021.
[22] 'Afghanistan's Sikhs To 'Make Choice Between Converting To Islam Or Leaving Country': Report' (The Economic Times, 2021) https://economictimes.indiatimes.com/news/international/world-news/afghanistans-sikhs-to-make-choice-between-converting-to-islam-or-leaving-country-report/articleshow/87204174.cms?from=mdr accessed 16 December 2021.
[23] 'The Inquisition' (Jewishvirtuallibrary.org) https://www.jewishvirtuallibrary.org/the-inquisition accessed 16 December 2021.
[24] 'The Holocaust' (Jewishvirtuallibrary.org) https://www.jewishvirtuallibrary.org/the-inquisition accessed 16 December 2021.
[25] ibid 13.
[26] 'U.S. Treasury Department Affirms Recognition Of Venezuela's Opposition-Held Congress' (www.reuters.com, 2021) https://www.reuters.com/article/us-venezuela-politics-usa-idUSKBN2991RB accessed 16 December 2021.
[27] 'Battle For Power In Haiti Extends To Lobbying In Washington' (nytimes.com, 2021) https://www.nytimes.com/2021/07/21/us/politics/haiti-lobbying-washington.html accessed 16 December 2021.
[28] 'Sudan’S Civilian Prime Minister Is Back. Here’S Why Thousands Are Still Protesting.' (www.Vox.com, 2021) https://www.vox.com/2021/11/21/22794556/sudan-coup-protests-prime-minister-reinstated-democratic-transition accessed 16 December 2021.
[29] ibid 5.
[30] Karen DeYoung, 'Syrian Opposition Coalition Offices In Us Given Foreign Mission Status' (2014) https://www.washingtonpost.com/world/national-security/syrian-opposition-coalition-offices-in-us-given-foreign-mission-status/2014/05/05/3bb31544-d476-11e3-aae8-c2d44bd79778_story.html accessed 16 December 2021.
[31] ibid 9.
[32] Reuters Staff, 'Iran's Khamenei Bans Holding Direct Talks With United States: TV' (www.reuters.com, 2021) https://www.reuters.com/article/us-iran-usa/irans-khamenei-bans-holding-direct-talks-with-united-states-tv-idUSKBN1KY14A accessed 16 December 2021.
[33] John Chalmers, 'Analysis: From Doha, EU Limits Diplomacy With Taliban To Afghan Aid' (www.reuters.com, 2021) https://www.reuters.com/world/doha-eu-limits-diplomacy-with-taliban-afghan-aid-2021-09-20/ accessed 16 December 2021.
[34] Malcolm N Shaw, International Law (Cambridge University Press 1977).
[35] ibid 9.
[36] ibid 5.