Recognition of a Taliban Government?

After the horrible events of the last weeks, policy makers around the world will soon think about their future relationship with the new Taliban leadership in Afghanistan. Whereas some States have reacted rather positively to the regime change in Afghanistan (cf. Russia) and in some cases openly discussed the possibility of recognizing the new regime (cf. Chinas MFA spokesperson Zhao Lijian: “It is a customary international practice that the recognition of a government comes after its formation. (…)”), others seem reluctant to do so. In particular, the President of the EU Commission, Ursula von der Leyen, announced that the EU does not recognize the new Taliban regime. The following post provides a short overview on the legal background to the recognition of governments.

Recognition of State and Governments …

The recognition of States and its legal effects form a cornerstone of international legal studies and multiple examples allow students, scholars and practitioners to discuss their schools of thought and political convictions. The recognition of governments, on the other hand, is discussed a little less often at universities, even though it possesses supreme political importance. Instead of relating to the legal entity ‘State’, it relates only to the organ speaking for that legal entity. As Crawford puts it:

“(…) recognition of government and state may be closely related, they are not identical. Non-recognition of a particular regime is not necessarily a determination that the community represented by the regime does not qualify for statehood. Non-recognition of a government may mean that it is not regarded as a government in terms of independence and effectiveness, or that the on-recognizing state is unwilling to have normal intergovernmental relations with it.” (p. 142).

That being said, one should note that the Taliban will not create a new State. Despite the fact that the ‘Islamic Republic of Afghanistan’ soon might run as the ‘Islamic Emirate of Afghanistan’, it will remain the same legal entity. Neither population nor territory will change. Thus, when Zhao Lijian considers a possible recognition or Ursula von der Leyen explains non-recognition, these considerations leave Afghanistan’s integrity as a State untouched. Interestingly, however, recognition or non-recognition of governments is something that has vanished for a certain time in the past. For example the United Kingdom declared in 1980 that:

“(…) we have conducted a re-examination of British policy and practice concerning the recognition of Governments. This has included a comparison with the practice of our partners and allies. On the basis of this review we have decided that we shall no longer accord recognition to Governments. The British Government recognize States in accordance with common international doctrine. (…)” (emphasis added by author)

The same policy is conducted by the German Government. According to the Academic Services of the German Bundestag: “(…) it has been German state practice for years to only recognize States and not Governments or Presidents.” (translation and emphasis by author). Nevertheless, recognition of a government might be necessary for the sake of clarification after a regime change. Following a coup, a controversial election or civil war, the recognition of a government on the international scale has an enormous effect. But is it legally possible?

… and its Legal Context and Practice

In short: yes. Quite a number of authors acknowledge the legal possibility of recognition or non-recognition governments (here; here and here). However, there must be reasons why Germany, the United Kingdom and their ‘partners and allies’ merely recognize States and not governments. Lord Carrington explained one of the arguments against recognition as follows:

“This practice [recognition] has sometimes been misunderstood, and, despite explanations to the contrary, our ‘recognition’ interpreted as implying approval. (…)”

Thus, one may consider the recognition of a government not merely as a legally and politically neutral act, but rather as a judgement regarding the legitimacy of a new regime’s ‘struggle for power’. Lord Carrington’s statement strikes at the core of the debate on why or why not recognition of governments should be legally possible. It concerns the distinction between effective control by a political power and legitimacy of that political power. Should the system of inter-governmental relations recognize only power, or should legitimacy be considered as a factor when addressing interstate relations? While there are good arguments to make legitimacy a condition for recognizing governments, for a long time now it seemed that political power was the decisive factor when it came to recognition. Accordingly, the Tobar doctrine – which posited that recognition of governments had to be conditional to legitimacy – could not establish itself at the beginning of the last century. Furthermore, the Tobar doctrine was countered by the Estrada doctrine in the 1930s, which pleaded to abstain from any recognition. After WWII, the clear commitment to non-interference might have accelerated the vanishing of recognition even further.

Recently, however, one can notice a certain change in the recognition practice. The case of Venezuela is the most recent example to that end. Several States decided to no longer recognize former President Nicolás Maduro, but opposition leader Juan Guiadó as (at least interim) President of Venezuela (here and here).The incident that lines up with recognition practices in the case of Syria and Libya gives reason to speculate about a ‘renaissance’ of legitimacy aspects or a ‘reversal’ of the policy of non-recognition. In this context, the Afghanistan scenario will need to be considered from a legal perspective: will the recognition practice of governments gain momentum again? And will legitimacy aspects – the Taliban did take over power by force – play a role?

Which Effects Emerge?

The effects of non-recognition of a government are not as severe as the non-recognition of a State. Whereas non-recognition of a State might lead to a loss of title, this is not the case when it comes to the non-recognition of Governments (Crawford, p. 141). Thus, if the US-administration now decided to freeze Afghanistan’s central bank assets in the USA, this would not concern the claim of the Afghani State to these assets, but only the possibility of an Afghani State being represented by the Taliban to get hold of them. The recognition of a Government is legally not necessary for diplomatic relations. It is widely accepted that revolutionary regime change neither constitutes a case of Art. 43 Vienna Convention on Diplomatic Relations, nor does it end the function of diplomats. Thus, from a purely legal point of view foreign missions could continue to perform their obligations in Afghanistan, even in case of non-recognition of the Taliban regime. Despite this legal certainty, it seems to be plausible that from a factual perspective diplomatic and consular officers would – with good reason – demand new guarantees from the Taliban before taking up office again. Moreover, international legal relations also require knowledge of who speaks for the Afghani State and who has the mandate to appoint ambassadors and enter into legal negotiations and agreements.

A way out of this legal need for recognition and legitimacy considerations might be found in the differentiation between a ‘de facto’ recognition and a ‘de jure’ recognition. A ‘de facto’ recognition is rather political and may signify acceptance of the fact that an effective government exists, while the recognizing government is unsure about its durability or lawfulness. To that end, some argue that a ‘de facto’ recognition can be revoked, whereas this is not the case with a ‘de jure’ recognition. The differentiation becomes practical, when a State wants to accept certain legal consequences of a regime change in another State, however, does not want to affirm the lawfulness of the regime change (Crawford, p. 143). Thus, a revocable ‘de facto’ recognition might offer the way out. In particular, if one takes into account the despicable attack on Abbey gate at Kabul airport, showing that there are serious challenges to the Taliban by ISIS and, at least until recently, opposition also remained from groups affiliated with the ousted government.

Recognition in the Afghanistan Scenario

Whether the Taliban regime in Afghanistan should be recognized from a political perspective is a delicate question. From a merely legal perspective a recognition of a Taliban government is possible. Recognition will allow potential negotiation partners of the Afghani State to know whom they can speak to. It will also allow to provide for the necessary factual implementation of a surrounding, in which diplomatic and consular officers can take up office again. Finally it is the necessary step to allow Afghanistan to participate in international legal relations. From a more abstract perspective one must note that recognition of a Taliban government certainly would give the overall practice of recognition another upturn, however, not necessarily legitimacy considerations. A provisional ‘de facto’ recognition might postpone legitimacy considerations and thus be a practical way out, allowing all participants to secure a face-saving deal.