Thread by @savndaniel

AFGHANISTAN IN THE EYES OF INTERNATIONAL LAW

The granting or refusal to grant recognition to a government is not purely a matter of international politics and diplomacy. There are some legal aspects to it and legal consequences arising out of such recognition.

For a start, the problem is not with regard to the 'state' of Afghanistan, but with regard to the 'government' of Afghanistan. In international law, the continuity of a state terminates only when its population or territory undergo changes.

As we can see, Afghanistan is enjoying continuity in character despite the fact that its internal legal regime has fallen into the hands of Taliban militants.

The tests employed in determining statehood is set out in Article 1(1) of the Motevideo Convention on Rights and Duties of States 1933.

It appears that Taliban Militants have conquered swaths of territory and the entire internal governmental

mechanism within Afghanistan through force and extra-legal means. However, there has not been a complete formal transfer of power. The transition of governmental power has not begun to unfold, yet. To put loosely.

On the other hand, Taliban has affirmed their de facto control by merely establishing effective territorial control. For clarity, a de facto government is one which wrongfully or precariously possesses powers of sovereignty.

Taliban's de facto control i achieved by wrongful, illegitimate and unlawful means. Therefore the origins of their de facto control has no legitimacy in international law. Such an illegitimate government as the one

Taliban has formed, is referred to as a de facto government under the international law. As far as recognising governments under international law is concerned, the character of such a de facto government does not attribute full legal recognition to a government.

It is only the de jure status which would confer such full legal recognition to a government.

International law dealing with recognition of governments is not static. It remains somewhat flexible for countries to put more emphasis on

one legal test than another test in granting recognition to a government. There is also a duty on part of the states collectively to recognise de jure status of a newly formed government, when required qualifications and necessary conditions are fulfilled.

The principle of 'state independence' imposes a duty on States to accord due recognition to a new government which has fulfilled the necessary conditions to qualify for de jure status.

Looking at the overall picture, as the world is preparing for a new reality in Afghanistan under Taliban rule, one thing is becoming clear. Taliban is preparing the country for a return to dark, gloomy days with re-imposing regressive

laws under their fundamentalist ideologies of sharia law. In these circumstances, international recognition of Taliban as the legitimate government of Afghanistan is very unlikely.

ADDENDUM: After the fall of Soviet Union and Soviet-backed People’s Democratic Party of Afghanistan (PDPA), the Taliban formed the Islamic Emirate of Afghanistan in 1996 with the support of Pakistan and Al-Queda.

But Taliban failed to set up an internal administrative mechanism and to secure stability in the country due to internal fights between several of their tribal factions.

During the time of their short-lived disposition of power, the Taliban control was characterised by totalitarianism and strict enforcement of sharia law.

As a result the Taliban, despite exercising de facto control, failed to attract recognition from the international community. Only Saudi Arabia, Pakistan and UAE recognised Taliban-run government as the de jure Afghan government.

But such recognition by a few countries alone is not conclusive of authentic legal status and juridical existence under the international law.