India can deal with Taliban government because it is real, not because it is legitimate
NS Taliban’s horrific capture of Afghanistan A new debate has begun in international law on the issue of recognizing a state entity claiming to be the new government. This debate is important because China and Russia, two of the five permanent members of the UN Security Council, have shown readiness to recognize the Taliban-led government, while countries such as Canada have opposed it. Questions of recognition do not arise when there is a change of government within a state when political power is transferred through legal means. However, things are different when the change of government takes place by extra-legal means such as the removal of the existing government by using unconstitutional means. The Taliban’s occupation of Afghanistan completely falls in this category.
The recognition of governments under international law is important for several reasons. It is important to know who is the governing authority of the state, who has the responsibility to effectively fulfill domestic and international legal obligations ranging from furthering diplomatic relations to the protection of human rights, and so on.
government vs state
The main thing to remember is that recognition of the government should not be confused with the recognition of the state under international law. As noted international lawyer Malcolm Shaw writes, “The change in government, however accomplished, does not affect the identity of the state.” Thus, in the current debate, the issue is not about the recognition of Afghanistan, which retains its legal personality. Whether countries recognize the Taliban regime will depend on their political views and geo-strategic interests, as evidenced by Chinese and Russian proposals. However, certain norms have evolved in international law to decide the issue of recognition of governments and these require judicious attention.
Test in International Law
Traditionally, the test used to make decisions about the recognition of a new government in international law is that of ‘effectiveness’. According to this theory, recognizing the government means determining whether it effectively controls the state it claims to rule. In other words, it means determining whether the government has effective control over the territory of the state (or a part of it), the majority of the population, national institutions, banking and monetary systems, etc. The underlying assumption is that effective control means the people of the country accept, or at least accept, the new regime; If they didn’t, they would overthrow him. Under this theory, it is unimportant how the new government took office (whether through civil war, revolution, or military coup). Since there is no doubt that the Taliban now effectively controls Afghanistan, according to this test, it will be recognized as the government of Afghanistan for international law and, thus, international relations.
One theory that competes with the effective control theory is that of democratic legitimacy. According to this theory, the recognition of a government also depends on whether it is the legitimate representative of the people it claims to rule. Therefore, governments that gain power by non-democratic means – despite their de facto control over the country – should not be recognized by the states. The end of the Cold War, followed by the spread of democracy in the world, and the growing demand for universal respect for human rights gave impetus to this theory over the past three decades.
This principle has led many countries to provide legal recognition (legal recognition) to governments in exile in place of those with effective control. Two recent examples can be offered. First, several countries recognized Yemen’s Abdrabuh Mansour Hadi government, in exile since 2015, on the grounds that rebel separatists seized power in Yemen through illegal means. Second, the Nicolas Maduro government in Venezuela is not recognized by many countries due to its perceived lack of democratic legitimacy.
Despite effectively controlling Afghanistan, the Taliban regime lacks democratic legitimacy. Thus, if the principle of democratic legitimacy is applied it will fail to be recognized as a legitimate representative of Afghanistan. Things will be further complicated if the Afghan President, Ashraf Ghani, who fled the country when the Taliban entered Kabul, announces a government-in-exile.
However, some international lawyers such as Erica de Vet doubt whether the principle of democratic legitimacy, despite its value and spontaneous appeal to champions of liberal democracy, has become a binding part of customary international law for the recognition of governments. In other words, governments can rely on the principle of democratic legitimacy to deny the Taliban’s legal recognition. Nevertheless, there is no binding legal obligation on countries to stop recognizing the Taliban on the grounds that it does not enjoy democratic legitimacy. Thus, if Russia and China were to formally recognize the Taliban regime because of their effective control of Afghanistan, it would be in line with international law.
What does the withdrawal of Taliban mean for India? in focus podcast
option for india
Given the brutal past of the Taliban, its extremist ideology and the profound absence of democratic legitimacy, India is within its right to withdraw legal recognition of the Taliban regime. However, given India’s huge investments in Afghanistan and its stake in the South Asian region, it will have to find a way to engage with the Taliban. India should adopt a clear policy that it will deal with the Taliban only because it is the real government, not because it is legit. This principle should be followed for bilateral relations and also for multilateral deals such as those within the South Asian Association for Regional Cooperation.
Prabhas Ranjan will soon join Jindal Global Law School, OP Jindal Global University as Professor and Vice Dean. thoughts are personal
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