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Atul Dubey

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Can the Taliban be recognized as a legitimate government? OR What role does International Law play regarding Statehood in a Democratic government or in a Dictatorship?

INTRODUCTION

Late days have seen the quick breakdown of the Afghan military and the acquiescence of its administration, with the Taliban getting back to public force after almost twenty years of fight.  The Taliban is a fundamentalist Islamic power that administered Afghanistan from 1996 until being brought down by the USA in 2001. Many Arabs headed by Al-Qaeda leader Osama Bin Laden had fought for the Taliban. However, on Aug 15, the Taliban regained control over Afghanistan.

What is Montevideo Convention and how is it relevant?

Under International law, there are acknowledged norms that recognize a newly emerged State. The Article 1 of Montevideo Convention on the rights and duties of states, 1933 test shows a new state must have-

  1.  Permanent population  
  2.  Defined Territory 
  3.  A government   
  4.  Capable of entering relations with other states.

But if the Nation meets above the criteria does that mean it is recognized? The answer is ‘NO’. Basically, under International law, there are 2 ways for State recognition- a. De Facto Recognition which means temporary recognition of newly formed states via non-committal acts by some state. The global community does not recognize them and their recognition can be rescinded at any time. b. De Jure Recognition is legal recognition that is given when states fulfill the criteria under Article 1 of the Montevideo Convention. This recognition given to the state is irrevocable.

Theories of Recognition

  1. Consecutive Theory        2. Declaratory Theory

Consecutive Theory– as indicated by this theory, for a state to be considered as an international person, its acknowledgment by the current states as a sovereign is required.  The main exponents of this theory are Hegal, Oppenhein and Anziloti.

Declaratory Theory– this theory is set down under Article 3 of the Montevideo Conference of 1933. It expresses that the presence of another state doesn’t rely upon being recognized by the current state. Indeed, even before acknowledgment by different states, the new state has the option to safeguard its integrity and freedom under international law. The main exponents are Hall, Wigner, Fisher, and Briefly.

View of International Community on the takeover

The terms of the Agreement for Bringing Peace to Afghanistan 2020 or the Doha Agreement made it clear that the United States does not recognize the Islamic Emirate of Afghanistan. The Emirate’s recognition will depend on the recognition given by the global community. However, on 12th August many representatives from different States met such as from China, India, Pakistan, USA, UK, Germany, Norway, EU, and the UN met at a regional Conclave in Qatar wherein they had a clear view not to recognize the government of Afghanistan as imposed via military force. Later China & Bangladesh had a view to recognize the Taliban Government.

In accordance with the international practice and the actual circumstances in Kabul, the options available to the global community is either to: 1) continue with full de jure recognition of Afghanistan and by default of a Taliban government; or, 2) continue with full de jure recognition of Afghanistan & grant de facto recognition to the Taliban as the government.

On 24th August virtual G-7 (UK, US, Canada, France, Germany, Italy and Japan) summit occurred to answer the chaos that happened in Afghanistan amidst the withdrawal of US troops. It was hosted by the UK. These seven countries discussed a continuation of their close coordination on Afghanistan policy, Humanitarian help, and evacuating citizens.

Closing down, Relocation or open of Embassies: Position of Afghanistan

The American flag is not flying at the US Embassy in Kabul and essentially all consulate staff has been moved to the city’s international airport. In the UK most activities at the British Embassy in Kabul are briefly suspended because of the weakening in the security circumstances. The Chinese Embassy in Afghanistan continues its work as the Taliban have vowed to ensure its security.

According to reports, the Indian Consulate in Kabul has not been formally closed at this point and is working with a nearby guide. Indian Embassy staff was evacuated by an Indian Air Force C-17 airplane on 17 August, which brought back roughly 150 Indians including ITBP faculty from Kabul Air Terminal. Before that, another airplane had transported 45 Indians from Afghanistan.

Fundamental principle ‘Jus Cogens’ in International Law

Jus Cogens means the principles that form the norms of International Law that cannot be set aside. The International Court of Justice (ICJ) in 2010 decision in the case of Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Kosovo Opinion) principally agreed with many isolationist states who had argued that the UN Security Council should not intervene in the process of government formations (through secessions/armed conflict/declaration of independence et cetera) as was the established practice of the Security Council. Though, the ICJ distinguished these situations from that of Kosovo. The ICJ in Kosovo Opinion noted:

“[I]n all of those instances the Security Council was making a determination as regards the concrete situation existing at the time that those declarations of independence were made; the illegality attached to the declarations of independence thus stemmed not from the unilateral character of these declarations as such, but from the fact that they were, or would have been, connected with the unlawful use of force or other egregious violations of norms of general international law, in particular those of a peremptory character (jus cogens). … In the context of Kosovo, the Security Council has never taken this position”

‘Jus cogens’ or ‘compelling law’ are fundamental principles of international law that are accepted by the global community as a rule from which no derogation is permitted e.g. ethnic cleansing, genocide, and rape as a weapon of war.

India’s view on Taliban takeover Afghanistan

India’s Chief of Defense Staff General Bipin Rawat has stated the terror activities that might be flooded after this takeover. He stressed upon that India was and is still prepared for this takeover. Russia and India have chosen to counsel each other over the Taliban’s activities in Afghanistan. The two nations have likewise chosen to set up consolidated groups involving foreign ministry and national security officials of every nation to lead a detailed assessment of the Afghan circumstance so future strategy with the Islamic government is chosen by the two India and Russia. India is yet to finalize the recognition towards Taliban, presently the aim is to evacuate people from Afghanistan. But, India has made an attempt to meet the Taliban leaders at their political office in Doha, which is a sign of softening of its stand towards the Taliban. But the concern of interference of Pakistan in Taliban-ruled Afghanistan cannot be denied by India.

CONCLUSION

The major problem that has arisen is the status of Afghan refugees which is to be addressed by the international community. The present coup by the Taliban stands on the aggregation of abuse of human rights & violation of fundamental Jus Cogens Principles by making it an appropriate event for intervention. The takeover of Afghanistan by the Taliban is pretty much complete, however, what might unfurl in the coming days or weeks is by and large projected as dubious.

The author Meenakshi Choubey is an LLM student of Kirit P Mehta School of Law, NMIMS, Mumbai

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