Summary:
The Congressional Study Group on Foreign Relations and National Security met via Zoom. They were discussing the international law of government recognition. The main point of contention is whether or not to acknowledge the Taliban as the country’s administrative body. Government recognition is not contingent on establishing diplomatic ties. The Democratic Republic of Afghanistan ruled Afghanistan from 1978 until 1992.
Under Burhanuddin Rabbani, the Mujahedin resistance seized power from 1992 to 1996. From 1996 to 2001, the Taliban took over Kabul and ruled Afghanistan. The U.S.-led invasion of Afghanistan in 2001 resulted in the Taliban being driven from power. Before their collapse, the Trump administration held talks with the Taliban in Doha, Qatar, during which many nations signalled that they would not recognise any government established through force. Amrullah Saleh, the Islamic Republic of Afghanistan’s first vice president, asserts that he is still the nation’s legitimate leader.
The United States might choose to recognise the Taliban as an independent state. This is the most likely scenario in short- to medium-term. Alternatively, the U.S. might reject recognition and use it as a carrot to persuade the Taliban to make fundamental reforms.
The Congressional Study Group on Foreign Relations and National Security met via Zoom on August 27, 2021, to talk about the recent Taliban takeover of Afghanistan and the international law of government recognition. The abrupt military takeover by the Taliban in the nation and President Ghani’s decision to leave immediately raised the issue of whether the US should recognise the new Taliban administration.
Tess Bridgeman and Scott R. Anderson were the speakers. Bridgeman is a co-editor at Just Security and served as the National Security Council’s deputy legal counsel during the Obama administration. Along with coordinating study groups, Anderson has written a lot about recognition-related topics and worked on them while acting as the legal counsel for the Embassy in Baghdad and as an attorney-adviser at the State Department.
The speakers began by defining the various types of recognition, including state recognition, which recognises that another geopolitical entity has the international legal status of being a state, and governmental recognition, which recognises that a regime has the authority to speak and act on behalf of a state, and territorial distinction, which recognises a state’s existence and jurisdiction within specific territorial boundaries. Governmental recognition enables the state to exercise its international law rights and may even subject the state to legal liability for the activities of the previous administration. Government recognition is not contingent on establishing diplomatic ties, normalised relations, or the government receiving moral or political support. Since there is currently little debate that Afghanistan is a sovereign state, the main point of contention is whether or not to acknowledge the Taliban as the country’s administration.
A regime must be “sufficiently established to give reasonable assurance of its permanence, of the acquiescence of those who constitute the state in its ability to maintain itself and discharge its internal duties and its external obligations” to meet the standard for governmental recognition known as “effective control.” Credit in recent cases is frequently contingent on things like adherence to democratic principles or the protection of human rights. As nations assess the likelihood of permanence, recognition may take some time due to the fact-intensive nature of the investigation. States are wary about quick recognition as well. De-recognition of states that don’t meet the initial conditions for recognition is less preferred and more complex than recognition. Recognization has several effects. The recognised government may assert ownership and control over the state’s foreign assets, is likely to be represented at the UN, and may be given the go-ahead to use force if necessary.
The presenters provided examples of how recognition-related issues can lead to strange outcomes, such as regimes recognised as governments-in-exile when the head of state is no longer in power (e.g., Aristide in Haiti in 1991), competing claims to recognition (e.g., Maduro and Guido in Venezuela in 2019). This claimant is the only one eligible for credit (e.g., post-coup Egypt in 2013) with no credible government at all (e.g., Somalia (e.g., Libya in 2013).
After that, the speakers went over the background of American-Afghan ties. Following a bloody Soviet-backed coup d’état, the Democratic Republic of Afghanistan, an organisation with Soviet allegiance, ruled the nation from 1978 until 1992. Although it remained a diplomatic presence in Afghanistan for the majority of that time, the United States never recognised it as the government of Afghanistan. Eventually, it closed its embassy in Kabul in 1991 due to security concerns. Under Burhanuddin Rabbani, the Mujahedin resistance seized power from 1992 to 1996. Rabbani gained control of Afghanistan’s seat at the United Nations and was permitted to nominate personnel at the Afghan Embassy in the United States, even though the United States continued to refuse to recognise his government owing to ongoing factional strife (but not to appoint an ambassador). From 1996 to 2001, the Taliban took over Kabul and ruled Afghanistan. However, Rabbani continued to organise a resistance movement in a portion of the nation under the auspices of the Northern Alliance. Only Pakistan, Saudi Arabia, and the United Arab Emirates have recognised the Taliban as Afghanistan’s legitimate government. Despite numerous attempts, the Taliban could never seize control of Afghanistan’s UN seat, which was still held by Rabbani allies. The U.S.-led invasion of Afghanistan in 2001 finally resulted in the Taliban being driven from power. The democratically elected Islamic Republic of Afghanistan administration, which ruled the nation from 2001 to 2021, was then put into place with the assistance of the United States and its allies. The international community as a whole, as well as the United States, recognised this administration and restored full diplomatic ties, including exchanging ambassadors and embassies. When President Ashraf Ghani left in the face of a Taliban advance in August 2021, handing back the government’s authority to the Taliban, this was the government that ultimately fell.
Before their collapse, the Trump administration held talks with the Taliban in Doha, Qatar, during which many nations signalled that they would not recognise any government established through force. The speakers remarked that it remained to be seen whether the Taliban’s recent achievement of precisely this may complicate their pledges. Amrullah Saleh, the Islamic Republic of Afghanistan’s first vice president, asserts that he is still the nation’s legitimate leader. Along with other former Afghan officials, he is said to be in talks with the Taliban about a potential power-sharing agreement and to be involved in some early resistance actions against Taliban control. Recognition has been made contingent upon adherence to human rights, respect for women and girls, and an inclusive government by Europe, the United Nations, and the United States. Although they have engaged the Taliban diplomatically, China and Russia have not shown any recognition signals.
The presenters offered five potential outcomes regarding the United States and international recognition. First, given the Taliban’s resistance to upholding democratic and human rights principles, recognition of the Taliban by the United States and its allies without conditions would acknowledge their influential power. Second, given the Taliban’s opposition to such power-sharing and the likelihood of its instability, the United States could recognise a hybrid power-sharing government, which also appeared doubtful. Third, under certain conditions, the Taliban could enter into prolonged talks with the United States about recognition. This is the most likely scenario in the short- to medium-term as the United States and its allies try to use recognition as a carrot to persuade the Taliban to make specific fundamental reforms. Fourth, the United States might reject recognition, which seems improbable given that Biden has started talking about the requirements for recognition. Fifth, the United States might be able to identify some opposition movement—unlikely given that no such movement has so far been able to establish a significant footing in the nation. Given its history of maintaining such relations in Afghanistan even with unrecognised regimes, the presenters reasoned that the United States would likely maintain diplomatic relations and engagement with the Taliban regardless of recognition. They also claimed that the United States is likely to remain open to collaborating with the Taliban on some issues of mutual interest, such as counterterrorism.
The presenters then covered the role of Congress. While the Supreme Court acknowledged that the president has sole authority over recognition choices in its Zivotofsky v. Kerry ruling from 2015, Congress has significant authority to restrict the effects of recognition. The Taiwan Relations Act of 1979 gave Taiwan the same rights as those granted to recognised regimes, simulating the effects of de jure recognition. Alternatively, Congress can restrict some of the impact of credit by enacting trade restrictions, imposing sanctions, and limiting access to certain funds.
After the presenters’ opening statements, the session then transitioned to an open discussion. Lessons from the debates over whether to recognise Syrian opposition forces are discussed, along with difficulties arising from a desire to alleviate the humanitarian crisis in Afghanistan and potential American interests in cooperating with the Taliban against their common enemy, including the ISIS-K terrorist organisation.
Analysis by: Advocacy Unified Network
