Recognising Taliban Rule? : Tale of two theories in International Law

The treaty of 'Peace of Westphalia' embarked the emergence of two key postulates for recognizing any government in international law, the first that "the states are sovereign political actors" and, the second which complement the first, that the "governments are established to act on behalf of states to secure citizen's inalienable rights."^[1] Recognition of Government, simply, can be defined as an act of state wherein it accepts a new regime as the legitimate representative of the other state in its international intercourse. 'Recognition of government', contrary to what one might think from the simplicity of this definition, is one of the most vexed subjects in international law. Many scholars have indicated the concept as "notoriously murky"^[2]. According to Stefan Talmon, it refers to "an indication of the willingness or the unwillingness of a government to establish or maintain an official relationship with another."^[3] The recent developments in Afghanistan, which are still unfolding, have brought this vexed subject in a newer setting before the scholars in the International Law. This article attempts to shed light on the emerging standards for the 'recognition of government' in international law and reassess the applicability of traditionally accepted doctrine of 'Effectiveness', secondly, it analyzes the acceptance of the principle of 'democratic legitimacy' as a legal norm in international law. These standards are, then, discussed in the context of the recent developments in Afghanistan.

The International Law On Recognition Of Government

Recognition as a unilateral act entails that any decision to recognize has a 'discretionary' character, to substantiate this arguments recourse can be taken to the Arbitration Commission on Yugoslavia, wherein it was held that, "Recognition is a discretionary act which other states may perform when they choose and in a manner of their own choosing subject only to respect for the guiding norms of general international law."^[4] A quick tour d'horizon of the states practices suggest that the acts of recognition is political as well as a discretionary act. The need to exercise such discretion occurs when there is a change in the government of a state in contradictions of its normal constitutional procedure. For some, the acts of recognition might simply be a process for embellishing already protected rights, while for others it might be a realization of a long-cherished dream. At the onset of this discussion, it is necessary to emphasize that the concept of Recognition of a State is entirely different from that of the recognition of a government. The conferment of recognition to a government entails that it is the sole representative of that state in its international intercourse. Some scholars contend that it is nearly impossible not to conflate these two concepts, because in principle, most of the methodologies set out for the one equally apply to the other.^[5] Professor Brownlie, for instance, contends that "the existence of an effective government is the essence of statehood, and, significantly, recognition of states may take the form of recognition of a government".^[6] James Crawford, also arguing on similar lines, contends that "for a state to exist as an entity, it must possess a government or a system of government that is in general control of its territory, to the exclusion of other entities."^[7] The emphasize is also laid down upon "Aaland Island Case" wherein it was held that "Finland was not a sovereign state from 1917 to 1918 due to its lack of a government"^[8]. It is, therefore, a bit difficult to differ with these scholars, because the existence of a government is one of the essential attributes of statehood. In contradiction to this, is the opinion which contends that 'Recognition of State' and 'Recognition of the Government' are two entirely distinct concepts. Brad Roth, arguing for this school of thought holds that the notion that "state can't be separated from the government because both are interwoven" is false.^[9] He states that "statehood is a normative rather than an empirical fact because a state does not necessarily cease if its government descends into chaos, nor is it reduced in size. A state continues to exist as a state irrespective of the transformation it undergoes, and its normative character remains constant while that of a government might cease."^[10] There have been precedents wherein the states have existed without functioning government.^[11] For instance, in Tibet, the government operates as 'Government-in-exile' and is devoid of any statehood, secondly in Somalia, there is no effective government even when the state of Somalia exists. The argument that a "state can't exist without a government, or a government can't exist without a state" therefore, fails to convince otherwise. This article, thus, engages with the subject on the premise that the recognition of a government is a separate and distinct concept from that of the state. The United States Court of Appeal has also reiterated that

"…granting or refusal of recognition of governments has nothing to do with the recognition of states itself. If a foreign state refuses the recognition of a change in the form of government of an old state, the latter does not thereby lose its recognition as an international person. The suit did not abate by the change in the form of government in Russia; the state is perpetual and survives the form of its government."^[12]

The States, which are under illegal occupation or even under the control of the terrorists, continues to exist as States. While the concept of the state is linked to the presence of a ruling apparatus, the absence of government does not necessarily limit its statehood.^[13] Thus, the legal personality of the state of Afghanistan continues notwithstanding the takeover by the Taliban forces. The contentious question of recognizing governments arises in unusual circumstances where, either, there is a "forcible overthrow of an existing government"^[14] or "when the accession to power of a new government is by a procedure not provided in the constitution of the state"^[15] or "when the continuance in power of an existing government is in violation of its constitutional procedures."^[16] The question of attributing recognition to 'Government of Afghanistan under Taliban'^[17] becomes more contentious since there is no formal transfer of power between the competing entities. The discussion on the current crisis in Afghanistan, therefore, forms the basis of dichotomy wherein one opinion is to recognize Taliban Rule owing to its effective control on the ground while on the other hand, is the opinion, that the international community should employ the 'democratic legitimacy' principle to negate the recognition of Taliban Rule. In the next section, the article focuses on schisms present in both methodologies and consequent reflection on their strict application.

The Criterion Of Recognition: Effectiveness And Democratic Legitimacy

The attributes of a 'State' according to the Montevideo Convention comprises the existence of an effective government exercising authority over a territory and a population independently from any other State, and the capacity to enter relations with other States.^[18] Even if an entity possesses all these essential attributes, it does not automatically get recognized as a State. In addition to possessing all these essential criteria mentioned in Article 1 of the Montevideo Convention, the takeover must be accepted as 'lawful' by the member States of the global community to acquire legitimate de jure recognition. For instance, legitimacy being contingent on the government's reception to the international law, or to the fundamental norms of human rights. The recurrent and inescapable reshuffle of governments and the inability to find any objective standards for recognition in the decentralized legal order of international law has led to the evolution of different doctrines by mainstream legal scholarship. The traditional standard is that of the 'factual' test of effectiveness which tests the existence of control over the territory of the state, and the probability of manifestation of such control as stable and permanent.^[19] In this doctrine interference or any enquiry into the methods by which a government comes into power before recognition is granted in wholly immaterial.^[20] Brad Roth states that:

…the doctrine is best understood, not as an amoral or tactical concession to realpolitik but as a means of reconciling two fundamental principles of the international order's relationship to domestic political authority: popular sovereignty and ideological pluralism. The doctrine squares popular sovereignty with ideological pluralism by establishing a presumption — in many circumstances, an irrebuttable one — that enduring patterns of effective authority reflect underlying realities consistent with the United Nations Charter's idealization of existing states and governments.^[21]

The scholars are, however, critical of the doctrine due to its irreconcilable nature with the principle of 'populace will of self-determination' since the doctrine overtly relies on "control" instead of "popular acceptance" as its means test. Secondly, the absence of any benchmark for the time duration to determine the test of putative government effectiveness to administer state functions also contributes to the doctrine's unpopularity among scholars.^[22] Thirdly, the averments of authority by the "habitual obedience of the people" constitute "command" and not "consent" under the doctrine.^[23] The strict application of this doctrine, thus, could result into recognition of entities that might have acceded to power by violating the established norms of international law. As Roth puts it "the morally troubling and legally disruptive principle that might makes right, has always faced challenges from one form or another of legitimism – the idea that right, somehow specified, withstands even the most effective lawlessness."^[24]

This brings us to the more recent trends in international law wherein the legitimization of regimes appears to embrace the norms of 'democratic governance'. It has been emphasized by Ronald Axtmann that "while it is no longer the case that, if there is a sufficiently high degree of effective control, a state's border is protected from scrutiny by the principle of state sovereignty. Rather, for a state to be considered legitimate, it has become necessary to demonstrate that it rules with the consent of the governed."^[25] This opinion is qualified by the instances wherein, states have rejected the internal overthrow of democratically elected governments, and therefore, refused in recognizing the usurpers. Undoubtedly, there are undemocratic states which continue to be recognized universally or almost universally. This, the scholars have argued, can't be equated with approval for the political form for government.^[26] The recognition of such undemocratic government by the other states stems from the need to better serve the interests of its people and a possible transition to democracy.^[27] The United Nations Declaration on Friendly Relations and Cooperation among States state that, "every State has an inalienable right to choose its political, economic, social and cultural system, without interference in any form by another State".^[28] International law prohibits interventions in the domestic affairs of any state. It is, thus, a prerogative of state sovereignty that a state is free to choose its form of government.^[29]

This ever-enduring debate brings us to the question- despite the existence of undemocratic governments and the same being recognized by the actors in the international sphere, can democratic legitimacy be accepted as a legal norm in recognition policies?

Thomas Frank in his article 'The Emerging Right to Democratic Governance' argues for such acceptance.^[30] He cites the events of 1991 wherein the Haitian military and police authorities overthrew the elected government of President Aristide. Although these authorities exercised effective control over Haiti, the international community denied legitimacy to them and continued to recognize the exiled President Aristide as representative of the legitimate government of Haiti. The Organization of American States (OAS) resolution, for one, stated that "the solidarity of the American states and the high aims which are sought through it require the political organization of those states based on the effective exercise of representative democracy."^[31] However, the conclusion, that "democratic legitimacy is now a norm universally upheld in recognition policies" cannot necessarily be inferred from such act, while examined candidly. This inference is premised on the grounds that acts of recognition were undertaken "with due respect for the policy of each member state on the recognition of states and governments".^[32] Secondly, the charter of the OAS itself provides that "members may be suspended from participation in the organs of the organization when their democratically constituted government has been overthrown by force".^[33] The reaction of the member states in promoting democracy can't, therefore, be the "ipso facto evidence" of states acceptance of "democratic legitimacy principle" in recognition policies. The second example, which is often cited is the recognition of the National Transitional Council (hereinafter NCT) in Libya by numerous states. NTC, as a matter of fact, didn't have any widespread effective territorial control, hence, the only possible inference in conferring the recognition can, therefore, be attributed to the council's reach to the people and its commitment to open and democratic Libya.^[34] The United Kingdom, despite their official policy^[35], issued a statement to that effect and said that "…through its actions, the NTC has shown its commitment to a more open and democratic Libya …in stark contrast to Gaddafi, whose brutality against the Libyan people has stripped him of all legitimacy".^[36] However, as seen from these illustrations, if the notion of 'democracy entitlement' in its true sense has really become the legal norm in recognition policies, states should've incorporated it in their "foreign policies" and "denied legitimacy" to regimes which are inconsistent with the established democratic standards, in the same way as once legal, institutionalize racial segregation was outlawed. Such a strict application certainly doesn't find enough confirmation in states practices. Hence, the legal norm of "democratic entitlement" can't be said to exist as of now in recognition policies.

The Taliban, no doubt appears to have territorial control over most of the country. The strict application of effectiveness doctrines to recognize Taliban rule isn't possible since the Taliban itself is a composition of competing sub-groups.^[37] The effectiveness doctrine gives due regards to 'sustainability of power' and the ability of an entity to 'discharge its internal duties'. The second factor, which might complicate the strict application, is the emergence of the resistance movement against Taliban.^[38]A limited insurgency isn't necessarily incompatible with the finding of the 'effective control' doctrine. Moreover, on a plain reading of the constitution of Afghanistan, it can be inferred that indeed Amrullah Saleh claims of being the country's caretaker president has credibility.^[39] This interpretation might convince the international community to recognize him as the legitimate representative of the Islamic Republic of Afghanistan wherein the government might simply, function as the 'government-in-exile'. To address all these considerations, scholars have suggested the removal of "habitual obedience" from effectiveness doctrine and addition of "rebuttable presumption of consent" to it.^[40] This will incorporate the 'sustainability' of effectiveness doctrine as well as the 'principle of self-determination' of democratic legitimacy doctrine. The debates on recognition of 'Taliban rule', thus, in the end, sum up to the 'consideration for time', for situation to get stable on the ground and to ascertain the intentions and capabilities of the putative government.

The Author is an LL.M. Candidate at the Indian Law Institute, New Delhi.Views are personal.