Three years after the Taliban retook control of Afghanistan, even though they have been successful in establishing broad-based control over the country, the condition of the common Afghans remains untenable. In contrast to the Taliban 1.0, which was officially recognised by three states namely: Pakistan, Saudi Arabia, and the United Arab Emirates (UAE), no state has formally recognised the current Islamic Emirate. While the group has engaged diplomatically with several countries, the overall scenario appears to be byzantine, as governments refuse to lump their exchanges with the group as equivalent to the formal recognition of the Taliban administration.

Implicit recognition: The Taliban’s case

The Taliban's ascent to power in Afghanistan represents an exceptionally challenging case in which a constitutionally elected government was toppled by a UNSC-sanctioned group that grasped power through extra-constitutional means such as force or coups d'état that should not be considered legitimate by other countries. The growing diplomatic engagement with the Taliban brings in the concept of “implied” recognition where a recognising state takes certain actions, such as crafting a diplomatic relationship, but does not officially recognise the other state. The recognition is thus said to be “implied.” A recognising state avoids implicitly recognising the other state if it formally proclaims that none of its actions should be interpreted as a declaration of recognition.

The current circumstance also brings light to important issues regarding the relevance and implications of recognition. Recognition grants state legitimacy and raises its significance for states and governments in the world at large. The terms “recognition of state” and “recognition of government” are defined differently in international law. The international community of nations recognise the establishment of a new or existing country with an international legal personality. Recognition of government, on the other hand, refers to the transfer of power inside an already recognised state or country between two entities: A new “authority” or “government” and the current or outgoing administration. Given that the Taliban does not assert the establishment of a fresh state through invasion or secession, its ascent to prominence does not raise the issue of state recognition. Their takeover implies an abrupt shift in government, not state.

The current circumstance also brings light to important issues regarding the relevance and implications of recognition. Recognition grants state legitimacy and raises its significance for states and governments in the world at large.

However Abdul Qahar Balkhi, the spokesperson of the Ministry of Foreign Affairs of Afghanistan, referring to the Montevideo Convention (that is, the Rights and Duties of States, which include a permanent population, a defined territory, an effective government, and the ability to engage in relations with other states), juxtaposes Afghanistan's statehood and governance, debating that recognising Afghanistan's statehood calls for acknowledging the legitimacy of the Taliban regime's governance.

Engaging in the grey zone

Operating in this middle ground of engaging with the Taliban without publicly recognising their authority provides various strategic advantages to the concerned countries. This approach enables countries to conveniently interact for their own interests and balances their needs without officially granting legitimacy to the Taliban regime. For the Taliban, engagement offers a public relations boost, allowing them to claim they are not international outcasts as critics suggest. Countries can preserve their national interests, and secure their borders in Afghanistan by maintaining diplomatic relations. Significantly, this approach allows governments to separate themselves from being associated with the Taliban's contentious policies and human rights record while still engaging in crucial dialogue and collaboration.

Countries like China, Russia, and Pakistan have built some sort of relations with the Taliban since it got back to power, with China becoming the first country to officially recognise Bilal Karimi, as Afghanistan’s envoy to Beijing. China’s interactions with the Taliban have so far remained purely transactional. An example of this is the deal made by China’s Xinjiang Central Asia Petroleum and Gas Co, marking the first significant international energy extraction agreement the Taliban has secured since assuming control. In a recent development, the Taliban’s chief spokesperson, Zabihullah Mujahid declared that their relations with China, Russia, Tajikistan, Uzbekistan, Turkmenistan, Iran, Pakistan, and other nations in the region are official, noting the presence of embassies, inter-country travel, and consulates with traders coming, going and transferring goods. After maintaining or re-establishing a diplomatic presence in Kabul, a number of regional countries have embraced the appointment of Taliban envoys in their capitals, asserting that such representation is not equivalent to implicit or explicit recognition and is a “technical” prerequisite for coexisting with Afghanistan.

International organisations and international legal consequences: Another perspective

The legal ramifications of international organisations recognising governments are a lot more complex than those of countries. For example, a recognising state is not compelled to interact, create, or broaden its connection with a newly recognised government. On the contrary, an international organisation cannot restrict the new government’s rights, membership, or other duties within the organisation. The aforementioned may also clarify why many international organisations have been less inclined to recognise the Taliban than individual states. Like the governments, no international organisation has allowed the Taliban to legitimately represent the state of Afghanistan.

In this regard, the UN has, more than once, rejected the Taliban's bid to take over Afghanistan's seat in the UN. In December 2022, the UN General Assembly undisputedly adopted the UN Credentials Committee's deferral recommendation, suggesting that the seat should remain with the former Afghan government, which is now represented by a diplomat assigned by President Ashraf Ghani.

The Taliban's rigid rule over Afghanistan might not be sufficient to classify it as a “government” as the Taliban government's recognition is inextricably linked to its readiness to comply with contemporary international laws.

While states are not required by international law to recognise a de facto administration, in certain circumstances, governments may be required to refrain from recognising a new government. As given in Article 41(2) of the International Law Commission's Articles on Responsibility of States of Internationally Wrongful Acts (2001) which states that if a country violates a fundamental rule of international law (jus cogens), other countries cannot accept or acknowledge the situation that this violation created. They must treat it as illegal and work to restore the situation to one that respects the violated rule.

Resultantly, if a new entity violates a peremptory rule of general international law, states must refuse to recognise it as a state or government under the principle of non-recognition. It specifies that if a country commits a serious violation of international law, other countries are obligated not to recognise or condone the resulting situation, and they must also refrain from providing any support or assistance that would legitimise their breach. A treaty or a UNSC binding resolution may instruct governments not to recognise a new de facto administration. In this case, states that recognise the Taliban regime may face several restrictions imposed by the international community like diplomatic isolation and cooperation from other countries, trade, and aid restrictions. Furthermore, states may face travel bans and limitations on their government officials, as well as visa and travel restrictions for their nationals when visiting other countries. 

Conclusion

The Taliban's rigid rule over Afghanistan might not be sufficient to classify it as a “government” as the Taliban government's recognition is inextricably linked to its readiness to comply with contemporary international laws. Additionally, remaining legally unrecognised does not free Taliban of their obligations under international human rights and humanitarian laws, since it hinges on administration rather than government status. According to recent UN research, more than 60 percent of Afghan women believe that granting formal international recognition to the Taliban government will exacerbate their rights situation. Under the current circumstances, it may worsen the human rights problem and increase the possibility that the Taliban will reinforce and expand existing limitations targeting females and other minority groups in the country. For the time being, due to strategic and security considerations, countries will continue to engage with the group in future as a formal recognition of the Taliban’s Islamic Emirate may take some time.

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Shivam Shekhawat is a Junior Fellow with the Strategic Studies Programme at the Observer Research Foundation.

Poorva Vyas is a Research Intern with the Strategic Studies Programme at the Observer Research Foundation.

• International Affairs
• Afghanistan
• AFGHANISTAN
• governance
• International Law
• Taliban

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