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Topsy-Turvy Journey of the Taliban Recognition in International Law: What Next?
Published online by Cambridge University Press: 07 March 2025
Abstract
The Taliban’s forceful control of Kabul resulted in severe criticism by the world community and has consequently raised a pertinent question about its recognition in international law. Though a few countries publicly denied recognition to the Taliban government, many countries have (re)-started engaging with it by concluding bilateral treaties and (re)-opening embassies without recognition. Besides, countries have put several “conditions”, such as respect for human rights and a promise to form an “inclusive government”, before they will recognize the Taliban government. This note maps out these “conditions”, along with different proposals states have proposed concerning recognizing the Taliban government. It identifies the possible legal consequences of these “proposals” for the institution of recognition of government in international law. The note finally argues that though a recognition decision is largely political, it should nevertheless be regulated by international law to the extent that it would help avoid adverse international legal consequences.
Keywords
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- Notes and Comments
- Information
- Copyright
- © The Author(s), 2025. Published by Cambridge University Press on behalf of The Asian Society for International Law.
References
1 Madiha AFZAL, “Around the halls: The Taliban retakes Afghanistan” Brookings (16 August 2021), online: Brookings <https://www.brookings.edu/blog/order-from-chaos/2021/08/16/around-the-halls-the-taliban-retakes-afghanistan/>.
2 M.J. PETERSON, Recognition of Governments: Legal Doctrine and State Practice, 1815–1995 (London: MacMillan Press Ltd., 1997), at 13–16.
3 James CRAWFORD, Brownlie’s Principles of Public International Law, 8th ed. (Oxford: Oxford University Press, 2012) at 197.
4 International Law Association, Recognition/Non-recognition in International Law, (Johannesburg Conference, 2016) at 3–5.
5 M Scott MEACHUM, “Joining the Club? The Politics of Government Recognition” (2022) 9 Questions in Politics 1–16; Peterson, supra note 2 at 51 (states exercise wider areas of discretion for two purposes: to promote some values in the international system by specifying some criteria as necessary for recognition, and to advance their individual interests by granting or refusing recognition).
6 Haroun RAHIMI and Mahir HAZIM, “International Law and the Taliban’s Legal Status: Emerging Recognition Criteria?” (2023) 32(3) Washington International Law Journal 228 at 235–6; Muhammad FAHEEM and Minhas Majeed KHAN, “Recognition of the Taliban Government in Afghanistan and International Community” (2022) 42(1) Strategic Studies 81 at 86–95.
7 Seyfullah HASAR, “Recognition of Governments and the Case of the Taliban” (2024) 23 Chinese Journal of International Law 73 at para. 55.
8 Ibid., at para. 46.
9 Ibid.
10 Julie GORDON, “Canada will not recognize Taliban as Afghan gov’t—PM Trudeau” Reuters (17 August 2021), online: Reuters <https://www.reuters.com/world/asia-pacific/canada- will-not-recognize-taliban-afghan-govt-pm-trudeau-2021-08-17/ >; Isabelle KHURSHUDYAN, Reis THEBAULT and Gerry SHIH, “U.S. allies and adversaries are holding off for now on recognizing, aiding the Taliban” The Washington Post (20 August 2021), online: The Washington Post <https://www.washingtonpost.com/world/2021/08/20/afghanistan-taliban-international-recognition-aid/>
11 Ahmad B. KHALIL, “The Rise of Taliban Diplomacy” The Diplomat (3 January 2021), online: The Diplomat <https://thediplomat.com/2017/01/the-rise-of-taliban-diplomacy/>
12 Hasar, supra note 7 at para. 23.
13 Ibid., paras. 14, 46, 49 (Russia, China, and many European countries have set this condition).
14 Ibid., paras. 46–50 (almost all states have set this condition).
15 Ibid., paras. 55, 83 (mentioning that many states, like the USA, have set this condition before the recognition of the Taliban government).
16 Ibid., paras. 46, 49, 50 (Russia and the European countries have set this condition).
17 Sajjad HUSSAIN, “Recognition of Taliban in Afghanistan has to be ‘collective effort’ by countries in region: Pak PM Khan” The Print (15 February 2022), online: The Print <https://theprint.in/world/recognition-of-taliban-in-afghanistan-has-to-be-collective-effort-by-countries-in-region-pak-pm-khan/833040/>.
18 Hasar, supra note 7 at para. 53.
19 Peterson, supra note 2 at 174–5; Brad R. ROTH, Governmental Illegitimacy in International Law (Oxford: Oxford University Press, 1999) at 196–200; Rebecca BARBER, “The Role of the General Assembly in Determining the Legitimacy of Governments” (2022) 71 International Comparative Law Quarterly 638.
20 Hasar, supra note 7 at para. 23; Rahimi and Hazim, supra note 6 at 240 (noting that persistent serious human rights violation by the Taliban is the legal and practical impediment to it getting international recognition).
21 Legal Aspects of Problems of Representation in the United Nations, Memorandum prepared for the Secretary-General, UN Doc. S/1466, 5 SCOR, Supp. (Jan–May 1950), at 18, 22.
22 Stefan TALMON, Recognition of Governments in International Law with Particular Reference to Governments in Exile (New York: Oxford University Press, 1998), at 173–4; Jure VIDMAR, “States, Governments, and Collective Recognition” in Ying-jeou MA, ed., Chinese (Taiwan) Yearbook of International Law and Affairs, Volume 31 (Brill, 2013), at 136–59.
23 Peterson, supra note 2 at 178–82; Talmon, supra note 22 at 3–7; International Law Association, supra note 4 at 5–7.
24 Philip C. JESSUP, “The Estrada Doctrine” (1931) 25(4) American Journal of International Law 719.
25 Hasar, supra note 7 at paras. 10–12.
26 Rowena MASON, “Boris Johnson Urges International Unity over Taliban as He Recalls Parliament” The Guardian (15 August 2021), online: The Guardian <https://www.theguardian.com/politics/2021/aug/15/boris-johnson-urged-to-recall-parliament-over-afghanistan-crisis>.
27 Hasar, supra note 7 at para. 13.
28 Hasar, supra note 7 at paras. 10–17 (mapping relevant state practice of non-recognition, especially concerning the Taliban government).
29 Question of Namibia, GA Res. 3111(XXVIII) (I), UN Doc. A/RES/3111(XXVIII) (I) (12 December 1973), paras. 1, 11. Later, the UNGA also “strongly” deplored the policies of those states which continued to maintain diplomatic, economic, consular, and other relations with South Africa to the extent that it purported to act on behalf of Namibia. The UN’s specialized agencies and other organizations were also asked to ensure the “representation and participation” of Namibia in their official works/sessions. See Question of Namibia, GA Res. 3295(XXIX), UN Doc. A/RES/3295(XXIX) VI (13 December 1974), at preambular recital 11, para. 1.
30 Southern Rhodesia, UNSC Res. 448 (1979), at para. 3.
31 Namibia, UNSC Res. 566 (1985), at paras. 3, 4.
32 The Situation of Democracy and Human Rights in Haiti, GA Res. 46, UN Doc. A/RES 46/7 (1991), at paras. 1, 2.
33 Situation in Honduras: Democracy Breakdown, GA Res. 63, UN Doc. A/RES/63/301 (2009), at paras. 1, 2, 3. The UNGA condemned the coup d’état as it disrupted the constitutional and democratic order and endangered democracy and the rule of law in the country. The coup d’état was also criticized by other international organizations such as the Organization of American States (OAS) and the European Union (EU). As a result, Honduras was suspended from participating in the working of the OAS in 2009. Finally, the UNGA demanded “immediate and unconditional restoration of the legitimate and Constitutional Government of the President of the Republic of Honduras, Mr José Manuel Zelaya Rosales”.
34 Peterson, supra note 2 at 178–82; Talmon, supra note 22 at 3–13.
35 Peterson, supra note 2 at 178.
36 Hersch LAUTERPACHT, Recognition in International Law (Cambridge: Cambridge University Press, 1947), at 161; Philip Marshall BROWN, “The Legal Effects of Recognition” (1950) 44 American Journal of International Law 61 (mentioning that “recognition has been the football of diplomats who have made it mean anything that suited their purpose. It has certainly been grossly abused as a weapon of diplomatic pressure and intervention. It has in many cases proved to be an insoluble puzzle to the courts whose decisions have been sometimes conflicting and confusing”). Peterson also mentions that lack of regulation on government recognition opens room for the possibility of using governments using recognition or non-recognition to extend its own purposes. See Peterson, supra note 2 at 49–50.
37 M.J. PETERSON, “Political Use of Recognition: The Influence of the International System” (1982) 34(3) World Politics 3.
38 Peterson, supra note 2 at 2; Roth, supra note 19 at 152–8; Jure VIDMAR, “Explaining the Legal Effects of Recognition” (2012) 61(2) International and Comparative Law Quarterly 361.
39 International Law Association, supra note 4 at 12; Talmon, supra note 22 at 148–50.
40 Vienna Convention on Diplomatic Relations, 1961, 500 U.N.T.S. 95 (entered into force 24 April 1964) [Vienna Convention on Diplomatic Relations], art. 3; Vienna Convention on Consular Relations, 1963, 596 U.N.T.S. 261 (entered into force 19 March 1967) [Vienna Convention on Consular Relations], art. 5.
41 Talmon, supra note 22 at 191–96; Peterson, supra note 2 at 142.
42 Lynne O’DONNELL, “Afghanistan Still Wants Its Frozen Funds” Foreign Policy (21 July 2022), online: Foreign Policy <https://foreignpolicy.com/2022/07/21/afghanistan-taliban-economy-reserves-central-bank-finance/>.
43 Ibid.
44 Hasar, supra note 7 at para. 25; Colin WARBRICK, “British Policy and the National Transitional Council of Libya” (2021) 61 International Comparative Law Quarterly 247 at 259–62.
45 Marc JONES, “London’s High Court rules against Venezuela’s Maduro in $1 billion gold battle” Reuters (29 July 2022), online: Reuters <https://www.reuters.com/world/britains-high-court-rules-against-venezuelas-maduro-latest-gold-battle-2022-07-29/>.
46 Ibid.; see also The British Arab Commercial Bank plc v. National Transitional Council of the State of Libya, ex parte Foreign and Commonwealth Office, Declaratory Judgment of 2011, [2011] EWHC 2274 (Comm). In this case, the issue was whether the diplomats of the Gaddafi government or the representative of the NTC should have covered the funds held by the Libyan embassy in the UK. The court held that since the NTC representatives are the only accredited officials of Libya in the UK, only they can access the funds. For cases of a similar nature, see Sierra Leone Telecommunication Co Ltd v. Barclays Bank Plc, [1998] All ER (D) 66; Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA, [1993] 1 QB 54.
47 International Law Association, supra note 4 at 14–16.
48 Ibid., at 15.
49 Ibid., see also Knox v. Palestine Liberation Organization, Decision of 1 March 2004, [2004] 2 Federal Supplement 306, at 441–3.
50 Ibid., see also Carl Zeiss Stiftung v. V.E.B. Carl Zeiss, Jena, Decision of 7 November 1968, [1968] Federal Supplement 293.
51 Bibi Amina HAKIMI, “Central Banks Says It Has Limited Access to Foreign Assets” TOLOnews (5 April 2023), online: TOLOnews <https://tolonews.com/afghanistan-182841>
52 UN Human Rights Office, “Afghanistan: UN experts call on the US Government to unblock foreign assets of central bank to ease humanitarian impact” (25 April 2022), online: OHCHR <https://www.ohchr.org/en/press-releases/2022/04/afghanistan-un-experts-call-us-government-unblock-foreign-assets-central>.
53 Recognition by the United Nations of the Representation of a Member State, GA Res. 396(V), UN Doc. A/RES/396(V) (14 December 1950) (mentioning that it is “in the interest of the proper functioning of the organization that there should be uniformity in the procedure applicable” to determine the representation of a Member State in the UN.); Barber, supra note 19 at 638–9 (highlighting two instances when two different entities represented Myanmar before the UN. First, in 2021, while the civilian government represented Myanmar at the UNGA, while the military junta was a representative before the Human Rights Council. Second, in 2022, the military junta represented Myanmar before the ICJ, whereas the civilian government was still a representative before the UNGA).
54 Olivier CORTEN, “The Russian Intervention in the Ukrainian Crisis: Was Jus Contra Bellum ‘Confirmed Rather than Weakened’?” (2015) 2(1) Journal on the Use of Force and International Law 17.
55 Mali, UNSC Res. 2100, UN Doc. S/RES/2100 (2013).
56 Anne SCHUIT, “Recognition of Governments in International Law and the Recent Conflict in Libya” (2012) 14 International Community Law Review 382 at 399 (Article 2(4) of the UN Charter prohibits a state from using armed force against another State until and unless it is invited to do so).
57 Hasar, supra note 7 at para. 66 (quoting a statement of the USA representative in the UN Human Rights Council meeting concerning the situation of human rights in Afghanistan, that the USA is “committed to promoting accountability for human rights abuses by non-State actors in Afghanistan, including the Taliban”).
58 Schuit, supra note 56 at 385.
59 Ibid., at 386.
60 Credentials of Representatives to the 25th session of the General Assembly, Statement by the Legal Counsel submitted to the President of the General Assembly at his request, UN Doc. A/8160 (11 November 1970), at paras. 2, 4.
61 Ibid., at para. 3.
62 Report of the Credentials Committee, UN Doc. A/76/550 (1 December 2021), at para. 9.
63 UNGA, supra note 60, at para. 8.
64 Ibid., at para. 10.
65 Barber, supra note 19 at 641.
66 Barber, supra note 19.
67 Notably, these consequences generally occur in situations of either premature recognition, or a prolonged delay in recognition, of a government. Therefore, the legal basis of states’ obligation to avoid these consequences lies in the fact that there exist legal duties to avoid a premature or prolonged decision to recognize an authority that does not enjoy “effective control” to the detriment of another authority enjoying “effective control”. These legal duties are simple logical derivatives of the “effective control” rule because this rule is considered a corollary of the principle of territorial integrity in international law. See Peterson, supra note 2 at 49; Schuit, supra note 56 at 385.
68 Barber, supra note 19 at 638–9 (mentioning that the UNGA can collectively determine the status of a government in relation to the representation of states in international bodies); Roth, supra note 19 at 133–5 (outlining the UN mechanism that potentially enables the international community to articulate rules and practices coherent enough to constitute a body of law on government recognition).
69 Charter of the United Nations, 24 October 1945, 1 U.N.T.S. XVI (entered into force 24 October 1945) [UN Charter], art. 10.
70 See Situation in Honduras, supra note 33.
71 See Southern Rhodesia, supra note 30; Namibia, supra note 31 (mentioning the relevant resolutions of the UNSC concerning collective non-recognition of governments).
72 Martin BINDER, The United Nations and the Politics of Selective Humanitarian Intervention (Reading, UK: Palgrave Macmillan, 2017) at 241–61 (finding the selective humanitarian intervention the UNSC has made globally).
73 Erika DE WET, “From Free Town to Cairo via Kiev: The Unpredictable Road of Democratic Legitimacy in Government Recognition” (2015) 108 American Journal of International Law Unbound 201.
74 Hasar, supra note 7.
75 P.K. MENON, “The Problem of Recognition in International Law: Some Thoughts on Community Interest” (1992) 59 Nordic Journal of International Law at 263; Herbert W. BRIGGS, “Community Interest in the Emergence of New States: The Problem of Recognition” (1950) Proceedings of the American Society of International Law 174 (Briggs emphasized that the issue of recognition has been increasingly becoming a matter of community interest due to rapid changes relating to trade, aviation, radio, and other aspects of human life in the contemporary world).
76 Peterson, supra note 2 at 48–9; Schuit, supra note 56 at 385.
77 Peterson, supra note 2 at 49–50; Schuit, supra note 56 at 399–402.
78 Hersch LAUTERPACHT, “Recognition of Government: I” (1945) 45 Colombia Law Review 815 (Lauterpacht argues that if a new government enjoys “effective control” over the state’s territory, with a reasonable likelihood of stability and the support of the bulk of the population, other states are under a legal duty to bestow recognition on it since international law empowers a sovereign state such that it is legally entitled to be represented in the international relations/politics by its government).
79 Meachum, supra note 5; Peterson, supra note 2 at 154–72 (highlighting how states use the institution of government recognition for several purposes, including pursuing their own vested interest to influence the policies and survival of a government seeking recognition).