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The Status of the Interim Government of Afghan Mujahideens in International Law

Published online by Cambridge University Press:  21 May 2009

M. Rafiqul Islam
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Extract

The formation of a parallel government, often in exile to supplant the incumbent government of a State, though this has occurred on many occasions, has been a contentious issue in international law and relations. Such an alternative government exists over a period of time not as a matter of design but as a result of a political or historical accident of the changing requirements of international life. Ever-growing international activities of such bodies have generated a great deal of controversy over their status, personality and competence in international law. The recently constituted Interim Government of Afghan Mujahideens in exile in Pakistan and its appeal for recognition is a contemporary case in point.

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Articles
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Netherlands International Law Review , Volume 37 , Issue 1 , May 1990 , pp. 1 - 21
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Copyright © T.M.C. Asser Press 1990

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References

1. For a brief account of the historical and factual background of the Mujahideen movement in Afghanistan, see 18 Survey of Current Affairs, no. 5 (May 1988) pp. 164–66; 5 Afghanews, nos. 7, 8 and 9, p. 6.

2. For the text of the accord, see 27 ILM (May 1988) p. 577 et seq.

3. Soviet troops were withdrawn in two phases: 50% by mid-August 1988 and the remainder in mid-February 1989, see 19 Survey of Current Affairs, no. 3 (March 1989) p. 94.

4. The Foreign Minister of the Interim Government made statements to this effect during his tour of six countries in South-East Asia; see The Jakarta Post (13 April 1989) p. 3 and also The Independent (24 April 1989) p. 13, for reports of his press conference in Peshawar, Pakistan. For the formation of the Interim Government, see Time (27 March 1989) p. 24; The Guardian (20 April 1989) p. 13.

5. McDougal, M.S., Lasswell, H.D. and Reisman, M., ‘The World Constitutive Process of Administrative Decision’; 19 J. Legal Education (1966) p. 275Google Scholar.

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7. The advisory opinion of the ICJ in the Reparation case, ICJ Rep. (1949) 178, 185.

8. The International Law Commission's comment on the Draft Articles on the Law of Treaties in 1959, ILC Yearbook 1962 vol. 2, p. 37Google Scholar; also Jennings, R.Y., ‘General Course on Principles of International Law’, 121 Hague Recueil (1967–II) pp. 346–347Google Scholar.

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10. ‘There is ample evidence to show that the UN and its agencies, the European Coal and Steel Community, the Afro-Asian bloc, the Arab League, the Vatican, the Arabian-American Oil Company, and a host of other non-state entities, are able on occasion to affect the course of international events. When this happens, these entities become actors in the international arena and competitors of the nation-state. Their ability to operate as international or transnational actors may be traced to the fact that men identify themselves and their interests with corporate bodies other than the nation-state’: Wolfers, A., ‘The Actors in International Polities’, in Wolfers, A., ed., Discord and Collaboration (1962) p. 23Google Scholar; see also, Mansbach, R., Ferguson, Y. and Lampert, D., The Web of World Politics; Nonstate Actors in the Global System (1976) p. 20 et seq.Google Scholar; Young, O., “The Actors in World Polities’, in Rosenau, J., Davis, V. and East, M., eds., The Analysis of International Politics (1972) p. 126Google Scholar; Haas, E., Beyond the Nation-State (1964)Google Scholar; Bertelson, J., ed., The Non-State in International Politics: Comparative System Analysis (1977)Google Scholar; Falk, R., ‘A New Paradigm for International Studies: Prospects and Proposals’, 84 Yale LJ (1975) p. 969CrossRefGoogle Scholar.

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13. Lauterpacht, H., ‘Sovereignty Over Submarine Areas’, 27 BYIL (1950) p. 429Google Scholar.

14. See the Island of Palmas case, 2 RIAA (1928) pp. 839–840Google Scholar.

15. See the case on Sovereignty Over Certain Frontier Lands, ICJ Rep. (1959) 209, 229; also Legal Status of the South Eastern Territory of Greenland case, PCIJ, Ser. A/B, No. 48 (1932) p. 264.

16. Kelson, H., Principles of International Law, 2nd edn. (1966) p. 411Google Scholar.

17. Oppenheimer, F.E., ‘Governments and Authorities in Exile”, 36 AJIL (1942) p. 568CrossRefGoogle Scholar.

18. See Marek, K., Identity and Continuity of States in Public International Law (1954) p. 314Google Scholar.

19. The purpose of selecting these two governments is that they were not in power at the time of leaving their States and that they were formed abroad, which is in conformity with the Interim Government of Afghan Mujahideens in exile.

20. For a discussion on this point, see Blix, H., Treaty-Making Power (1960) pp. 163, 168Google Scholar.

21. See Far Eastern Economic Review (27 October 1988) p. 27.

22. See Time (14 November 1988, p. 34; 30 January 1989, p. 28); Far Eastern Economic Review (19 January 1989) p. 15; Afghanews, no. 8 (15 April 1989) pp. 5, 8; no. 9 (1 May 1989) pp. 3, 8.

23. See Far Eastern Economic Review (27 October 1988) p. 26.

24. Idem., p. 27; also Time (9 January 1989) pp. 11–13.

25. The seizure of Jalalabad is total and inexorable. Its airport control tower, radar, and runway have been destroyed, see The Guardian (16 April 1989) p. 10; International Herald Tribune (6–7 May 1989) p. 2; Far Eastern Economic Review (11 May 1989) p. 26; The Financial Times (11 April 1989) p. 4. It is reported that Kabul troops have recently broken the seizure, see Far Eastern Economic Review (25 May 1989) p. 34.

26. See Far Eastern Economic Review (2 March 1989) p. 32; Time (20 February 1989) p. 13.

27. See Weekend Australian (29–30 April 1989) p. 17; International Herald Tribune (28 April 1989) p. 2; Far Eastern Economic Review (11 May 1989) p. 26.

28. See 5 Afghanews, no. 9 (1 May 1989) p. 1.

29. See The Independent (24 April 1989) p. 13; The Guardian (5 March 1989) p. 6.

30. This arrangement has been effective since March 1989 and General Muhammad Yaya Narouz, a former Afghan army officer, has been appointed as the Chief of Staff; see International Herald Tribune (6–7 May 1989) p. 2; The Guardian (16 April 1989) p. 10; also see the statement of Maulavi Nabi Mohammadi, Defence Minister of the Interim Government in Far Eastern Economic Review (25 May 1989) p. 34.

31. The conditions of belligerency status are: that there exists within a State an armed conflict; that the insurgents occupy a substantial portion of national territory; and that they conduct hostilities according to rules of war, through organised groups acting under the control of an authority which is responsible for acts of the belligerents, not the incumbent government. The insurgents and their authority emerge as a subject of international law and belligerent rights and duties are accorded to them. International law regulates the relationship between the parties to the conflict. See Mugerwa, N., ‘Subjects of International Law’, in Sorensen, M., ed., Manual of Public International Law (1968) pp. 264, 286–287Google Scholar; Lauterpacht, , op. cit. n. 12, pp. 175–177Google Scholar, 246; Gerner, J.W., ‘Recognition of Belligerency’, 32 AJIL (1938) p. 106CrossRefGoogle Scholar.

32. For example, the Mujahideens captured Kunduz for five days and Maidan Shahr for 12 hours before they were dislodged, see Far Eastern Economic Review (29 September 1988, p. 23; 19 January 1989, p. 15).

33. See The Guardian (5 February 1989) p. 1; The Christian Science Monitor (23 February 1 March 1989) pp. 1–2.

34. Negotiations and talks are going on and it is reported that the pro-Iran Mujahideens have in principle agreed to join the interim cabinet, see The Jakarta Post (13 April 1989) p. 3; 5 Afghanews, no. 9 (1 May 1989, p. 8; no. 10, 15 May 1989) p. 1.

35. For an analysis of lack of unity in the ruling political party of Afghanistan, see Far Eastern Economic Review (6 October 1988, p. 19; 13 April 1989, p. 21); The Guardian (5 February 1989) p. 1.

36. The US, the UK, the EEC countries and the NATO allies pulled out in January and February 1989, see Time (30 January 1989) p. 30; The Guardian (5 February 1989) p. 7; there is no sign of restoring these missions, see The Guardian (21 May 1989) p. 6.

37. See Far Eastern Economic Review (2 March 1989) p. 22.

38. Lauterpacht, , op. cit. n. 12, pp. 115, 140Google Scholar.

39. Lauterpacht, , op. cit. n. 12, p. 137Google Scholar.

40. For a discussion on this point, see Devine, D. J., ‘The Requirements of Statehood Re-Examined’, 34 MLR (1971) p. 410 et seqCrossRefGoogle Scholar.

41. External and internal aspects of self-determination are discussed in Cassese, A., ‘Political Self-Determination: Old Concepts and New Developments’, in Cassese, A., ed., UN Law/Fundamental Rights (1979) p. 137Google Scholar; Menon, P.K., ‘The Right to Self-Determination - A Historical Appraisal’, 53 Rev. droit Int. (1975) p. 187Google Scholar; Mustafa, Z., ‘The Principle of Self-Determination in International Law’, 5 Int. Lawyer (1971) p. 479Google Scholar.

42. Brownlie has rightly posed this question, see op. cit. n. 9, p. 75. Lauterpacht argued in 1947 that in future a rule of international law may be formulated whereby recognition of a State in which human rights are infringed would be considered illegal, op. cit. n. 12, ch. 21. This was the reason for the universal non-recognition of Rhodesia under the Smith regime in spite of its effectiveness, Fawcett, J., The Law of Nations (1968) pp. 38–39Google Scholar; 34 MLR (1971) p. 417; Crawford, J., ‘The Criteria for Statehood in International Law’, 48 BYIL (1976–1977) pp. 149–164Google Scholar. The forthcoming Republican Constitution of Fiji, perpetually ensuring native Fijians' control of governmental power, as proposed by Colonel Rabuka, is an influential factor in the decisions of many members of the world community not to recognise the post-revolutionary regime, notwithstanding its effectiveness, see Islam, M.R., ‘The Proposed Constitutional Guarantee of Indigenous Governmental Power in Fiji: An International Legal Appraisal’, 19 California Western ILJ (1988–1989) pp. 107–128Google Scholar.

43. See Wright, Q., ‘The Strengthening of International Law’, 98 Hague Recueil (1959–III) p. 189Google Scholar.

44. Lauterpacht, , op. cit. n. 12, pp. 172–173Google Scholar. Popular acquiescence as a test of effectiveness is explained by Fenwick, C.G., ‘Recognition of De Facto Governments: Old Guide Lines and New Obligations’, 63 AJIL (1969) p. 98CrossRefGoogle Scholar, and by the same author, ‘The Recognition of New Governments Instituted by Force”, 38 AJIL (1944) p. 452Google Scholar; the 1901 Franco-Chilean Arbitration, supra n. 20, p. 130; the 1921 Franco-Peruvian Arbitration, Hague Court Rep., 2nd Series (1932) p. 32 et seq.; the 1923 Tinoco Arbitration, 18 AJIL (1924) p. 147 et seq.Google Scholar; and Art. 5(d) of the Charter of the OAS and the 1965 Inter-American Conference on the Recognition of De Facto Governments, regard popular approval as a test of governmental effectiveness, see Cochran, C.L., ‘The Development of an Inter-American Policy for the Recognition of De Facto Governments’, 62 AJIL (1968) p. 464CrossRefGoogle Scholar; Fenwick, C.G., The Organization of American States (1963) p. 549Google Scholar.

45. Art. 21(3) of the 1948 Universal Declaration of Human Rights.

46. Dr. E. Benes, the leader of the government was once the elected President of the Republic. As a result of the Munich agreement of 29 September 1938 he resigned and Dr. Hacha became his successor, see supra n. 17, p. 570 and n. 20, pp. 162, 193.

47. Ibid.

48. See Weekend Australian (13–14 May 1989) p. 20.

49. Of the major weaknesses of the Kabul regime, the lack of its popular approval is one, see Far Eastern Economic Review (13 April 1989) p. 21; The Christian Science Monitor (23–29 March 1989) p. 3.

50. Mohammad Hasan Sharq, the Prime Minister of the Kabul regime, made a statement to this effect which is reported in Far Eastern Economic Review (27 October 1988) p. 26.

51. Crawford, , loc cit. n. 42, p. 141Google Scholar.

52. Art. 4(1) of the UN Charter; for a discussion on this point, see Starke, J.G., Studies in International Law (1965) p. 95Google Scholar; Sen, B., A Diplomat's Handbook of International Law and Practice (1965) p. 424Google Scholar.

53. Supra n. 4 and accompanying text.

54. GA Res. 396(V) of 14 December 1950, UN Res., Ser. I, vol. Ill, GA, 1950–1952, pp. 98–99.

55. See the debate and minutes of the 899th meeting of the Security Council on 14 September 1960.

56. For a discussion on this case, see 7 ICLQ (1958) p. 570.

57. See International Herald Tribune (3 April 1970).

58. Oppenheimer, , loc cit. n. 17, p. 577Google Scholar.

59. Blix, , op. cit. n. 20, p. 162Google Scholar.

60. For a list of these treaties, see Blix, , op. cit. n. 20, p. 163Google Scholar.

61. In fact, before proclaiming itself the Provisional Government of France in June 1944, de Gaulle concluded many treaties - a list of these treaties has been compiled in Blix, , op. cit. n. 20, pp. 169–76Google Scholar.

62. Lauterpacht, , op. cit. n. 12, p. 93Google Scholar.

63. Notably the treaties of alliance and transit, and of cession of acquiring territory from Mexico, especially Lower California. The negotiator and signatory minister of the US expressed doubts about the future of these treaties to the Secretary of State, see Manning, A.F., Diplomatic Correspondence of the US, Inter-American Affairs, 1831–1860, vol. 9 (1937) pp. 1093–1094Google Scholar.

64. Lauterpacht, , op. cit. n. 12, p. 92Google Scholar.

65. Idem., p. 165.

66. See Kelsen, , op. cit. n. 16, p. 411Google Scholar; O'Connell, , op. cit. n. 9, p. 137Google Scholar.

67. It was explicit in the Czechoslovak Provisional Government's quest for recognition and in the subsequent British note, see Marek, , op. cit. n. 18, pp. 317–318Google Scholar.

68. See the British Prime Minister's statement in the House of Commons on recognition, SirChurchill, W., The Second World War, vol. 6 (1953) p. 249Google Scholar.

69. The validity of a decree issued by the Netherlands Government in exile was challenged on the ground of its unconstitutionality. The decree was held valid. The Court reasoned that ‘when a state of emergency exists… the constitution does not apply first and foremost, but the vital interests of the state and people1’, see 21 BYIL (1944) p. 186Google Scholar; 10 Ann. Digest (1941–42) p. III.

70. See Blix, , op. cit. n. 20, pp. 129, 141Google Scholar.

71. For an examination of this point, see Higgins, R., ‘International Law, Rhodesia and the UN’, 23 World Today (1967) pp. 94–96Google Scholar.

72. See Higgins, R., The Development of International Law through the Political Organs of the UN (1963) p. 211Google Scholar; Draper, G., ‘The Geneva Conventions of 1949’, 114 Hague Recueil (1965–1971) p. 114Google Scholar; also Lauterpacht, op. cit. n. 12, p. 8Google Scholar.

73. For an account of these talks and negotiations, see Far Eastern Economic Review (8 October 1988, p. 19; 19 January 1989, p. 15; 16 February 1989, p. 12); Time (9 January 1989) p. 13.

74. Gulboddin Hekmatyar, the Foreign Minister of the Interim Government led delegations to South-East Asian and Middle Eastern countries, see supra n. 4 and Far Eastern Economic Review (23 March 1989) p. 12.

75. See The Guardian (16 April 1989) p. 10 for such a report; also Far Eastern Economic Review (15 June 1989) p. 34.

76. See 5 Afghanews, no. 8 (15 April 1989) p. 8; also Far Eastern Economic Review (23 March 1989) p. 11.

77. See The Christian Science Monitor (23–29 March 1989) p. 10B.

78. Peter Tomsen, the US Charge d'Affairs in Beijing, has been appointed, see ibid; Jakarta Post (20 April 1989) p. 1.

79. See Far Eastern Economic Review (11 May 1989) p. 26.

80. See The Christian Science Monitor (23–29 March 1989) p. 3.

81. The Prime Minister of Pakistan admits that her government deals with the Interim Government of Afghan Mujahideens directly at governmental level, see the interview with Prime Minister Bhutto in The Christian Science Monitor (25–31 May 1989) p. 10C. Indirect recognition is the most frequent form of recognition in State practice. There are numerous instances where implied recognition has been extended through some acts sufficiently distinct to give a clear indication of which rights have been intended to be granted, see Whiteman, M.M., 2 DIL (1964) p. 48Google Scholar; Schwarzenberger, , op. cit. n. 6, p. 64Google Scholar; Oppenheim, , op. cit. n. 9, p. 146Google Scholar; Wilson, R.R., ‘Recognition of Insurgency and Belligerency’, 31 ASILP (1937) p. 141Google Scholar. J.C. Starke gives a list of circumstances from which an implication of recognition may be inferred in An Introduction to International Law, 5th edn. (1963) p. 128.