In recent weeks, major legal-political shifts have taken place in Afghanistan’s environment. The Islamic Republic of Afghanistan has now gone, with its security forces mostly abandoned, and the elected president Ashraf Ghani fled from the country. Now, following the US withdrawal, Taliban fighters dominate most of the country and have declared to restore the so-called “Islamic Emirate of Afghanistan,” which was established in the past by the very first generation of Taliban (Anderson, 2021). Currently, the focus of scholars and observers remains on the more immediate problems such as the violation of human rights norms. However, another crucial matter that has not received enough attention is the recognition of the newly established state in Afghanistan.
Addressing this issue is crucial since, on the one hand, the Taliban has been designated as a terrorist organization by some states such as Canada (Government of Canada,2021), and on the other hand, it is trying to establish a state within the territory of Afghanistan. In this sense, the announcement of the Canadian Prime Minister Justin Trudeau made this issue more pivotal. He declared that Canada does not intend to recognize the Taliban government in Afghanistan as it still considers the group a “terrorist organization” (CBC, 2021). The question that arises in this context is whether the designation of Taliban as a terrorist organization would impede the recognition of it as the legitimate government of Afghanistan.
Background of Taliban
The Taliban is a religious-political and militant Islamist Deobandi movement in Afghanistan. The Taliban’s ideology has been categorized as an “innovative” form of Sharia Islamic law. It is based on Deobandi fundamentalism and militant Islamism, accompanied by the Pashtun social and cultural norms known as “Pashtunwali” (Rashid, 2000). Its affiliation mainly funds the group in the illegal drug trade, extortion, kidnapping, and ransom (Foreign Policy Insider, 2021).
In 1994, the Taliban became one of the critical groups of the Afghan Civil War. It primarily comprised students who were educated in traditional Islamic schools in eastern and southern Afghanistan during the Soviet-Afghan War. Consequently, from 1996 to 2001, almost three-quarters of Afghanistan was held in control by the Taliban, and Sharia law or Islamic law had been strictly interpreted (Matinuddin 1999).
After the catastrophic attacks on September 11 2001, the US alleged the involvement of Al-Qaeda and Taliban and requested the international community to participate in a military campaign against them. Accordingly, The UN Security Council adopted resolutions 1368 and 1373 on the issue of terrorism. The resolutions called upon all states to increase their cooperation in the fight against terrorism and implement the relevant international conventions relating to terrorism (UNSC, 2001). These incidents led to the United States military campaign initiation, assisted by the United Kingdom, Canada, and several nations from the NATO alliance, on 7 October against Al-Qaeda and the Taliban. (CNN, 2001) Military action indicated that the Taliban would be removed from power and Afghanistan would not be used as a terrorist basis.
Recognition of states under international law
It is evident that well-recognized recognition criteria for a newly emerging State are laid out in international law. Article 1 of The Montevideo Convention on the Rights and Duties of States provides that:
“The state as a person of international law should possess the following qualifications:
a. a permanent population ;
b. a defined territory;
c. government; and
d. capacity to enter into relations with the other states.” (Montevideo Convention on the Rights and Duties of States,1933)
In other words, to recognize a state, it must possess the following prerequisites i) a permanent population; ii) a defined territory; iii) a government; and iv) the capacity to enter into relations with other States. In the case of Afghanistan, it seems that Afghanistan is no different from the one a month ago. It is evident that the population is permanent. Although one may argue that the majority of the population is trying to flee the country, that does not affect the core stability of the people of Afghanistan. Besides, the country has also established borders widely accepted by its neighbors. (Rothwell, 2021).
Also, it is widely accepted that the presence of a functioning government that is capable of exercising certain levels of control over the State’s territory is sufficient for the fulfillment of the third criterion. in this sense, given the evolving situation in Afghanistan and the fact that the Taliban possess control over the majority of the country, the third element is fulfilled. In this sense, one may argue that having a dictator government or violation of human rights would deprive the Taliban of being the legitimate government of Afghanistan. However, from the standpoint of the Montevideo convention, the criteria seek to make no judgment as to how the government came into existence, the longevity of the government, or the political system, which is the basis for governmental control. In other words, concerning the issue of statehood, whether a government is democratically elected or it is a dictatorship is of no concern to international law(Ibid). Accordingly, the designation of the Taliban as a terrorist organization by some states may not affect the fulfillment of the third criterion. However, some scholars suggest that based on State practice, in addition to the Montevideo Convention criteria, other factors may, from time to time, be taken into account. Remarkably, the willingness and capacity to comply with international law have been suggested as an essential factor. Therefore, given the history of human rights abuses under the Taliban, that will likely be actively considered.
The fourth requirement, which is the capacity to enter into relations with the other states, may be the challenging point in this case. Since, most states and members of the international community including US, Canada, and UK has refused to recognize the Taliban as the legitimate government of Afghanistan. As a result, this condition may be the cornerstone of not recognizing Taliban by international community.
Conclusion
Under international law, recognizing states is a process whereby specific facts are accepted and endowed with a particular legal status which is mainly analyzed based on the Montevideo Convention on the Rights and Duties of States. However, it must be kept in mind that this process is a highly political one as well. Since each country deciding for itself whether to extend recognition acknowledgment. Therefore, not only legal factors but also political elements need to be considered in the case of recognizing the Taliban by the international community.
Article 1 of the Montevideo Convention on the Rights and Duties of States provides specific conditions for state recognition. In the case of the Taliban, the fourth element, which is the capacity to enter into relations with the other states, may be invoked as an impediment towards recognition of Taliban by other states. Besides, some scholars suggest that the willingness and capacity to comply with international law is as an important factor as well. Therefore, given the history of Taliban in human rights violations and involvement in terrorist activities, this factor needs to be considered by states.
Bibliography
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Montevideo Convention, 1933 “Montevideo Convention on the Rights and Duties of States”.
Rashid, 2000, “Taliban: Militant Islam, Oil and Fundamentalism in Central Asia,”, 132-139.
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By Mahmoud Refaat: The European Institute for International Law and International Relations.
