Legal challenges in recognising the Tali

Q Why is it in News ?

A. The Taliban’s takeover of Afghanistan has triggered a new debate in international law on the issue of recognising an entity that claims to be the new government of a state.

Q What are Legal challenge of recognising a government ?

A 

• Questions of recognition do not arise when change of government within a state occurs when political power is transferred through legal means.
• However, things are different when the change of government happens through extra-legal methods like ousting the sitting government using unconstitutional means.
• China and Russia, two of the five permanent United Nations Security Council members, have seemingly shown readiness to recognise a Taliban-led government.
• Whereas countries like Canada have opposed it.
• Recognition of governments under international law is vital for several reasons.
• Recognition of government Vs. Recognition of State: Malcolm Shaw, the international lawyer, writes, “a change in government, however accomplished, does not affect the identity of the State itself.”
• Thus, in the current debate, the issue is not about the recognition of Afghanistan, whose legal personality remains intact it’s about the recognition of government.

Q What are two doctrines in International laws for recognising a government ?

A 1) Effectiveness

• According to this principle, to recognise a government means to determine whether it effectively controls the state it claims to govern.
• Under this doctrine, it is immaterial how the new government occupied office.
• Since there is hardly any doubt that the Taliban now effectively controls Afghanistan, as per this test, it would be recognised as Afghanistan’s government for international law and thus, international relations.

2) Democratic legitimacy

• According to this doctrine, recognition of a government also depends on whether it is the legitimate representative of the people it claims to govern.
• The end of the Cold War, the subsequent spread of democracy in the world, and the growing demand for universal respect for human rights gave an impetus to this doctrine in the last three decades.
• This doctrine has led many countries to bestow de jure recognition (legal recognition) on governments in exile in place of governments exercising effective control.
• Two recent examples include recognition by some states of Yemen’s government in exile since 2015.
• Second, the Nicolás Maduro government in Venezuela is not recognised by several countries due to the alleged lack of democratic legitimacy.
• The Taliban regime, despite exercising effective control over Afghanistan, lacks democratic legitimacy.
• Thus, it would fail to be recognised as the legitimate representative of Afghanistan if the doctrine of democratic legitimacy is applied.
• Nevertheless, there is no binding legal obligation on countries to withhold recognition citing democratic legitimacy.
• Thus, if Russia and China were to formally recognise the Taliban regime due to its effective control of Afghanistan, it would be consistent with international law.

Q What can be way forward for India?

A 

• India will have to find a way to engage with the Taliban given India’s huge investments in Afghanistan and stakes in the South Asian region.
• India should adopt a clear policy that it will deal with the Taliban simply because it is the de facto government, not because it is a legitimate one.
• This principle should be followed for bilateral relations and also for multilateral dealings such as within the South Asian Association for Regional Cooperation.
• Given the Taliban’s brutal past, India is within its right to withhold de jure recognition of the Taliban regime. However, India has to devise a policy to deal with the Taliban as a de facto government.