The Legal Challenges In Recognising The Taliban

Context: India can deal with the Taliban government because it is a de facto one, not because it is a legitimate one.

Background: In the light of the takeover by the Taliban, while it is being recognised by countries like Russia and China, it is being opposed by some nations like Canada.

Legitimacy of Taliban government

• Different from the recognition of a State: As Malcolm Shaw 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.
• Whether countries recognise the Taliban regime or not will depend on their political considerations and geo­strategic interests, as evident from the Chinese and Russian actions.
• Tests of legitimacy under international law: the test used in international law to make a decision about the recognition of a new government is that of ‘effectiveness’.
• According to this principle, to recognise a government means to determine whether it effectively controls the state it claims to govern.
• The inherent assumption is that effective control means the people of the country accept, or at least acquiesce to, the new regime; if they did not, they would overthrow it.
• Under this doctrine, it is immaterial how the new government occupied office (whether through civil war, revolution, or a military coup).

Challenges to Taliban’s legitimacy

• Failed democratic legitimacy: While effectiveness is achieved, the Taliban regime, despite exercising effective control over Afghanistan, lacks 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.
• This doctrine has led many countries to bestow de jure recognition (legal recognition) on governments in exile in place of governments exercising effective control. For e.g. ????
•  Many countries recognised Yemen’s Abdrabbuh Mansur Hadi government in exile since 2015 on the ground that the rebellious separatists acquired power in Yemen through illegal means. 
• Nicolás Maduro government in Venezuela is not recognised by several countries due to the alleged lack of democratic legitimacy.
• Nevertheless, there is no binding legal obligation on countries to withhold recognition of the Taliban on the ground that it does not enjoy democratic legitimacy.

Options for India:

• Adopting a clear policy: 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.