Recognition of Governments and the Case of the Taliban

Abstract

This article examines the implications of the largely unexplored, yet very insightful, practice of a broad and divergent group of States concerning recognition of the Taliban, in order to contribute to the understanding of various aspects of the question of recognition of governments. Disregarding their long-standing policy of not making express statements on recognition of governments, many States put forward certain conditions for the Taliban to meet to gain recognition. Based on the arbitrary and idiosyncratic nature of these conditions, the article shows the difficulty of explaining recognition decisions by generally applicable criteria, and further establishes that the Taliban case constitutes another setback for the emerging doctrine of democratic legitimacy. Illustrating a wide range of possibilities of engagement with an unrecognised government, the article also shows that treatment, or acknowledgement, and recognition of an entity as government are two different phenomena, and demonstrates the possibility for “recognition” to be stripped of any legal or practical meaning in a given case. The article also shows that the claim that, regardless of being recognised, a general de facto government is entitled to exercise the State’s international rights and obligations does not seem well established in international law. Though some States accepted the Taliban as such, part of the international community rather alluded that the Taliban bore certain international obligations as a non-State actor, rather than on behalf of Afghanistan. The article also examines the status of unrecognised de facto governments before domestic laws, and demonstrates, among others, States’ flexibility towards such governments’ right to access State property abroad, despite the contrary national practices in the past.