By Ricardo E. Escanlar III
As of this writing, the Taliban is now exercising effective control of Afghanistan under the name of the Islamic Emirate of Afghanistan. It has managed to control the seat of government, Kabul, and almost all of Afghanistan, except for the northeastern province of Panjshir, which is still controlled by the previous government in power, the Islamic Republic of Afghanistan.
How the Taliban seized power, whether the withdrawal of US and NATO troops was the right move, and what’s next for the people of Afghanistan, will not be the topics of this piece. Rather, we ask the legal question: under public international law, should the Taliban-led Islamic Emirate of Afghanistan (“IEA” for brevity) be afforded recognition as a state, or is it still the previous one, the Islamic Republic of Afghanistan (“IRA” for brevity) that should be recognized?
First, we define what a state is under international law.
The definition of a state is found in the 1933 Montevideo Convention. Article 1 of the said convention requires a state to possess the following qualifications: 1) people; 2) territory; 3) government, and 4) sovereignty.
It appears that the IEA has satisfied all four- it has managed to control almost all of Afghanistan, together with the people who live in it, and has also shown some form of organization and independent control over how to conduct its business. However, some might reason that the Taliban was funded and supported by other countries such as Pakistan, which would mean a lack of independent control- thus failing the sovereignty requirement.
Next, we define what recognition is under international law. Recognition is the process wherein the international community acknowledges the validity of the existence of a state and its government. Take note that recognition is not a qualification to become a State, as stated in Article 3 of the Montevideo Convention itself. Furthermore, recognition is not strictly a legal concept itself, as whether or not a state is recognized is determined by its acceptance in international organizations such as the United Nations, and willingness of other states to conduct relations with it.
What are the distinctions of states based on recognition? A state recognized under international law is called a de jure state. One can be a de jure state even if it does not actually have control over people or territory. On the other hand, a state which has a government, sovereignty and which exercises control over people and territory but is not recognized internationally is called a de facto state.
So, is the IEA a de jure or a de facto state? It is submitted that it is the latter.
When the change in government is done through force and violence, the new government is usually unrecognized by the international community. An exception to this is if the force and violence was necessary to free a nation from its colonial oppressors, such as through a revolution. While some might argue that the Taliban freed Afghanistan from the IRA, which was a proxy state for the United States and other Western nations, it might also be argued that the Taliban was, and is, oppressing its fellow Afghan citizens. Thus, it is submitted that the IEA is a de facto state, it failing to obtain control of the country through peaceful means as required by international law, and failing to gain recognition from other countries as a matter of fact.
The next question to be asked would be, is the IRA still the de jure state?
Now, during the takeover of Kabul, it was found out that the president of the IRA, Ashraf Ghani, fled Afghanistan. And since it appeared that Ghani abandoned his post, he is no longer President, and does not operate as a head of a government-in-exile. Did Ghani’s fleeing, and the Taliban’s effective control, mean that the IRA ceased to exist? After all, to be considered as a state, some form of government must exist as required under the Montevideo Convention.
The national law of the country should be instructive here. Article 60 of Afghanistan (IRA)’s Constitution provides, “In case of absence, resignation or death of the President, the first Vice-President shall act in accordance with the provisions of this Constitution.”
Ghani fled the country, which could be interpreted as “absence”, and there is no clear statement yet that Ghani had resigned. And as stated in their Constitution, the first Vice-President shall be the acting President in such a case. And Amrullah Saleh, Afghanistan’s first Vice-President, is reportedly still in Panjshir, and still governs over its people and territory, with a few of the IRA’s troops. Therefore, having satisfied the Montevideo Convention’s requirements , the IRA still exists as a state, and thus is still the de jure state.
The last question is, is there a possibility that the IEA becomes the de jure state over the Republic? Yes. It is submitted that the precedent here is the 1992 Peshawar Accord, an agreement in which the erstwhile Soviet-backe de jure Republic of Afghanistan effectively surrendered and ceded control of the country to the Islamic State of Afghanistan, a coalition of mujahideen groups which is considered as the progenitor of the IRA. In the event that the IRA forces would surrender to the Taliban and agree to officially cede control of the country, then that would be a valid succession of state rights which would allow the IEA to obtain de jure status. However, this is highly unlikely, given that Saleh has stated on social media that he will not surrender to the Taliban, and the fact that the Taliban is being considered a terrorist organization by many nations.
