Editor’s note: This article is part of Just Security’s ongoing coverage of the U.S. military withdrawal and Taliban takeover in Afghanistan.
To horror across Afghanistan and the international community, Kabul fell to the Taliban without resistance on Sunday, completing the group’s routing of the Afghanistan national security forces and apparently cementing a de facto takeover of the country. But as U.S. State Department spokesperson Ned Price pointed out in a briefing on Monday, “there has not been a formal transfer of power” (although one could be imminent) and the United States has thus far declined to comment on who it recognizes as the government of Afghanistan.
States will now begin to face a difficult set of decisions, likely to unfold over a lengthy period as circumstances evolve, on whether — or under what conditions, if ever — to formally recognize a future government of Afghanistan led by the Taliban.
Recognition matters for a host of reasons. The government of a state has the sovereign right to control its territory, but the exercise of that right is subject to its other international obligations. For example, a government has the responsibility to protect and respect the human rights of all its citizens, to uphold UN Security Council resolutions that are binding on all states, and to protect diplomatic missions within its territory. And it has the prerogative to request that other states provide humanitarian, military, or economic assistance. One way to think about the key issue is to ask: to whom do you look to carry out the obligations of the state?
In the following, we outline the current facts in play, the law and past practice of recognition (and non-recognition) of governments, and the policy benefits and pitfalls of alternative paths that the United States and other states may pursue.
Evolving Facts on the Ground: A Summary
Events are still unfolding, but at present, the Taliban control vast swaths of Afghanistan, including its capital Kabul. Taliban fighters now occupy Afghanistan’s provincial capitals and presidential palace. It is unclear whether there remains a government inside Afghanistan able to contest Taliban rule. But it is also possible that the Taliban will genuinely seek to include other authorities or former Ghani administration officials in any new government it forms.
What is clear is that elected President of Afghanistan Ashraf Ghani has left the country and is not claiming he is still in charge. His first public statement since leaving Afghanistan this weekend appears to accept de facto Taliban rule and place responsibility for governing Afghanistan on the Taliban: “The Taliban won victory in the judgment of sword and gun and they have responsibility to protect the honour, prosperity and self-respect of our compatriots.” Ghani then suggests that the Taliban does not currently have the legitimacy to govern, but must earn it. “Didn’t they win the legitimacy of hearts. Never in history has dry power given legitimacy to anyone and won’t give it to them,” he said. “It is necessary for Taliban to assure all the people, nations, different sectors, sisters and women of Afghanistan to win the legitimacy and the hearts of the people.”
On Tuesday, Vice President Amrullah Saleh said that he remains inside the country and is the “legitimate care taker president,” citing the country’s constitution. And while Afghanistan was represented by a member of Ghani’s government at the UN Security Council’s special session on Monday, an official handover of power is also possible. A three-person council representing the government of erstwhile leader Ghani was reportedly scheduled to meet with the head of the Taliban to discuss the formation of a new government, which could presumably be led by the Taliban. (The council of three includes head of the High Council for National Reconciliation and CEO of Afghanistan, Abdullah Abdullah, former President Hamid Karzai, and leader of Hizb-e-Islami, Gulbudin Hekmatyar.) For its part, Suhail Shaheen, a Taliban spokesman and negotiator, told the Associated Press that the Taliban would hold talks in the coming days aimed at forming an “open, inclusive Islamic government.”
The situation, messy as it is, is not entirely novel. Starting in 1996, the Taliban controlled the seat of government in Afghanistan for five years. During that period the Taliban received recognition from only three states (United Arab Emirates, Pakistan, and Saudi Arabia). The United States did not recognize the competing entity — the Northern Alliance — either.
The Law and Practice on Recognition of Governments: A Brief Overview
How do states determine whether to recognize an entity that claims to be the new government of a territory? As one of us (Tess) wrote in the context of Juan Guaidó’s claim to govern Venezuela in 2019, “international law on recognition of a new government can be somewhat murky,” and practice is mixed. The legal framework provides states some flexibility in deciding whether to recognize a government, with certain factors having greater legal weight than others. Here is a brief primer from that article:
As a process matter, most changes in government do not force states to make recognition decisions, because states generally do not question the establishment of a new government through normal legal processes – such as through constitutional mechanisms. However, a person (or entity like a transitional council) purporting to come to power through force or other extra-legal means is often not automatically recognized by states. In those cases, the question arises of whom to recognize as the legal authority with the rights and responsibilities of upholding the state’s obligations. There is, also generally speaking, a high bar for derecognition of a government that had come to power through legitimate means and, conversely, for recognition of a new government claiming power through extra-legal means. That brings us to the legal test states apply to determine whether the threshold for recognition of a new government is met.
Substantively, the touchstone for recognition of a new government under international law has traditionally been whether it exercises effective control of the territory it purports to govern. This ostensibly objective “de facto control” test for legal recognition, however, has been applied somewhat inconsistently and has evolved over time to include additional factors in U.S. practice, such as whether a government has the capacity and willingness to honor the international obligations of the state and whether the government is democratically elected (or otherwise seen as the legitimate representative of the people it purports to govern). In practice, the international legal test for recognition of a new government now leaves policymakers with a wide degree of discretion, as it incorporates value judgments as well as factual determinations.
Wider leeway in modern recognition doctrine to take democratic legitimacy into account means states sometimes choose to recognize a government in exile (or controlling only a small amount of territory), even when a different person or entity exercises effective control. For example, most states recognize President Hadi’s exiled government of Yemen on the basis that the Houthis came to control a large area of the country through illegitimate means. Similarly, most states continued to recognize President Aristide’s government of Haiti following a military coup in 1991. A state may also choose not to conduct diplomatic relations with a new government even if legal recognition is not withheld – the two usually go together, but diplomatic relations can be severed without derecognition of the government (such as in the case of the longstanding diplomatic impasse between the United States and Iran, or until 2015, the United States and Cuba).
How does this set of factors apply to the situation in Afghanistan? There’s not much question that the Taliban have de facto control of most of the territory of Afghanistan, and that factor carries great weight in the analysis. But it is equally clear that they do not have what would be considered “democratic legitimacy” in the eyes of most democratic states — after fighting a decades-long insurgency against elected governments (however imperfect) and in open rejection of the democratically chosen constitution, they came to control Afghan territory mostly through brute force, even if their fighters did not face resistance in their final advance into Kabul.
And while the Taliban have governed some parts of Afghanistan on a local level for some time (and the Ghani government hadn’t exercised control in those areas), it remains to be seen whether a Taliban-led government will have both the capacity and willingness to carry out the functions of the state and to honor Afghanistan’s international obligations. Its rhetoric about creating an “open” and “inclusive” government signals a potential intent to responsibly exercise the functions of the state. But if the Taliban’s past rule is an indicator, the answer to the question of whether it will fulfill its international obligations is most likely to be a deafening no at the very least with respect to its human rights obligations, especially when it comes to the rights of women and girls and minority communities. (By way of example, in 1999 the U.S. Senate passed a “sense of the Senate” resolution stating that “the United States should refuse to recognize any government in Afghanistan” due to the Taliban’s treatment of women and girls.) It also remains to be seen whether a Taliban-led government would comply with UN Security Council resolutions imposing obligations to prevent and suppress terrorism, although on this too we are highly dubious.
What’s more, barring future free and fair elections (which the Taliban will most likely never hold), there is little argument that the Taliban are the legitimate representative of the people they purport to govern. One could argue that the rapid collapse of the Ghani government indicates acceptance by the Afghan people of the Taliban’s takeover, and indeed, there is certainly some level of support for Taliban rule. It’s expected that hundreds of thousands if not millions of other Afghans, however, may flee the country for fear of Taliban rule, and acquiescence at the end of the barrel of a gun should not be accepted as a measure for popular support. The situation is of course more complicated if a genuine power-sharing agreement is reached with existing authorities, or a more inclusive government is formed in a future political settlement.
This is a situation that may unfold in a manner that is materially different from the examples cited above of Yemen under Hadi or Haiti under Aristide. That’s because it remains unclear whether there will be any alternative official authority to recognize. This may make the recognition question much harder for other states. In essence, the choice would be between accepting Afghanistan as an ungoverned territory in which no government takes on the legal obligations of the state, or recognizing a Taliban-led government. But recognition alone is not the only — and may not even be the primary — diplomatic issue facing other states. Their options are varied, as we explore below.
Four Options for States and the Consequences of Each
Option 1. Recognize the Taliban
Recognition of the Taliban — or whatever government the Taliban may seek to form — appears to be what two of the permanent five members of the UN Security Council, Russia and China, are preparing to do. Although both have thus far stopped short of stating that they will formally recognize a Taliban-led government, both countries have made a point of keeping their embassies in Afghanistan open.
After the fall of Kabul, Russia suggested conditions on the ground would determine whether to recognize the Taliban, stating:
Firstly, no one is going to rush with this [recognition]. Recognition or non-recognition will depend on the behavior of the new authorities. We will carefully watch how responsibly they will govern the country in the near future. As a result, the Russian leadership will draw the necessary conclusions and make a decision.
At Monday’s special session of the UN Security Council, the Russian Ambassador may have inched closer toward recognition. According to the live translation of the ambassador’s speech, Ambassador Vasily Nebenzia said (at 53:10; see also Russian language version): “As regards our future official steps regarding the Taliban, we will interact with them irrespective [or “independent”] of the evolving situation and their specific actions.” However, the written text posted on the Russian mission’s website stated: “As regards our further official steps regarding the Taliban, we will determine them while proceeding from concrete developments and the Taliban’s specific actions.” Both versions include the same next sentence: “According to our reports, the Taliban already started bringing public order and also confirmed security guarantees for civilians.” After meeting with the Taliban on Tuesday. the Russian Ambassador to Afghanistan said, “The Taliban representatives said the Taliban has the friendliest … approach to Russia.” He earlier said that the Taliban had already made Kabul safer than the previous administration.
China has been more forward-leaning. Several news reports indicated that China would likely recognize the Taliban once Kabul fell. On Monday, a Chinese government spokesperson said Beijing “is willing to continue to develop … friendly and cooperative” relations with Afghanistan. It’s open to question whether China is imposing any conditions by calling on the Taliban to “ensure a smooth transition” of power and keep its promises toward establishing an “open and inclusive Islamic government.”
One advantage of recognition for states that have concerns about terrorist threats emanating from Afghanistan (which includes the United States, but also others like China) is that it bestows on the Taliban the prerogative to consent or withhold consent from foreign states’ use of force in Afghanistan in the future. International law, of course, allows for such uses of force against a territorial state without its consent under certain conditions. Nonetheless, the lack of such consent may at a minimum hamper or delay otherwise vital and lawful counterterrorism operations against a resurgent Al Qaeda for example.
From the perspective of democratic states, a major downside to early recognition of the Taliban — particularly if they purport to control the state unilaterally rather than in a genuine power-sharing arrangement — is the legitimizing effect it would likely have for an odious regime that came to power through force. Recognizing the Taliban would also put the United States (and others) in the position of not recognizing one terrorist group that came to power through elections (Hamas) while recognizing another terrorist group that came to power through military force (the Taliban).
But recognition of a Taliban-led government by democratic states may come with additional benefits. We discuss these in considering the fourth option of withholding recognition. Indeed, disadvantages to withholding recognition are, in turn, advantages to extending recognition.
Option 2: Condition recognition on stated criteria
States may decide to hold out the promise of recognition on the condition that a Taliban-led government undertakes certain actions. While using recognition as a tool of diplomacy has been disfavored in recent decades (as opposed to, for example, conditioning diplomatic relations), the United States and several of its allies appear to be leaving the door open to this option.
On Sunday, Secretary of State Antony Blinken stated on CNN’s State of the Union:
“A future Afghan government that upholds the basic rights of its people and that doesn’t harbor terrorists is a government we can work with and recognize. Conversely, a government that doesn’t do that, that doesn’t uphold the basic rights of its people, including women and girls, that harbors terrorist groups that have designs on the United States or our allies and partners, certainly that’s not going to happen.” (emphasis added)
A statement last week by a broad array of key states participating in a meeting in Doha (China, the United States, UK, Uzbekistan, Pakistan, Germany, India, Norway, Qatar, Tajikistan, Turkmenistan, and Turkey) as well as representatives of the United Nations and the European Union, also explicitly took this approach. Among other things, participants “reaffirmed that they will not recognize any government in Afghanistan that is imposed through the use of force,” effectively conditioning recognition on gaining power through a “future political settlement.”
The Doha Statement was made, however, at a time when it was assumed that the Ghani government would remain in Kabul and was likely intended to disincentivize further fighting as the Taliban advanced. Now that the Ghani government appears to have essentially collapsed, the political calculus on conditioning recognition may change as well.
Option 3. Recognize but condition diplomatic relations and other privileges generally accorded to legitimate governments
A third option (a variant of option two, in some respects) presents an intermediate path: once the dust settles, if the Taliban remains firmly in control of the institutions of the state and its territory, treat recognition as an essentially ministerial act, but without promising diplomatic relations or according other benefits to the Taliban. Diplomatic history has ample examples when a government was recognized as a legal matter but diplomatic relations or other privileges were withheld. Those examples include the U.S. relationship with Iran after 1979, with Cuba until 2015, and with the widespread isolation of apartheid South Africa, including the racist regime’s exclusion from intergovernmental organizations.
Two U.S. allies made statements similar to the U.S. statement at Monday’s special session of the Security Council, but their statements sounded in the “legitimacy” of the Afghan government without explicitly conditioning “recognition” on its actions. In other words, they maintained sufficient ambiguity to maintain the use of either option 2 or option 3. Ireland’s statement set out conditions for “support” of the international community:
“Let us be clear here today. The future governance of Afghanistan can only have the support and endorsement of the international community if it guarantees the full, equal and meaningful participation of women, includes minority groups and youth, upholds human rights and fundamental freedoms, and ensures adherence to the rule of law and accountability as set out in Council Resolution 2513.” (emphasis added)
And the United Kingdom stated: “If the Taliban continue to abuse basic human rights, they cannot expect to enjoy any legitimacy in the eyes of the Afghan people, or the international community.” (emphasis added)
One of the problems with the approach of conditioning not recognition, but “legitimacy” or “support” on the Taliban’s actions once in power is that it repudiates the prior red line explicitly set against the Taliban in Doha: that states would “not recognize any government in Afghanistan that is imposed through the use of military force.” Although the failure to enforce the prior red line may make these new conditions less credible, it does not rob such conditionality of all its power. What’s unusual here, though, is that the Taliban is most likely to utterly fail to meet these human rights conditions as well.
Whether explicit redlines or broad criteria are set, and whether it is legal “recognition” or “legitimacy” that is withheld until those conditions are met, the goal is the same: try to get the Taliban to make some concessions when they are potentially most in need of recognition and legitimacy. This could include conditionality based on the Taliban genuinely welcoming a power-sharing agreement with existing authorities. But in any case, this type of conditionality will likely only be successful over time if the states with the most influence over the Taliban’s military and economic success also hold these lines.
Option 4. Withhold recognition
This option — withholding recognition from the entity exercising territorial control of the country — was the approach with the Hadi government-in-exile (Yemen) and Aristide government-in-exile (Haiti), two of the examples cited above. But in both of those cases, there was clearly a government in exile to recognize. Advantages to withholding recognition were discussed as disadvantages to recognition under option one, above.
What are the disadvantages to withholding recognition? If Russia and China recognize the Taliban, similar recognition by democratic states (particularly if accompanied by the potential for humanitarian or economic assistance if their international obligations are upheld, and conversely a threat of sanctions and isolation if they are not) may help prevent the Taliban from going further into the orbit of those powers.
More broadly, recognition may assist in holding a new government to some international obligations. It would, for example, avoid any confusion as to whether many core international human rights obligations apply to the Taliban-led government, and put that government on the hook for upholding a host of other bilateral and multilateral treaty obligations. That said, some international legal obligations would not require such recognition (for example, the Prisoner of War Convention explicitly does not depend on whether a government is recognized by other parties to an armed conflict).
In addition, states that do not recognize the entity exercising effective control may have a harder time protecting their own nationals in Afghanistan — in their view, as a legal matter, a Taliban-led government would have no diplomatic and consular rights or obligations. The Taliban are already providing security at the Russian Embassy in Kabul, and the Russian ambassador said the Taliban “confirmed guarantees of security for the embassy.”
The Way Ahead
The United States and like-minded states are likely to take their time before making any formal decisions on legal recognition, as they should. But even if they decide to recognize the Taliban, or any future government that the Taliban essentially controls, they will still face a host of questions regarding their bilateral and multilateral diplomatic relations. Will they maintain direct bilateral relations? Will they seek to keep the Taliban out of international organizations or choose to try to influence their behavior from within? Beyond the threshold question of recognition, a wide range of carrots and sticks are available in the world of international law and politics. Watch this space for analysis, from us and other experts, of some of those additional options and potential consequences.