Editor’s note: This article is part of Just Security’s ongoing coverage of the Taliban takeover in Afghanistan.
On Aug. 15, amid the U.S. and NATO withdrawal from Afghanistan, the Taliban took the capital, Kabul. On the same day, the incumbent President of Afghanistan, Ashraf Ghani, left the country, issuing a statement on his Facebook page which acknowledges the Taliban’s victory on the ground, which has been widely interpreted as a resignation, although it is not clear, as discussed below, that the statement met the constitutional requirements for a presidential resignation. Amrullah Saleh, the First Vice President of Afghanistan under Ghani, nevertheless subsequently claimed to be “caretaker” president, although he too has now reportedly fled the country. But regardless of who holds presidential power under Afghanistan’s constitution, it is the Taliban that appears to control the vast majority of Afghanistan’s territory. The Taliban has, moreover, declared the Islamic Emirate of Afghanistan and on Sept. 7, it announced a new government, comprised largely of well-known Taliban figures .
The rapid takeover of Afghanistan by the Taliban has presented difficult political and legal questions for States and other international actors, many of which have been discussed in other Just Security articles, and some of which echo debates that took place more than 20 years ago, when the United States appeared to recognize no government of Afghanistan for several years. In this article, we consider certain basic rules of international law concerning the recognition of governments, with a focus on the significance and legality of any recognition of the Taliban as the government of Afghanistan. Further, we analyze the options available to States as they determine whether and how to recognize the Taliban and provide guidance to assist in the interpretation of ambiguous statements and actions of States, including in their engagement with the Taliban.
The Stakes of Recognition
Ordinarily, the government of a State is easily identifiable: it is generally the entity with stable and uncontested power over the State’s territory, usually with a constitutional legal basis. Changes to a State’s government normally take place smoothly, such that the identification of the government is unlikely to be contentious. Identifying a State’s government is not always so simple, however, especially where power changes hands unconstitutionally and, as often happens in these cases, there arise competing claims to being the government of a State. Especially where the identity of a State’s government is contested or otherwise in doubt, recognition of governmental status is important. In addition to providing evidence that an entity enjoys governmental status under international law, recognition as a government involves the acceptance that an entity is entitled to represent the State in the latter’s international relations, including in foreign municipal legal systems, and to exercise the State’s rights under international law.
The recognition of an entity as a government provides the basis for the acceptance of, among others, that entity’s envoys as diplomats (e.g. it was as a result of its decision to recognize the National Transitional Council (NTC) “as the sole governmental authority in Libya” that the UK “invit[ed] the NTC to appoint a new diplomatic envoy … in London”), with the consequent recognition of privileges and immunities of the latter; the capacity of that entity to consent on behalf of the State to matters such as treaties, the jurisdiction of international courts, and foreign intervention (e.g. the Adama Barrow’s capacity to consent to military intervention by the Economic Community of West African States to remove Yahya Jammeh from power in Gambia); the enjoyment of head-of-State or head-of government immunity by certain individuals; the entity’s access to State assets situated abroad (e.g. the ongoing litigation concerning access to Venezuela’s assets, held in the Bank of England); and the responsibility of the State for the conduct of that entity, since the government of a State is comprised of organs of that State whose conduct is attributable to a State (although the conduct of other entities may also be attributable to a State). A State’s decision to deny governmental status to a specific entity thus precludes (or, in the case of State responsibility, might preclude) that State’s acceptance of the above qualities of that entity.
That said, recognition of governmental status is not constitutive of that status, and the possession by a government of the aforementioned qualities does not depend on its recognition by one or more States. A State may thus find itself in breach of international law if it refuses to accept as the government of another State the political entity which qualifies for governmental status as a matter of international law, including by recognizing a different entity as the government of the latter State. On the basis of such mistaken judgment, the recognizing State might deny immunities due under international law, release a State’s assets to the wrong entity (see, e.g., the Maduro administration’s claims in relation to the dispute over Venezuelan assets held by the Bank of England), or unlawfully use force in a foreign State on the mistaken view that the latter State has consented to this (e.g. it is, inter alia, on the basis of Russia’s continued recognition of Viktor Yanukovych as Ukraine’s president that Russia claimed to have Ukraine’s consent to use force on the territory of the latter). The recognition of the “wrong” government is, moreover, sometimes seen in itself to be a violation of the prohibition on intervention. But it is not clear that a mere statement involving the recognition of the “wrong” government or the denial of governmental status to the “right” government”, on its own, involves a violation of international law. It is principally actions following such views that may engage the responsibility of the recognizing or non-recognizing State.
For the above reasons, a number of matters turn on the recognition and identity of Afghanistan’s government, including who may request military assistance in Afghanistan; who may represent Afghanistan at the U.N. and other international institutions; who may access Afghanistan’s property abroad, including its embassies; and who may obtain access to International Monetary Fund resources (including around $440 million in new monetary reserves) in Afghanistan’s name. Further, if the Taliban engage in violence against Afghan or foreign nationals, the responsibility of Afghanistan for any violation of international law may well turn on whether the Taliban is the government of the State (there are rules of attribution of conduct of private individuals which may be relevant, such as Articles 9 and 10(1) of the Articles on Responsibility of States for Internationally Wrongful Acts, but these are narrower grounds of attribution than Article 4 on State organs). Additional questions, such as who may speak for Afghanistan on social media and perhaps also whether Taliban content will be allowed on such forums, also appear to hinge on whom the international community – or perhaps particular portions of that community, such as the western States in which many of these companies are based – recognizes as the government of Afghanistan.
How to Recognize a Government
In the past, many States routinely recognized new governments, regardless of how they came to power. Such recognition was often express, such as through a public statement accepting the new administration as the government of another State. But since such recognition could be (and often was) taken as approval or endorsement of an unconstitutional regime, or as lending support to one entity over another, it sometimes resulted in some embarrassment for the recognizing State, which was taken to condone, among others, violent means to seize power. So, toward the end of the 20th century, many States abandoned the practice of expressly recognizing new governments. To be sure, States still made decisions as to recognition, even in unclear cases. But instead of expressly announcing their decision, States increasingly left recognition to be inferred from their conduct vis-à-vis the entity in question.
Not all conduct in relation to, or engagement with, an ostensible government of a State amounts to implied recognition of governmental status. A State may maintain contact with an entity for a variety of reasons – for example, the repatriation of nationals, securing property in the territory controlled by the entity, or delivering humanitarian aid to territory under the entity’s control – without necessarily recognizing anyone as the government of another State. Recognition is implied only from conduct when it clearly evidences that a State accepts the entity as a government, in the sense that it accepts that the entity possesses a distinctive governmental quality. For example, if it accepts the entity’s envoys as diplomats of that State, then it accepts that the entity has the capacity to appoint diplomatic representatives on behalf of the latter State – and this is a capacity that only governments have. Thus, the establishment of diplomatic relations can imply recognition of that entity, which is why the Court of Appeal of England and Wales regarded the existence of “full diplomatic relations” between Her Majesty’s Government and “the representatives of the GNA [viz the Government of National Accord]” of Libya as supportive of its finding that the U.K. executive had recognized the GNA.
Lesser contact, such as engaging with the entity’s leader as a representative of a group, does not necessarily involve recognition of governmental status (for example, the recognition of the Syrian Opposition Coalition as the “representatives of the Syrian People”, or the EU’s recognition of Juan Guaidó as one of the “representatives of the outgoing National Assembly” in January 2021). Similarly, the acknowledgement that a certain political entity has certain commitments and obligations, as in the U.N. Security Council’s resolution on Afghanistan in respect of the Taliban of Aug 30., does not necessarily imply recognition of governmental status. Indeed, although this remains exceptional, non-State actors may make commitments and have obligations under international law.At the same time, treating the conduct of the Taliban as pertinent to the assessment of Afghanistan’s compliance with its international legal obligations might indicate recognition of the Taliban as the government. But this conclusion need not automatically follow, for it is not only the conduct of State organs, let alone only of the government of a State, that is attributable to a State for the purposes of State responsibility.
States are not required under international law to maintain relations with each other. They can choose not to engage with a given entity, and indeed there are plenty of examples of States severing diplomatic relations with a certain government, or expelling or recalling diplomats. Assessing the legal implications of decisions not to engage in relations with another government may be tricky. While recognition of an entity follows from entering into diplomatic relations with it, the reverse does not follow – a State may choose not to maintain diplomatic relations with another State for reasons other than its non-recognition of the latter State’s government. By implication, not maintaining diplomatic relations with an entity does not necessarily entail a denial of that entity’s status as a government (think: Iran and the United States for decades). This is an important distinction to bear in mind with respect to the Taliban: most States have expressed an unwillingness to entertain relations with the Taliban, but it does not follow from these statements that they deny that the Taliban is (or might become) the government of Afghanistan.
States’ decisions regarding the maintenance and extent of their relations with other states are usually taken on the basis of political, economic, cultural and other considerations. Disentangling a State’s position on the law (who it thinks is the government of another State) from its political decisions (whether it wishes to engage with a certain government of another State) is thus not always straightforward. This is further complicated by the fact that States often express their support for, or opposition to, a specific political authority in terms of “recognition”, even when they do not intend to assert or deny that authority’s governmental status. For example, a group may be recognized as something other than a government, illustratively as a “legitimate representative” of a people – as the example of the Syrian Opposition Council mentioned earlier. Moreover, a State may refuse to recognize a government without necessarily denying that that political authority qualifies as the government of that State. Such an act might amount to neither the acceptance nor the denial of a specific entity’s governmental status. It might operate only as a refusal to grant express recognition (without necessarily precluding implied recognition) of, or political support to, a specific entity. Additionally, a statement that a specific government has lost “legitimacy” does not necessarily indicate that that government is no longer considered to be the government of a State.
Relevant factors in ascertaining whether a State recognizes or denies the status of an entity as the government of another State include any expressed intention of that State in its statements or public announcements (paying close attention to the language used), as well as its acts in respect of the entity in question (e.g., whether it accredits its diplomats; affords its members certain types of immunity; or negotiates interstate treaties with it). Such assessments must also be attuned to the context in which the State’s statements and acts take place.
The Role of Control and Legitimacy in Identifying a Government
Despite the importance of recognition, the international legal status of an entity as the government of a State is not dependent upon the subjective appreciation of recognizing or non-recognizing States. While States have a large measure of discretion on these matters, international law does not leave States with unfettered discretion in choosing who to treat as the government of a State. Traditionally, for international law, an entity’s exercise of stable and effective control over the territory and population of a State was sufficient for establishing its status as the government of that State. An effective entity was the government of that State for the purposes of international law, including in determining who may express a State’s consent to a treaty, who may benefit from certain personal immunities, etc, regardless of recognition (Tinoco Arbitration). In recent decades, however, practice has challenged the central role of effective control in identifying a government. In certain circumstances, some form of legitimacy has proved to be of greater importance than effective control in decisions to recognize a government.
State practice and scholars have used the term “legitimacy” in relation to the recognition of governments in different ways. Perhaps most prominently in the contemporary context, “legitimacy” may either refer to democratic legitimacy – usually relating to popular support or representativity – or to constitutional legitimacy – typically relating to the constitutional basis of the entity’s power – or to some combination thereof. The language used by international actors in this regard is rarely precise, and democracy and constitutionality are often mixed in their statements.
Nevertheless, the predominant form of legitimacy endorsed by contemporary practice is constitutional legitimacy. For example, the following persons continued to be recognized as presidents of their respective countries by virtually all States even when they did not – and, in at least some cases, other persons did – exercise effective control, seemingly because of the constitutionality of their claim: Jean-Bertrand Aristide (Haiti, 1991-94); Alassane Ouattara (Cote d’Ivoire, 2011); Abdrabbuh Hadi (Yemen, 2015-present); and Adama Barrow (The Gambia, 2017).
All these individuals had also been democratically elected, which may suggest it was their democratic legitimacy that counted. But the general response of States to other ostensible changes of government suggest that it is constitutionality, not democratic representativity, that is of principal significance. These include the express acceptance by some States of Oleksandr Turchynov, the speaker of the Ukrainian Parliament, as Interim President of Ukraine after the dismissal of President Viktor Yanukovych in 2014, and of Burhanuddin Rabbani’s government in Afghanistan after the Taliban take-over between 1996 and 2001 (note e.g. the reference in the 2001 Bonn Agreement to Rabbani’s “readiness to transfer power”), both of whom claimed constitutional authority but neither of whom were democratically elected. In general, contemporary practice indicates that a constitutionally valid claim to power will be accorded preference over any other claim, perhaps more readily so if the constitutional claim also has a democratic basis.
Even so, the identity of a State’s government may remain unclear, especially when the constitutionality of a claim in this regard is itself contested. For example, not all States accepted the constitutionality of Juan Guaidó’s claim as president of Venezuela, which involved a plausible, but novel, interpretation of Article 233 of Venezuela’s constitution. Furthermore, it is perhaps due to uncertainty over the constitutionality of either claim to power that neither the military junta nor the National Unity Government have obtained widespread recognition as the government of Myanmar.
Another form of legitimacy that has received some support in deciding whether or not to recognize an entity as the government of a State is respect for international law, in particular respect for the most fundamental human rights of that State’s own population. For example, France recognized the NTC as the government of Libya before the Gadhafi government had lost all control over Libya’s territory, asserting that: “[h]aving committed the most serious crimes against the Libyan people, in defiance of international law, the authorities under Colonel Gaddafi can claim no role of any kind in representing the Libyan state.” Similar positions have been taken in respect of the de-recognition of the Nicolás Maduro administration as the government of Venezuela (e.g. here, para 36). Such clear statements, followed by clear actions, are nevertheless rare, and typically do not appear in isolation from considerations of constitutionality.
As a separate matter, States have often taken compliance with international law into account in deciding whether to maintain intergovernmental relations with a specific government and in asserting that a specific government has lost “legitimacy.” But, as noted earlier, this does not necessarily involve a denial that the entity in question is the government of a State under international law. For example, the statement on June 27, 2011 by a U.K. Foreign and Commonwealth Office Minister that “[i]t is clear that Gaddafi no longer has legitimacy” did not necessarily amount to a denial of the governmental status of the Gaddafi administration. Similarly, the United States stated that Syria’s President, Bashar al-Assad, had “lost legitimacy” but this was not followed by any concrete indication that the United States no longer considered his administration to qualify as the government of Syria. Indeed, general practice has not to date provided a strong precedent for the significance of compliance with human rights, or international law more generally, to the enjoyment of governmental status.
In the absence of a constitutionally valid claim to power, States appear generally willing to recognize an unconstitutional government wielding effective control, as the general acceptance of Yahya Jammeh’s claim to power in 1996 demonstrates. Such a government may then fundamentally change the State’s constitution, including perhaps to consolidate or enhance the perceived political legitimacy of its power.
In short, in contrast to the historical practice which generally treated an effective entity as the government of a State, contemporary practice indicates that international law accords preference to a constitutionally-valid claim to power over a political entity in effective control. But international law does not yet (if it ever will) treat constitutionality as an indispensable requirement for governmental status. Indeed, international law permits an effective entity with no constitutionally valid claim power to enjoy governmental status, where no constitutionally valid claim subsists.
To Recognize or Not to Recognize the Taliban?
No State has yet recognized the Taliban as the government of Afghanistan, or explicitly announced that they intend to do so. Several States have maintained some contact with the group, often careful to clarify that such communications do not imply recognition of governmental status (see, as a clear example, the position of the European Union (EU) and the United States in coordinating with the Taliban to secure the Kabul airport; see also France’s statement). Despite States’ frequent pairing of condemnations of the Taliban’s human rights record with affirmations that the Taliban will not be recognized (at least unless its future conduct comports with international human rights law), the possible existence of a constitutionally legitimate alternative government may present a greater barrier to the acceptance of the Taliban’s governmental status.
As things stand, the existence of a constitutionally valid claim to power is uncertain.
First, Ghani himself might have such a claim, given the lack of clarity as to whether he has tendered a constitutionally-effective resignation. The Afghan constitution specifies the format of a presidential resignation: “The President shall personally tender resignation to the National Assembly.” Neither Ghani’s message on Facebook, in which he stated that the Taliban “had won”, nor subsequent video statements appear to satisfy these constitutional requirements. Moreover, government leaders have in the past successfully enjoyed governmental status after retracting constitutionally-suspect resignations: in Yemen, President Abdrabbuh Hadi retracted a constitutionally-ineffective resignation in 2015 and continued thereafter to be recognized as president of that country; in 2002 Hugo Chavez successfully reclaimed the office of President of Venezuela after being removed from power by the army, and allegedly signing a letter of resignation. At the same time, it is not clear that the National Assembly of Afghanistan is meeting or is otherwise capable of receiving the resignation, and the constitution of a State may be more flexible than any constitutional text might suggest. For example, at least some States accepted as constitutional the Ukrainian Rada’s determination that Viktor Yanukovych had “in the non-constitutional manner withdrawn from performing constitutional powers” and that an interim president was to be appointed pending elections, despite the Rada’s non-compliance with express constitutional requirements concerning impeachment of the president. In the case of Afghanistan, given his claim to being “caretaker” president, Saleh appears to take the view that Ghani has effectively resigned. More fundamentally, Ghani himself appears not to maintain any claim to power.
Secondly, insofar as Ghani’s claim does not subsist, Amrullah Saleh might have a constitutionally valid claim to the presidency. According to Article 67 of Afghanistan’s constitution, “[i]n case of resignation, impeachment or death of the President, as well as an incurable illness impeding performance of duty, the First Vice-President shall assume authorities and duties of the President.” Even in the absence of a constitutionally valid resignation by Ghani, it may be arguable that Saleh can claim power under the constitution of Afghanistan, at least insofar as Ghani no longer purports to be president. But it is unclear that Saleh will continue to claim power since fleeing to Tajikistan.
If the general trend in contemporary practice that we described above were followed, the Taliban or any political entity that might emerge from Taliban-led negotiations would not be recognized as long as a competing, constitutionally valid claim to power exists. This said, the emerging political discourse around the governance of Afghanistan has largely ignored both Ghani and Saleh. This may be because Ghani’s conduct suggests that he does not maintain such a claim and because the constitutional validity and, since fleeing to Tajikistan, the continued subsistence of Saleh’s claim to the presidency is uncertain.
In the absence of any constitutionally valid claim, such as if neither Ghani’s nor Saleh’s claims to be president subsists, a key question in assessing whether or not the Taliban qualifies for governmental status will be whether it exercises effective control over most of Afghanistan’s territory and population. After taking Panjshir Valley, “the final holdout of resistance forces”, the Taliban now appears to control the whole territory of Afghanistan. If the Taliban is able to maintain such control, States will be presented with a range of options. They could recognize the Taliban as the government and maintain regular interstate relations with it; recognize it as the government, but refuse to entertain normal relations with it; recognize it as the government, and only entertain relations if certain conditions are met; or, deny its status as government of Afghanistan. Several States have already hinted at which of these options they are likely to pursue.
A number of States have expressed an unwillingness to recognize the Taliban unless certain conditions are met. U.S. Secretary of State Antony Blinken stated, hours after the fall of Kabul on Aug. 15, that:
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)
On the same day, the United States closed its embassy in Kabul; it has since announced the relocation of embassy operations to Doha, Qatar. On Aug. 5 – before the Taliban takeover of Kabul – the U.K.’s Permanent Representative to the U.N. stated that the U.K. “would not be prepared to recognize a Taliban government that took power by force [and] that was committed to terrorism.” Canada’s Prime Minister said on Aug. 17 that Canada would not recognize the Taliban because “[t]hey have taken over and replaced a duly elected democratic government by force [and] they are a recognized terrorist organization under Canadian law.” Even Pakistan, one of the few States to recognize the Taliban in Afghanistan between 1996 and 2001, has not now hurried to offer support or recognition to the Taliban. In a news conference on Aug. 18, Information Minister Fawad Chaudhry seemingly stipulated preconditions for Pakistan’s recognition of a Taliban-led government, which include respect fundamental human rights and not allowing Afghanistan’s territory to be used for attacks against other States. (Pakistan’s National Security Adviser Moeed Yousuf was quoted by the British media as having urged the “immediate” recognition of the Taliban, but on Aug. 30 his office denied this.)
These statements can be interpreted in numerous ways. They could be read as signaling an intent to deny the Taliban’s governmental status insofar as certain conditions are not met – conditions which are not currently accepted criteria for governmental status under international law. They could instead reflect only an unwillingness expressly to recognize the Taliban (leaving open the possibility of a tacit or implied recognition) or to enter into normal diplomatic relations with a Taliban government until certain conditions are satisfied.
Perhaps more ambiguous are the statements concerning the legitimacy or lack thereof of the Taliban, not least because the “legitimacy” or otherwise of a political entity does not necessarily reflect a stance on the enjoyment by that entity of governmental status as a matter of international law. For example, the U.K.’s statement at a U.N. Security Council meeting on Aug. 16 that “[i]f 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” does not necessarily indicate that the enjoyment of governmental status by the Taliban depends on the latter’s compliance with “basic human rights.” This is among the views that are arguably reflected in the G7 statement of Aug. 24, according to which “[t]he legitimacy of any future government depends on the approach it now takes to uphold its international obligations and commitments to ensure a stable Afghanistan.” Comparably vague is the EU’s statement, reported on Sept. 1, that
The Taliban will be judged on their actions — how they respect the international commitments made by the country, how they respect basic rules of democracy and rule of law. … The biggest red line is respect for human rights and the rights of women, especially.
Perhaps tending more towards the unconditional recognition of, and engagement with, the Taliban is the stance of Russia, whose embassy in Kabul remains open and which noted on Aug. 26 that “…the Taliban’s dominance, the de facto rise to power of the Taliban in Afghanistan and them taking most over the country under their control is de facto an accomplished process”. But while Russia seems ready to engage with the Taliban, possibly on an inter-governmental level, on the basis of the latter’s control of territory and quite aside from any arguments about constitutionality, democratic representation, or compliance with international law, Russia has not yet recognized the Taliban’s governmental status. Similarly, with its embassy in Kabul remaining open, China has expressed a willingness to entertain – indeed, to strengthen – relations with the Taliban, with whom it has maintained contact at least since 2019, although it has repeatedly emphasized the need for the Taliban to distance itself from militant groups.
In the light of the apparent difference in the positions of States in relation to the Taliban, the effort to ensure a coordinated multilateral response is especially noteworthy. On Aug. 24, the G7 pledged to cooperate with regional and international actors “to bring the international community together to address the critical questions facing Afghanistan.” The U.K.’s Prime Minister stated, on Aug. 15, that he did not want “anybody bilaterally recognising the Taliban.” According to its Information Minister, Pakistan will decide on recognition of the Taliban “after consulting with the regional and international powers.”
Most States and international entities that have so far voiced their views have emphasized the need for an inclusive and representative government. In a rare strongly-worded statement of Aug. 16, the members of the U.N. Security Council called for “the establishment, through inclusive negotiations, of a new Government that is united, inclusive and representative – including with the full, equal and meaningful participation of women.” But this does not provide great clarity on the members’ position as to their possible recognition of, or relations with, a Taliban-led government. For what it is worth, however, the U.N. Security Council has not reiterated its lack of support for “the restoration of the Islamic Emirate of Afghanistan” as expressed in March 2020.
Since the internal political situation in Afghanistan is unsettled, it is unsurprising that States’ positions as to the Taliban’s governmental status and their relations with it are somewhat equivocal. Indeed, it is not yet clear whether a competing constitutionally valid claim to power subsists, or whether a Taliban administration is indeed willing to respect human rights (there are already reports of Taliban-led violence at a women’s rights march).
If a constitutional claim to power subsists by either Ghani or Saleh, States may well follow the trend in contemporary practice and endorse the constitutionally valid claim. This practice suggests that only that entity may be lawfully treated as the government of Afghanistan. At least insofar as no constitutional claim to power is deemed to subsist, States will be faced with deciding whether or not to recognize a Taliban government. States reactions to the Taliban government, and in particular if they refuse to recognize the Taliban on the basis of their human rights record, might indicate that international law is moving towards rendering relevant certain other forms of “legitimacy” to the enjoyment of governmental status. In this regard, it is worth reiterating that whether States wish to engage with such a government on a normal interstate basis is a separate matter.
For the Taliban and the international community, the stakes are high as regards the recognition of, and relations with, a government of Afghanistan. As the situation on the ground becomes clearer, States will need to make decisions about whether and how to engage with the Taliban. They will make this decision by reference to the particular case, likely on the basis of calculations involving both law and politics. It is not insignificant that the Taliban is listed as a terrorist organization in several States, and many of its leaders, including persons comprising part of the government announced by the Taliban, are subject to sanctions – as is the organization itself.
It will be important to take a long view as well – and not just politically. A clear trend in contemporary practice shows a preference for constitutionally valid claims to power in identifying governments as a matter of international law. As we noted, in accordance with this trend, no Taliban administration should be recognized while a constitutional claim to power by either Ghani or Saleh subsists. But in the absence of such a claim, the Taliban might well be able to attain governmental status. States’ reactions to the situation in Afghanistan may thus contribute to further confirming the legal significance of constitutionality to the identification of governments under international law, specifically if they endorse a claim by either Ghani or Saleh. This now seems unlikely, both because of developments on the ground and because States have so far largely omitted any mention of either Ghani or Saleh in their responses to the situation in Afghanistan.
This does not necessarily mean that States will move to recognize the Taliban as the government of Afghanistan, although this may happen. Their refusal to do so in the absence of a constitutionally valid claim to power can contribute to the development of the international law concerning the recognition and identity of governments. More specifically, demands for compliance with human rights, or with international law more generally, in addition to effectiveness, as a condition for recognizing governmental status will be pertinent practice for future cases. In all cases, care must be taken before too readily assigning evidential weight to specific statements or actions in this regard. A State’s conduct might indicate only its unwillingness to enter into intergovernmental relations without necessarily amounting to denial of governmental status, while the maintenance by a State of certain types of relations with the Taliban does not imply recognition of governmental status.
In making decisions as to the recognition of, and relations with, the Taliban, States should consider the specific situation, as well as how their statements and actions might affect the development of the law in this field. States may wish to tread carefully, moreover, since recognition of the “wrong” government might involve or result in violations of international law.