L. Ali Khan, founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas, comments on why there is a pressing need for the United States to legally recognise the Taliban as the government of Afghanistan...
Even though the US State Department is issuing positive statements about the Taliban, it is hard for the US to recognize the Taliban as Afghanistan’s lawful government. The reasons are evident and understandable. First, the Taliban have defeated the US military in a protracted war stretching over twenty years (2001-2021). The hurt in the Pentagon, federal intelligence agencies, and political circles needs time for healing, and any demand for swift recognition seems hurried. Second, the war narrative against the Taliban painted over the decades by think tanks, popular media, and even academic papers presents the Taliban as terrorists with little regard for life, religious tolerance, personal autonomy, and women’s rights. Third, there is a shared perception that the Taliban are incompetent to run Afghanistan as a modern state that can effectively participate in a sophisticated international legal and economic order.
Furthermore, there is a legal question of whether the Taliban government meets the minimum international standards for the recognition of governments.
Recognizing a new government is a manifestation of sovereign optionality in that no state is obligated to recognize a government, much less to establish diplomatic relations or engage in trade. By exercising sovereign optionality, a state may do the opposite: it may derecognize a new government by breaking off diplomatic ties, discontinuing trade, and imposing economic sanctions. For example, the US broke off diplomatic relations with Iran after the 1979 Islamic Revolution, imposing various sanctions.
Ordinarily, governments come and go without any need for recognition. The international community of states and intergovernmental organizations such as the UN respects the domestic procedures through which new governments assume the helm of the state. The question of recognition becomes pertinent when a new government acquires power through a military coup, ideological revolution, disputed elections, or breaches of international law.
It is pertinent to note that recognizing a new state is not synonymous with recognizing a new government, even though some elements are interrelated. A new state demanding recognition must demonstrate that it has a territory, a population, and an effective government. The additional requirement that the state exercise an independent foreign policy has been a reactive feature to colonialism. Even when a new state meets all the requisites, other states may refuse to recognize it. In 1947, for example, when Pakistan emerged as a new state, Afghanistan was the only country that refused to recognize Pakistan as a state, contending that the Durand Line (the 2,670 kilometer border between Afghanistan and Pakistan) is arbitrary and unlawful.
While recognizing new states may carry an international obligation, recognizing new governments does not. Still, the most crucial test under customary international law for recognizing a new government is its efficacy, regardless of whether the state is emergent or established. A government is effective if it controls the coercive machinery of the state and maintains law and order. Some countries may impose additional tests for recognition based on their view of international law, such as whether the new government is committed to human rights and international law. Even if a new government meets all the traditional recognition standards, states may recognize it only as a de facto government, withholding the de jure (lawful) status.
The US optionality for the recognition of governments has been inconsistent, both pragmatically and philosophically. In some cases, the US declined to count efficacy as a necessary, much less sufficient, standard for recognition. In 2019, President Trump recognized Juan Guaido as Venezuela’s lawful president even though Nicholas Maduro, who won the controversial elections, effectively controlled the state machinery. In the 20th century, the US did not recognize the Communist governments of the Soviet Union and China for decades despite their effective control of the state machinery. On the contrary, the US had no problem recognizing the 1999 Musharraf military coup that overthrew Pakistan’s democratically elected government.
For the most part, the Taliban have effective control of Afghanistan’s state machinery. Minor protests and even small resurrections in Afghanistan, such as anti-Taliban resistance in Panjshir, do not negate the efficacy doctrine. In the months to come, the Taliban will likely consolidate their power. However, it is unclear how the Taliban will lawfully alter the 2004 constitution to enforce their ideology. While the constitutional crisis persists, the US may decide to recognize the Taliban as Afghanistan’s lawful government based on the theory that constitutional reforms are Afghanistan’s internal matter. As noted above, the US ignored the fact that Pervez Musharraf trampled over the 1973 Pakistan constitution.
Considering its prior recognition decisions, the US has unfettered sovereign optionality in recognizing the Taliban government. The decision turns on geostrategic benefits that the US will reap rather than any domestic or international legal doctrine for or against recognition.
The US, much like China, Russia, and the EU, expects the Taliban to make a global commitment that Afghanistan would no longer harbor Muslim militants, particularly the ISIS factions, who vow to attack nations and communities for misguided ideologies such as the establishment of the Caliphate.
While the ISIS suppression is beyond dispute in the world’s capitals, the question remains whether the US can achieve this goal with or without recognizing the Taliban government.
The US would concede that the first Taliban government (1996-2001) launched no attacks against any county. They were, however, accused of hosting the Middle Eastern militant groups who allegedly perpetrated the 9/11 attacks. In retrospect, it was perhaps a mistake for the US to invade Afghanistan, overthrow the Taliban government, and spend trillions of dollars causing massive destruction and loss of human life. A more sensible course of action available to the US would have been to engage the Taliban in ousting Al Qaeda from the region.
The US must seriously consider engaging the second Taliban government in suppressing ISIS and Al Qaeda remnants operating in the region. Making the Taliban allies against the Caliphate militants is a superior strategy to denigrating the Taliban as “terrorists,” a piece of rhetoric that causes more harm than good. Furthermore, since Pakistan’s intelligence agency, ISI, is closely tied to the Taliban, the US will likely have more vigorous cooperation from the ISI if the US recognizes the Taliban as Afghanistan’s lawful government.
More than any other nation, the US commands the intelligence resources to identify and neutralize unruly militancy. However, the Taliban, and not the US, fully understand the region, the tribes, the culture, and the subtexts of customs to make the intelligence resources effective. To win the Taliban cooperation, recognition rather than pressure would be a more effective tool. Any policy to demand the Taliban cooperation in fighting ISIS and other militant groups without recognizing the Taliban will be an over-optimistic option.
Human rights in Afghanistan will be more secure through engagement rather than sanctions. Historically, the US has invoked the “constructive engagement” doctrine with nations practicing apartheid, occupation, and intense discrimination. The US cannot adopt a condemnatory policy against the Taliban, expecting benefits through undermining what the local cultures and tribes wish to reserve. Some US opinionmakers imprudently believe that Afghan women would choose to think and act like Western women (France complains that Muslim women are rejecting the secular culture). Given the chronic racism and crimes against African Americans, and discrimination against American Muslims, the US has lost some credibility in championing human rights. The US should let the conservative Muslim nations, including Saudi Arabia and Afghanistan, resolve their cultural tensions via indigenous debate.
The US cannot suffer from disabling indecisiveness while Russia and China proactively engage the Taliban. By not recognizing the Taliban, the US will be handing over Afghanistan lock, stock, and barrel to Russia and China, eager to woo the Taliban for security and economic reasons. Russia would prefer a friendly Taliban in power, next to several Muslim states that constituted the Soviet Union and are now part of the Commonwealth of Independent States (CIS). China has a similar interest in winning over the Taliban to weaken any actual and potential Uighur militancy in Xinjiang. China and Pakistan are planning to weave the Taliban-Afghanistan into the Road and Belt initiative.
The US must also consider that Afghanistan has vast resources of rare earth materials, critical for technological development. Per US military officials and geologists, Afghanistan is sitting on untapped mineral deposits worth $1 trillion. Mining these minerals will help Afghanistan in economic development. The US carries some responsibility to rebuild a war-torn country with indigenous resources. Recognizing the Taliban government will create the necessary goodwill for the US companies to invest in extracting minerals in Afghanistan.
For these reasons, the US should be proactive rather than reluctant to recognize the Taliban as Afghanistan’s lawful government to get a head start in reaping the benefits that the Taliban government can deliver.
L. Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on international law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at firstname.lastname@example.org
Suggested citation: L. Ali Khan, Why the U.S. Should Recognize the Taliban as Afghanistan’s Lawful Government, JURIST – Academic Commentary, September 13, 2021, https://www.jurist.org/commentary/2021/09/l-ali-khan-us-recognition-taliban-afghanistan-government/.
This article was prepared for publication by Sambhav Sharma, a JURIST Staff Editor. Please direct any questions or comments to him at email@example.com
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