Recognizing Afghanistan Under Taliban Rule: The Tale Of Two Theories In International Law

Gaurav Yadav, Indian Law Institute, New Delhi

ABSTRACT

The treaty of ‘Peace of Westphalia’ embarked the emergence of two key postulates for recognizing any government in international law, the first that “the states are sovereign political actors” and, the second which complement the first, that the “governments are established to act on behalf of states to secure citizen’s inalienable rights.”1 Recognition of Government, simply, can be defined as an act of state wherein it accepts a new regime as the legitimate representative of the other state in its international intercourse. ‘Recognition of government’, contrary to what one might think from the simplicity of this definition, is one of the most vexed subjects in international law. Many scholars have indicated the concept as “notoriously murky”2. According to Stefan Talmon, it refers to “an indication of the willingness or the unwillingness of a government to establish or maintain an official relationship with another.”3 The recent developments in Afghanistan, which are still unfolding, have brought this vexed subject in a newer setting before the scholars in the International Law. This article attempts to shed light on the emerging standards for the ‘recognition of government’ in international law and reassess the applicability of traditionally accepted doctrine of ‘Effectiveness’, secondly, it analyzes the acceptance of the principle of ‘democratic legitimacy’ as a legal norm in international law. These standards are, then, discussed in the context of the recent developments in Afghanistan.