Fourth evacuation from Kabul since 1992 & The legal challenges in recognising the Taliban

Source: The Hindu(Article 1, Article2, Article 3, Article 4, and Article 5) and The Indian Express

Relevance: This article explains the recent developments in Afghanistan.

Synopsis:

After the rise of the Taliban, Countries around the globe are in dilemma over recognizing the Taliban.

Introduction

Recognition of governments under international law is vital for several reasons. It is important to know who is the governing authority, who has the responsibility for carrying out domestic and international legal obligations, etc.

The Taliban’s takeover of Afghanistan has triggered a new debate in international law on the issue of recognising an entity that claims to be the new government of a state.

Regardless of the issue with recognition, India decided to pull out all its diplomats from Afghanistan. This is the fourth time, India has had to perform such an evacuation.

About the previous evacuations:

1. In 1993, India decided to close the mission in Kabul after a rocket attack on the Chancery building killed an Indian security guard.
2. In 1996, after opening the Embassy for about a year, India decided to close it again, when the Taliban entered Kabul and brutally murdered former President Najibullah and his brother.
   • During the 1996-2001 period, India had actively supported the Northern Alliance.
   • The ‘Northern Alliance’ was a united military front that came in formation in late 1996 after the Taliban took over Kabul. They fought a war with the Taliban in 2001 and ended the Taliban’s rule over Afghanistan.

How the situation is different from now and then?

1. This time, the U.S., Russia, China, and other countries have not shunned the Taliban. Instead, they appeared to legitimize them by signing a deal with them, inviting Taliban delegations to their capitals, and holding talks with them in Doha.
2. Further, India also made huge investments in Afghan like never before. In the past 20 years, India has built considerable interests, including major infrastructure projects and ongoing development projects.
   • Read this post to know about India’s Afghanistan investment.

What are the criteria to recognize the government?

1. Theory of effectiveness

   1. According to this principle, a government can be recognized when it effectively controls the state it claims to govern.
   2. In broader terms, it also includes control over the state’s territory, population, national institutions, the banking and monetary system, etc.
   3. Under this doctrine, it is not important how the new government occupied office (whether through civil war, revolution, or a military coup).
   4. According to this test, the Taliban can be recognised as a government.

2. Theory of democratic legitimacy

   1. According to this doctrine, recognition of a government also depends on whether it is the legitimate representative of the people it claims to govern.
   2. Governments that capture power through non-democratic means are not considered as a government under this theory.
   3. Since the end of the Cold War and the subsequent spread of democracy and awareness about human rights in the world gave an impetus to this doctrine in the last three decades.
   4. For instance,
      • Many countries recognised Yemen’s Abdrabbuh Mansur Hadi government in exile since 2015 on the ground that the rebellious separatists acquired power in Yemen through illegal means.
      • Similarly, the Nicolás Maduro government in Venezuela is not recognised by several countries due to the alleged lack of democratic legitimacy.
   5. According to this test, the Taliban can not be recognized as a government.

Nevertheless, there is no binding legal obligation on countries to withhold recognition of the Taliban on the ground that it does not enjoy democratic legitimacy.

Suggestions for India

A more open, liberalised visa policy, and swift processing of the newly launched special “e-Emergency X-Misc” visas would reassure both Afghans and the international community that India’s exit from Afghanistan is not permanent.

India should adopt a clear policy that it will deal with the Taliban simply because it is the de facto government, not because it is a legitimate one. This principle should be followed for bilateral relations and also for multilateral dealings, such as within the South Asian Association for Regional Cooperation.

Instead of extending humanitarian assistance directly to the Taliban government, which it might misuse, India should try to use its position in the United Nations Security Council to channelize all global aid. 

Previously, India donated 1 million tonnes of wheat in the early 2000s like this. Wheat was converted into high protein biscuits and distributed to schools all over Afghanistan for their mid-day meal program, with the WFP (World Food Programme) logo and the Indian flag.

Read more regarding the recent developments in Afghanistan: 

1. The script of the new endgame in Afghanistan
2. Return of Taliban has implications for India
3. New Delhi’s Af-Pak: Old friends versus old foes: Should India accept Taliban, betray Afghans or support resistance movements like Saleh’s?
4. History over Geography