After its takeover of Afghanistan in mid-August, the Taliban militant group is seeking recognition from the international community. However, the position of states around the world about recognising the Taliban government is fractured.

Two permanent members of the United Nations Security Council – China and Russia – have displayed their willingness to recognise the new regime. But other states, such as Canada, have opposed this.

Although India initially said that it would not recognise the Taliban regime, developments demonstrate that India is in line to offer tacit recognition of the new government.

Wait-and-watch attitude

Recognition by governments is essential for the Taliban for several reasons. Unless the Taliban are granted recognition, it will not be able to enter into treaties with other states. The absence of recognition hampers a government’s ability to receive foreign aid, for businesses in the country to trade with the world and carry out overseas transactions, for its citizens to travel abroad and much more.

By granting the Taliban recognition, other governments would be able to establish diplomatic relations with Afghanistan’s rulers.

India has adopted a wait-and-watch position. But the larger economic and political challenges – such as cross-border terrorism and the narcotics flow from Afghanistan – can be constructively addressed only through recognising the regume. Moreover, a refusal by New Delhi to recognise the Taliban might bolster India’s regional rivals, China, further endangering national security on its northern borders.

On the economic front, a significant volume of trade is at stake. In 2020-21, India’s trade with Afghanistan stood at $686.24 billion in 2020’-21, so it seems like only a matter of time before New Delhi recognises the Taliban government.

Legally speaking, recognising a government is different from recognising a state. “Governments may change, or the internal legal regime may get replaced, but the state as an entity continues,” noted James Crawfor, a former judge of the International Court of Justice, in his book The Creation of States in International Law.

The current discussion on Afghanistan does not pertain to recognising the state (since that remains intact) but concerns the Taliban government.

A state’s decision to recognise a government is a matter of pure discretion and is premised on larger political gains. India’s recognition of the Taliban government should be determined by India’s geo-strategic interests. Having said that, international law has laid out some standards for recognising a government. These standards have developed over time through state practice.

‘Effectiveness’ test

One is “effectiveness”, which implies that it is important to consider whether the government seeking recognition has effective control over the state’s territory. The effective control of territory can be inferred from the reasonable prospect of the government’s stability, its acceptance by the people, and the prospect of permanence. It is not relevant whether the government came to power through unconstitutional means, as long as it has effective control.

The Tinoco Arbitration case from 1923, provides interesting insights on “effectiveness”. It arose when the Tinoco regime that seized power in Costa Rica by coup was not recognised by Great Britain and the United States. When the regime was ousted, the new government nullified Tinoco’s contracts, which included an oil concession granted to the British company.

Great Britain argued that the contract could not be repudiated because the Tinoco government was the only government in existence when the contract was signed. But Costa Rica claimed that Great Britain was not within its rights to enforce the contract because it had not recognised the Tinoco regime.

However, Justice William H Taft, the sole arbitrator in the case, upheld Britain’s claim. “...The administration was in effective control of the country, it was the valid government irrespective of the fact that a number of states did not recognise it,” he wrote.

Since the Taliban controls vast swathes of Afghan territory, it passes the effectiveness test.

However, a doctrine is at loggerheads with “effectiveness” is the test of “legitimacy”. This maintains that it is the manner in which the government came to power that counts, coupled with support from the people. Moreover, the doctrine contends that the government assuming power through extra-constitutional means should not be recognised.

The “legitimacy” doctrine has gained acceptance after the Cold War as awareness about human rights has heightened. Prabhas Ranjan, professor at South Asian University, has argued that the Taliban regime, despite exercising effective control over Afghanistan, lacks democratic legitimacy.

State practice suggests that in cases involving governments assuming power through unconstitutional means, the government in question is granted temporary de facto recognition initially followed by de jure recognition. “De facto recognition involves a hesitant assessment of the situation, an attitude of wait and see, to be succeeded by de jure recognition when the doubts are sufficiently overcome to extend formal acceptance,” wrote Malcolm Shaw, a professor of international law.

India’s position

Although Ranjan and others have encouraged India to confer de facto recognition on the Taliban government, India’s current position is ambiguous. On the one hand, it has displayed a reluctance to engage with Taliban but on the other, it has signalled the possibility of conferring de facto recognition.

However, developments suggest that India has granted “implied recognition” to the Taliban regime. Implied recognition does not per se indicate that a state is granting de facto (temporary) or de jure recognition (permanent) to a government but is more evidentiary. For instance, by holding a meeting between India’s ambassador to Qatar and the head of Taliban’s Political Office in the Indian Embassy in Doha on August 31, India would seem to have bestowed “implied recognition” on the Taliban.

The talks revolved around the security and protection of Indian nationals in Afghanistan. The meeting was a watershed moment in India-Afghanistan relations as New Delhi admitted to diplomatic contact with the Taliban after a two-decade hiatus.

The day before the meeting, Sher Mohammad Abbas Stanekzai, deputy head of Taliban’s office in Doha said that India is “very important for this subcontinent” and that his group wants to continue Afghanistan’s “cultural”, “economic”, “political” and “trade ties” with India “like in the past”.

Although the diplomatic talks cannot be interpreted to mean recognition of the Taliban regime, it is surely a step in that direction.

Atul Alexander is an assistant professor of law at the West Bengal National University of Juridical Sciences.