The following is a summary of the 15th session of the Congressional Study Group on Foreign Relations and National Security, a program for congressional staff focused on critically engaging the legal and policy factors that define the role that Congress plays in various aspects of U.S. foreign relations and national security policy.
On August 27, 2021, the Congressional Study Group on Foreign Relations and National Security convened over Zoom to discuss the international law of government recognition and its implications for the recent Taliban takeover in Afghanistan. The suddenness of Taliban military conquest in the country and President Ghani’s decision to flee created an immediate question of whether the United States should recognize the new Taliban government.
The two presenters were Tess Bridgeman and Scott R. Anderson. Bridgeman is the co-editor in chief at Just Security and was previously the deputy legal adviser for the National Security Council during the Obama administration. Anderson, in addition to serving as study group coordinator, has frequently written on recognition issues and worked on them in his capacity as the legal adviser for Embassy Baghdad and as an attorney-adviser at the State Department.
Prior to the discussion, the two presenters circulated the following recommended background readings:
- Tess Bridgeman, “A Dangerous Bet on Recognition in Venezuela,” Just Security (Jan. 25, 2019);
- Scott R. Anderson, “What Does it Mean for the United States to Recognize Juan Guaidó as Venezuela’s President?,” Lawfare (Feb. 1, 2019);
- Tess Bridgeman and Ryan Goodman, “Expert Backgrounder: Recognition and the Taliban,” Lawfare (Aug. 17, 2021);
- Scott R. Anderson, “History and the Recognition of the Taliban,” Lawfare (Aug. 26, 2021).
Bridgeman and Anderson shared a PowerPoint during their opening remarks, which can be downloaded here.
The presenters first differentiated between several types of recognition: state recognition, which acknowledges that another geopolitical entity has the international legal status of being a state; governmental recognition, which acknowledges a regime as having the legal capacity to speak and act on behalf of a state; and territorial recognition, which acknowledges a state as existing and having authority within certain territorial boundaries. With governmental recognition, the state can exercise its international law rights and may be held legally responsible for the government’s actions even after the government is replaced. Government recognition does not require normalization of relations, establishment of diplomatic relations, or a moral/political endorsement of the government. Because there is little doubt at present that Afghanistan exists as a state, the central dispute is whether to recognize the Taliban as the government in Afghanistan.
Traditionally the standard for governmental recognition has been “effective control,” meaning the regime is “sufficiently established to give reasonable assurance of its permanence, and of the acquiescence of those who constitute the state in its ability to maintain itself and discharge its internal duties and its external obligations.” Modern cases of recognition have often been conditioned on factors like human rights compliance or democratic governance. Given the fact-intensiveness of the inquiry, recognition can take time, as states evaluate the likelihood of permanence. States are also wary of over-hasty recognition. De-recognition of states that fail to meet the initial recognition standards is disfavored and much harder than recognition. Recognition comes with several implications. The recognized government may claim ownership and exercise control over the state’s foreign property, the government is likely to gain UN representation, and uses of military force may be authorized.
The presenters offered examples of how issues surrounding recognition can generate strange outcomes, including: regimes recognized as governments-in-exile when the head of state is no longer in control (e.g., Aristide in Haiti in 1991); competing claims to recognition (e.g., Maduro and Guido in Venezuela in 2019); sole claimant lacks legitimacy (e.g., post-coup Egypt in 2013); no credible government at all (e.g., Somalia in 1991); and when a favored opposition movement is recognized in order to provide it with resources (e.g., Libya in 2013).
The presenters then discussed the history of Afghan-U.S. relations. The Soviet-aligned Democratic Republic of Afghanistan controlled the country from 1978 to 1992 following a violent Soviet-backed coup d’etat. The United States never recognized it as the government of Afghanistan but maintained a diplomatic presence in Afghanistan through most of that time, ultimately closing its embassy in Kabul for security reasons in 1991. From 1992 to 1996, the Mujahedin resistance took control under Burhanuddin Rabbani. While the United States still refused to recognize Rabbani’s government due to continued factional in-fighting, he secured control of Afghanistan’s seat at the United Nations and was allowed to appoint staff at the Afghan Embassy in the United States (but not to appoint an ambassador). The Taliban seized Kabul and controlled the country from 1996 to 2001, though Rabbani continued to lead a resistance effort in part of the country under the umbrella of the Northern Alliance. Only three countries—Pakistan, Saudi Arabia, and the United Arab Emirates—ever recognized the Taliban as the country’s lawful government and, despite repeated efforts, it never gained control of Afghanistan’s UN seat, which remained in the hands of Rabbani supporters. The Taliban was ultimately displaced by the U.S.-led invasion of Afghanistan in 2001. The United States and its allies then helped to install the democratically elected the Islamic Republic of Afghanistan government that controlled the country from 2001 to 2021. Both the United States and the broader international community recognized and restored full diplomatic relations with this government, including the exchange of embassies and ambassadors. This was the government that ultimately collapsed when President Ashraf Ghani fled in the face of a Taliban advance in August 2021, ceding control of the government back to the Taliban.
During the Trump administration’s negotiations with the Taliban in Doha, Qatar prior to this collapse, numerous countries indicated that they would refuse to recognize any government coming to power through force. Whether the Taliban’s recent accomplishment of exactly this may complicate those promises, the presenters noted, remained to be seen. Meanwhile, Amrullah Saleh, who was first vice president under the Islamic Republic of Afghanistan, claims to still be the country’s lawful president. He is rumored to be engaged in some early resistance efforts against Taliban rule and may also be in talks with the Taliban about a potential power-sharing agreement along with other former Afghan officials. Europe, the United Nations, and the United States have all made recognition conditional on compliance with human rights, respect for women and girls, and an inclusive government. China and Russia have engaged diplomatically with the Taliban, but have not given any signs of recognition.
The presenters suggested five possible outcomes regarding United States and international recognition. First, the United States and its allies could recognize the Taliban without conditions, acknowledging their effective control—an outcome that seemed unlikely, however, given the Taliban’s unwillingness to meet democratic and human rights standards. Second, the United States could recognize a hybrid power-sharing regime—an outcome that also seemed unlikely given the Taliban’s resistance to such power-sharing and such a regime’s probable instability. Third, the United States could engage in extended negotiations with the Taliban over recognition, subject to the Taliban meeting certain conditions—the likeliest outcome in the near and medium term as the United States and its allies try to use recognition as a carrot to urge the Taliban to undertake certain fundamental reforms. Fourth, the United States could reject recognition entirely—an outcome that seems unlikely given Biden’s commencement of discussions around the conditions for recognition. Fifth, the United States could recognize some resistance movement—unlikely given the failure, so far, of any such movement to gain a serious foothold in the country. The presenters reasoned that, regardless of recognition, the United States is likely to maintain diplomatic relations and engagement with the Taliban, given its history of such relations in Afghanistan even for unrecognized regimes, and is likely to remain open to coordinating with the Taliban on certain issues of mutual interest, such as counterterrorism.
The presenters then discussed Congress’s role. While the Supreme Court recognized that the president has exclusive control over recognition decisions in its 2015 decision in Zivotofsky v. Kerry, Congress has considerable power to regulate recognition’s consequences. Congress can simulate the consequences of de jure recognition by extending officially unrecognized regimes the equivalent of rights granted to recognized regimes, as Congress has done with Taiwan in the Taiwan Relations Act of 1979; or Congress can limit certain consequences of recognition by implementing trade restrictions, imposing sanctions, and blocking access to certain funds.
Following the presenters’ opening remarks, the session moved to open discussion. Topics raised include balancing the policy upsides and downsides of recognizing the Taliban and whether or how effective the prospect of recognition could be for leverage; lessons from the debates over whether to recognize Syrian opposition forces; and complications resulting from a desire to mitigate the humanitarian crisis in Afghanistan and the possible American interests in working with the Taliban against their shared enemy, including the ISIS-K terrorist organization.
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