by Khushnazar Juraev
Image source: www.uzdaily.uz
November 5, 2021

Due to the change of government in Afghanistan, a number of legal questions arose among scholars and lawyers active in the international sphere. These concerns are related to government recognition and international obligations. Can the Taliban regime (government) be recognized by states? (I); what will be the future of international treaties signed by the previous state; will the Taliban continue with the obligations of the Afghan government? (II); How will the government transformation influence the treaties between Afghanistan and Uzbekistan? (III).

I. Government recognition

First of all, Talib soldiers are ruling the newly named Afghan state (Islamic Emirate of Afghanistan, hereinafter IEA) de facto. Because the whole territory, no matter in which way it was invaded, is governed and regulated by Talibs. Consequently, the former Islamic Republic of Afghanistan (hereinafter IRA) does not hold control of the state and Talibs are under control over the state since August 19.

There is a difference between state and government recognition. Many countries, such as Germany have a preference for the term “state recognition” over “government recognition”. In other words, states stay recognized from the declaration of independence. However, when governments change, then there appears a reason for new recognition.

Importantly, the government recognition brings governments a lot of international legal benefits and that includes diplomatic immunity. This means the Taliban leaders can travel outside the country without the risk of getting arrested. The importance of being recognized for Taliban lies within some of the figures involved in their current interim government (ex. head of the Haqqani Network who’s in the new Interior Ministry) are wanted criminals in some parts of the world.

In fact, there are both for and against countries towards the new government in Afghanistan. For example, the Prime Minister of Canada (Justin Trudeau) has stated that Canada will not recognize the Islamic Emirate as the legitimate government of Afghanistan and that the Taliban would remain a banned organization in Canada; the Secretary of the United States of America (Antony Blinken) said in an interview that the United States will not recognize any government that harbors terrorist groups or does not uphold basic human rights. The same approach can be seen in the actions of most European countries. However, China, Saudi Arabia and Pakistan have already recognized the Taliban as a government and started diplomatic relations and economic cooperation with them.

Regarding the position of Uzbekistan, although Uzbekistan has not recognized the new Afghan government, it provided conditions for the recognition. More precisely, Ismatulla Irgashev (the special envoy of the President of Uzbekistan) named conditions for recognition of the Taliban government in Afghanistan during the “Moscow format” with the participation of representatives of the Taliban delegation. Ismatulla Irgashev named the following conditions for the recognition of the Taliban government:

  • the fulfillment of their obligations under the Doha Agreement;
  • the creation of a government in which all political sides of the Afghan society will be represented;
  • ensuring fundamental human and women’s rights;
  • preventing terrorists from using the territory of Afghanistan to threaten its neighbors.

II. Will the Taliban continue with the obligations of the Afghan government?

To answer the above-mentioned question, we need to rely on theory and practice (the statements made by the representatives of the Taliban government).

It is a fact that they are the “legal successor” of the former government. A successor state is a sovereign state over territory and populace that was previously under the sovereignty of another state.  For instance, when the USSR collapsed, Russian Federation was recognized as a successor of it. However, we cannot consider the Taliban as a successor state. Because the IRA is not replaced by another state. Only the government transformation occurred. Hence, we cannot qualify the government transformation as a “succession of a state”.

Alternatively, Afghanistan’s debt to neighboring countries for electricity has reached nearly $62 million. This was reported by Tolo News with reference to the Afghan Energy Corporation Da Afghanistan Breshna Sherkat (DABS). It is said that the energy corporation has requested $90 million from the UN Assistance Mission in Afghanistan to pay off the debts. If the mission refuses to help, there could be pressure on Afghans who do not pay for electricity. “If the debt is not paid, neighboring countries can gradually cut off electricity exports”, said Mr. Sherkat. “DABS must solve the problem immediately”, said Amanullah Ghalib, a former director of the energy corporation. As a result, they have declared that they had no choice other than to continue to pay electricity debt. It means all agreements stay in force between parties to the previous agreement.

III. How will the government transformation influence the treaties between Afghanistan and Uzbekistan?

The IRA signed a lot of treaties, including conventions, bilateral agreements, declarations and charters. Here arises a question: Which international document addresses the destiny of international treaties of “successor government”?

In fact, there is not any special international document that regulates problems happening after the transformation of governments. However, there is a convention that deals with the “succession of states”. As those two terms are similar, we can make an analogy of law. Hence, we primarily rely on the Vienna Convention on Succession of States in respect of Treaties which applies to the effects of a succession of States in respect of treaties between States. Pursuant to Section 3, Article 24 of the Convention, bilateral treaties after the succession of states will stay in force only when the successor states agree or “by reason of their conduct they are to be considered as having so agreed”. In other words, if the representatives of the successor state (here government of the IEA) declare their consent to the bilateral treaties between Afghanistan and Uzbekistan, then the obligations of former Afghanistan will move to Talibs. As a matter of fact, according to the statements of the representative, Talibs expressed their consent towards the formerly signed treaties between Afghanistan and Uzbekistan. For example, foreign ministers of Afghanistan and Uzbekistan signed five agreements on counter-narcotics, security cooperation, cooperation between foreign ministries of the two countries, creating a roadmap for cooperation between the two countries and on infrastructure in January 2017 or Afghanistan and Uzbekistan agreed to sign power transmission Agreement on 28th August 2020. Also, in November 2020, President Shavkat Mirziyoyev signed a decree “On measures to further expand and strengthen economic cooperation with the Islamic Republic of Afghanistan” whose primary goal is to accelerate the implementation of major projects for the construction of the Surkhan-Puli-Khumri transmission line (EUL). This agreement is still in force. Consequently, all treaties between Uzbekistan and Afghanistan stay in force, with both parties obeying them, using their rights and implementing their obligations under the bilateral treaties.

However, there is another problem: conventions will be binding only to the countries that ratified them. Otherwise, they cannot be recognized as legally binding documents. In fact, both Afghanistan and Uzbekistan are not on the list of ratified countries. But the provision in the above paragraphs can be implemented as customary international law in this case.

IV. Conclusion

In conclusion, although the Taliban government is not recognized by some countries, there are a number of conclusive reasons proving the new government of the IEA effective:

firstly, the new government is holding the state de facto;

secondly, the new government is controlling the state completely (the only power within the country);

thirdly, their statements about remaining international agreements in force;

finally, the Taliban government is officially recognized by several states and has been engaging in diplomatic relations with their governments.

Cite as:  Khushnazar Juraev “Will the Taliban respect treaties and other international obligations considered by the previous Afghan government?”, Uzbekistan Law Blog, 05.11.2021.