“We are what we pretend to be, so we must be careful about what we pretend to be.”
— Kurt Vonnegut, Mother Night
Arunava Banerjee
On the 16th of October, the Taliban concluded its eight-day visit to India. This visit held amidst a myriad of controversies surrounding how the Taliban officials addressed Indian press, from the former Embassy of Afghanistan based in New Delhi and the barring of female journalists from this briefing. Yet, beneath this cacophony lies a quieter question; one that neither the outrage nor, the official restraint chooses to confront: what, in terms of international law, does such a visit amount to?
For New Delhi, this was merely a people-centric engagement. International law, however, is less indulgent towards such semantic gymnastics. Recognition, in international law, is as much a question of conduct as it is of formal declarations. Therefore, this post explores two questions: first, whether India’s engagement with the Taliban tantamounts to a tacit recognition of them as Afghanistan’s government in international law and second, whether performative denial indicates a broader erosion of state recognition as a doctrine in international law.
Can Recognition Be Denied While Simultaneously Performed?
Traditionally, international law shows no patience for semantic evasions surrounding recognition. Oppenheim observed that recognition “may be either express or tacit,” and tacit recognition arises when a State can only justify its conduct through the assumption that the other party is a government (pp. 146, 169). Judicial practice on recognition echoes the same as evidenced in the Tinoco Arbitration (1923) where Chief Justice Taft inferred that non-recognition is not a veil, for it can be pierced, when a state in its action assumes a government’s de facto authority (pp. 381–382). Likewise, in Arantzazu Mendi, the House of Lords held that recognition is inferred from the conduct of the sovereign state and the court must follow the sovereign’s conduct. In this case, it was the British Crown’s conduct of recognising the de-fact authority of the Nationalist Government in Spain which was in question.
Recent scholarship on recognition refines this logic. Hayyar observes a rising wedge between identification and recognition. For Hayyar, not every interaction culminates to recognition as he argues that some interactions result in identification; a bureaucratic acknowledgement that a certain entity controls a territory. Recognition, by contrast, culminates when state conduct gets validated through diplomatic practice-escorts, immunities or access to the embassy premises. India insists to be operating at the level of identification. Nonetheless, in its performative diplomacy of hosting Taliban officials, it has by conduct granted them the diplomatic courtesies that signifies the latter.
Can Commitments Be Made Without Consequence?
Rahimi and Hazim observe that recognition in practice has become more normative than descriptive. For them, it is no longer premised on acknowledgment of control but on behavioural threshold models that guarantee and shape the state conduct surrounding issues of human rights, women’s rights (including but not limited too access to education) or around endorsement to counter-terrorism operations. Therefore, ensuring that formal recognition is withheld till certain criterions is met.
India, by contrast, not only opened the doors for tacit recognition but also did so without any behavioural conditions. India’s diplomatic practice-joint statement about counter terrorism, humanitarian aid and the reopening of the Indian embassy in Kabul, though were framed as political gestures were nonetheless gestures with legal ramifications under international law. Even the International Court of Justice (ICJ) has attributed to such a legal ramification arising out of political gestures in its judgements. In Nuclear Tests (ICJ, 1974), it held that the press statements by the French officials (no more formal than New Delhi’s political gestures) created binding obligations due to them being authoritative, public, and were intended to be relied on (paras. 43-51).
Nonetheless, recent journalistic commentaries insist otherwise and dismisses the questions of international law. This is evidenced by a recent commentary that claimed that “engaging with the Taliban does not violate any norms of international law… the Vienna Conventions… are functional documents… [and] they do not classify when a state can or cannot formally recognise a government.” Such a statement distorts the doctrine of state recognition. However, what such a commentary fails to understand is that the Vienna Convention on Diplomatic Relations is indeed “functional” codification that indicates what state behavior should be while governing said behaviours. Therefore, when it highlights particular diplomatic practices, it indicates what and how sovereign conduct resembles recognition. What is worse, as per this author, is that such a commentary makes recognition as purely Morganthau-esque endeavour, by only choosing to see the politics while stripping the legal consequences. Unfortunately, this is not a clarification but an erosion of international law norms being normalised through semantic evasions.
Moreover, this leads to a larger question around complicity and the possibility of state responsibility arising out of these present engagements with the Taliban. Under Article 41 of the Articles on State Responsibility for Internationally Wrongful Acts, states have an obligation to not recognise a situation which creates “a serious breach” of peremptory norms (jus cogens), and not to render any “aid or assistance” in maintaining that situation. Therefore, the argument that the Taliban’s practice of systematic exclusion of women from education, employment, and public life constitutes gender apartheid, finds standing in the ICJ, then such a diplomatic engagement becomes material support to an illegal regime and its consequent actions. At that stage that this were to occur, the debate would no longer be about the act of recognition, but about if India, even inadvertently, aided in upholding a practice that international law deems unlawful; thereby, fundamentally assisting in the erosion of international law norms.
Can International Law Endure Perpetual Evasion?
India’s stance indicates a broader shift and an evasion in obligation on how recognition gets performed. Russia remains as one of the few countries to formally recognize the Taliban, with most other states reluctant to extend similar recognition. Pakistan and China have taken a more passive route than outright acceptance through only exchanging ambassadors and deepening trade relations. Norway, like India, hosted the Taliban while insisting they were not formally recognising them. The European Union and the United Nations continue to meet them under the euphemism of technical talks. Therefore, in each case, recognition continues to be performed but never declared.
Hayyar highlighted this shift as the foyer of law without being granted admission into its main hall. However, for this author, if the guest occupies the foyer indefinitely, it means they are no longer waiting rather they have now moved in. Therefore, when a state performs diplomacy at a particular threshold, the pretence of the door being closed remains untenable. Thus, it becomes the law being performed in denial while ensuring entry through every other means.
International law can accommodate pragmatism but is should not be subject to constant circumvention. While recognition in practice has seen a shift to being performed through formal proclamations to tacit conduct, it still continues to hold primacy under international law. International law thus continues to be direct regarding the consequences of such a conduct. If recognition is continued to be practiced in denial, then it will eventually erode. Therefore, the question extends beyond whether India has recognised the Taliban through their conduct, to how long international law can sustain the semantic fiction of ignoring this present reality before the norm inevitably collapses.
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