On August 15, 2021, the Taliban took over Kabul after a weeks long offensive against the Afghan government in which they seized control of key cities and provinces in the country. The elected President Ghani has since fled Afghanistan and the Taliban announced a new government on September 7. No State has yet recognised the Taliban as the government of Afghanistan. Some seem to be adopting a ‘wait and see’ approach as they are hesitant to be seen as the first country to legitimise the Taliban’s taking of power. Were the Taliban to consolidate their control and prove the sustainability of their rule, this may change. Other States meanwhile are conditioning recognition on respect for human rights, future political settlement, or assurances against terrorism.
This paper analyses the notion of recognition under international law. It discusses how modern State practice had largely discarded the recognition of governments as a custom until the civil war in Libya and that the criteria underscoring the decision to recognise or to not are vague, undefined, and inconsistent. As such, international law offers little by way of guidance for the largely political act which is the recognition of governments. Nevertheless, the notion remains an important one as it is one from which legal consequences flow, namely issues of classification of conflicts under international humanitarian law and liability under the law of state responsibility. Therefore, it is important that this concept is elucidated in order to aid in understanding the ways in which recognition of the Taliban as the government of Afghanistan would affect its foreign relations with the international community. This paper aims to shed some light on this uncertain and arbitrary area of the law.