While the Islamic Emirate of Afghanistan (IEA) maintains that it deserves full-scale recognition, it has not been given the country’s seat at the United Nations. In early December 2023, the UN General Assembly will again consider whether or not to allow the Islamic Emirate to take Afghanistan’s seat at the world body. The argument plays out in the context of a worldwide discussion about whether and how governments should deal with a regime that critics say denies women and girls almost every individual right, has a dire general human rights record and is narrowly based. AAN’s Thomas Ruttig has been analysing the impasse, noting the intra-Republic rivalry to also represent Afghanistan at the UN, and scrutinising UN procedures and considerations to try to make sense of it all.A view of delegates inside the General Assembly Hall during the first day of the 78th session of the
General Assembly held on 19 September 2023. Photo by UN Photo/Paulo Filgueiras
The Islamic Emirate of Afghanistan’s quest for diplomatic recognition
Since the Taleban returned to power in August 2021, the United Nations General Assembly (UNGA) has rebuffed the IEA’s attempts to take the country’s seat. However, diplomatic recognition, including by the UN, is perhaps the IEA’s foremost foreign policy goal. It figures prominently in many speeches and statements of its leaders. Most recently, the IEA’s designated UN representative, Muhammad Suhail Shaheen, accused the world organisation of acting “without neutrality in determining the seat of Afghanistan” and using the matter to put “pressure” on the Emirate (see ToloNews here). The IEA argues that it is the legitimate government of Afghanistan based on the claim that it has full territorial control, has ended the war and brought security to all Afghans.
Yet, so far, only China appears to have come closest to recognising the Emirate, if recognition is measured by an acceptance of the other’s ambassadors. This is in contrast to the Taleban’s first time in power, from 1996 to 2001. Back then, Pakistan, Saudi Arabia and the United Arab Emirates maintained diplomatic relations at the ambassador level until they eventually severed ties under US pressure after the 9/11 al-Qaida attacks.
The IEA seems more fully isolated diplomatically this time. A closer look, however, shows a more ambiguous picture. An overview of the IEA’s current diplomatic relations and interactions compiled by Aaron Y Zelin, a fellow at the Washington Institute for Near East Policy, in August 2022, concluded that it is actually “far less isolated today” than during the 1996-2001 period (see here).
When his piece was published, Zelin counted eight countries where Afghanistan’s diplomatic missions were under IEA control. By November 2023, IEA deputy foreign minister Sher Muhammad Abbas Stanakzai said this number had risen to “up to 20” (ToloNews here), including the Afghan embassy in Tehran (see ToloNews here) and the strategically important consulate-general in Istanbul (Pajhwok here). Turkey reportedly also accepted a new IEA-appointed diplomat in October 2023 at the Afghan embassy in Ankara (see Iran International here).
Zelin found 378 publicly announced meetings between representatives of the Taleban and diplomats from 35 other countries, mostly Middle Eastern states (35 per cent), but with China engaging “more often than any other [individual] country.” (See this AAN report by the author on China-Taleban relations.) The volley of diplomatic interactions has continued since Zelin’s August report, without interruption.
Even more importantly, a number of countries still have ambassadors officially posted to Afghanistan. They include China and other neighbouring countries such as Pakistan, Iran and most of the Central Asian republics, along with Russia, Saudi Arabia, Qatar, the United Arab Emirates and Japan. Indonesia, which was involved in mediation between the former government and the Taleban before 2021, reopened its embassy in Kabul in February 2022 and although its diplomats continue to work from Islamabad, it does have a charge d’affaires in Kabul (see Indonesia’s The National Kompas here). In July 2023, a Taleban delegation paid an “unofficial visit” to Jakarta (see VoA here). While some ambassadors seem to be based more or less permanently in Kabul, such as those of China, Iran and Russia, most others appear to be coming and going.
Western countries have not officially closed their embassies in Kabul nor have they officially broken off diplomatic relations. Rather, they do not maintain diplomatic personnel in the country, as was the case for many countries during the Soviet occupation of Afghanistan (1979-1989) when they either withdrew their staff from the country or downgraded relations to the chargé d’affaires level. Some countries still have non-Kabul-based acting ambassadors or more junior diplomats and there is also a (shrinking) number of special representatives for Afghanistan (ranked as ambassadors). Most Western engagement with IEA officials takes place in Qatar’s capital Doha with diplomats below ambassador level representing their countries in meetings.
The United Nations’ political mission (the UN Assistance Mission in Afghanistan, UNAMA) has been operating in Afghanistan without interruption since March 2002 (mandated by UNSC resolution 1401). Most recently, the UN Security Council (UNSC) has started deliberating the findings and recommendations of a recently completed independent assessment on Afghanistan carried out by senior Turkish diplomat Feridun Sinirlioğlu. His mandate from resolution 2679was to “provide forward-looking recommendations for an integrated and coherent approach among relevant political, humanitarian, and development actors.” The assessment, delivered on 28 November, proposed among other things, a conditions-based “roadmap” with the “end state” of “the reintegration of the State of Afghanistan into the international system.” (In April 2023, UN Secretary-General Antonio Guterres appointed senior Turkish diplomat, Feridun Sinirlioğlu, to conduct an independent assessment to “provide forward-looking recommendations for an integrated and coherent approach among relevant political, humanitarian, and development actors, within and outside of the United Nations system, in order to address the current challenges faced by Afghanistan,” as mandated by UNSC resolution 2679 (see Turkey’s Hurriyet Daily News here). Many are reading this goal to mean diplomatic recognition.
While all this activity is of a distinctively higher level than it was during the first emirate, at the UN itself, the firewall that has so far prevented the Emirate from taking Afghanistan’s UN seat is holding. The IEA believes the decision to deny it the seat – or more accurately, the lack of a decision to change the status quo – is keeping it from achieving international recognition, more generally, and is denying it access to, among other things, more extensive development aid and sanctions relief.
This report analyses the UN rules and procedures and aspects of international law that come to bear in the debate about Afghanistan’s UN seat. In this area, UN rules often seem arcane and opaque, so are worth unpicking. They allow ‘non-decisions’ and the absence of debate on the matter of the IEA’s claim to the seat, useful for maintaining the status quo without really having to talk about it publicly. The report will also show that the competition to occupy the seat is not only a two-horse race between the Taleban and the former government, but also a power struggle between the current acting representative, who inherited the seat after the Islamic Republic of Afghanistan-appointed envoy resigned, and other former officials of Republic, now in exile.
Rules and procedures at the UN
For the second time since the establishment of the IEA, on 16 December 2022 in the 55th plenary meeting of its 77thsession, the United Nations General Assembly deferred a decision on granting Afghanistan’s new rulers the country’s seat at the UN (see the Credentials Committee’s 12 December report A/77/600), UNGA resolution A/RES/77/239 and the transcript of the 16 December 2022 55th plenary meeting A/77/PV.55).
Importantly, while the UNGA deferred the decision on the Emirate’s request to take over Afghanistan’s seat, it also did not explicitly reject the request (more on the committee’s reasons for this deferral below). At the same time, as well, it did not explicitly stipulate that the previously-credentialled representative should remain in place. However, as Rebecca Barber wrote, in a paper published in the International and Comparative Law Quarterly, “based on the Assembly’s practice and procedural rules there was little doubt that this was to be the case.” This standstill over who should rightfully represent the country has resulted in the continuation of the status quo, leaving a relatively junior diplomat, who has not been formally appointed by any government, occupying the country’s seat.
If earlier decisions are an indication, UNGA should consider the matter for a third time in early December 2023 and take a decision by adopting a resolution (see last year’s here) proposed in the UN Credentials Committee report. Every year, this body of nine annually changing members checks the credentials of member-states’ representatives and, based on the documents it has received, takes note of who has been put forward to be credentialled for that year’s upcoming UN General Assembly.
The credentials are usually straightforward procedural matters, except in unusual cases such as Afghanistan under the IEA. (Other current controversial cases are Myanmar, Libya and, somewhat differently, Venezuela.) Whether the Committee does anything more than just pass on information to the UNGA is debated. Barber argues that: “This delineation of the credentials process as being only about the procedural requirements of representation at the UN, and not about the recognition of the status of governments more broadly, was articulated in a 1970 memorandum by the UN Legal Counsel. That memorandum described the examination of credentials as a ‘procedural matter’, limited to assessing compliance with the Assembly’s procedural rules, and not involving questions of ‘recognition’ or ‘substantive issues concerning the status of governments’.”
However, in 1996, the Committee’s report, which includes the Legal Counsel’s opinion on Afghanistan, provides a fuller record of proceedings and shows just how active the ‘non-decision’ on Afghan representation at that time was: it followed a debate about what to do between the Committee members. Moreover, judging by its membership, this committee is powerful – in a committee where the General Assembly appoints the members yearly, China, Russia and the United States have been members every year since 1947. That fact and the opacity with which it works do not give the appearance of a mere rubber-stamping body (see also Euronews reporting here).
Neither the committee nor the UNGA have a debate or hold a formal vote on credentials, even for controversial cases. The General Assembly always adopts, by acclamation, the Credential Committee’s report with a short resolution. The decision is valid for one annual session of the UNGA (September to September). What can be said is that the procedures allow for controversial questions of recognition to be deferred without public discussion or even a decision to do something having to be made.
Interestingly, another important multilateral institution, the International Criminal Court (ICC) in The Hague, sought clarification from the UN about who represented Afghanistan in the context of its Afghanistan investigation. In October 2021, it sent letters to the UN Secretary-General and the ICC Bureau of the Assembly of States Parties (ie, the ICC member-states) for “information on the identification of the authorities currently representing the Islamic Republic of Afghanistan by Monday 8 November 2021” (author’s emphasis). The letter showed that, as Ehsan Qaane wrote in a 2021 report for AAN Delaying Justice? The ICC’s war crimes investigation in limbo over who represents Afghanistan, the ICC judges “are not convinced that the diplomats appointed by the former regime can truly represent Afghanistan before the court. However, they themselves cannot contact the Taleban authorities directly, as that would imply recognition.” In this letter, the judges reasoned that “they believe the decision of who represents a state is of a “political nature” and a matter of “constitutional and international law,” beyond their mandate. The responses to the ICC’s query, wrote Qaane, offered no further clarification on the issue:
The two institutions did respond, but were of little help. The Bureau of the ICC Assembly of States Parties said, on 26 October 2021, that “due to its nature and functions, it [the Bureau] does not hold the type of information that is requested.” The UN Secretary General, meanwhile, told the judges on 18 October 2021, that the decision of government recognition was not his to make, but was “a matter for individual Member States.”
How was the last decision on Afghanistan’s UN seat taken?
The committee’s relative obscurity allows it to be opaque. Indeed, International Crisis Group’s UN Director Richard Gowan described it to the Associated Press as one of the “least transparent U.N. bodies” (see here), adding that “the fact that it isn’t transparent allows it to fudge certain decisions and kick hard decisions down the road.”
Its most recent recommendation on Afghanistan, which was adopted by the UNGA on 16 December 2022 and was valid for UNGA’s 77th session from 13 September 2022 to 5 September 2023, reads:
The Chair proposed that the Committee postpone its consideration of the credentials pertaining to … the representatives of Afghanistan … to the seventy-seventh session of the General Assembly, and to revert to consideration of these credentials at a future time in the seventy-seventh session. The proposal was adopted without a vote.
Given that the Credentials Committee usually meets three times a year, in March, June and September, its recommendation on Afghanistan’s seat for the current 78th UNGA should have already been taken, but will not be made public before the UNGA makes it official by adopting the Credentials Committee report.
The case of Afghanistan: competing requests
According to the UN’s rules of procedure for credentials, a head of state or foreign minister must submit credentials for their representatives at least one week before the opening of the UN General Assembly. In Afghanistan’s case, the Credentials Committee has a problem, as it received in both 2021 and 2022 (the committee’s 2023 recommendation is not yet publicly available) what it described in similar wording in both its reports as “two communications concerning the representation of Afghanistan … indicating different individuals as representatives.”
In 2021, it had one letter dated 14 September 2021 from the Permanent Representative of Afghanistan to the United Nations in New York and “another dated 20 September 2021 from Afghanistan’s Ministry of Foreign Affairs” (see here). In 2022, the first letter, dated 6 September 2022, came from Afghanistan’s Chargé d’affaires ad interim to the United Nations in New York, followed by a second one, on 17 September 2022 from “the Ministry of Foreign Affairs of Afghanistan” (see here).
At first glance, the Credentials Committee left the matter of who exactly sent both communications unclear (see here). In both years, the first letter obviously came – as is usual – through Afghanistan’s permanent mission in New York and should represent the credentials submitted by the Islamic Republic of Afghanistan. The Islamic Republic of Afghanistan (IRoA) continues to be registered on the UN’s list of “Official Names of the United Nations Membership” (here) and its protocol list (here). The country is simply recorded as Afghanistan on the list of member states, but with the pre-1978 and Republic-era green, black and red flag still shown (here).
Although not spelled out, it seems the second communications were from the Islamic Emirate of Afghanistan’s foreign ministry. Indeed, IEA foreign minister Amir Khan Muttaqi did send a letter to UN Secretary-General Antonio Guterres in September 2021, nominating the Emirate’s Doha-based spokesman Suhail Shaheen as their permanent representative and asking for credentials for him. A UN spokesman confirmed that Muttaqi’s letter was received and forwarded to the Credentials Committee (see Reuters here). The Credential Committee references the letter in its 1 December 2021 report (see here):
The Committee had before it two communications concerning the representation of Afghanistan at the seventy-sixth session of the General Assembly, indicating different individuals as representatives to the seventy-sixth session of the Assembly. The first was dated 14 September 2021 from the Permanent Representative of Afghanistan to the United Nations in New York. The second communication was dated 20 September 2021 from the Ministry of Foreign Affairs of Afghanistan.
The Chair proposed that the Committee defer its decision on the credentials pertaining to … the representatives of Afghanistan to the seventy-sixth session of the General Assembly. The proposal was adopted without a vote.
The result is a diplomatic oddity, a junior diplomat appointed by a government that no longer exists currently occupying Afghanistan’s seat at the UN. Naseer Ahmad Faiq has declared that he no longer represents the old government, which has never officially abdicated, and that he does not represent the Islamic Emirate of Afghanistan either, but only the “oppressed groups in Afghanistan” (comment made to media – full quote below).
Faiq assumed the helm at Afghanistan’s Permanent Mission in New York after the country’s permanent representative, veteran diplomat Ghulam Mohammad Isaczai (also spelled Ishaqzai) resigned in December 2021. Faiq’s new role was made public “in an official tweet” by Afghanistan’s Permanent Mission to the UN on 16 December 2021, without mentioning who had appointed him (see Ariana news here). The letter to the UN – if there was indeed a letter – naming him heading Afghanistan’s mission to the UN has not been publicly released.
Isaczai had notified the UN of his resignation on 16 December 2021, according to a UN spokesman (see AP report here). He had been scheduled to address the final day of the UNGA high-level meeting on 27 September 2021 (six weeks after the fall of the Islamic Republic), but he later withdrew the request to speak (see the German news website RedaktionsNetzwerk Deutschland (RND) here).
There was speculation in the media about the reason behind the resignation. The Associated Press said he had resigned “after the country’s current Taliban rulers sought to replace him with their own envoy” (see here). Foreign Policy quoted one Afghan diplomat saying he had resigned because he thought there was no government in Afghanistan for him to represent at the UN and two other diplomats saying he expected to be appointed to a senior UN post in Ethiopia.
After the credentials committee’s decision to defer any action in 2021, the chair, Sweden’s UN Ambassador Anna Karin Enestrom, declined to respond to questions from journalists about whether the current ambassador for Afghanistan still represented his country (see Reuters here).
Further controversy about the country’s permanent representation in New York played out in early 2022, before the UN credentials committee’s most recent (non-)decision. On 9 February, reports emerged in the Afghan media that the mission had announced the appointment of Muhammad Wali Naeemi as Afghanistan’s Permanent Representative and Chargé d’affaires to the UN, replacing Faiq (ToloNews here and Khaama Press here).
The statement said that Naeemi, who had been deputy permanent representative under Isaczai, had not been able to assume his post earlier for health reasons, but “considering that Naeemi as the deputy representative has recovered, and based on the UN’s standards that after the ambassador and the permanent representative his deputy will take over responsibilities, Naeemi has taken the responsibilities as Chargé d’affaires from 4th February 2022” (quotes from the ToloNews report).
The last of the Republic’s foreign ministers – who has maintained that he still holds this position – Muhammad Hanif Atmar, also sent a letter to the UN communicating Naeemi’s appointment. Faiq, however, continues to hold himself to be Afghanistan’s representative and posted a copy of the letter on X (formerly Twitter) here. The media also reported on 8 February 2022 that Faiq had accused “corrupt individuals and traitors from the former corrupt government” of having staged “evil plots and conspiracies” against him, following a statement he made at a UNSC meeting discussing the situation in Afghanistan on 26 January 2022. In that statement, he had also announced that he was “not representing the former corrupt government” and demanded “the confiscation and freezing of Afghanistan’s assets illegally transferred to [bank] accounts of the former corrupt government officials” (see the text of his statement here). Later, he claimed that after that speech, he had “received a call from one of the top Taliban leaders asking him to represent them at the UN” but had declined (see the UAE’s English-language daily The National here). Indeed, in a series of interviews in 2023, Faiq underscored that he was not the Emirate’s representative either. For example, he told the Turkish Anadolu news agency: “We are not in contact with the Taliban. We are not representing the Taliban. We are the only voice of the oppressed groups in Afghanistan” (see here).
The UN did not act on Atmar’s letter. Instead, it deleted the names of Ashraf Ghani as Afghanistan’s head of state and Atmar as foreign minister from its official protocol list, leaving their places blank but retaining the Islamic Republic of Afghanistan as the country’s official designation. ToloNews first reported this on 22 February 2022, saying that the updated list had been published on 15 February (see ToloNews here and the current UN Protocol and Liaison Service list, as of 6 November 2023, here).
Although these approaches have further obfuscated Afghanistan’s place at the UN, it seems that the decision has simply been left open and not taken in favour of any of the two Afghan contenders for the seat, leaving Faiq as Afghanistan’s default representative to the world body, only because no decision has been made to choose someone else. The most recent list of UN member states heads of mission (as of 1 November 2023) continues to list Faiq as Afghanistan’s representative (see here). For the third year running, however, Faiq did not make a statement in Afghanistan’s name at the 2023 General Assembly, due, reported AP, to “the credentialing dispute.”
Faiq can, nevertheless, still attend UN meetings as Afghanistan’s representative in the current General Assembly (see here). He also attended and spoke at the 26 September 2023 UNSC meeting, where the Secretary-General’s Special Representative for Afghanistan, former Kyrghyz president Roza Otunbayeva, briefed the council on the situation in Afghanistan (see here). Most recently, on 1 November 2023, he spoke at the UNGA’s Third Committee, discussing the report of the United Nations High Commissioner for Refugees (see his post on X here) and on 5 October during the discussion on the advancement of rights of women and girls (here). Faiq unsuccessfully put Afghanistan forward as a candidate for the UN Human Rights Council in October 2022 (see his post on X here) and voted in favour of a UN resolution that condemned Russia’s war on Ukraine, which Afghanistan had reportedly co-sponsored in March 2022 (see his post on X here).
Faiq’s 2022 request to be re-accredited has a further weakness. After the controversy over Atmar’s letter and Faiq’s distancing himself from the former government, it is very likely that his letter did not carry Atmar’s signature and, therefore, did not fulfil the UN requirement that such a request must come from a foreign minister. However, this appears to have had no influence on the Credential Committee’s stance.
The Emirate’s position
International diplomatic recognition is a major foreign policy goal for the Islamic Emirate. It has repeatedly called on governments to establish full diplomatic relations, although so far, to little avail. It hailed the acceptance by the People’s Republic of China of the credentials of its ambassador on 1 December 2023 as an “important chapter” (see VoA here): it was the first time a country had formally done so and followed another first for China, in September 2023, the appointment of a new ambassador to Kabul. This was a sign, the BBC reported the Emirate as saying, for other nations to establish ties with its government. However, in reality, the number of countries with embassies and some even with ambassadors in Kabul as well as the number of countries which have allowed the IEA to either take over their embassies/consular offices or post an Emirate official at Afghanistan’s diplomatic missions is relatively few. And none have, so far, fully recognised the regime.
The stated obstacles have remained consistent. Immediately after the Taleban took power, Russia’s Foreign Minister Sergey Lavrov, for example, made full recognition dependent on, among other things, the Taleban’s willingness to form an “inclusive government” (see Russian foreign ministry’s press release here). This position was repeated during the September 2023 meeting of the Russia-hosted Moscow Format consultations on Afghanistan, which was also attended by the five Central Asian Republics, China, India, Iran and Pakistan. Participants at the meeting repeated their demand for the establishment of “a balanced, broad-based, inclusive, accountable and responsible government in Afghanistan.” While they made no explicit reference to recognition, they did, however, express “their interest for expanding engagement with the current Afghan authorities in the areas of culture, sport and education” (author’s emphasis; see the meeting’s final declaration here).
Yet the IEA has repeatedly insisted that it has the right to Afghanistan’s seat at the UN as it controls all of Afghanistan.Mutaqqi’s 2021 letter requesting the UN to accept the Emirate, according to UN spokesperson, Farhan Haq, argued that former president Ashraf Ghani had been removed and was no longer recognised as the country’s head of state and that the mission of the Republic-appointed representative “is considered over and that he no longer represents Afghanistan”(see German news site Web.de here).
The IEA also criticised the UN General Assembly’s 6 December 2021 decision to continue acknowledging Ghulam Mohammad Isaczai as Afghanistan’s permanent representative to the United Nations (see Ariana news here), calling it “unfair.” Abdul Qahar Balkhi, the IEA foreign ministry’s spokesman, tweeted: “The new Afghan government, as an accountable authority with sovereignty over entire Afghanistan (sic), which has ensured security for all Afghans, has a legitimate right to represent the Afghan people in the UN” (see ToloNews here). “Giving Afghanistan’s seat to Ishaqzai, who has no working relation with Kabul and no authority over any part of Afghan territory is deemed a blatant denial of the Afghan people’s legitimate right,” ToloNews reported Balkhi as saying.
During the Faiq/Naeemi controversy, Inamullah Samangani, the Emirate’s deputy spokesperson, said “the only solution is that Afghanistan’s chair at the UN is given to the current government of Afghanistan” (see Pakistan-based The Frontier Post here). In March 2023, the Emirate again raised its claim (see Pajhwok news here) for its ambassador-designate, Suhail Shaheen, to take over Afghanistan’s permanent mission in New York. “It is our right to be represented at the United Nations,” the Emirate’s spokesperson Zabiullah Mujahid told ToloNews (see here).
From the Emirate’s point of view, the opaqueness with which the Credentials Committee operates, the lack of debate in the General Assembly and the non-decisions make it impossible to find purchase to argue its case.
What does international law say?
International law distinguishes between the recognition of states and the recognition of governments. In general, states recognise other states, rather than governments. There is no “formalised procedure and, in particular, no international body” (and certainly not the UN) that determines “whether a state exists or whether a government is authorized to act on behalf of a state,” as a 2020 memo by the Academic Services of the German Bundestag (parliament) looking at the legal framework for a decision on Taleban recognition made clear (see here). This means that individual “state practice and customary international law resulting from it” are used by each state to decide questions of recognition. The memo stresses that there are “discrepancies” in the practice of various states.
Under normal circumstances, ie in times of peace and constitutional order, “state identity is not affected by the change of its government,” write Federica Paddeu and Niko Pavlopoulos in a piece published on the Just Security website (see here). In other words, states tend to continue diplomatic relations with an incoming government without issuing a formal expression of recognition
Since World War II, most states have narrowly focussed on a new government’s effective control of territory and have thus avoided complex political pronouncements about legitimacy. Switzerland, for example, enshrines neutrality as a core virtue of its foreign policy and adheres to “the principles of universality (the principle that wherever possible, Switzerland maintains diplomatic relations with all states) and of effectiveness (the requirement that the state to be recognized must have undoubted sovereignty),” as laid out in a legal memo published by its Federal Department of Foreign Affairs (last updated in April 2023 see here). The memo adds:
For the sake of the certainty of international law, Switzerland as a general principle refrains from setting additional conditions for recognition.
The only precondition for the recognition of a government under international law is its effective exercise of sovereign power (first and foremost, control of a substantial part of the territory and of the apparatus of administration).
If a state maintains normal diplomatic relations with a new government, this is merely a declaration that the new government is effective, not that it is legitimate [author’s emphasis].
Such an approach by any state may be rooted in the consideration that debates about legitimacy are complex and may not be politically expedient – whether disputatious, contrary to trade or other state interests or simply time-consuming.
However, sometimes concerns about legitimacy outweigh the principle of effective control and then states can be forced to consider questions of the legitimacy of the new government and whether to recognise it. For example, as the Bundestag paper highlights, this can happen when there has been “a change in the form of government by a change of the form of the state or due to an unconstitutional or otherwise irregular transfer of sovereign power within the state” such as “civil war, military coups [or] disputed election results.”
In Afghanistan’s case, statehood is uncontroversial, as is the IEA’s effective control of territory. What is controversial is whether the Emirate is a legitimate government. In August 2021, Afghanistan’s form of state changed from an Islamic Republic to an Islamic Emirate, and not by peaceful means. It would appear, therefore, that UN member-states have considered the new regime’s legitimacy and, as a result, have refrained from recognising the IEA and re-establishing full diplomatic relations. Most have either not sent any diplomats, or only lower-ranking ones, and only a few an ambassador to Kabul. Also, in most cases, they have not received IEA diplomats. Many still seem to recognise the Islamic Republic of Afghanistan or at least allow diplomats appointed by it to continue their work.
The legitimacy question also plays out between the various Afghan political forces, all of whom interpret the issue of Afghanistan’s seat in New York as ‘recognition by the UN’. The Taleban, for their part, have always insisted on the continuity of the Emirate, and the 20 years of the Islamic Republic of Afghanistan as an interregnum; they have never recognised the Republic as Afghanistan’s legitimate government, describing it as a puppet of foreign forces. They are unswerving in their demands for recognition “by the UN,” as the UN’s envoy to Afghanistan, Roza Otunbayeva, pointed out in her comments to the Security Council in July 2023.
It is worth noting, however, that the United Nations is neither a state nor a government and does not have the right to ‘recognise’ a government (see UN website here).
The UN’s practice in the Credentials Committee should turn on this same question of legitimacy, particularly regarding upholding the UN Charter, although by not discussing the matter publicly or making an active decision on who gets the Afghan seat, neither the Committee nor UNGA are actually grappling with the issue of legitimacy. Otunbayeva used the language of recognition – in her UNSC comments in July: “The Taliban ask to be recognized by the United Nations and its members, but at the same time they act against the key values expressed in the United Nations Charter” (see the full transcript of her statement here). The Emirate took issue with her claims that its governance structures were “highly exclusionary, Pashtun-centred and repressive,” calling her assessment “baseless and biased” (see ToloNews here).
On balance, and based on the body of UN resolutions and repeated calls by member states for an inclusive government and respect for human rights, especially those of women and girls, it could be surmised that it is because states do not consider the Emirate legitimate that they have rebuffed its attempts to be recognised and admitted to the United Nations. However, this has never been publicly discussed or debated by either the Credentials Committee or the UNGA, so it is just surmise.
Importantly, while sending or keeping ambassadors in Kabul, as China, Russia, Iran and some other countries have done, could be seen as de-facto recognition of the IEA, this or indeed even establishing full diplomatic ties with the Emirate would still not constitute de-jure recognition and would not imply that the country in question considers the Emirate to be legitimate.
Still, even partial diplomatic relations, such as existing lower-level diplomatic contacts, without the full gamut of diplomatic relations, are highly controversial and have drawn sharp criticism among the general public outside of Afghanistan and among some in the Afghan diaspora. Such pressure is another factor that governments need to take into account when deciding to recognise another government. In the eyes of many who are not well-versed in the intricacies of international law, recognition might imply legitimacy.
The Swiss legal memo also mentioned ‘special cases’, particularly after a coup or civil war, where “a legitimate government loses all or part of its power over the state and even flees abroad, becoming a government in exile.” In these instances, the memo says, “the former government sometimes continues to be recognized as the legitimate government (the de jure government) even if it has lost effective control of the state – at least temporarily – and this control is being exercised on the ground by a new, different government (the de facto government).”
One recent example is Yemen. There, the Houthis took effective control over large swathes of the country, yet the former government, in exile in Saudi Arabia, continues to be recognised by many states (see Reuters here). The Houthi government is even subject to a range of sanctions by the UN Security Council, including asset freeze, travel ban and arms embargo (see UNSC here and here), not unlike the current IEA.
In Afghanistan, a similar situation emerged in 1996 after the Taleban had toppled the government in Kabul, which called itself the Islamic State of Afghanistan (ISA). After extensive deliberations, the committee decided to “defer any decision on the credentials of the representatives of Afghanistan until a later meeting.” In other words, the ISA (headed by the late Burhanuddin Rabbani, himself president by dubious means) was allowed to continue to occupy Afghanistan’s seat at the UN, even as its territorial control shrank to the full control of only one province. In 1996, the Taleban also nominated their representative, who was not credentialed (see the Credential Committee’s 23 October 1996 report A/51/548).
During the Soviet occupation (1979-89), Afghanistan’s governments were not considered legitimate by most UN member-states. At the time, significant majorities in the UNGA supported resolutions condemning the Soviet occupation. While many countries withdrew their ambassadors or closed their embassies in Kabul, most did not completely break off relations, and the governments of the time were able to retain the country’s seat at the UN. This is another example of how many states do not consider legitimacy to be the prime argument when it comes to diplomatic recognition of other governments.
In the current situation, Afghanistan’s former government (or president) never formally abdicated. Ashraf Ghani and other politicians have repeatedly made statements from abroad, using the Republic’s black, red and green flag as a backdrop, sometimes still claiming to represent the Islamic Republic (see for example, Ghani in this late August 2021 Khaama Press report or former foreign minister Atmar’s bio on X, where he still calls himself “Foreign Minister of the Islamic Republic of Afghanistan”). At the same time, the former government is bitterly disunited and has not declared itself a government-in-exile, with one small exception: the former first vice-president, Amrullah Saleh, who, in the immediate aftermath of the Taleban takeover, claimed on 17 August 2021 that he was still the legitimate head of state because he, unlike Ghani, was still on Afghan soil (see his post on X, here). In September 2021, the Afghan embassy in Switzerland announced that Saleh would be leading a government-in-exile (see Khaama Press here). Saleh is no longer in Afghanistan and, at any rate, does not seem to have broad support among his former government colleagues. The existence of a government-in-exile, led by Saleh or any other person, has never been publicly mentioned again.
The absence of continuity, consensus and, at the very least, some degree of cohesion among the Republic-era political elite, as well as the gap left after the collapse of the old regime, could prove a hurdle to widespread recognition of any Afghan ‘Republican’ government-in-exile that ever did come into existence.
The matter of who represents Afghanistan at the UN remains unresolved and the country’s seat continues to be held by a diplomat from the government toppled by the Taleban, but not appointed by it. While the UN has been using a procedural ruse to withhold the seat from the Islamic Emirate, its de facto authorities continue to assert their right to occupy it.
If state practice is that states usually recognise other states, but not governments, that effective control of a country by the government is considered the main (if not only) criteria for recognition and that even diplomatic recognition does not imply legitimacy, then why do UN member-states not just go ahead and give the green light to the UN General Assembly to hand over Afghanistan’s UN seat to the Emirate?
In reality, the situation is more complicated. Legitimacy has emerged as a criterion in state practice for the recognition of governments, at least in a few cases where power is taken by force and human rights violations of entire social groups are at play, as the open decisions on Myanmar’s and Afghanistan’s seats show (with the collective denial of citizenship to the Rohingya ethnic group and the forced displacement into neighbouring countries of two-thirds of them in the former and the systematic denial of almost all rights to the entire female population in the latter). The acceptance and implementation of obligations under the UN Charter and other international conventions should be, according to UNGA resolution 396 of 1950, of central importance for UN member states. In Afghanistan’s case, one of the founding principles of the UN, “faith … in the equal rights of men and women” – is of particular significance.
In a situation where no UN member-state, including those who have more active diplomatic interactions with the Islamic Emirate of Afghanistan, such as China and Russia, seems to have plans to upgrade their prevailing partial to full diplomatic relations, the UN Credentials Committee will likely maintain its previous course over the question of who should occupy Afghanistan’s UN seat and, as it has done since 2021, defer the decision for another year. Up to now, all other member-states, including Russia, China and other countries in the region continue to point to the need for substantial changes in Taleban policies on women’s rights and the formation of an ‘inclusive government’ as a precondition for full diplomatic recognition and have supported UN resolutions to this avail.
There is, however, no sign from the Emirate’s leadership that they are willing to oblige these demands. Restoring full relations in the absence of any movement from the Emirate on these demands would imply that previous concerns over legitimacy no longer exist. It would mean that the current, curious situation will continue, and Afghanistan will have a representative occupying its seat at the UN who claims not to represent either the current or previous government, but to speak for the country’s people.
What might change matters is the Special Coordinator Sinirlioğlu’s independent assessment and the Security Council’s response to it. It might be possible for UN member-states to offer some goodwill gesture, in an attempt to break the deadlock, but giving Afghanistan’s seat to it now would be premature and meet strong international opposition. Public opinion in donor countries, many in the Afghan diaspora and those critical of IEA policies inside the country would be aghast at such a step under the current circumstances.
Slow and cumbersome procedures at the UNGA and its Credential Committee give member-states another year to deliberate and discuss the independent assessment report and establish mechanisms to implement whatever they decide is the right path forward. Such an approach also gives the Emirate’s leadership time to consider whether it wants to shift on what appear to be the preconditions (even if the UN does not call them that) for recognition and for gaining the UN seat. These seem pretty clear: a major one is that the IEA starts, as its critics would see it, interacting more positively with the Afghan population, civil society and non-Taleban political actors and to amend its policies on women and girls in particular.
It is also possible to foresee the Credentials Committee and the General Assembly continuing to delay, defer and take non-decisions, leaving the situation to drift and an exasperated Emirate’s quest for recognition frustrated.
Edited by Roxanna Shapour, Jelena Bjelica and Rachel Reid
This article was last updated on 7 Dec 2023