Following the so-called Doha Agreement,^[1] in April 2021 the final phase of the withdrawal of the United States (US) Army and all North Atlantic Treaty Organization forces on Afghan territory began. In May 2021, the Taliban launched their offensive, conquering in a rapid succession most capitals of the country’s provinces. The peak of the Taliban military attack occurred on 15 August 2021, the day of the conquest of Kabul. The subsequent escape of the President of Afghanistan, Mr. Ashraf Ghani, to the United Arab Emirates marked the capitulation of the Armed Forces of Afghanistan, the end of the Islamic Republic of Afghanistan, which had been established in 2004, and the restoration of the Islamic Emirate of Afghanistan by the Taliban.

These facts raised the issue of the recognition of the Taliban Government by the international community. Already on 17 August, the High Representative of the European Union (EU) for Foreign Affairs and Security Policy, Mr. Josep Borrell, after an emergency meeting of EU Foreign Ministers on the latest events in Afghanistan, declared: “[t]he Taliban have won the war, so we will have to talk with them; it’s not a matter of official recognition. It’s a matter of dealing with”.^[2] Some States, such as Canada and the United Kingdom, followed suit,^[3] whereas the US Secretary of State, Mr. Antony Blinken, affirmed: “[a] future Afghan government that upholds the basic rights of its people and that doesn’t harbor terrorists is a government we can work with and recognize”.^[4] China and Russia, on their part, expressed their hope for possible future friendly relations with the Taliban Government.^[5]

As for Italy, the leader of a party of the governing coalition, Mr. Giuseppe Conte, soon after the fall of Kabul, proposed to establish a “close and constant” dialogue with the Taliban, so that “the work of twenty years would not been completely destroyed”.^[6] The Italian Prime Minister, Mr. Mario Draghi, and the Italian Minister of Foreign Affairs and International Cooperation, Mr. Luigi Di Maio, who initially distanced themselves from this line of reasoning, later came to agree with that policy.

On 24 August 2021, on the occasion of a hearing before the Committees on Foreign Affairs, Emigration (3rd) and on Defense (4th) of the Senate of the Republic jointly with the Committees Foreign and European Community Affairs (III) and on Defense (IV) of the Chamber of Deputies (8th Meeting), the Minister of Foreign Affairs stated:

If you ask me about the diplomatic presence in Kabul, this is an issue that we will have to discuss with all Western partners, […] these are decisions that we all must take together for one simple reason: they relate to recognition and the posture that we will want to take as Western Countries with respect to the Taliban regime.^[7]

Only a few days later, the Minister’s opinion seemed already more clearly defined. On 4 September, interviewed at a festival of a national newspaper, the Minister expressed doubts about a possible recognition of the Taliban Government by Italy:

Realistically, I do not think we will see the Afghan Government recognized. Recognition is an act that sees prudence [sic] even in the Chinese and Russian positions, so recognition is very unlikely. […] I do not think we will ever come to recognition, because there are too many open questions. We are witnessing an increasingly worsening treatment of women, but also the killing of two famous figures in Afghanistan, a comedian and an important musician: these represent signals that go in the opposite direction to the protection of human rights that we are asking for.^[8]

Along the same lines, the day after, at the Ambrosetti Forum in Cernobbio, Mr. Di Maio declared that “[t]he new Taliban Government is unlikely to be recognized”.^[9] However, he eventually refined his stance. In particular, he expressed his views on two distinct occasions, before and after the extraordinary meeting of the G20 Ministers of Foreign Affairs held on 23 September 2021 in New York to discuss the situation in Afghanistan.

On 7 September, during a television show, Mr. Di Maio reinforced and justified Italy’s position vis-à-vis the Taliban Government in the following terms:

In the entire international community, no one is talking about recognizing [the Taliban]. That is, recognition, even before the most recent news on the formation of the new Afghan Government, was not on the table. Here is a theme relevant both at the level of the United Nations and at the level of Europe. Five essential goals have been given: 1) fight against terrorism and therefore non-recognition of any terrorist cell; 2) humanitarian access to the Country; 3) protection of women, safeguard of minors and girls; 4) the theme of a feasible getaway for all Afghans who want to leave the Country; 5) an inclusive and representative Government.

Then I want to say one thing: there is a lot of talk about humanitarian corridors. […] it is inconceivable to devise humanitarian corridors with the Taliban, because if I take the list of those I want to evacuate and give it to the Taliban, I am setting up a proscription list, a ‘kill-list’, because I am evacuating human rights activists. So, who can we work with? We can work with the UNHCR [United Nations High Commissioner for Refugees – the UN Refugee Agency], whose High Commissioner, Filippo Grandi, is an Italian. The UNHCR is on the ground, it is in Afghanistan, we can work with them on evacuations or, as I said before, with neighboring Countries.^[10]

Some weeks later, on 26 September, during another television program, Mr. Di Maio affirmed that

the recognition of this Taliban Government is impossible, because there are seventeen terrorist ministers and human rights are continuously violated, against women, against girls, we have seen hangings and more. So, we cannot recognize this Government.^[11]

Despite Mr. Di Maio ruling out recognition, the attainment of the abovementioned five goals set “both at the level of the United Nations and at the level of Europe” would likely require collaboration with the Afghan Government. As for the fourth goal, such a collaboration could be indirect only, that is, mediated by the UNHCR, as suggested by the Minister. It is unclear, though, whether the realization of the remaining goals would see the Italian Government establish a direct contact with the Taliban counterpart. In this case, too, international organizations like the United Nations could be used as a proxy. Indeed, on 5 October, during an interview with a national business newspaper, the Deputy Minister of Foreign Affairs and International Cooperation, Ms. Marina Sereni, said:

Certainly, a recognition of the Afghan Government is not our aim now, but at the same time we must be pragmatic. It is clear that in order to bring humanitarian aid to the Afghan populations, we will have to talk with someone, and the United Nations is talking to them […]. This must push us to continue a pragmatic dialogue, technically through the United Nations, to try to open up spaces […] and work on the ground, through authorities that can guarantee that we do not make watered-down compromises.^[12]

The establishment of a dialogue – be it direct or indirect – with the Taliban could legitimately raise doubts about the presence of a form of implied recognition of the Taliban Government by Italy or, more generally, the international community. On closer inspection, however, this hypothesis does not seem to be supported. Scholars believe that implied recognition of governments can be deduced only from a behavior that reveals a clear and unequivocal will of the State to recognize the government to which the behavior is addressed.^[13] Such an intention has been explicitly ruled out by Italy. Moreover, even if the establishment of diplomatic and consular relations is usually seen as a sign of recognition,^[14] it can be affirmed that the nature of the EU contingents sent to Afghanistan so far does not entail such an intent.^[15]

Finally, on 12 October, also the President of the Council of Ministers, Mr. Mario Draghi, expressed his views. During the press conference at the end of the extraordinary meeting of the G20 leaders on Afghanistan, in Rome, he replied as follows to a journalist who had inquired about contacts with the Taliban Government and the recognition that could ensue:

There will be different stages. Now we have to provide an answer to the humanitarian crisis, that’s the very the first thing. If that requires, and it will require contacts with the Taliban, there is no alternative to having contacts with them, they are essential for this answer, for this response to be effective. And as you said, that does not imply a recognition. A recognition will have to acknowledge that the Taliban will be judged for what their deeds are, not their words. The Government, as we know, is not really inclusive, not really representative. Women’s rights as far as we can see right now, seem to have suffered a step back to twenty years ago. So, recognition means, at least by most of the G20 Countries, that progress has been made, exactly along the words and the commitments the Taliban Government took a few days ago.^[16]

It is noteworthy that the declaration by the President of the Council of Ministers is clearly reminiscent of the policy of “conditional recognition”, which could also be implied in the reference by the Minister of Foreign Affairs to the five goals to be met by the Afghan Government. Indeed, over the past two centuries, legal scholars have used the term “conditional recognition” to refer to cases where States delay recognition of governments or States in order to influence the new regime’s general policies or specific actions.^[17] In the present case, Mr. Draghi – perhaps unlike Mr. Di Maio, who appears to have disjointed the already mentioned five policy goals from the recognition of the Taliban Government – seems to have hinted at a causal relation between the fulfillment of a series of objectives and recognition.

The actual existence of a process of conditional recognition in the case of the Taliban Government, however, must be treated with great caution. Indeed, a subsequent joint statement on Afghanistan issued in January 2022 by the US and some European Countries, including Italy, following a meeting in Oslo formally excludes this option. Paragraphs 7 and 8 of such statement clarify that “meetings with the Taliban in no way implied any sense of official recognition or legitimization of the interim government announced by the Taliban in September 2021” and, in particular, that “the source of domestic legitimacy for any future government of Afghanistan will be the Afghan people themselves”.^[18] As a matter of fact, to cut this Gordian knot, it must also be highlighted that recent news concerning women’s rights in Afghanistan patently run counter what Minister Di Maio and then Prime Minister Draghi indicated as a goal.^[19]

Filomena Medea Tulli

A quotable version of this post was published in the Italian Yearbook of International Law: Tulli, “The Non-Recognition of the Taliban Government of Afghanistan”, IYIL XXXI (2021), 2022, pp. 494-499; available here.

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^[1] The agreement, signed on 29 February 2020, has been published on the US State Department’s website.

^[2] The declaration made by Mr. Borrell to journalists is available here.

^[3] The statements made by the respective Heads of Government can be found here and here.

^[4] An interview with Mr. Blinken of 15 August 2021 is available here.

^[5] The Chinese and Russian positions can be found here and here.

^[6] The stance taken by Mr. Conte is available here.

^[7] The recording of the meeting is available here.

^[8] The video of the entire interview is available here.

^[9] The video of Minister Di Maio’s speech is available here.

^[10] La7 Channel, TV show In Onda, episode of 7 September 2021, available here.

^[11] Rai 3 Channel, TV show Mezz’ora in più, episode of 26 September 2021, available here.

^[12] The video of the interview is available here.

^[13] In this regard see Shaw, International Law, 9th ed., Cambridge, 2021, p. 394; Peterson, Recognition of Governments: Legal Doctrine and State Practice, 1815-1995, London, 1997, pp. 91-92; Talmon, Recognition of Governments in International Law: With Particular Reference to Governments in Exile, Oxford, 1998, p. 77 ff.; Crawford, Brownlie’s Principles of Public International Law, 9th ed., Oxford, 2019, p. 143; Chen, The International Law of Recognition, New York, 1951, p. 270 ff.

^[14] See, by way of example, Charpentier, La reconnaissance internationale et l’évolution du droit des gens, Paris, 1956, p. 253; Lauterpacht, Recognition in International Law, Cambridge, 2012, p. 88; Shaw, International Law, cit. supra note 13, p. 393.

^[15] The European Commission’s spokesman for foreign affairs, Mr. Peter Stano, made clear that the minimal presence of international EU delegation staff “must not in any way be seen as recognition”. His words are available here.

^[16] The video of the entire press conference is available here.

^[17] See in particular Lauterpacht, cit. supra note 14, p. 349 ff., Chen, cit. supra note 13, p. 265 ff. and Jennings and Watts (eds.), Oppenheim’s International Law, Vol. I, 9th ed., Oxford, 2008, p. 176. For a detailed reconstruction of the doctrine concerning conditions placed by States on the recognition of governments, see Peterson, cit. supra note 13, p. 161 ff.

^[18] US-Europe Joint Statement on Afghanistan, 27 January 2022, available here.

^[19] On 23 March 2022, the Taliban announced that female high schools would be closed, thereby preventing girls above the sixth grade from attending school. Later, on 7 May 2022, Haibatullah Akhundzada, the Taliban’s supreme leader, issued a decree requiring Afghan women to cover their faces in public. The reactions by the international community to these Taliban’s measures can be found here.