Depoliticizing the United Nations Credentials Process Amid the Taliban's Return to Power.

• Author: Thorne, Howard

TABLE OF CONTENTS I. INTRODUCTION 952 II. RECOGNITION DOCTRINE. HOW GOVERNMENTS BECOME GOVERNMENTS 955 A. Recognition Doctrine 955 1. De Facto Recognition 956 2. De Jure Recognition 960 3. Belligerency Recognition 961 4. Other Doctrines 963 III. DE JURE RECOGNITION: UN CREDENTIALS 964 A. The Credentialing Process 964 B. Potential Issues with Recognizing Illegitimate Governments De Jure 967 C. Discord Caused by a Lack of Guiding Principles 969 1. South Africa 970 2. Liberia 972 3. Libya 973 4. Venezuela 976 5. Myanmar 977 IV. CODIFYING RECOGNITION DOCTRINE 980 V. CONCLUSION 982 I. INTRODUCTION

On September 15, 1996, credentials for the delegation of Rabanniled Afghanistan were submitted to the United Nations (UN) secretariat for review by the UN Credentials Committee--a group of nine states who make recommendations to the General Assembly on whether to approve a country's requested delegation. (1) Less than two weeks later, the Taliban captured Afghanistan's capital city, Kabul, forcefully ousting President Rabanni from power and beginning the Taliban's initial rule over Afghanistan. (2) From 1997 until 2000, the Credentials Committee would receive competing requests from both the Rabanni-led Afghani government and the Taliban-led Islamic Emirate of Afghanistan (IEA), each claiming to be the controlling governments of Afghanistan. (3) Despite Rabanni no longer being in power, the committee would defer approval of the IEA credentials as a formal refusal to recognize their government. (4) During their initial rule, only three nations (all UN members) formally recognized the IEA: Pakistan, Saudi Arabia, and the United Arab Emirates. (5)

On September 11, 2001, a series of terrorist attacks rocked the United States. These attacks were, in large part, achieved from IEA assistance given to Osama Bin Laden. (6) In the weeks following the attacks, the United States initiated a campaign to remove the Taliban from power. (7) Within one hundred days of the start of this campaign, an interim Afghan government was established. (8) This new government would be built with inclusivity as its defining feature--paying special attention to women's rights. (9) The following year, the UN Credentials Committee accepted credentials for the new IEA government, officially recognizing them. (10)

In August of 2021, the Taliban once again rose to power in Afghanistan after ousting a democratically elected government. (11) Shortly after this regime change, the deputy secretary-general of the UN stated that recognition of the IEA is the best leverage available for ensuring the Taliban-led government would be inclusive and respectful of human rights. (12)

Part II of this Note will examine how the legitimacy of a government like the IEA is evaluated by other governments, commonly referred to as recognition doctrine. (13) Recognition doctrine typically theorizes three different types of recognition. The first type, de facto recognition, is an implicit type of recognition that only depends on the nature of the government and not the disposition of other sovereigns towards that government. (14) In other words, irrespective of whether the government is formally recognized, does it at least exist? The second type of recognition, de jure recognition, is what the IEA is hoping to receive from the UN. De jure recognition occurs when a government is formally and legally recognized as being legitimate. (15) The third type of recognition is belligerency recognition. Although uncommonly applied post-World War II, this type of recognition was reserved for governments that would otherwise be recognized de facto but for the use of violence to achieve that status. (16)

Part III will then consider one specific type of de jure recognition at issue in this Note: UN credentials. Because a member state can only have one representative government at a time, certain issues arise where multiple governments apply for credentials, each claiming to represent the same member state. Other issues may arise where only one government seeks credentials, but that government is deeply lacking in legitimacy. How the UN has resolved these issues has been anything but consistent. This inconsistency is in part owed to a lack of guiding standards by which the Credentials Committee--a committee made up of six rotating states and three permanent members (Russia, the United States, and China)--has evaluated applicants. These issues have been compounded in recent years because certain powerful member states, including some of the permanent committee members, have taken to using the credentials process to advance their own domestic political goals. (17) This is a departure from past practice in which recognition before the Credentials Committee depended hinged on a government's effective control and not political questions about its mode of governance. (18) But the increasing frequency of it being used to advance domestic political goals notwithstanding these intentions is a cause for concern.

Lastly, Part IV of this Note will argue that the use of the credentials process as a political battleground is improper and undermines the UN's mission. In calling for reform, this Note will draw upon recognition doctrine and past decisions issued by the Credentials Committee to argue the ways in which this process can become depoliticized.

2. RECOGNITION DOCTRINE: HOW GOVERNMENTS BECOME GOVERNMENTS

   1. Recognition Doctrine

   Recognition doctrine is typically divided into the recognition of states and recognition of governments. (19) By treating the two separately, the practice of recognition in international law can be more accurate and clearer in its application. (20) While the concept of state and government are often so inextricably linked as to be conflated with one another, (21) this Note will consider the two as being distinct categories and only focus on recognition doctrine as it applies to governments. (22)

   Where a government is recognized, it is able to participate in and receive the benefits of international law. (23) The degree of participation and benefits to be received depends on the type of recognition conferred upon the government. (24) Recognition is thought to be so important that its very denial may result in the denial of "normal international intercourse"; the refusal to consider legitimate "the legislative, judicial, and administrative acts of [the government]"; the suspension or outright dissolution of treaties entered into by the government; and the very capacity of the government to wage war. (25) Even more dramatically, the denial of a government's recognition could even be the denial of one of the requirements for statehood, invalidating a state's very existence. (26)

   The two widely accepted ways in which governments are recognized are de facto recognition and de jure recognition. De facto recognition is a pragmatic approach to the recognition of government that is able to sidestep sticky questions such as whether a government is likely to have long-term stability or whether a government should be recognized despite other governments having claims to power over the same region. (27) This type of recognition is more implicit and does not depend on official recognition to exist. De jure recognition, however, requires an explicit recognition by a sovereign state or intergovernmental body. This type of recognition can have significant domestic and international law implications that de facto recognition might not. (28) The third and least common type of recognition, belligerency recognition, is typically applied when a government exerts some form of control, contested or otherwise, over a territory. (29) This control may be enough to be de facto, but the belligerent nature of the government precludes it from receiving full recognition. Although this type of recognition is infrequently used today, (30) it fills a clear gap and should be given serious consideration. Lastly, this Part will conclude with some historical approaches to recognition doctrine that may be useful to the UN's mission.

   1. De Facto Recognition

      De facto recognition (recognition in fact) is the concept that a government can be implicitly recognized so long as its degree of control over a territory clears a certain legitimacy threshold. (31) When a government is recognized in this manner, they are not thought to be wholly legitimate actors within the international system, but they are at minimum cognizable political authorities. (32) This is the case even where such governments are "conventionally perceived as illegal entities, usually ignored by the rest of the world and therefore also isolated and severely sanctioned in most cases." (33) Other types of de facto governments, however, may fail to meet the legitimacy threshold because of competing claims over their territory, political reasons, or having not yet established themselves as permanent. (34) For example, the governments (and states) of Taiwan and Northern Cyprus are largely recognized as de facto governments, as are Eritrea and Kosovo. (35) Indeed, whether a government is recognized de facto is a matter of degree. Some governments may therefore meet the threshold for recognition under certain evaluations but not others. Each recognizing entity--whether it is an intergovernmental organization or a sovereign state--will establish its own requirements that a government must meet before it is recognized under each standard. These requirements are likely to be dictated by the recognizing entity's own history, values, and current political landscape.

      Before proceeding, it is important to note that the lines of what determines a de facto government during discussion of recognition doctrine are often sloppily drawn. (36) Sometimes commentators will refer to such recognition interchangeably as "de facto recognition," "recognition of a de facto government," and "recognition as a (or the) de facto government." (37) Although these phrases may...