Legal transition.

Byline: Ahmer Bilal Soofi

AFGHANISTAN is experiencing a legal transition after the signing of the Feb 29, 2020, US-Taliban agreement that raises several points from an international law perspective. The most important point relates to the legal status of the parties to the agreement. On the one hand, we have the US which is a state and an acknowledged formal, legal person whereas the other party is a peculiarly described entity. The US insists throughout the agreement whenever reference is made to the 'Islamic Emirate of Afghanistan' that it does not recognise it as a state and that it 'is known as the Taliban'. However, the text itself contradicts this view as it clearly ascribes a state-like platform to the Taliban as a legitimate negotiating partner to the treaty.

Notwithstanding the criteria of statehood under the Montevideo Convention, the agreement is essentially a reluctant admission by the US that the Islamic Emirate of Afghanistan or Taliban come close to satisfying the criteria of a government in the territory under their control. Earlier US state practice was to treat the Taliban as a non-state actor with transnational character and movement. Through this agreement it has recognised them as a group with a nexus in Afghanistan's territory. So, while the US has formally contested their status as a state or emirate, in actuality, it has conceded de facto recognition that the Taliban or their existing emirate fulfils the criteria required to legally constitute a government, ie effective control and independence.

A state-like platform has been ascribed to the Taliban.

It is noteworthy that the existing Afghan government led by Ashraf Ghani is omitted from the agreement and referred to only as one of several 'Afghan sides'. This virtual sidelining is at variance with international legal arrangements in UNSC Resolution 1378, the London Conference, and most especially the UN's Bonn Agreement. Section I (4) of the Bonn Agreement established a legal framework for the said government. The present peace agreement is executed without having regard to the aforementioned legal instruments. This appears to be another concession to the Taliban who have refused to recognise the Ghani government believing they exercise better control over a larger part of the territory and are the legitimate representatives of the people of Afghanistan.

The peace agreement consists of four parts: the first two regulate withdrawal and the latter formalise...