Editor’s note: This article is part of Just Security’s ongoing coverage of the U.S. military withdrawal and Taliban takeover in Afghanistan.
I. What we know and do not know as of this writing
To repeat a common phrase, there are some things we know we know and there are some things we know we don’t know (and there are some we don’t know we don’t know). Some of the things we know that are relevant to whether a Taliban-led governing authority could be seated as the legitimate Government of Afghanistan in the United Nations (UN) are as follows.
- In a March 2020 resolution unanimously adopted by the Security Council, it is noted that “the Islamic Emirate of Afghanistan [the Taliban] is not recognized at the United Nations, and furthermore that the UN Security Council does not support the restoration of the Islamic Emirate of Afghanistan” (S/RES/2513). This Monday, Aug. 16, the Security Council met on the crisis and issued a statement in which members of the Council “called for…the establishment, through inclusive negotiations, of a new government that is united, inclusive and representative – including with the full, equal and meaningful participation of women” (SC/14604).
- In the meeting the Council held on 6 August, the Council heard the Secretary-General’s Special Representative and Head of the UN Assistance Mission in Afghanistan (UNAMA) say that Governments should reiterate to the Taliban the Council’s position that a Government imposed by force in Afghanistan would not be recognized. China and others stressed that no Government should be established by force, while the United Kingdom said it would not recognize a Taliban Government that comes to power by force. The United States, Norway and Estonia specifically said they would not accept/support a return of Taliban’s Islamic Emirate. Niger, speaking on behalf of Kenya, Tunisia and Saint Vincent and the Grenadines said the peace process must not reward the use of military force or the recognition of terrorist groups (S/PV.8831).
- On Aug. 12, a meeting of several states and organizations in Doha culminated in a Chairperson statement which included the proposition: “Participants reaffirmed that they will not recognize any government in Afghanistan that is imposed through the use of military force.” The participants included representatives from China, Germany, India, Norway, Pakistan, Qatar, Tajikistan, Turkey, Turkmenistan, United Kingdom, United States, Uzbekistan, the UN and the EU.
- The credentials issued by the Islamic Republic of Afghanistan were accepted by the Credentials Committee of the 75th session of the General Assembly (GA) in Nov. 2020 and the Committee’s report (A/75/606) reflecting that fact was approved by the GA plenary on Dec. 1 (A/RES/75/19). The current Permanent Representative presented his credentials to the UN Secretariat in July 2021 (BIO/5408). He spoke for Afghanistan at the Security Council meeting held on Aug. 16, after the fall of Kabul and the departure of the President of the country. He was warmly greeted by several missions to the UN in their public remarks.
- The US-Taliban “Doha agreement” of Feb. 29 2020 signed by the Trump administration was annexed to Security Council resolution 2513 of Mar. 10, 2020 which welcomed it as one of the “significant steps towards ending the war and opening the door to intra-Afghan negotiations” (S/RES/2513). In that agreement, the only US commitment concerning the UN was a provision that with the start of those negotiations, the US would start “diplomatic engagement” with other members of the Council “to remove members of the Islamic Emirate of Afghanistan which is not recognized by the United States as a state and is known as the Taliban from the sanctions list” (S/2020/184S). Both sides have claimed the other has breached the agreement.
What we do not know of relevance as of this writing is the following: the Council having omitted in its latest statement a reference to not supporting the restoration of the Islamic Emirate or a government established by force, the question is now whether the Taliban’s new regime will follow the new Council language and establish a new Government that is united, inclusive and representative, including with the full, equal and meaningful participation of women; whether the regime will return to its former ways of governing by intimidation, massive violations of human rights, degrading treatment of women, support of terrorist groups; whether any Government will accept a Taliban claim that it did not take control of the country by force; whether and how the Security Council wishes to maintain, under a Taliban regime, the United Nations Assistance Mission in Afghanistan (UNAMA), the mandate of which expires on Sept. 15, 2021; how the Council’s sanctions regime will be affected by the inclusion of individuals on its list as “officials” of a new Government; whether there will be any attempt to revive the “Doha Agreement”; to what extent members of the UN would, despite earlier statements to the contrary, accept the re-establishment of the “Islamic Emirate”; and finally to what extent any remnants of the prior Government of Afghanistan will continue to claim legitimacy and the right to represent Afghanistan in the UN.
Plus it is not known to what extent an argument will be made that it is better to have the Taliban “at the table” to constructively engage than to isolate it, particularly to encourage a more moderate and flexible regime than the last time they ruled the country. Realists might argue that to further the “fiction” that the Taliban is not in control of the country and to use recognition as a punishment or sanction is unwise if the goal is to engage with the Taliban with a view to changing behavior. Time should be given to allow the new Taliban regime to prove whether its “more moderate” words are followed through with corresponding conduct. To recall what the 1950 UN legal memorandum said: the UN was “not an association limited to like-minded States and governments of similar ideological persuasion…. As an Organization which aspires to universality, it must of necessity include States even of varying and even conflicting ideologies” (S/1466). Regardless of what is ultimately decided on the policy question, this article assumes as of this writing that there will be an effort to prevent a Taliban-led government from taking the Afghan seat at the UN and will address what avenues are available for that purpose.
II. Articles 5 and 6 of the Charter
It is perhaps an understatement to say the framers of the Charter foresaw that it may well happen that States misbehave. The Charter provides a procedure by which a State against which preventive or enforcement action (such as sanctions) has been taken by the Council may be suspended from membership (Article 5). There is also a procedure to expel a Member State that has persistently violated the Principles of the Charter (Article 6). Neither has ever happened. Both have the high bar of requiring the adoption of a Security Council recommendation, subject to the veto, which is then sent to the General Assembly for a final decision. Moreover, in this case these procedures are of little value as they beg the question whether the Taliban is the representative of a State or not, even though Afghanistan itself is a Member State; thus far the Taliban is not such a representative in the eyes of the UN. Even if accepted as the representative of the State of Afghanistan, how likely is it that shortly afterwards it would be the subject of suspension or expulsion? Much of course would depend on how egregious its behavior was so as to justify invocation of Articles 5 or 6.
III. Denial of representation rights via the credentials route
Cases dealing with representation issues normally revolve around acceptance of credentials. But first, it may be important to review a few features of what “UN credentials” are.
The basics of UN credentials. With one exception, there is no such thing as “UN credentials” covering the Organization as a whole. Each major organ has its own credentials procedure (GA, Security Council, ECOSOC, and the Trusteeship Council, when it was functioning). Such credentials are issued by one of a Government’s three “magic persons” who designate by name individuals as the bona fide representatives of a Government to the UN organ in question. These documents are to be signed by one of those persons and originals submitted to the Secretary-General. The “magic persons” are: Head of State, Head of Government, and Minister for Foreign Affairs. Such documents are considered “formal” credentials in due and proper form meeting all the technical requirements. In addition, the practice has developed that the Permanent Representative (PR) of a Member State to the UN presents his or her credentials to the Secretary-General, somewhat analogous to bilateral diplomatic procedure. Sometimes a country will decide to include in its PR credentials an authorization for the person to also represent the country in specific organs or in all organs. If that “doubling up” occurs and a PR’s credentials also includes an “all organs” authorization, that would constitute the one case where a credential could cover the Organization as a whole.
It may be useful to dispose of the question of Security Council credentials. Under its rules, the credentials of members of the Council are considered not by a committee of its members (as opposed to the GA, see below) but rather by the Secretary-General who then reports to the Council (e.g., S/21047). It is believed that the only challenge by one Council member to the credentials of another Council member occurred in the early years when the USSR and others challenged the right of Republic of China (ROC) persons to represent China in the Council after the establishment of the People’s Republic of China (PRC). The ROC continued to sit for China in the Council until 1971 when the GA decided that the PRC representatives were the “only legitimate representatives of China to the United Nations” (A/RES/2758). Other credential issues have arisen when the Council is asked to invite, or has invited, other States to participate in its meetings and there are rivals contending for the invitation. Sometimes the Council has heard neither claimant (e.g, Panama case 1989, S/PV.2902) and other times it has simply invited the rival claimants to speak as “persons,” not as purported Government representatives (e.g., Dominican Republic case 1963, UN Juridical Yearbook 1997, p. 466).
General Assembly credentials procedure. Under GA rules, for each session each Member State submits credentials for up to five representatives and up to five alternate representatives (See general description of GA credentials practice in UN Juridical Yearbook 1985, p. 128). The names of advisers, experts, consultants, etc. to a delegation can be forwarded to the Secretariat without “formal” credentials. The GA at the start of each session establishes a Credentials Committee of nine members, proposed by its new President, to review the credentials and report back to the GA. For many years, it has been the established practice that among the nine members are three permanent members of the Council: China, Russia, and the United States. The other six members are appointed anew for each session. Currently the other six members are Cameroon, Iceland, Papua New Guinea, Tanzania, Trinidad and Tobago, and Uruguay. New members will be appointed at the start of the next GA session on Sept. 14 2021. Normally the task is a technical one to ensure that credentials have been issued in due and proper form.
The normal practice is the Committee, absent any objections to credentials discussed below, is to meet once in private several months after the start of the session. Its report will list the countries that have submitted “formal” credentials and also list the counties that have submitted “provisional” credentials, e.g., information concerning the appointment of representatives by other means of communication, such as copies of “formals,” or communications from the Ministry of Foreign Affairs or the Permanent Mission. In its latest report, as of mid-November 2020 “formals” were submitted by 33 countries while 160 countries (including Afghanistan) had submitted “provisionals.” Following its usual practice, the Committee accepted all the credentials submitted –formal and provisional—on the understanding that “formals” of those countries that had submitted only “provisionals,” would be submitted as soon as possible (A/75/606). Again, following established practice, the report of the Committee was then approved by the GA by adopting a resolution to that effect recommended by the Committee itself (A/RES/75/606). There is traditionally no follow-up to the understanding that “provisionals” will be replaced by “formals” as soon as possible.
GA challenges/objections to credentials and “provisional” participation. The drafters of the GA Rules of Procedure foresaw that there could be questions raised – objections, challenges – about someone purporting to represent a Member State: “Who is that person sitting behind the nameplate of xxx?” Rule 29 provides that whenever such a challenge/objection is raised, the challenged representative “shall be seated provisionally with the same rights as other representatives” until the Committee has reported and the GA has given its decision by a majority vote (A/520/Rev.18A). The rule does not discuss how that representative happened to be sitting in the seat to begin with. The rule favors the “status quo” in that the challenged delegate must have had some form of accreditation in order to gain access to the premises and to sit behind his or her country’s sign. The most likely explanation is that the person was previously a representative and had prior accreditation. The rule provides that that situation continues to obtain provisionally, unless and until the Committee has reported on the matter and the GA given its decision. This rule and how it has been applied in practice are critical to understanding what might happen with regard to Afghan credentials in the coming 76th session or if the issue is raised before then.
GA practice regarding credentials and representation. There have been several ways the GA has handled objections to persons purporting to represent a Member State
1. A frontal challenge to the representative of a “pariah” State with no rival claimants. When Articles 5 or 6 of the Charter are not being successfully invoked to limit or strip a Member State of participation rights in a UN organ, attempts have nonetheless been made to do so by means of rejecting the credentials of a Member State’s representatives. This occurred in the cases of Hungary following 1956 and South Africa (up to 1974). Credentials were objected to by other Members or even rejected by the GA, but by virtue of rule 29 noted above, the representatives of the countries concerned continued to participate “provisionally” with all rights of membership, such as speaking, voting, etc. (See A/8160). The reason for objecting to Hungarian credentials was because they had been issued “as a result of military intervention by a foreign power whose forces remained in Hungary despite requests” by the GA for their withdrawal (A/3536). In the case of South Africa, one reason given was that “the persons concerned had been appointed by a minority racist regime which could not purport to represent the people of South Africa” (A/9179).
The UN Legal Counsel issued a legal opinion in 1970 addressing whether rejection of the GA credentials of a country’s representatives could result in the exclusion of that Member entirely from participating in GA meetings. The office concluded that was not possible as it would have the effect of suspending a Member from exercising the rights and privileges of membership in a manner not foreseen by the Charter (A/8160). This 1970 legal opinion guided the practice followed by Presidents of the GA for several sessions after South African credentials were rejected by the GA until 1974 when the GA President rejected that practice. The President ruled then that rejecting South Africa’s credentials was not just a procedural method of opposing apartheid but meant that the GA refused to allow the South African delegation to participate in its work. That ruling was challenged by Western European, the United States and other States but it was upheld by a vote, thus South Africa was excluded from GA meetings (A/PV.2281) until the end of apartheid and establishment of a new South African Government.
For several years, the Arab Group similarly challenged the credentials of Israel hoping for the same result, on the basis of its policies concerning the occupied Palestinian territories, including purported violations of international humanitarian and human rights law. But each year the Arab proposal to reject Israeli credentials (e.g., A/44/L.9) was “shelved” by a procedural motion to take no action on the proposal. Arab Group challenges to the credentials of Israel ended in 1991 with the advent of the first Gulf War.
In 2009, the “President of the High Transitional Authority” of Madagascar was barred from speaking in the GA general debate. Just as he was about to be introduced to address the GA, African countries objected to his speaking because he had “gained power through a coup”. The President ruled that rule 29 applied, that the Credentials Committee would meet on the objection and report back but in the meantime, the person concerned would be allowed to speak for Madagascar. This ruling was challenged and was overruled by a vote 23 in favor of overruling, 4 against with 6 abstentions. Of the 23 countries in favor of overruling the President, 14 were African, 7 were Latin American or Caribbean, 1 was Asian (India) and 1 was Western European and Others. The four countries supporting the President and the application of rule 29 were a diverse group composed of Denmark, Ecuador, Madagascar, and Malaysia. The abstainers were 2 African States, 2 Asian States, 1 Caribbean State, and 1 Western European State. One hundred sixty Members did not vote at all, including all five permanent members of the Security Council. As the President stated at the time, “The matter is now clear. The majority is silent” (A/64/PV.8). The President being overruled, rule 29 was not applied, and the person was not allowed to speak.
But that was not the end of the story with regard to Madagascar delegates to the 2009 GA session. After all, the other members of the Madagascar delegation would have been authorized to represent the country by the very same Government whose President had been barred from speaking because he had gained power through a coup. The Committee’s report indicates that during its meeting, Zambia, supported by Tanzania, expressed concern with respect to the credentials of Guinea and Madagascar “in the light of the situation in those two countries.” While it was clear what the situation was with regard to Madagascar given what had been said earlier in the plenary when its President was barred from speaking, the situation with regard to Guinea was not entirely clear although in the plenary debate on Madagascar the GA President alluded to Guinea being in a situation similar to that of Madagascar. However, with regard to the delegation of Guinea and the other members of the delegation of Madagascar, the Committee decided “to defer its consideration of credentials” submitted by both countries ”on the understanding that the representatives of both Guinea and Madagascar will continue to have the right to participate provisionally in the activities” of the session “with all the rights and privileges enjoyed by other Member States whose credentials have been accepted until such time that the Credentials Committee reviews the matter and makes a final recommendation” to the GA. Should there be an objection to the participation of either, then such objection “could, within the framework of the rules of procedure…be referred” to the Committee for consideration. (A/64/571). There was no further review of the issue by the Committee and no objections were subsequently raised.
It is noteworthy that the examples of objections to credentials in the above cases of Hungary, South Africa, Israel, Madagascar, and Guinea all occurred outside the context of rival claimants and that the reasons given for challenging credentials had to do solely with the policies of the Governments concerned or the situations in those countries.
Western and other countries which objected to the President’s ruling in the 1974 South African case, may be hesitant using the credentials procedure to bar participation in meetings as a means of registering objection to, or abhorrence of, the policies or situation of a Member State. According to this view, stripping a Member State of the right to participate in a meeting, including preventing it from voting, should be considered an infringement on a fundamental right of membership outside the procedures set forth in the Charter. It may be recalled that the Federal Republic of Yugoslavia was barred from participation in GA meetings for several years beginning in 1992 with the support of Western European and Other States. But that was done not through the credentials procedure but by refusing to endorse FRY’s claim to continue the membership of the former Yugoslavia following the dissolution of that country. (A/RES/47/1). There may be resistance to setting another precedent of using the credentials exercise as a means to bar a “pariah” State from participating in meetings, as determined by a mere majority vote of the members, based upon the policies adopted by the Government or the situation in the given country. According to that view, other measures such as sanctions or other penalties could be more usefully utilized without affecting basic rights of membership. On the other hand, in the examples noted, in only one case (South Africa post-1974) was the Government concerned actually barred from participating in all GA meetings and in only one case (Madagascar) was a Head of State barred from participating in a meeting. In the case of Hungary, South Africa pre-1974, Madagascar and Guinea, by virtue of rule 29, representatives of the country continued to participate on a provisional basis. In the case of Israel, the credentials of its delegates were approved.
2. The case of rival claimants. In 1950, a legal memorandum noted that the UN does not possess any authority to “recognize” either a new State or a new government of an existing State; recognition remains within the purview of individual States. However, the rival claims of the ROC and the PRC to represent China was unique in the history of the Organization at that point as it was the first case in which two rival governments existed. The legal opinion suggested that the principle to be followed in choosing between rivals would be an inquiry as to whether the new government exercises effective authority within the territory of the State and is habitually obeyed by the bulk of the population (S/1466). That legal opinion was formally objected to by the ROC (S/1470); it was not accepted or even taken note of by any UN body.
As a result of dealing with the rival claims for the seat of China and as a counterpoint to the legal opinion, the GA adopted resolution 396 (V) of Dec. 14, 1950. By that resolution, the GA implicitly rejected any “objective” criteria test such as that suggested in the legal opinion, but rather recommended that whenever more than one authority claimed to be the government entitled to represent a Member in the UN and it became a matter of controversy, the question should be considered “in the light of the Purposes and Principles of the Charter and the circumstances of each case” (A/RES/396). Not exactly a paragon of clarity and precision. But it allows for a case-by-case analysis of rival claims and bringing to bear the values and standards found the Purposes and Principles of the Charter. As the 1970 legal opinion put it, while normally the examination of credentials is a procedural matter limited to ascertaining if the technical requirements have been satisfied, in cases of rival claimants the question of “which claimant represents the true government of the State” arises as a substantive issue (A/8160). In sum, value judgements can be made when deciding between rival regimes.
Moreover, that resolution provided that it was the GA to determine such issues as it was in the interest of the proper functioning of the Organization that there should be uniformity in the procedure applicable and it was only in the GA where the views of all Members could be heard on a matter affecting the functioning of the Organization as a whole.
How has deciding between rivals played out in practice?
Sometimes, the GA has decided between rivals in an up and down vote choosing one over the other claimant, often by voting in the Credentials Committee (e.g., Yemen, A/5395; Cambodia, A/9779/Add.1 and A/34/500; Honduras, A/RES/63/301A; and Haiti, A/RES/46/7).
On one occasion the GA went the opposite route and deferred a decision on the credentials of Cambodia “on the understanding that…no one would occupy the seat of that country” at that session, no reference being made to whether rule 29 could have been applied or not (A/52/719).
Drawing inspiration from rule 29 and resolution 396, for five years when the Taliban was exercising control over most of Afghanistan and submitted credentials of representatives to participate in GA sessions, the GA applied rule 29 resulting in the representatives of the then-Rabbani Government (the so-called “Northern Alliance”) which had been previously accredited, being seated provisionally. As described in the 1997 report of the Committee, it “decided to defer a decision on the credentials of representatives of Afghanistan on the understanding that the current representatives of Afghanistan accredited to the United Nations would continue to participate in the work of the General Assembly pursuant to the applicable rules of procedure of the Assembly” (A/52/719).
A similar result occurred in 2012 when the Committee had before it two rival claims for the seat of Guinea-Bissau. The Committee decided to defer its consideration of the credentials submitted by that country on the understanding that the representatives of Guinea-Bissau “currently participating provisionally would continue to do so with all rights and privileges, until such time as the Committee made a final recommendation” to the GA. If an objection arose during the session, it would be referred to the Committee for consideration (A/67/611).
There are options available which could, if the circumstances are right, be utilized to prevent a Taliban-led Government from representing Afghanistan as the “true” Government in the GA, some revolving around rule 29 and GA practice. First, there could be rival regimes with credentials being submitted by the remnants of the pre-Taliban regime asserting its authority as the rightful Government of the country or “rival credentials” being submitted by the Mission at UN Headquarters constituting “provisional” credentials, assuming that the Mission remained in the hands of pre-Taliban personnel. Thus the Committee could defer consideration of both sets of credentials but follow rule 29 and allow the existing, pre-Taliban representatives to continue to function provisionally. This would follow the practice during the 1990s when the Taliban controlled the country but the GA allowed the Northern Alliance to provisionally maintain Afghanistan’s seat in the GA.
Second, if on the other hand there are no rivals to the Taliban regime claiming the seat, one option is to follow the South African example and frontally reject the credentials of the Taliban, based on its abhorrent and illegal policies and failure to be guided by the Security Council’s demand that it establish a new government “that is united, inclusive and representative — including with the full, equal and meaningful participation of women.”
Third, even if there are no rivals, the Committee could follow the example of how it dealt with the case of Cambodia in 1997 when there were two rivals for the seat. Rather than taking a decision to accept or reject the credentials that had been submitted, the Committee simply decided “to defer a decision on the credentials…on the understanding that, pursuant to the applicable rules of procedure of the Assembly, no one would occupy the seat of that country” at the 1997 session (A/52/719).
Fourth, in theory if the conduct of the Taliban regime were egregious enough and none of the permanent members threatened a veto, Articles 5 or 6 of the Charter could be invoked. The regime could have the exercise of its rights and privileges of membership suspended under the terms of Article 5. Or the regime could be expelled from the Organization under the terms of Article 6.