Afghanistan has been at the centre of attention for the past few months. If the Taliban’s self-claimed sources are to go by, their capture of Panjshir Valley was the final nail in the Afghan government’s coffin. A battle that started two decades ago has witnessed tumultuous events: the United States’s retaliation following the 9/11 attacks, their withdrawal after a truce agreement, and the Taliban’s comeback. However, what exacerbated the comeback is the gross violation of so-called international “laws” by the Taliban. The violent tendency of the Taliban is nothing new. The prohibition on women’s education and imposition of a restrictive dress code on them are some instances through which the Taliban has tried to enforce its extremism. Unfortunately, children have not been spared either. Although the Taliban has tried to present a humane picture of itself, the reports by various NGOs present an antithetical conclusion. These developments bring to fore the age-old question – is international law really law? If yes, then why has it not been enforced in Afghanistan yet?
John Austin’s definition of “international” law
John austin, the father of legal positivism, believed that the term law embraced (1) laws set by god to his human creatures, and (2) laws set by humans to humans. However, he was reluctant to term the former class of laws law of god as laws because of ambiguity. Then, he followed it with a dissection of the laws that are set by humans to humans human laws into positive law and positive morality:
Austin established in his lecture that “the matter of jurisprudence is positive law.” This positive law is, simply and strictly, set by political superiors to political inferiors. Although the second class of human laws are also established by men, they are not established by “political superiors” in that capacity or character and are improperly termed laws. According to Austin, international law falls under the second category, for it is set and enforced by “mere opinion,: that is, by the opinions or sentiments held or felt by an indeterminate body of men regarding human conduct. These laws, in Austin’s opinion, regard the conduct of sovereigns or supreme governments in their various relations to one another.
To lend credence to his view, Austin opined that “only those rules could be defined as law that took a form of a command, which, if not followed, attracted sanction”. The command is different from other significations of desire by the peculiarity that, in the latter case, the party to whom it is directed is not liable to evil from the other in case of non-compliance with the desire. What separated his command theory from the theory of other jurists was his emphasis on enforcement. Austin said that international law could not be termed law proper; because it has neither the sovereign legislative authority to enact law nor an adequate sanction to enforce it.
The UN(SC) and Taliban
In the present jurisprudence of international law, the United Nations Security Council (UNSC) plays a prominent role in the maintenance of international peace through the establishment of a peace-keeping mission. Although other organs of the UN make recommendations to the Member States, the UNSC alone has the power to make decisions that the Member States are obligated to implement. Therefore, the UNSC can be deemed the closest to John Austin’s vision of “maker” of command.
In October 2021, the UNSC adopted Resolution 2593 by a vote of 13 in favour with two abstentions (Russian Federation and China). These resolutions took cognizance of the terrorist attacks near Hamid Karzai International Airport in Kabul, Afghanistan and reiterated the importance of combating terrorism in Afghanistan. It reaffirmed the “importance of upholding human rights and encouraged all parties to seek an inclusive political settlement with full, equal and meaningful participation of women”. However, the optimism expressed by the resolution was abortive, for the Taliban continued with the persecution of the minority Hazara community, execution of former police and intelligence officers, and neglect of women in the government workforce.
Contemporaneously, the US froze nearly $9.5 billion Afghanistan central bank assets, the IMF had suspended Afghanistan’s access to funds, and the World Bank had halted monetary aid. Although the measures were aimed at debilitating the Taliban, they proved to be counterproductive, as the war-torn country reached the brink of economic collapse, resulting in calls for reinstatement of humanitarian assistance. Consequently, the USA allowed humanitarian aid and the UNSC unanimously adopted Resolution 2615 – recalling its expectations that the “Taliban would adhere to the commitments made in regards to human rights.”
Although the UNSC has been resolute regarding restoration of political stability and provision of humanitarian aid to Afghanistan, it has yet not acknowledged the human rights violations by the Taliban. Moreover, despite there being cogent evidence regarding the relentless crimes, the UNSC has been very cautious and sparingly mentioned the Taliban in its resolutions.
However, even if the UNSC were to adopt a proactive approach and call for action in Afghanistan, it will be an uphill task because of its inefficacy and the complexities presented by international politics. Unfortunately, as will be seen, the fundamental role in the failure of the UNSC will be played by China – a permanent member of the UNSC and a beneficiary of the Taliban’s rise in Afghanistan.
Article 27 of the UN Charter provides for the veto power to the five permanent members of the UNSC i.e., the USA, the UK, France, Russia, and China. The veto power is a blanket power, for it ensures that “any” resolution or order by the UNSC would not be approved if any permanent member casts a negative vote.
According to Austin, international law is a species of improperly termed law, or laws set by general opinion, because some indeterminate body or uncertain aggregate of persons regards a kind of conduct with a sentiment or aversion or liking. If a party obnoxious to their (the indeterminate body) displeasure will not comply with their wish, it probably will suffer some evil. It is because of the possibility of incurring this evil that the parties obnoxious are inclined to act agreeably to the sentiment or opinion, which is generally styled as law. This possibility, according to Austin, makes international law somewhat analogous to properly termed law. However, since this body is indeterminate, its opinion is merely a sentiment and not a law.
The veto power accentuates this philosophy. The effect of the negative vote is to nullify the general opinion that is held by the permanent members who have assented to a resolution. These members constitute an indeterminate portion of a determinate body. The member that chooses to exercise its veto power rules the roost. Given the geopolitical dimensions and the previous usages of the veto power, it is unlikely that the Taliban, or any party in which a permanent member has a diplomatic interest, would ever be inclined to act to the sentiments of the indeterminate body.
China’s tryst with veto
China, along with Russia, has had a long association with the usage of veto power. In 2011, they vetoed Draft Resolution 612 that demanded an immediate end to violence and called for an independent investigation of all human rights violations in Syria. Subsequently, in 2012, they again vetoed a similarly worded Draft Resolution 77 stating that “Syria’s sovereignty, independence, and territorial integrity must be respected”. In 2014, China and Russia for the third time vetoed a draft resolution concerning the referral of the Syria dispute by UNSC to the International Criminal Court. The successive veto by these countries on Syria is a testament to how they are willing to prefer international diplomacy over call for action in war-torn countries.
Current Venezuelan President, Nicolas Maduro, is hands in glove with China because of economic backing by the Asian country. In 2019, China vetoed a US-drafted resolution calling for UNSC’s help in ensuring free and fair elections in Venezuela. The veto was painful for Venezuelan voters, who were expecting some salvation from the international organisation.
Recently, China unsurprisingly used its privilege to block UNSC’s statement condemning the military coup in Myanmar – a move that was predictable because of China’s association with Myanmar’s Generals.
China and Taliban – a potential veto incoming?
In the context of diplomatic relations, China has implicitly recognised the Taliban government. Before the coup was even completed, China had hosted a Taliban delegation in July. After the Taliban came to power, China has looked at deepening the diplomatic ties with the Taliban by announcing its interest in setting up industries in the Taliban-controlled territory. Moreover, China has recently offered $31-million in aid to Afghanistan. The relationship finds its genesis in a mutually symbiotic relationship: wherein both parties will choose to refrain from interference in another’s internal affairs. Only time will tell whether the support is genuine or a deceitful way of furthering its neo-imperialist tendencies.
Given China’s interest in the Taliban’s takeover of Afghanistan, it is highly likely that any international action by the UNSC will be vetoed by China. Therefore, it would not be hyperbolic to suggest that China through its veto power might render the UNSC, and consequently the UN, ineffective.
These developments shed light on the definition of law that was given by John Austin. His exposition hinged prominently on two aspects: the creation of law by a politically superior and its enforcement in case of non-obedience by the political inferiors. If international law is to be considered a law, to begin with, it has to satisfy the two criteria laid down by Austin. Although the first requirement – creation by politically superior – is the subject of another debate, the second requirement of enforcement surely falls flat in the view of circumstances that are prevailing in Afghanistan.
In recent years, the international law and international institutions’ credibility has been questioned on numerous occasions. Be it the coup d’état in Myanmar, the human rights violation in Qatar or China, or the unprecedented invasion of Ukraine by Russia recently, the general opinion held by men, that is, the international law, has proved to be ineffective. In all these situations, there has been a huge hue and cry; however, the response has been abysmal. The UN Secretary-General has often called for restoration of peace; however, no reaction was elicited. Therefore, given the peculiarities that are prevalent in the international polity, I believe that Austin’s exclusion of international law from the province of jurisprudence was justified.
Ashish Kundu is an LLB Candidate at the Faculty of Law, University of Delhi.
Image: Global Times and Wiki Commons (Image of Austin). Modified.