Yashovardhan Agarwal and Mitsu Choudhary[i]

INTRODUCTION

February 2020 witnessed two events of huge global significance, the outbreak of COVID and peace talks between the United States of America and the Taliban. A two-decade long war against terrorism finally found its way to the negotiation table. The United States of America (the state) and the Taliban (the Insurrectional Movement) reached a consensus to mitigate further violence by concluding the “Agreement of Bringing Peace to Afghanistan” also known as the “Doha Accord”. The present article conducts an inquiry of the legal basis of such an agreement and the legal effect of the endorsement by the United Nations Security Council’s (“UNSC”). This will also determine whether the points agreed on are legally and morally justifiable and agreeable or not, considering the present situation of mayhem in Afghanistan, where the Taliban has risen to power, overthrowing the democratic government.

SUMMARY OF THE AGREEMENT

The “Doha Accord” essentially takes into its account 4 broad points:

  1. The parties agreed to a lasting cease-fire and a temporary reduction in violence amongst the U.S., the Taliban, and the Afghan forces.
  2. The U.S. agreed to a gradual and exponential withdrawal of its troops within 14 months considering Taliban follows through on its commitment.
  3. The Taliban agreed to initiate peace talks with the Afghan government.
  4. The Taliban provided counterterrorism assurances to the U.S. which essentially ensures that the security of U.S. and its allies will not be compromised.

THE BASIS OF THE DOHA ACCORD IN INTERNATIONAL LAW

Article 1 of the Vienna Convention on Law of Treaties (VCLT) provides that the scope of the application of the VCLT is limited to “treaties or agreements between states”; moreover, Article 26 of this convention reiterates the principle of ‘pacta sunt servanda’. However, Article 3 of the VCLT acts as a ‘saving clause’ and provides that the legal force of agreements concluded between states and ‘other subjects of international law’ shall not be affected by the non-application of VCLT.

Hence, we must go ahead and see if Insurrectional Movements can be considered as ‘other subjects of International Law’. The International Court of Justice dispelled the traditional view of solely considering states as the subjects of International Law in the case concerning Reparation for Injuries Suffered in the Service of the United Nations. The instant case was concerning the assassination of Count Folke Bernadotte (UN Mediator in Palestine) in Jerusalem in 1948. The UN raised pertinent questions as to whether the UN had the capacity of bring claim against a state. The court opined that even though international legal system recognizes states as its natural subjects, there are other subjects as well which are “not necessarily identical in their nature or in the extent of their rights.”

The International Law Commission in its 1962 yearbook presented an elaboration on the phrase “other subjects of international law” as stated in Article 3 of the VCLT. The commission was of the view that this particular phrase is used to “provide for treaties concluded by, A) International Organizations, B) Holy See, and (C) other international entities, such as Insurgents, which may in some circumstances enter into treaties.”

Ultimately, we can conclude that insurrectional movements, even though having a diminished international legal capacity as compared to states do qualify as “other subjects of international law” within Article 3 of the VCLT. Hence the Doha Accord is solid on this ground, it does have a legal force.

THE INTERNATIONAL LAW BASIS OF PEACE DEALS BETWEEN STATES AND INSURRECTIONAL MOVEMENTS

There are multiple instances of Peace Deals between states and insurrectional movements, The agreement between Sierra Leone and Revolutionary United Front of Sierra Leonne concluded the “Lome Agreement” in 1999; the “Syrte Agreement” between Central African Republic and FDPC/UFDR in 2007, provides yet another example of the same.

These peace agreements have their respective contexts but all of these essentially cover two constituent elements which can also be observed in the Doha Accord: a) commitments to resolve conflicts by pacific means or peacefully by political settlements and talks, and, b) to resort to pacific means; security assurances and commitments in order to mitigate the use of force or cease fire.[1]

  • Commitments towards political settlements

With respect to the element of political settlement the pertinent question is can the achievement of comprehensive principles of democracy, equality and human rights reflect a will to ground the agreement within the principles of international law?

Before answering this question we must address that every state has its respective sovereign right “to determine its political, economic, social and cultural regime.” This essentially is an inherent domestic issue which means that the above stated comprehensive principles could internationalize the issue which can hamper the domestic will.

This can also be observed in the Doha Accord wherein the notion of political settlement is enlisted to suspend hostilities but the same has been left to the subsequent “intra-Afghan Negotiations” with intent to keep the domestic will alive and the parties actually involved can reach a consensus which is beneficial for the both of them. But seeing the present situation one can make out that the Domestic will was never to reach a peaceful consensus.

  • Commitments towards ceasefire and suspension of hostilities

In the general sense it is mostly claimed that it is one of the purposes of UN to settle any belligerency or insurgency through pacific means. Some imposition of ceasefire by UNSC resolutions are provided under chapter VIII of charter. Primarily, given its nature and scope, ceasefire or suspension of hostilities are utilized in conflict situation as a momentary reprieve for humanitarian purpose, as a confidence building measure or due to pressure by third party governments, international organisations or non-governmental organisations.

These are provisions or agreements where parties commit to suspending hostilities temporarily or permanently in international conflict. Items regularly touched upon is these agreements include provisions with humanitarian aim, security aim and provisions outlining mechanism that mitigate conflict escalation. Finally, these can be issued as a stand-alone agreement amid a larger peace process.

Herein, the pacific means could be regarded as renders of last resort, with a vivid example being duly portrayed by the present situation. Given the nature of coercive measures, though, prohibited in principle but permitted under certain exceptional circumstances, and also duly backed by UN, the provision of two things: (a) collective intervention or enforcement, and (b) individual or collective self-defence, clarifies the present situation, wherein the use of coercive means is all along justified on the ground of ‘exceptional’ circumstances, which are also recognised by the United Nations Security Council.

LEGAL EFFECT OF THE DOHA ACCORD POST UNSC’S ENDORSEMENT

On March 10, 2020, the UN Security Council passed a resolution “welcoming the significant steps toward ending the war” through the Doha Accord, while “urging the Government of the Islamic Republic of Afghanistan to advance the peace process, including through participation in intra-Afghan negotiations.”

The legal force of statements and endorsements made by the UNSC are of little value when it comes to such agreements. In 2002, UNSC expressed its satisfaction towards the ceasefire agreement between the Transitional Government or Burundi and the CNDD-FDD. The African Union Mission in Burundi (AMIB) visited the locations involved peace process as a UN Peacekeeping mission and observed that, although the urge to continue war was diminished, lack of dialogue and coordination was still prevalent. This cannot be considered promising. Even if the violence has diminished, the need of dialogue and coordination ensures that the political stability remains intact. If these are not present then the thought of violence cannot be considered as farfetched.

In the cases where the UNSC portrays its directive approach towards mandate issued or recognized or endorsed; it does not always mean it per se is legally enforced. To put it simply, the UNSC to have its mandate recognised or to have it given a legally binding nature endorses such agreements. In reality, though, it would not be wrong to say that UNSC duly lacks sanction and enforcement executives. This body, in its being, is mere extravaganza and éclat when it comes to enforcement.  

The definition of the term ‘exceptional’ as espoused by the UN differs greatly from what we derive from any universal dictionary. Given the condition of the UN or any of its working bodies, which lack locus standi in most disputes, it would be right to say that their actions lack binding force. The UNSC is all high and mighty in accepting any ‘exceptional’ condition, but lacks sanctions and governing powers when it comes to imposition. The legality of most of its measures stands vague and ambiguous to a great extent. 

CONCLUSION

The Afghan issue will duly test the practicability and enforceability of the UN bodies, which were established, in the first place, to deal with situations and problems like this. Given the degree of menace to humanity and the extent of ferocity and barbarity, the UN and UNSC fails in their endeavour to fulfil the core purpose of security for which they had been instituted.

Dating back to time, the arguments of jurists like Austin, von Pufendorf, Bentham and Holland, who said that that international law, at its core, could never be a true law, are now being proven to have been correct by the working of UN bodies, whose sanctions lack execution, thereby putting the security of the world at stake.


[i] Yashovardhan Agarwal is a Second Year student pursuing B.A. LL.B (Hons.) at Hidayatullah National Law University and Mitsu Choudhary is a Second Year student pursuing B.A. LL.B (Hons.) Rajasthan Women’s School of Law.