India: DOHA Agreement-Peace For Aghanistan Or Otherwise

After more than 20 years of constant war in Afghanistan, the US and the Taliban, the two parties to the conflict i.e. a State and an Insurrectional Movement, entered into the "Agreement for Bringing Peace to Afghanistan" (the "Doha Accord") with a view to work towards ending the constant state of war in Afghanistan in existence since the last almost 20 years. Broadly speaking the Doha Agreement embodies elements which are typically within the realm of the State and provides for the following:

• Cease Fire: It was agreed between the parties that there would be a temporary reduction in violence and it was further agreed that a lasting cease fire from all the three sides i.e. U.S., Taliban & Afghan forces would be a part of the intra- Afghan negotiations.
• Withdrawal of foreign forces: The United States committed to withdraw all military forces of the United States, its allies and Coalition partners including all non-diplomatic civilian personnel, private security contractors, trainers, advisors and supporting services personnel within 14 (fourteen) months following the announcement of the Agreement.
• Intra-Afghan negotiations: The Taliban i.e. the Islamic Emirate of Afghanistan or the Insurrectional Movement which is not recognized by the United States as a state would hold talks with the Afghan Government in March, 2020 pursuant to release of prisoners.
• Counter-terrorism assurances: It was assured by the Taliban that Afghanistan will not be used by any of its members, other individuals or terrorist groups to threaten the security of the United States or any of its allies.

However, it remains to be seen as to what is the legal basis for international agreements between States and Non-State Entities.

Whether an agreement between a State on one side and a Non-State Entity on the other side could be regulated by International Law at all. The Vienna Convention on the Law of Treaties 1969 (the "VCLT") governs and regulates the application and interpretation of treaties. Having said this, the scope of application according to Article 1 of the VCLT is limited to "treaties between states".

1. The legal sanctity of such agreements;
2. The application of such agreements to any of the rules set forth in the VCLT to which they would be subject under International Law independently of the Convention;
3. The application of the Convention to the relations of the States as between themselves under international agreements to which other subjects of international law are also parties.

From the above, the next conclusion which needs to be drawn is, 'Whether Insurrectional Movements are "other subjects of international law" within the meaning of Article 3 of the VCLT?

According to the ICJ Report, 1949 - Advisory Opinion of Reparation for Injuries Suffered in the Service of the United Nations, the ICJ clarified that although States are natural subjects of international legal system, yet there are entities which exist as subjects of international too.

With regard to Article 3 of the VCLT, the ICJ observed that "other subjects of international law" has been drafted with the intention to include treaties entered and executed by: (a) International organizations, (ii) Holy Sea and (iii) other international entities for instance the insurgents which may under certain circumstances enter into treaties.

Therefore, with regard to insurrectional movements entering into agreements akin to treaties, such entities may have a limited form of international legal personality. Such peace agreements are not new to the concept of International law and such like agreements between States and Insurrectional Movements include the Agreement between the Government of Nepal and CPN (Maoist), concluded in 2006 and more recently, the Agreement between Colombia and FARC-EP concluded in 2016 among many others. The aim and objective of such agreements for attaining peace is usually bi-fold i.e. (i) to suspend hostilities and the parties mutually commit to one another that they shall not resort to use of force; and (ii) aim towards the political settlement of conflict.

However, with respect to the suspension of hostilities and non-usage of force, the question would be that whether the parties to the Agreement will reflect a will to apply within States, the rule prohibiting the use of force as set out in Article 2(4) of the United Nations Charter? Customarily, the 'use of force' within a State is a matter pertaining to its sovereignty and thus the same is subject to domestic jurisdiction of such State. With regard to the perspective of political settlement, the issue which requires attention is whether achievement of a political settlement pursuant to overarching principles of democracy, equality and human rights show a willingness to ground the agreement of peace within the aforesaid principles as enshrined in International Law?

It is pertinent to note that every State exercises the Sovereignty to determine their political, social, economic and cultural regime. In this regard even though the Doha Accord contains stipulations for the suspension of hostilities but political settlement on the lines of principles of democracy, equality etc., has been left to "Intra-Afghan" Negotiations.

Therefore, with the progress of time, what remains to be seen is the way that the Doha Accord shall mature. Such Peace Agreements between States and Insurrectional Movements have become quite common and although, legal sanctity may back them outside the scope of law of treaties, what sort of international binding obligations they shall create remains to be seen and which shall largely depend on the willingness of the new regime in Afghanistan to implement the provisions of the Accord.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.