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The Lawfare Podcast
Lawfare Daily: Scott Anderson on How Social Media Platforms Should Handle Unrecognized Regimes
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- [01:23]
Alan Rosenstein
It's the Lawfare Podcast. I'm Alan Rosenstein, associate professor of law at the University of Minnesota and senior editor at lawfare. Today I'm talking to Scott Anderson, Lawfare's senior editor and a fellow in Governance Studies at the Brookings Institution, about a new report he's written on how social media platforms should handle unrecognized regimes like the Taliban.
- [01:43]
Scott Anderson
If you don't accept them as the general de facto regime, that doesn't mean you can't accept that they actually are serving certain core public functions. And you lean into this definition of what it means to be a local de facto authority.
- [01:55]
Alan Rosenstein
We discussed the dilemma that the Taliban's 2021 takeover of Afghanistan created for platforms and and Scott's proposed framework rooted in international law's treatment of de facto authorities that could help platforms strike a better balance between sanctions compliance and serving civilian populations under these regimes. So, Scott, let's start with the problem your paper addresses and in particular the case study that you start off with, which is in the summer of 2021, the Taliban took over Afghanistan. This obviously had enormous geopolitical ramifications, but it also presented a very specific problem for America's social media companies. Describe what that problem is and how they dealt with it.
- [02:35]
Scott Anderson
Yeah, it's reflective of a broader problem set of which this kind of one unique expression of that got a lot of attention. And particularly the months after the collapse of the government in Afghanistan, the U. S backed Islamic Republic of Afghanistan government. You know, a number of times in recent history, since the United States and other countries have started aggressively applying sanctions to different, particularly non state armed groups, terrorist groups often and vernacular, you've encountered situations where they have become to govern a particular territory and control it. You think of Somalia in the 2000s, or to some extent even the late 1990s. You think of Yemen for a good part of Houthi control when they were under Houthi control earlier, just in the last decade. These pose all sorts of situations that are really complicated because you're taking a sanctions tool that is designed to aggressively isolate the target of those entities, particularly terrorism related sanctions, which again were built upon the paradigm of an entity, a organization that is so anathema to our political interest. We need to make them complete pariah. So we want to isolate them from the economic system, global economic system, along with everything else, political system, things like that. And you're applying it to all of a sudden the authorities who govern a territory, including lots of innocent civilians who we care about and should care about and try and ensure they actually can get the things they need from a government, even if that government happens to be a malign terrorist group in the view of like a good part of the world in the social media context. That really came to the fore in the case of Afghanistan because you had a fairly sophisticated, you know, western backed government for 20 years up until 2021. This is again the Islamic Republic of Afghanistan, or almost 20 years. And they used a lot of modern tools to engage with their public, Particularly because Afghanistan is like a fairly widely distributed population with a lot of difficult terrain, difficult security situation for most of the 20 years the Islamic republic was in. And so they used, among other tools, social media to get out there and reach out to people. And this is not unusual for a lot of developing countries or countries with severe access to resources or limited infrastructure or conflict situations where social media becomes a major gateway that average civilians use to access the Internet or a variety of services provided by the Internet. And because it is such a common tool and such a common means of accessing it, that is how the government begins to backend it. All of a sudden the government need to develop its own network of web pages or web pages that do a bunch. They just do what Small businesses do in the United States. They buy into the platform and they lean into that, particularly Facebook, particularly prevalent, but other ones also involved. And then they just build the pages they need off that and they use it to DM civilians, DM citizens, provide services, provide notices. Well, all of a sudden, all of these. When the Taliban took over, you had the situation where the government that had claimed to own and operate had set up and manage most of these channels because, remember, they kind of predated a lot of these social media companies coming to the fore. So they'd always controlled these channels. All of a sudden, that government stopped existing and you had a new regime claiming to be the government, which is the Taliban, but wasn't recognized by anyone. Any government in the world actually still isn't up to this day. Now there are two governments that kind of recognize them, China and Russia. That's about it. Russia does formally China half and half, but that's recent, as of the last year, year and a half. So at the time they seem completely isolated. Nobody knows how to treat them. And these are all companies that again, are based in the United States. Setting aside Telegram and a few others that are not. But most of the major social media companies are based in the United states, subject to U.S. economic sanctions really foundationally, and U.S. interpretations of the law for things like contract law, other sorts of disputes. And so all of a sudden they are facing the situation saying, well, we don't know who the official actor we're supposed to be deferring to is in Afghanistan, who is supposed to control the property of the state of Afghanistan, including its social media channels. And so how exactly you deal with that was a really difficult challenge for all these platforms, and particularly because it's all happening in 2021, an era where right after the 2020 election, still dealing after the aftermath of the first Trump administration, social media, content, moderation, all these questions were really at the fore of kind of the public discourse. I think this question really got a to attention in those first few months after the fall of the Islamic Republic of Afghanistan in August 2021 that really, I think, put forward this question that I thought was unique, but also hearkened back to some prior situations for which there were legal and policy practices that had been developed that hadn't fully been kind of ported over to the scenario.
- [07:18]
Alan Rosenstein
And so how did the different platforms, just to sort of give a preview and we'll get into all the issues as we continue the conversation, but might just be helpful to start with a sense of how in that specific Case the different platforms treated this and how in particular they may have diverged in how they treated the particular issue of the Taliban in 2021.
- [07:38]
Scott Anderson
So you saw kind of two dominant strategies emerge really early on, and then they got a little more confused and blended over time. I mean, like three or four years passed between this initial incident when this paper was published. And over that time we saw the trajectory sort of adjust for how these platforms approach the the Taliban. Early on though, it was really two dominant models. You saw the majority of platforms, Facebook, Google, YouTube, approach it through the lens of sanctions compliance. And they said basically, look, Taliban's a terrorist group. We just do not do business with terrorist groups. That means providing them any sort of services.
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Alan Rosenstein
And just say a little bit more about what it means to be a terrorist group for this purpose. What is the sanctions regime that is being incorporated into these policies?
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Scott Anderson
No, totally. That's useful. So the United States maintains a lot of separate regime for designating terrorist groups, each which have kind of different legal meanings. And then there's also international sanctions that are run by the United nations, particularly related to Al Qaeda and affiliated groups, of which the Taliban is one. And then there are other countries also have their own individual terrorism designation systems. In the United States, the two most significant systems are ones for FTOs, foreign terrorist organizations, which is a statutory system set up by Congress, and then a separate regime for Specially Designated Global Terrorists or sdgt, that is set up by the President pursuant to executive orders using very broad open ended delegated authority given to him by Congress underneath the International Emergency Economic Powers act of 1977. I mention this because this actually bears on certain legal arguments that might be available for these different statutes as to how they apply to social media in particular. But here it's notable that unlike certain other troubling jurisdictions where we've seen similar problems arise, Syria just in the last year, being a leading one, the Taliban was never designated as an fto. It was only ever designated as an sdgt. That meant it fit in that kind of latter regime dominated by the International Economic Powers act in particular, ipa. But it was also designated under the UN sanctions regime, meaning that the US designated sanctions were implemented by the United Nations Participation act as well as ipa, meaning it was there's kind of separate statutory authority that different implications for the available legal arguments a social media company might have about complying. This becomes relevant to these two models of compliance that we saw or these two strategies that social media companies adopted. One was sanctions compliance, where they said, hey, these are sanctioned entities, financial companies aren't supposed to be doing business with them. We're not going to do business with them either. Then you have the other strategy, which is primarily Twitter strategy. Both at the time, this was pre Elon Musk purchase, but it's been relatively consistent since X where they say, hey, look, we don't let anyone who is actively engaging violence or urging violence to be on our platform or to use our platform for that purpose. But we don't kick people out because of who they are as a status basis just based off sanctions alone. We do our own assessment of their conduct and their activity. We don't just automatically import US Sanctions and use that as a means of removing people or barring people from our platform. And their position for doing this, which has been a point of controversy, came up during the first Trump administration after they designated different Iranian agencies as in particular, as different sorts of terrorist entities and Twitter declined to remove them. Twitter basically says, look, there is something called the Berman Exception, the International Emergency Economic Powers act, which excuses from the scope of ipa, that statute that authorizes the SDGT regime, excuses from that all sorts of the ability to regulate all sorts of things related to transfer of information and knowledge. And there is a colorable, I would say, strong, probably argument that at least in terms of pure social media services that are strictly under IEPA that could say, you know what, but these probably don't apply to providing these services. You probably can't use IPA to regulate these. Or at least there's a good argument you can't. And that's what Twitter has more or less leaned into somewhat implicitly. I'm not sure that you've ever come up quite out expressly and say that, but that's the best way to square their position with the law. For their part, the Treasury Department says no. Well, actually under the SDGT regime, because it's implementing UN sanctions and the UN Participation act doesn't have a permanent amendment, we actually think it's not limited to the Berman Amendment by the Berman Amendment. So we think we can restrict access to information and stuff under this regime, at least where it's implementing UN sanctions. But notably, they never really brought any really hard enforcement actions against Twitter, even where Twitter has very openly allowed designated entities and individuals to maintain accounts and use them for social media purposes. But they usually do stop them if they try and use them to incite terrorism or to preach violence and things like that. And so you had these two different models, one that is much more of a we take the terrorism designations and we just say we're just going to apply that straight out. And that has come under criticism for being overly broad because arguably these social media companies are imposing restrictions that aren't strictly required by the law and in a way that could have negative repercussions for which we'll get to, particularly for people living under those regimes. And then you had the Twitter model where it was much more free speech oriented. For people who like that, that's good. Although this isn't strictly in a US Constitutional context. But they're saying, okay, so much more entities have free speech. It's much more limited in what who they're willing to cut off just because of Sanct or anything else. But the flip side of that is that you had a lot of people saying, well, Taliban is using Twitter strategically to coordinate its forces, to recruit, to do all sorts of other things that are malign. And because they're not complying with US sanctions, they're using it for all these malign purposes that are bad. And it's effectively strengthening the Taliban more than they would otherwise. And that's exactly what sanctions are supposed to stop. When you see a group like the Taliban govern a territory, and particularly a territory like Afghanistan where people really rely on social media to actually access the Internet and it was really used as a major communications vehicle for public services and public notice of information by the Afghan government that the Taliban effectively controlled after August or September 2021. The costs really get driven home by that because all of a sudden you're saying no. Even if the Facebook really is the best way to tell Afghan civilians, Afghan citizens, hey, there's another Covid outbreak, stay home or hey, we are worried about contamination from this water source, don't use this water source or there's an insurgency in this area, don't travel to this area, we're not going to let the governing authorities use that for even that purpose because they're the Taliban because they're a designated entity. And it's not a content based restriction, it is a status based restriction. So the question then becomes, is there a more fine tuned way to do this? This really came to the fore in a decision that the kind of appellate body set up by Meta Facebook, then Meta set up to review its sort of content malioration decisions. This came to the fore, a decision that they really wrestled with in 2021 and 2022 in a very narrow fact pattern. But they raised this point where they essentially said, hey, look, when we're dealing with these cases where a designated entity comes up with, comes into control of A territory and is fulfilling all these governmental functions that we all agree have public legitimacy are things we actually need them to do, even if we don't like the group generally. Maybe we need a less binary approach to these sorts of scenarios. Maybe we can't just say they're sanctioned, we just can't deal with them at all, because maybe that doesn't actually serve the public good like we think it normally does for terrorism entities. And that query, that prompt really was the impetus for this paper, because I read that opinion at the time and I said, well, yeah, they're right. Should be a gray area, a way to fill this gray area. It doesn't have to be a strict binary. On top of that, I think as I lay out in the paper, there's an argument, international law and related domestic law, as to where you should draw that line or where you can draw that line credibly and legitimately. And that's what I try and flesh out through the paper.
- [15:26]
Alan Rosenstein
So let's get into that gray area and I think it's helpful to first figure out what the white and black are before we get into the gray. So the two key concepts here are the idea of de jure recognition and de facto control over a territory. And so just for those of us who are not international lawyers, who are not steeped in these concepts, and this distinction, just outside of the social media context, what do these terms refer to and why is the difference so important?
- [15:54]
Scott Anderson
So you have to go to international law, a place that people don't like to go, but sometimes all the way.
- [15:58]
Alan Rosenstein
Back to Grotius and Grotius Westphalian state.
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Scott Anderson
System, et cetera, et cetera. So in international law, those two terms, de jure and de facto, have been thrown around in sometimes inconsistent ways. So you can't always just assume we're using this exact definition.
- [16:14]
Alan Rosenstein
And what are they for the non Latin specialists among us? So what do they mean?
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Scott Anderson
So generally outside of this context, de jure means of the law, meaning they have a legal status of something and de facto means of the facts, essentially. I'll be glad. I think that's basically what it means. But they basically means it is a, a matter of being factual. It is a meet some sort of factual objective reality, whether or not it's recognized by the law. And de jure is saying it's recognized by the law as having the status or this capability, regardless of whether the facts bear it out or not. Right. That depends on the legal system and how much it tracks the law. This applies in a recognition Context recognition is the legal act under which international law, by which an entity that claims to be a state, meaning it's like a territory representing a people, inhabited by a people, and has certain international legal rights, or a government claiming to represent that state, which is like the regime governing it, is identified as a state or acknowledged as a state and. Or a government. And that's done by other states through their governments. Because international law is a horizontal system. There is not. We have the ICJ and things like that. Those are, remember, the products of state sovereignty. In the end, international law is super horizontal. All states have equal legal status and weight, and for them to engage, they have to acknowledge each other and in sort of a horizontal bargaining system or agreement system. That's treaty law essentially, or customary international law, where it's less based on express agreements, but is based on implicitly accepted standards of conduct. And so where this has resolved is in these two different types of recognition, is the easiest way to synthesize it. One is de jure recognition. This is the fullest type of recognition. This is when one state looks at another regime and says, you are a government and we're going to treat you like a foreign government. Or they look at another territorial entity, geopolitical entity, and they say, you are a state and we're going to treat you like a state, and you get all the rights under national law of state, all the responsibilities, your government can exercise them for you, and we're going to treat you that way. That can happen sometimes, regardless of whether they are de facto or they have that sort of control.
- [18:17]
Alan Rosenstein
If you have like a government in exile somewhere, right, That's a.
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Scott Anderson
That's the paradigmatic example. The government in exile may not control anything, but sometimes, like a Richelle de.
- [18:25]
Alan Rosenstein
Gaulle in England in World War II, right, he is recognized as the whatever leader of France. Obviously no one thinks he's the actual leader of France in any sort of.
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Scott Anderson
Effectively at that point, maybe he was the rightful one, but he wasn't effectively de facto. Standards of conceptions of recognition Although it's worth noting, not everyone considers this recognition. Sometimes people try and distinguish between de jure recognition as being what we mean by recognition and this being just a description of existing international legal obligations. International law by the late 20th century has settled on, more or less settled on the view, although this was a point of some debate for the first half of the 20th century, leading into the second half is more or less settled on the view that there are objective standards for what constitutes a state and what constitutes a government. For A state, it is usually that they have an effective government. They can abide by their national legal obligations. There is a fixed territory and a fixed population. Those are the four things that have been established kind of under customary international law dating back to the Montevideo Convention of 1934, which is a treaty that first kind of laid those out, Right? And then for a government, the question is, okay, to be a government of a state, you exercise effective control over that state. And what does that mean? It is a fuzzy standard, but it has certain tent poles of kind of like key criterion. And the effectiveness of it is essentially like, look, are you operating with the acquiescence of the public? It doesn't mean consent, like informed, knowledgeable, like, we're voting for you, but it means essentially, does most of the public say, all right, you're the government, fine, we're going to let you go about doing your job?
- [19:54]
Alan Rosenstein
Is this kind of the Weberian idea that the sovereign is he who has kind of a monopoly on a force in a particular juri jurisdiction? It's just a question of are you the guy whether, for better or for worse, that people are like, well, you're the guy with the most guns, so I guess you're our state.
- [20:10]
Scott Anderson
Maybe that's part of that. It can be forced. That can be certainly one way of establishing effective control. No one can deny governments have come around by the force of arms. Right? That is the way most governments came around at some point early in their history. But we also acknowledge that that hasn't been necessary for lots of other governments to come about. Right? Other governments have come about through legal mechanisms or through political mechanisms and other things. And so it really has come down to this question of, okay, do you have the acquiescence of the public? And is there a reason to think that that acquiescence is relatively complete, not fully complete. It's okay to have areas in dispute like almost every other. Every state has areas in dispute of control and political contention. But is it more or less broad to be a general sort of de facto regime? And then is it expected to endure? Is there a reason to think this is durable? So essentially, you get a testing window before a regime, even if they have effective control, you can say, well, let's see if this lasts for a little bit, right? This de jure de facto distinction is really notable. International law, it says if you meet the de facto standard, another state has to treat you as if you are a state or government under international law, meaning they have to give you all the rights and obligations there, but they don't have to de jure recognize you. That's actually still at the discretion of the state. That's a discretionary act that no international law can't compel.
- [21:26]
Alan Rosenstein
What's left at that point? Right.
- [21:29]
Scott Anderson
A lot more than you think, because international law, and this is to me, this is my big academic point. I just published another different paper on this academic point. This is actually a big delta that's not well defined international law. It's a source of a lot of confusion in this area. What is the difference that you owe between a de facto government of a state that you do not recognize de jure recognized, but that is de facto. You accept it as de facto. You can't deny it without violating international law in your view. And what you owe a de jure or what you can provide a de jure recognized government that meets the same criteria. What's that delta? Generally, it's a lot of discretionary stuff. I may accept a regime in the back of my mind as saying, okay, yeah, I mean, they control this state and there's nothing I can do about it. Doesn't mean I have to send diplomats, doesn't mean I have to enter into treaties with them, doesn't mean I have to accept diplomats from them. All those are discretionary things I'm not obligated to do with any state. I don't have to maintain diplomatic relations with them. Other trickier ones come into play about things like assets. So who controls the assets of a foreign state? If I'm the United States and Afghanistan has assets here, which it does, and this came up in regards to central bank assets, most notably, what happens if I don't recognize a government of that state who controls those assets? Then the question then becomes, well, usually US Courts, like many countries, they follow the determination policies of their government even if it doesn't align with international law. So you run the possibility of the US Government be able to define, well, these assets should go to one party's control or another. That happened in Libya and Venezuela where the US government recognized opposition movements and all of a sudden those opposition movements because they were recognized by the US Government even though they lacked de facto control, all of a sudden they started controlling the US based assets for those governments, or at least a substantial portion of them that weren't subject to sanctions on the restrictions. This sort of manipulation of that process has become a very common policy tool. It's very legally complicated. I think it's a little bit of a legally contested area to say the least. But the key point is there is actually a big delta between de facto and de jure recognition. But the way to think of it, I think, is that de facto is a floor of, like a basic baseline criterion that you have to provide. And then du jour is saying, we're going to give you the full basket of both rights and courtesies and privileges we give to other states and government.
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- [28:51]
Alan Rosenstein
So I think this may have been implicit in the last few examples that you gave, but this distinction between de facto and de jure recognition, to continue using that terminology, obviously it's of immense importance to the government itself and it's of immense importance to the leader and the diplomats, et cetera, et cetera. But what about to the individuals themselves, right? So if you're a citizen of Afghanistan or a citizen of Somalia or citizen of Syria, as we'll talk about a little bit later, why do you ultimately care whether your government is. Just make it concrete. Why do you care if your government is recognized, again, not just as the de facto authority? Right. Not just as, okay, clearly this government runs the country, so we're not going to send airplanes into the airspace. Right. Because we all understand what's going to happen. But we're also going to have this additional question of whether we're going to legally recognize the government as legitimate.
- [29:39]
Scott Anderson
So it can make a big difference in a variety of very specific contexts. The place it tends to come up is what we often think of as kind of like domestic laws and rules and regulations, like the things that really affect the household and the home and individual property and business. And then I would say also international trade, international business, where it comes home. Usually when I get married, when I buy property, when I do a variety of things that are of great significance to me in my life individually, they're recognized by my government. I go through the legal process of my government and register them and get them certified. And then by virtue of having gone through that legal process, that status is recognized by foreign governments as well, and foreign states as well. So if I go with my wife to the United Kingdom and we have a dispute, she leaves me and we have a dispute over property, that's with them in UK The UK court's probably going to look back to the evidence I can produce of us being married in the United States and say, the United States recognizes this marriage. We're actually not even going to second guess it. That's a legit marriage. Unless there's like some sort of foundational public policy implication, like if my wife were underage or something when we got married, that would implicate it. And they'll say, we're going to recognize, we're going to take that at face value. They don't recognize that government. All of a sudden, there's no entity for me to go and get my domestic acts certified by, institutionalized, recognized by. And that comes to cause other complications too. Let's say I have a foreign business partner that I want to bring in and. And import a bunch of goods or bring foreign investors in. A. There's a question of, well, who do they get permission to even come in if there's no recognized government? They may say, well, I'm worried that maybe my government might face prosecution or penalize me or object that I was doing something illegal. There may be questions about the extent to which I can get insurance coverage adequately recognized in the courts of my home government if it only allows me to do business in areas with the legal permission of the local authorities and my home court, my home government doesn't recognize the law local authorities in that foreign country. So all of a sudden it becomes real barrier to doing international business. It pays, paying taxes. There's a big question about saying, well, okay, let's say the Taliban collects taxes from me or either as a foreign business or as somebody in Afghanistan, how do I know that those taxes are going to be recognized if there's another regime a month later? Or how am I going to know that those taxes are recognized as legitimate by a country like the United States who by the way, criminally prosecutes people for foreign corruption and giving money to people who aren't foreign governments for legitimate taxes. These are all big barriers and they're really, really complicated. When you don't have an acknowledged, formally recognized or legal, you know, effectively recognized government in place, it becomes really hard to do these things. And in the case of Afghanistan, that was a real point of concern during this era because the thing that happened almost immediately after the Taliban took control said Afghanistan's entire economy collapsed. It was economy based almost entirely, substantially, almost, maybe not almost entirely, but in huge swaths on foreign assistance and the infusion of funds related with United States and Western support. All that foreign assistance, a lot of it cut out, not all of it. Some humanitarian assistance continued to flow in very targeted ways early on, heavily disrupted. Obviously a lot of the western backed, US backed operations there. A lot of companies got very spooked because the Taliban does not have a great reputation and left of their own volition. And there became this question about saying, okay, well, how do we get people to reengage economically with Afghanistan and what are the real barriers to that? That led ultimately in kind of a separate, very interesting story, governments to rapidly try and lift in a rapid series of measures over the first year to the Taliban control, give more and more sanctions relief until ultimately they reached the point, as I discussed in this paper, where they basically were saying, you can do whatever you need with Afghanistan, please go back in. But part of it also was like separating apart from the actual prohibitions on engaging these political ambiguity over who controls it, who governs it, poses its own costs. And those are going to be pretty daunting for foreign businesses that places like Afghanistan are really reliant on, particularly when places like Afghanistan, frankly are probably already pretty marginal markets like it's going to be. It's a really risky environment for a lot of these businesses to go operate in in the first place. And so you're just layering on top of that with additional uncertainty. That becomes a problem. And so that's kind of particularly why I think this problem is particularly acute and of concern in the Afghan context.
- [33:58]
Alan Rosenstein
All right, so we've established the two important legal distinctions here, or rather the difference between de facto recognition and de jure recognition and sort of why this is important for the civilians and again the problem it presents for the platforms. So now let's get to what I take as sort of the core conceptual part of, of the piece, which is the idea of what you call de facto or the local de facto authority rule. So just explain what that is as an international law concept and then why you think it's a useful way for platforms to think about situations like what happened in Afghanistan in 2021.
- [34:36]
Scott Anderson
Yeah, so this is an international law concept that really has fallen into kind of disuse. It's not talked about very often and recognition generally rarely gets very detailed treatment in most international law treatises at this sort of like level of application. But it's an idea that dates back to early 20th century writings when these ideas were being much more bandied about and there's much more active academic discourse about them. And it was a proposal, this idea, that pointed out that yes, you have sometimes you have de facto what are called general regimes to distinguish them from local de facto regimes. A general de facto regime is what I described previously, which is that you are a regime in effective control of a state, but you are not digital recognized for whatever reason, but you're in effective control, everybody gets that and you're of the whole state. But then there are also other cases that even by the early 20th century there was a number of incidents of state practice of, with elements of opinio juris, like the idea that this is a legal reflects legal duties, that gives it the status of customary international law. There were some practices in place where regimes that could not claim to control even effective control of the whole state were nonetheless being acknowledged of having the legal capacity to take certain steps as if they were the government of a given state or territory, sometimes just a portion of a state, usually in pretty extreme circumstances like war, or in circumstances where the status was heavily disputed, like a post conflict situation, or sometimes in situations where it was like pseudo colonial environment where they just hadn't actually developed a government of the type that was recognized by European powers. And so there were all these cases where they said, well, there's like much narrower Strips of authority. The best example of this, interestingly I think, or one of the best examples, comes from US Law after the American Civil War, where throughout the American Civil War, there was obviously you had all these state governments governing individual states in the Confederacy, none of which were recognized obviously de jure by the US Government, many of which were contested, even de facto, whether they were recognized, there was a hesitancy to lean into saying, well, okay, we're going to treat them like governments, even if they're not governments. But you had all these Americans, particularly after the Civil War ended, who were reincorporated into America, who had been living under them for years, and they'd done things like certified marriages, certified property transfers, adjudicate, they ran the court system, they adjudicate all these private disputes. So what was going to happen to all of these decisions? Were they just going to be invalid and the Supreme Court, U.S. supreme Court ultimately said, no, what we're going to do is we're going to acknowledge that there were regimes and institutions filling these government public functions, and that while we are not going to acknowledge acts that were intended to further the rebellion or undermine union policy or otherwise do things that were of a kind of national policy, or I guess at that point, state policies or perspective, we are going to acknowledge and accept when they do things that are in the ordinary course of governments, and then we're going to allow them to step in and fill those sorts of functions like recognizing marriages and doing property transfer and doing stuff like that domestically. And we're going to accept all those acts as presumptively valid, as if they had come from a foreign government. That started getting applied in other contexts where you saw these long periods without a recognized government, with at least strips of authority. Soviet Union is a classic example where the United States didn't recognize the Soviet government for almost, I think, more than 20 years after it seized power. And so you had this huge period of huge legal disruption.
- [38:06]
Alan Rosenstein
I didn't know that.
- [38:08]
Scott Anderson
It's an insane story. It's really wild. It was actually the impetus of a lot of pushback against this executive branch dominance recognition policy in the early half of the 20th century, because you end up with really, really seemingly inequitable outcomes where you had the Soviet regime in what would become the Soviet Union, what is now the Soviet Union, but wasn't recognized at that time by the United States, would still be allowed to do business in the United States, and they would be defrauded in the United States, and they would be not allowed to sue over it because they were not the recognized government.
- [38:37]
Alan Rosenstein
It's just a large part of the. I'm just thinking of the map. It's a very large part of the map.
- [38:41]
Scott Anderson
Pretty extraordinary.
- [38:42]
Alan Rosenstein
Not have a recognized government.
- [38:44]
Scott Anderson
And that was part of the concern here. And in some ways, I think the development of this local de facto regime approach, which I would say, Edwin Borchard, I've never had to say this out loud. I think I'm saying it right. But Borchard, who was a fairly prominent international lawyer in the first half of the 20th century, he's the guy who I am most closely associated with. That's why I've read about him, despite developing this most thoroughly. And he was a deep critic of the non recognition of the Soviet regime as well as other sorts of regimes in Eastern Europe in the early 20th century, in the 1930s. So I think this was in part an effort to show how we can correct for some of the inequities that come from withholding recognition and having to think of recognition as just a state by state binary by essentially saying sometimes there are circumstances where an entity fills a government function and we should accept that as valid and we should give it the ability to act on the behalf of the state as if it were its government for those limited functions only, not necessarily for anything more broadly than that. And that sort of local de facto rule, I think helps you really navigate some of the political trickiness around this Taliban case and other comparable cases and really is what becomes the seed for my approach in this paper.
- [39:52]
Alan Rosenstein
And which is. So just go on to explain. How does the local de facto rule help? If you're a meta policy person or you're an ex and you're trying to figure out, okay, does the Taliban Water Reclamation Authority of Kabul, do they get an official account on X, how does this rule help me decide that question?
- [40:10]
Scott Anderson
Yeah, so essentially what I argue is that the Taliban, there's a resistance to de jure recognizing the Taliban. Again, only China and Russia have done it. Russia has actually the only country who's fully done. China has accepted ambassadors to and from the Taliban, but it said we don't actually recognize them, but we do accept ambassadors. It's a little weird. Russia has formally come out now, fully recognized the Taliban as Afghanistan's government, but as far as I'm aware, I believe the only one, unless China maybe has taken an additional step in that direction, I haven't heard of in the last few weeks or a few months. But in addition to that resistance to de jure recognizing them, there's also a resistance to treating them as the general de facto government Afghanistan in and this is actually even expressly articulated by people like Mike McFaul who was the Republican chairman of the House Foreign Affairs Committee until recently and I think this past Congress who wrote several strongly worded letters basically saying like we shouldn't be taking steps to advance even the de facto acknowledgment of the Taliban because that strengthens their hand. And a lot of people felt that way around the world. I think you can debate that position one way or the other. But it was a sentiment out there, particularly with the Taliban, a group seeing as being seen as problematic in a lot of regards. Right. And that you didn't want to strengthen their hand. And so it became really hard to say, well, are we Even though the Taliban, arguably you could make a strong argument they meet the definition for a general de facto regime. Even if you don't want to give them de jure recognition, do you want to accept them as having such broad authority over all elements of the state that are the non discretionary elements? And there's a strong pushback, there's political resilience to that. What I argue in this paper, and I should say I wrote a companion paper entitled Taliban's De Facto Future in Scandinavian Journal of Military Studies for this kind of volume that they turned into a book last year that is a similar concept in the public law sector. But this is kind of the private sector application of that which basically the argument is, well, if you don't accept them as the general de facto regime, that doesn't mean you can't accept that they actually are serving certain core public functions. And you lean into this definition of what it means to be a local de facto authority which the International Law Commission, the UN body kind of assigned responsibility for codifying and developing international law standards articulated in the articles on the rules for states in regards to internationally wrongful acts. The RSWA Articles of Responsibility of States for Internationally Wrongful Acts. There we go. They're pretty influential, not necessarily clearly binding. Most states haven't joined them, but generally seen as pretty reflective of customary international law. And there they basically laid out criteria, basically saying like look, different situations of exigency, there's no other entity that can step into play this function and they're serving what is seen as a traditional governmental function in a kind of even handed way. Then you can recognize an entity as filling that function even if it's not a full de facto regime, even if it's just this local de facto, just Filling this one function that gives you a toolkit by which you can say, hey Taliban, we're not going to accept you even as de facto as being able to do everything on behalf of the state, but where we can reach consensus that what you're doing is an ordinary governmental thing, maybe we can give status to that alone.
- [43:07]
Alan Rosenstein
So who is the we here? Because one question I have is, let's say, and I think this makes sense, let's say that, look, we're going to accept that when the Taliban is acting as the local water system, let's just stick with that example, they're the government for water purposes and it's important that a water system be able to send updates to its citizens and its customers about what is not potable water. Fair enough, but is that going to be a decision for the social media companies to themselves make? And if so, how do they harmonize their determination here with whatever the domestic law on sanctions is, or material support terrorism? Or is your proposal that the relevant entity in the State Department will say, we're going to do this local de facto authority recognition for this list of functions? And then social media companies, when you're asked by the Taliban water system to give them an account, please, on X or Instagram or whatever, you can look to our guidance that for this purpose and this purpose alone, you can do business with these people. So I'm just curious mechanically, how does this work?
- [44:13]
Scott Anderson
So I really think it is and probably would functionally operate as a kind of an either and or sort of system, essentially. And that's actually the two papers I wrote, like kind of sister paper of this piece that came out last year. The recognition of the Taliban's de facto future that does it with the public sector context. It talks about it in the interstate context. So there I basically say, look, this is a situation where you could get states together through the UN system, where the UN has been super active about coordinating recognition policies in regards to the Taliban since 2021. So it's a uniquely likely plausible case for the UN playing this sort of role and serves as kind of a clearinghouse and say what can we come on consensus on, set up a political process to say, where can we agree these are legit functions the Taliban is filling, even if we don't accept it as the actual, even de facto state government, what functions it's filling that are essential? And why don't we accept that it can do these? Because that's going to ease a lot of these economic and other costs that come with non recognition. But if the governments aren't willing to do that, they haven't taken that step yet. I think there's space for the private sector to be able to do that individually. And we know this actually is already happening. There are a number of cases even in the first few months after the Taliban took control where Facebook or Twitter or other platforms would make ad hoc exceptions to their usual rules banning access to these for certain activities. Right. And usually it's because they got through somebody who's the right content manager who looked at it and weighed the public interest involved and said, yeah, in this case we think the public interest kind of outweighs it. And the truth is the exposure of these ad hoc incidents is relatively limited to these companies. When they're at a limited scale, it's not clear what the liability would be. Maybe they would get a sanction slap on the risk. But again, US government is not that active in enforcing these sanctions because of that question about how this whole regime even applies to social media that I basically say, look, that gives you a lot more free reign. The Twitter case shows like you can go pretty far in not categorically applying US sanctions in the social media space, even though maybe there's an argument that you should do so more robustly. Maybe you can use that to strike a more fine balance. To say, well, hey, we're going to explain to state governments why we're permitting certain things, things. And when you explain it to them, if you follow the local de facto rule, you can tie it back to their own rules and their own behavior, their own practices under international law, and by the way, many of which are important and reflected in US domestic law now too, to say, look, this is how US Courts, this is how international courts have approached similar circumstances. We're just trying to do it. And then you can tie it through industry coordination. You can try and get different companies together to talk about this and coordinate their standards. That's within an industry. You could get drank in different industries to say, okay, we are all up and down the kind of production chain going to support hydroelectric sector under Taliban governance because we recognize it's something every government would want to do and we're going to lean into it. And you can do things like tie it to international best standards, tie it to international legal obligations, tie it to all the things that you expect states reasonably expect a responsible state to be doing. And you could say, okay, well if they're doing it in line with international standards, why would we think this isn't something a government would do? This is something that literally the international experts are saying, you should do this guys. Government. This isn't going to get you everywhere. There's still me lots of stuff the Taliban is not going to be allowed to do, but it lets you open up that aperture a little bit to a lot of key activities that probably matter a lot to everyday Afghans, and that would make social media a much more available tool for those public purposes that are important.
- [47:31]
Alan Rosenstein
So there's a lot more to discuss and in particular about how this extends to other cases like Syria. But I think we're going to have to wrap here. I really recommend people who are interested in this read the paper. It's extremely interesting exploration of not just this policy policy, this discrete policy issue, but also these very interesting broader intellectual questions about recognition. And as someone who is not an international law expert, I at least found it extremely interesting. So thank you Scott, for writing the paper and coming on the podcast to talk about it.
- [47:59]
Scott Anderson
Yeah, thank you for having me.
- [48:03]
Alan Rosenstein
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