A fundamental question in any legal system is to whom rights and duties are afforded under the law. In the international legal system, states have rights and duties under international law. However, a state cannot function without a government to exercise its rights and duties. Therefore, determining whether a government is legal—meaning that it has the legal authority to exercise the rights and duties of the state—is critical.
In most cases, questions of a government’s legality are not a concern. However, in cases of extraconstitutional government transitions, the current doctrine is ambiguous in determining the new government’s legality. The ambiguity of the current extraconstitutional transition doctrine came to the forefront after the Taliban seized power and established a government in Afghanistan in August 2021.
This Comment answers two questions: (1) What should the doctrinal framework be for assessing the legality of a government in an extraconstitutional transition situation? (2) How does the IEA in Afghanistan meet this Comment’s two proposed elements?
