Introduction
On 25 September 2024, on the sidelines of the UN General Assembly High-level meeting, Canada, Australia, Germany and the Netherlands announced that they would take formal steps against Afghanistan for numerous violations by the Taliban of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The next day, 22 more States joined them in a statement supporting the initiative taken by these states ‘under Article 29 of CEDAW’. Article 29 of CEDAW requires State parties to any dispute not settled by negotiation to resort to arbitration. However, ‘[i]f within six months from the date of the request for arbitration the parties are unable to agree on the organization of the arbitration’, they may refer the dispute to the International Court of Justice (ICJ). This raises the question of whether the Taliban, not formally recognised by any State since it took power in Afghanistan at the end of a long-lasting civil war, can represent Afghanistan as its government before an arbitral tribunal or ultimately the ICJ. In this post, I specifically address this question, while Kyra Wigard covers the judicial aspects and overall implications of this initiative in her recent post.
How Pre-Trial Chamber II of the ICC resolved the matter
Pre-Trial Chamber II of the International Criminal Court (ICC) had already grappled with a similar question when the Prosecutor requested the Chamber to authorise the resumption of the investigation into the situation in Afghanistan on 27 September 2021 in light of the change of circumstances in the country after the Taliban’s takeover. The Chamber decided that it should seek observations from the relevant State to be able to adjudicate the Prosecutor’s request and it cannot do that without addressing the ‘question of which entity actually constitutes the State authorities of Afghanistan since 15 August 2021’ (para 16).
The question however proved difficult for the Chamber as it concerned ‘complex matters of international and constitutional law, as such not suitable to be addressed, or trivialised, by way of general, sweeping and unsubstantiated assertions’. The Chamber therefore attempted to sidestep the question entirely by claiming it was outside its ‘purview’, particularly citing the rapidness of the relevant developments that left ‘a large margin of uncertainty’ regarding their legal implications (para 18). Accordingly, it decided that ‘it needs to receive reliable and updated information’ on this question from the UN Secretary-General and the Bureau of the Assembly of States Parties, due to their respective institutional mandates (para 19).
This approach taken by the Chamber largely confirms Pavlopoulos’ reading of the decisions by the international adjudicative bodies on similar questions, mostly those arising in the context of investment arbitration proceedings involving Venezuela. He finds that, instead of attempting to ascertain the identity of the State’s government, adjudicative bodies try to avoid to the extent possible to resolve such controversies through various ways including ‘by deferring entirely to the decision of some other body …, whether that other decision is based on the identification of a state’s government or on some other consideration’.
However, this attempt by the Chamber proved unhelpful, as the responses from the entities it deferred to were unsatisfactory. The Bureau simply stated that ‘due to its nature and functions, it does not hold the type of information that is requested’. The UN Legal Counsel emphasised that ‘the Secretary-General, and the United Nations Secretariat more broadly, do not engage in acts of recognition of Governments, which is a matter for individual Member States’.
The Chamber therefore felt compelled to answer the question itself, seemingly to avoid a non liquet (para 14). In assessing the status of the Taliban, it first noted that ‘changes of governments have no impact on the continuity of States’, adding that it has indeed been the practice of the ICC not to stop the communication ‘with States on the basis of changes of governments’, giving as examples the situations in Mali and Darfur, Sudan. In support of its claim, it also cited the ICJ cases concerning Niger (2010) and Myanmar (2021) where the new governments were able to represent their respective States during the proceedings before the Court despite the change of power in these States through widely condemned coups d’état (para 15). Therefore, though not in express terms, the Chamber seemed to rely on the traditional doctrine of effective control according to which an entity in effective control of the State qualifies as its government under international law regardless of how it came to power, be it through a coup d’état or civil war.
However, the Chamber sought not only to establish the identity of the government of Afghanistan but also made an effort to determine who should be communicated with on behalf of Afghanistan for the specific purposes of the proceedings before it. It considered that the observations from Afghanistan ‘are sought in the context of the complementarity principle: accordingly, any government in place is the relevant entity to inform the Court on whether that particular state “is investigating or has investigated its nationals or others within its jurisdiction with respect to”’ the alleged criminal acts (para 16). That is, communicating with the authority in effective control was the appropriate choice also for the specific purposes of the proceedings before it.
The Chamber also tried to minimise the value of the Taliban’s non-recognition. It noted that, although no State has formally recognised the Taliban as the government of Afghanistan, ‘multiple States, the United Nations and other international organisations have engaged with, conducted talks and cooperated with them’, and, in numerous circumstances, have officially referred to them ‘as the “Afghanistan de facto authorities” or the “de facto government” of Afghanistan, therefore regarding members of that group as the interlocutors of Afghanistan’ (para 17).
Consequently, it invited Afghanistan to provide observations on the Prosecutor’s request for the resumption of the investigation and ordered ‘the Registrar to communicate the present order to the authorities currently representing Afghanistan’, that is, the Taliban (para 19). However, it should be noted that this episode highlighted the difficulty of reaching de facto authorities in such situations due to procedural hurdles, as, in accordance with the applicable law, the Registry had to transmit the order to the Afghan Embassy in the Hague, which continued to be controlled by the diplomats appointed by the ousted government, ‘for onward communication to the competent Afghan authorities’.
How the ICJ could resolve the matter
The generally accepted criteria by which an entity qualifies as the government of a State is the ability of the entity in question to exercise effective control over the population and territory of the State. The Taliban would certainly qualify as the government of Afghanistan under these criteria. Admittedly, recent State practice includes challenging cases to this traditionally accepted view, where democratically elected governments prevented through unconstitutional means from exercising any power within the State were nonetheless internationally recognised and were able to represent their State in international relations, as in the well-known cases of Haiti, Sierra Leone, and The Gambia. However, in the case of Afghanistan, there is no internationally recognised alternative to the Taliban. Nor does the fact that no State has formally recognised the Taliban as the government of Afghanistan necessarily mean that the international community as a whole denied the Taliban’s governmental status. Recognition does not have to be express and it can be inferred from the dealings with the entity in question. The finding by Pre-Trial Chamber II of the ICC that States regarded the Taliban ‘as the interlocutors of Afghanistan’ is therefore important.
However, States engaged with the Taliban not only through the ways the Chamber mentioned. As I show in my recent article on the recognition of the Taliban, some States concluded bilateral agreements and established diplomatic relations with the Taliban, including by formally accrediting its diplomats, while these types of relations are typically enjoyed only by governments under international law. States that established such relations with the Taliban included those that publicly stated they would not ‘recognise’ the Taliban as the government of Afghanistan until it met certain conditions, such as establishing an inclusive government and respecting human rights, particularly the rights of women. Some of them also made clear with disclaimers or later statements that the establishment of diplomatic relations with the Taliban did not constitute recognition. However, the significance of this supposed ‘non-recognition’ was minimised, if not diminished altogether, by the conduct of these States in treating the Taliban as the government of Afghanistan. Indeed, the aforementioned joint statement by the 26 States supporting the initiative against the Taliban under CEDAW appeared to limit these States’ non-recognition of the Taliban to the sphere of politics: ‘This action is without prejudice to our firm position that we do not politically recognize the Taliban de facto authorities as the legitimate representation of the Afghan population’. The statement thus withheld from the Taliban ‘political’ recognition as ‘the legitimate representation of the Afghan people’ (on the implications of such phraseology, see Talmon), rather than legal recognition as the government of Afghanistan. It is therefore difficult to argue that by refraining from formally recognising the Taliban – or by preventing it from representing Afghanistan at the UN General Assembly – the international community as a whole meant to deny the governmental status of the Taliban.
However, not only because the Taliban qualifies as the government of Afghanistan but also strictly for the purposes of potential proceedings concerning Afghanistan’s international responsibility, the Taliban would have the legal capacity to represent Afghanistan. This is because its actions can be attributable to Afghanistan as its ‘general de facto Government’ according to the Commentary to the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts, as will be explained below. Though admittedly such a context-dependent, or purpose-based, approach may open the way to potential fragmentation of the question of governmental status, adjudicative bodies may prefer it for the reason that it may save them from possible criticism for making a sweeping recognition decision on who the government of a State is with effects going beyond the proceedings before them. The aforementioned reluctance of adjudicative bodies to make a decision on the identity of a State’s government in controversial cases seems to affirm that such a method, when possible, would be preferable for them. Indeed, Pre-Trial Chamber II of the ICC, as mentioned, made an assessment also with reference to the purposes of the proceedings before it.
As to why the Taliban’s actions can be attributable to Afghanistan, the Commentary to Article 9 of the Draft Articles states that ‘[a] general de facto Government … is itself an apparatus of the State’ and the conduct of its organs ‘is covered by article 4’ which sets out the basic rule of attribution for the purposes of State responsibility. Likewise, the Commentary to Article 10 states that for the purposes of ‘State responsibility, it is unnecessary and undesirable to exonerate a new Government or a new State from responsibility for the conduct of its personnel by reference to considerations of legitimacy or illegitimacy of its origin’. Thus, according to the Commentary, regardless of its non-recognition by some other States or the illegitimacy of its origin, the Taliban, as its de facto Government, can represent Afghanistan at least for the purposes of State responsibility.
Indeed, the aforementioned joint statement by the 26 States provides support for this conclusion in State practice: ‘[W]e stress that the Taliban de facto authorities remain responsible to uphold and fulfill the international legal obligations of Afghanistan, including on the elimination of discrimination of women and girls under CEDAW’. My aforementioned article refers to more pronouncements by some other States and international organisations, which were, explicitly or implicitly, to the same effect.
To my knowledge, the only explicit view contradicting the idea that the Taliban can be held responsible for Afghanistan’s international obligations came from the US representative during a meeting of the UN Human Rights Council. The representative:
‘noted that generally only States had obligations under international human rights law. References in the draft resolution to human rights violations by non-State actors should thus not be understood to imply that such actors bore such obligations. Nevertheless, the United States was committed to promoting accountability for human rights abuses by non-State actors in Afghanistan, including the Taliban’.
While this view still holds the Taliban accountable, presumably due to its territorial control, it only holds it accountable as a non-State actor, rather than on behalf of Afghanistan. Such a view thus would have implications for the purposes of potential proceedings before the ICJ. It would make it impossible for Afghanistan to be represented by the Taliban, as according to Article 34 of the Statute of the Court, ‘[o]nly states may be parties in cases before the Court’. However, as shown, the position expressed by the US representative in the UN Human Rights Council does not seem to find further support in State practice or doctrine.
There seem to be additional reasons for a State to be represented by a de facto authority like the Taliban in international judicial proceedings, particularly from the perspective of the proper functioning of the judicial process and compliance with any resulting decision. In this respect, Papp’s pertinent observation in the context of investment arbitrations seems equally applicable to representation before the ICJ. She argues that it is important to give regard to the question of ‘which government will be able to respect the commitments made during the proceedings, assert the state’s rights effectively and carry out any obligations stemming from the decisions taken by the arbitral tribunal, be that procedural orders or awards’.
Lastly, the representation of Afghanistan by the Taliban before the ICJ would be consistent with the approach the Court has taken in the case concerning Myanmar’s obligations under the Genocide Convention. The ICJ allowed the junta to represent Myanmar before the Court and ignored the attempt by the National Unity Government formed by elected members of the ousted parliament in exile to participate in the proceedings. This was despite the fact that, like the credentials issued by the Taliban, those issued by the junta were not accepted by the UN General Assembly. Although the ICJ did not provide proper reasoning at the time, the President of the Court felt the need to note at the oral proceedings where the new Agent of Myanmar appointed by the junta was to plead before the Court for the first time ‘that the parties to a contentious case before the Court are States, not particular governments’. Therefore, though implicitly, the Court applied the test of effective control to the question of representation of Myanmar.
In conclusion, an arbitral tribunal or the ICJ could accept the Taliban as having the legal capacity to represent Afghanistan in potential proceedings concerning the responsibility of Afghanistan under CEDAW.
