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, ‘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.
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 overseas chinese in canada datadecided 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’.