Judge Them by Their Actions, Not Their Words: Legal and Political Recognition of Governments and the Prospective CEDAW Case Against Afghanistan Before the ICJ

[Lukas Willmer is a PhD candidate at Humboldt University Berlin, with a research focus on governmental status and recognition in international law]

In September 2024, Australia, Canada, Germany, and the Netherlands announced their intention to initiate proceedings before the ICJ against Afghanistan for violations of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). The four states refer to the Taliban as a de facto authority that is not politically recognised. However, as I will show, the initiative implies the legal recognition of the Taliban as the government of Afghanistan. The case illustrates the important distinction between political and legal recognition, which helps not to overinterpret the acknowledgement of the Taliban’s status as the government by the four initiating states. States award or withhold political recognition in cases where they deem another entity (il-)legitimate, be it for democratic, constitutional, or human rights reasons. Legal recognition merely acknowledges the legal status as government under international law and should therefore not be seen as a conferral of political legitimacy.

The case has already received some attention in the blogosphere: Kyra Wygard has discussed the initiative by the four states as a groundbreaking move to challenge gender persecution, though Jayne Huckerby has pointed out that the initiative is not a panacea. Seyfullah Hasar has explained why the Taliban will likely represent Afghanistan before the ICJ. I will show why the initiative amounts to an act of legal recognition and that this is not the first case where legally relevant action and public statements diverge, as well as what consequences it entails.

Meanwhile, the already dire situation of women’s rights in Afghanistan has further deteriorated. In their quest to make women wholly invisible in public, the Taliban decreed in December that domestic spaces frequented by women may no longer be built with windows.

Why Bringing the Case Implies Legally Recognising the Taliban as the Government of Afghanistan

Legal recognition of a government is the acknowledgement of certain institutions and/or individuals as the lawful representative of a state on the international plane (see, e.g., the definition developed by the ILA). In most cases, such an acknowledgement happens implicitly, since almost all states generally refrain from recognising governments expressly. Implicit recognition may occur through the acceptance or exchange of any legally relevant act reserved exclusively for the government of a state. Examples are the signing of a treaty, acting based on consent for a military operation or the accreditation of an ambassador to the host government.

Bringing this case against Afghanistan implies that the four prospective applicant states have legally recognised the Taliban as the government of Afghanistan. This is not necessarily because their representatives will, if the case proceeds to the ICJ, confront Taliban representatives at the Peace Palace, but because of the requirements of CEDAW’s compromissory clause.

Art. 29 CEDAW requires that a dispute “which is not settled by negotiation shall, at the request of one of them, be submitted to arbitration.” If the parties are unable to agree on arbitration proceedings within six months, then the case may be referred to the ICJ. Concerning the comparable negotiation requirement in Art. 22 CERD, the Court has held in Georgia v. Russia (para. 157), that “the concept of ‘negotiations’ […] requires – at the very least – a genuine attempt by one of the disputing parties to engage in discussions with the other disputing party, with a view to resolving the dispute.” Directly concerning Art. 29 CEDAW, it was held in Armed Activities (New Application) that numerous protests made by the DRC against Rwanda’s allegedly illegal actions, both at the bilateral and the multilateral level, were not sufficient to satisfy the negotiation requirement (para. 91). In the CERD case between Ukraine and Russia, the Court relied on an exchange of notes verbales and direct bilateral consultations (paras. 69/70). The jurisprudence of the ICJ shows that negotiations may not be conducted through unilateral statements addressed to “whom it may concern”, but through a proper exchange of views between the disputing parties.

The disputing parties, i.e. states, may only be represented through their governments. The Taliban’s conduct may theoretically also be attributed to Afghanistan as the conduct of a de facto authority according to Art. 9 of the ILC’s Articles on State Responsibility (ARSIWA). However, who to negotiate with over Afghanistan’s obligations under CEDAW is not a question of attribution, but of representation, and consequently of governmental recognition. If they bring the case, the applicant states will need to provide concrete evidence of their negotiations (as well as the attempt to organize arbitrations) to convince the Court it has jurisdiction. It will therefore be impossible to avoid identifying the lawful representative of Afghanistan. The German Foreign Minister has noted that “as required by CEDAW provisions, we are making an earnest attempt to engage the de facto authorities on how they fulfil their international human rights obligations.” This statement mirrors certainly not by accident the “genuine attempt” requirement developed by the ICJ. It indicates that the four initiating states have identified the Taliban as responsible for the negotiations under Art. 29 CEDAW and therefore legally recognised them as the government of Afghanistan.

The Word/Action Divide

What sense do we then make of the clarification by the four sponsoring states and further 22 supporting states that “we do not politically recognise the Taliban de facto authorities as the legitimate representation of the Afghan population”?

The answer lies in the important but sometimes overlooked distinction between legal and political recognition of governments. While states identify the lawful representative of a state through acts of legal recognition, states politically recognise in some cases different entities or withhold political recognition. But political (non-)recognition does not affect the question of who can legally represent a state on the international plane. Who states see as legitimately representing the population may sometimes be different from who they see as the legal representative of the state. This is more obvious in cases where states have recognised, e.g., the Syrian and Libyan opposition as “legitimate representatives of the people” and therefore not even as government. In other cases, express statements of political recognition must be carefully distinguished from relevant conduct that may imply legal recognition as government. The EU has publicly declared not to recognise President Lukashenka of Belarus after disputed elections in 2020, but there is no indication that it does not legally treat him as head of state. When Nicolas Maduro and Juan Guaidó both claimed the Venezuelan presidency in 2019, many European states declared to have acknowledged or recognised Guaidó as President. But those declarations were also forms of political recognition. All European states continued their diplomatic relations with the Maduro government. In contrast, several South American states, Canada, and the US, which recognised Guaidó, withdrew credentials from Maduro‘s diplomats and accredited Guaidó’s diplomats instead, thereby engaging in legally relevant acts. The US also gave Guaidó access to Venezuelan sovereign assets located in the US thus acknowledging Guaidó’s – alleged – legal capacity to represent Venezuela. Sweeping statements, according to which more than 50 states had recognised Guaidó in 2019 are therefore misleading – many of those recognitions did not imply that the recognising states considered Guaidó to head legally the government of Venezuela. To identify which government is legally recognised by a certain state, it is more important to analyse what the recognising state does, than what it says.

The current situation in Afghanistan is thus another example of the need to distinguish between public statements of political recognition and conduct that implies legal recognition. This is also the conclusion eventually drawn by Pre-Trial Chamber II of the ICC, which held that even though no state has “formally recognised” the Taliban, numerous states and international organizations have accepted the Taliban as representative of Afghanistan making them the competent authority to represent Afghanistan before the ICC.

What Consequences Does the Legal Recognition of the Taliban Have?

Legal recognition as a government does not entitle the Taliban to any form of diplomatic or bilateral relations. Such a step remains at the discretion of each government. Legal recognition could, however, affect the status of remaining diplomats sent by the former Afghan government to Australia, Canada, the Netherlands and Germany. If the Taliban government tries to replace diplomats there, it will be difficult to argue that it lacks the capacity to do so. The German Foreign Office has reportedly already concluded that such a request could not be ignored. While no state is forced to accept Taliban diplomats, it will likely be necessary to withdraw existing accreditations if the Taliban insist on doing so.

In addition, access to sovereign assets located abroad may be affected. For example, the US does not recognise the Taliban partly to keep them from accessing assets by the Afghan Central Bank held by the Federal Reserve Bank of New York (though the surrounding circumstances are more complex). But this goal could be achieved without recourse to the (de-)recognition of governments. While the law on (third-party) countermeasures and unilateral sanctions is deeply contested, the practice by many Western states to freeze Russian central bank assets at least shows that these states consider such a freeze legally possible without de-recognising the Russian government. Using countermeasures would also be the more appropriate tool to freeze these assets instead of arguably abusing the process of recognising governments.

One important consequence concerns CEDAW itself: the Taliban will likely be able to withdraw Afghanistan from CEDAW. It appears difficult to argue that the Taliban may negotiate on behalf of Afghanistan for the purposes of Art. 29 CEDAW, but do not have the capacity to terminate the agreement.

The Benefits of an Effective-Control-Oriented Approach to Legal Recognition of Governments

For proponents of a more legitimacy-oriented approach to governmental recognition, the picture will certainly look different. However, the present situation in Afghanistan shows that, with regard to legal recognition, states remain predominantly guided by considerations of effective control. This approach is not only widely practised and systematically more coherent, but it also enables the pursuit of legal avenues that states may otherwise be barred from. Ultimately, this may benefit the enforcement of human rights obligations better than making human rights a condition for governmental status.