Recognition Without Release

Four states have set out to hold Afghanistan to account under CEDAW for the Taliban’s systematic discrimination against women and girls. The initiative now appears stalled, perhaps partly over fears that engaging the Taliban would amount to recognising them and could enable them to take Afghanistan out of the Convention. This post argues that, recognised or not, the Taliban cannot release Afghanistan from CEDAW.

In September 2024, Australia, Canada, Germany and the Netherlands, supported by 22 other, mostly European, states, announced that they had taken formal steps under Article 29 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to call on Afghanistan to cease its human rights violations. Although the Taliban seized power in August 2021, Afghanistan remains a party to CEDAW. Under Article 29 CEDAW, a dispute “not settled by negotiation” goes to arbitration at the request of one of the parties and, if the parties are “unable to agree on the organization of the arbitration” within six months of that request, the dispute may be referred to the International Court of Justice (ICJ).

Two years on, little is known about what has followed. In December 2025, the Dutch government told the parliament that Afghanistan had been invited to negotiate and that the four states were “organising these negotiations” (answer 6, p. 3). It refused, however, to give further information on the state of the process. No meeting with Taliban representatives for these negotiations, and no request for arbitration, has been publicly reported as of writing.

In September 2026, 27 civil society organisations criticised the “limited public information regarding the status and anticipated next steps of the CEDAW initiative” in a joint open statement. They found “no publicly visible indication that negotiations are moving the dispute toward resolution” and called on the four states to proceed to arbitration. A few days later, Fatema Ahmadi and Mark Kersten asked the obvious question: have the four states moved towards arbitration, and “if not, why not?”

Recognition Through Accountability?

One concern that may explain the caution is the potential legal recognition that might follow from the initiative. Unlike political recognition, which signals approval, legal recognition acknowledges that a regime is entitled to act for the state. Lukas Willmer has argued that pursuing the Article 29 initiative would amount to legal recognition of the Taliban as the government of Afghanistan, despite the four states’ denomination of the Taliban as a de facto authority. Such a recognition could have consequences for the former government’s diplomats, for access to Afghanistan’s assets abroad and for CEDAW itself. To Willmer, it “appears difficult to argue” that the Taliban may negotiate for Afghanistan but lack “the capacity to terminate the agreement”. The Taliban, in his view, “will likely be able to withdraw Afghanistan from CEDAW”.

Whether Afghanistan can leave CEDAW, however, is a question not of who may act for it but of the law of treaties. As the Open Society Justice Initiative has noted, even a recognised Taliban government would face “significant legal barriers to withdrawal” as the CEDAW does not provide for a withdrawal and the respective conditions under the Vienna Convention on the Law of Treaties (VCLT) are not fulfilled (p. 11). This post builds on that point: recognition would still give the Taliban no way out of the Convention. The “Islamic Emirate” is a new government, not a new state. Claiming that the ratification of 2003 was invalid has no basis in the law of treaties; and CEDAW offers no unilateral exit. Recognition would settle who represents Afghanistan, not whether Afghanistan is bound.

No New State

The Taliban could be expected to argue that the Islamic Emirate is not the state that ratified CEDAW. The Taliban have suspended the 2004 Constitution (para. 24), renamed the country and, through measures such as the 2024 vice and virtue law, rebuilt the legal order around its reading of Islamic law. None of this, however, turns a change of government into a succession of states. In the Tinoco arbitration, Chief Justice Taft, referring to John Bassett Moore, stated that “though the government changes, the nation remains, with rights and obligations unimpaired” (p. 377). The Articles on State Responsibility rest on the same premise, attributing to the state the conduct of an insurrectional movement that becomes its new government (Article 10(1)).

Besides, the Taliban’s own conduct points towards continuity. Its claim to Afghanistan’s existing seat at the United Nations, which the Credentials Committee continues to defer, presupposes that the state is the same. When the Taliban announced its interim government in September 2021, its leader, Haibatullah Akhundzada, said that it was committed to international law and to Afghanistan’s treaties and commitments “not in conflict with Islamic law”. In 2023, a de facto deputy prime minister, Abdul Ghani Baradar, stated that Kabul was “committed to the water treaty of 1973” with Iran. The Taliban’s own claims thus show that they regard the Islamic Emirate as merely the new government of an existing state.

Others have equally acted on that basis. In June 2025, the CEDAW Committee reviewed Afghanistan’s fourth periodic report after inviting the Taliban to take part informally; they did not respond. In July 2025 the General Assembly urged Afghanistan to “honour and fully respect and implement all treaties […] to which it is Party” and encouraged the full implementation of CEDAW (paras. 6, 11). In a General Comment in 1997, the Human Rights Committee has also confirmed the continuity of human rights with respect to the ICCPR: Once people are accorded the human rights protection, that protection “devolves with territory and continues to belong to them, notwithstanding change in Government of the State party” (para. 4).

An Invalid Ratification?

Instead of claiming new statehood, the Taliban might deny the validity of Afghanistan’s consent. It had similarly done so in February 2025, when its deputy spokesperson declared that the Islamic Emirate “does not recognize any obligation to the Rome Statute” and “deems the previous administration’s accession to this statute to be devoid of legal validity”. The reasons given were political and religious rather than legal. The same reasoning could be turned on CEDAW, which Afghanistan ratified only weeks after acceding to the Rome Statute, under the same administration.

However, the claim has no footing in the international law of treaties. Article 42(1) VCLT allows the validity of a state’s consent to be impeached only on grounds specified in the convention. While Afghanistan has not ratified the VCLT, its provisions are legally binding insofar as they reflect customary international law, and its rules on invalidity largely codify earlier practice. None of the grounds to invoke invalidity as mentioned in the VCLT turns on whether a later government regards its predecessor as legitimate. The closest, a violation of internal rules on competence to conclude treaties, applies only where the violation was “manifest” and concerned a rule “of fundamental importance” (Article 46 VCLT). Nothing suggests that the ratification of 2003 involved any such violation. Even if there was a genuine defect, it could no longer be invoked. According to Article 45(b) VCLT, a state may no longer invoke a ground for invalidity if, after becoming aware of the facts, it must by reason of the state’s conduct be considered as having acquiesced in the validity of the treaty. This would be the case here, as Afghanistan considered the CEDAW as binding for almost two decades before August 2021. As recently as 2020, the CEDAW Committee published its concluding observations on Afghanistan’s third periodic report.

Appeals to occupation or illegitimacy fare no better. Though a treaty procured by the threat or use of force is void (Article 52 VCLT), nothing suggests that any state coerced Afghanistan into ratifying the CEDAW. The administration that ratified CEDAW took office following the Bonn Agreement on Arrangements Pending the Re-Establishment of Permanent Government Institutions, which the Security Council endorsed (para. 1). Tinoco is again instructive. In that case, Taft assessed the British claims against Costa Rica “unaffected by the Law of Nullities”, which Costa Rica’s restored government had introduced earlier to annul its predecessor’s transactions. He once again adopted a principle from Moore that applies whatever view one takes of Afghanistan’s governments between 2001 and 2021: The “state is bound by engagements entered into by governments that have ceased to exist; the restored government is generally liable for the acts of the usurper”.

No Unilateral Way Out of CEDAW or Its Dispute Settlement Procedure

As established above, Afghanistan under the Taliban regime is still bound to the CEDAW. The concern that then rises is that a Taliban government with the capacity to legally represent Afghanistan could try to withdraw from the convention. However, the CEDAW contains no denunciation clause, unlike, e.g. its own Optional Protocol (Article 19). The Open Society Justice Initiative reads CEDAW’s drafting history as having excluded withdrawal deliberately. Under the customary rule reflected in Article 56 VCLT, a treaty without such a clause cannot be denounced unless the parties intended to allow it or a right of withdrawal is implied by its nature. E.g., when North Korea purported to withdraw from the ICCPR in 1997, the Secretary-General took the view that, since the Covenant has no withdrawal clause, withdrawal “would not appear possible unless all States Parties to the Covenant agree with such a withdrawal”. The Human Rights Committee reached the same conclusion, treating Article 56 as customary: the drafters had deliberately excluded denunciation, which the Optional Protocol adopted alongside the Covenant expressly permits, and the Covenant’s rights belong to the people living in the state’s territory (paras. 1–5). Both arguments apply to CEDAW, whose rights, too, belong to Afghanistan’s women and girls rather than to whoever governs them.

Short of the agreement of every other party as required under Article 54(b) VCLT, no government of Afghanistan, recognised or not, could take Afghanistan out of CEDAW. Even if withdrawal were possible, Article 56(2) VCLT would require at least twelve months’ notice. Additionally, withdrawal would not affect “any right, obligation or legal situation” created before it took effect (Article 70(1)(b) and (2) VCLT). Therefore, responsibility for breaches already committed would survive.

Afghanistan’s obligations and the Court’s jurisdiction cannot be narrowed by a late reservation either. Article 29(2) CEDAW permits a state to opt out of the dispute settlement clause only at signature, ratification or accession. Afghanistan ratified CEDAW in 2003 without doing so or making any other reservation. Moreover, a reservation may be formulated after ratification only if no other contracting state “opposes” its late formulation (ILC Guide to Practice, guideline 2.3). Here, states would certainly object to such a potential reservation. Germany and the Netherlands, for example, objected to Saudi Arabia’s general reservation to CEDAW in favour of Islamic law.

Even if Afghanistan successfully withdrew from CEDAW – despite the legal challenges mentioned – it would be obligated to ensure equal rights between men and women under different legal regimes. Firstly, it would remain a state party to the ICCPR and the ICESCR, which also guarantee equality between men and women. Secondly, it would be bound by any customary obligation that exists independently of CEDAW (Article 43 VCLT). Nonetheless, the CEDAW contains rights addressed specifically to discrimination against women, as well as a route to the ICJ.

The Steps Ahead

Even if continuing the procedure under Article 29 CEDAW results in legally recognizing the Taliban as the government of Afghanistan, it would not threaten CEDAW’s hold on Afghanistan. It would at most settle who speaks for Afghanistan. The Islamic Emirate is a new government of an old state, the ratification of 2003 stands, and the Convention offers no way out. Afghanistan’s obligations would be the same at the end of the proceedings as at the start.

The next step is largely in the applicants’ hands: in Belgium v. Senegal, a note proposing arbitration and six months without agreement on its organisation satisfied the near-identical clause in Article 30 of the Convention against Torture. The four states may have good reasons for their pace, including the need to show the “genuine attempt” at negotiation that the ICJ required in Georgia v. Russia. The risk that the case might release Afghanistan from CEDAW should not be among them. Two years after the initiative was announced, the applicants could move to arbitration, and from there to The Hague.