In September 2024, Australia, Canada, Germany, and the Netherlands announced that they had “formally taken steps” under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) “to call on Afghanistan to cease its violations of CEDAW.” Supported by 25 other States, they invoked article 29, the treaty’s interstate dispute resolution clause, which can carry a dispute through to the International Court of Justice (ICJ).
For women and girls in Afghanistan facing persecution under Taliban rule, it was a rare moment in which international law appeared to be doing more than naming their suffering; it appeared to be moving.
Nearly two years later, the question is whether it is still moving at all.
Little is publicly known about where that process stands. Meanwhile, girls in Afghanistan remain barred from education beyond sixth grade. Women are locked in their homes unless escorted by a male relative, and then only under a full face and body covering. Women have been publicly flogged, detained, and tortured for so-called “moral” offenses such as leaving home unaccompanied or speaking to an unrelated man. Before the Taliban seized power in August 2021, an Afghan woman could have run for president. Today, women are prohibited from even speaking in public.
Afghanistan is the starkest case in the world today of “gender apartheid” imposed as State policy, a system of repression so comprehensive that it has outpaced international law’s vocabulary. But article 29 of CEDAW offered a structured path towards accountability.
When a dispute arises between States concerning a State’s compliance with CEDAW, article 29 requires the parties to attempt to resolve that dispute through “negotiation.” If negotiation fails, either party may request arbitration. If, within six months of that request, the parties cannot agree on the organization of the arbitration, either may refer the dispute to the ICJ.
There is ample evidence that the Taliban is violating CEDAW—various U.N. bodies have said as much. Afghanistan remains bound by the treaty, and the Taliban’s treatment of women and girls is irreconcilable with it. The four States that initiated action under CEDAW have already framed the dispute in those terms, while the broader international community has repeatedly condemned the Taliban’s restrictions and called for their reversal. The U.N. Security Council has passed multiple resolutions, Council members have demanded the Taliban honor Afghanistan’s obligations under CEDAW, and U.N. experts have urged States to support justice-seeking efforts through article 29. In the absence of formal international accountability, the civil society-formed People’s Tribunal for Women of Afghanistan held a hearing and reached its own judgment, finding that the Taliban’s treatment of women amounts to gender persecution.
But the ICJ cannot yet reach the merits because the four States have not moved the dispute beyond article 29’s negotiation stage. The threshold question is whether the negotiation precondition has been met.
The reason for the delay is uncertain. The States may have pressed Afghanistan to negotiate and continue to be met with obstruction or silence, leaving nothing further that negotiation could achieve. Or they may not have pressed hard enough. If the former, Afghanistan’s continued defiance may now warrant arbitration. If the latter, the delay raises a different question about whether the initiative has been pursued with the urgency its subject demands. The ICJ’s case law helps assess both possibilities.
In North Sea Continental Shelf (1969), the Court made clear that negotiation must be meaningful, not merely a formality. In Georgia v. Russia (2011), the Court applied that principle to a case brought under the Convention on the Elimination of All Forms of Racial Discrimination (CERD) holding that negotiations require a “genuine attempt” between the parties to engage in discussions with a view to resolving the dispute. More recently, in Armenia v. Azerbaijan (2024), also under CERD, the Court clarified that once negotiations are attempted or begun, the requirement is satisfied once those efforts have “failed, become futile or deadlocked.”
For the four States, that should mean a record showing that Afghanistan was notified of a dispute under CEDAW, invited to negotiate pursuant to article 29, offered a workable process for engagement, and given a real opportunity to respond. Once that has occurred, and Afghanistan has refused, ignored, delayed, or denied the premise of the dispute, article 29 does not require the States to continue knocking on a door being used to keep women locked inside.
Comparative experience supports that view. In Belgium v. Senegal (2012), a case brought under the Convention Against Torture (CAT), Belgium sent four communications over roughly six months before concluding that negotiations had failed. The Court found the precondition satisfied. In Ukraine v. Russia (2019), brought under CERD, Ukraine sent a series of communications and held three rounds of negotiations over approximately nineteen months. The Court accepted that a genuine attempt to negotiate was made and that negotiations had become deadlocked. In Canada and the Netherlands v. Syria (2023), brought under CAT, the two States sent Syria two formal negotiation requests, held two in-person meetings, and exchanged more than sixty diplomatic notes. The Netherlands began the process, Canada joined approximately six months later, and the two States requested arbitration about nineteen months after that. The Court agreed that negotiations had become futile.
Together, these cases show that the ICJ looks for two things: a genuine, treaty-specific attempt to resolve the dispute and evidence that the attempt has failed, become futile, or reached an impasse.
The Afghanistan initiative has now been pending for over 22 months. In the cases above, the Court found the negotiation requirement satisfied after shorter periods, because even in that compressed time the record showed concrete communications, meetings, and invitations to negotiate. And while time alone neither satisfies nor defeats article 29’s negotiation requirement, more than 22 months should have provided abundant opportunity to develop the required record. The question is what they made of it.
If the reason for the delay is caution, it is not impossible to understand. There is no recognized government in Kabul. Coordinating four applicant States is complex. A potential ICJ case must be built carefully. But caution is not the same as delay. Non-recognition has not prevented engagement with the Taliban on other matters. States and international institutions have found ways to speak with Taliban authorities when migration, security, or diplomatic access is at issue. For instance, this June, Germany and the Netherlands supported the EU hosting Taliban representatives in Brussels for talks on Afghan deportations. If channels exist to discuss returning Afghans to Taliban-controlled territory, channels exist to raise the treatment of the women and girls left there.
Practical complexities do not justify allowing compounding violations to sit in place. Written exchanges, virtual meetings, and dialogue through missions or intermediaries can all create a record of genuine engagement. Modern diplomatic practice and technology have largely solved the practical difficulties that might otherwise impede such efforts. What matters is not the format of negotiation, but whether the four States have made a clear, treaty-specific attempt to resolve it and whether that attempt has failed.
The Taliban’s conduct is also relevant to whether continued negotiations retain any realistic prospect of resolving the dispute. In nearly five years, the Taliban has not rescinded a single restriction imposed on women and girls. It has expanded them, enforced them, and absorbed them into its governing order. The U.N., States, and other institutions have tried to negotiate through various forums, but the de facto authorities have not treated their measures as temporary or negotiable. They treat them instead as expressions of their system of rule and as matters shielded from external legal scrutiny.
Since September 2024, when the four States said they had taken steps under article 29, the Taliban has only intensified and further institutionalized restrictions. A new criminal code limits punishment for violence against women to a maximum of fifteen days in detention if the abuse results in fractures or excessive injury. A new decree permits girls to be married off, without age limitations, while claiming they can seek divorce at nine years old, the Taliban’s marker of puberty. In practice, that would require a child to challenge an adult husband before judges appointed by the same regime that authorized the marriage. These developments do not automatically exhaust negotiations, but they are powerful evidence that negotiations are not resolving the dispute.
The Taliban’s first regime lasted roughly five years before it was ousted by the 2001 U.S.- and NATO-led intervention. Its second is now approaching the same duration, but there is no sign of an ending, even amid internal rifts. At the same time, some States have moved toward normalizing relations or recognizing the regime as legitimate. Some have allowed Taliban representatives to take control of Afghan diplomatic missions, including in Berlin and Bonn. And as seen, engagement over migration and deportations has become one of the most visible signs of this drift, moving the Taliban closer to the international legitimacy it seeks, while further entrenching the repression of women and girls.
The requirement that States attempt resolution before turning to the ICJ is a sensible safeguard. Without it, the Court could be drawn into disputes that might have been resolved outside litigation. But the safeguard is not meant to create paralysis. It gives diplomacy a genuine chance to succeed. It does not give bad faith actors an indefinite opportunity to exploit procedure while States wonder whether their record is strong enough for the Court to recognize what Afghan women and girls live daily–the Taliban is not budging.
The remaining uncertainty can no longer justify stasis. If the four States have spent the past 22 months building the record article 29 requires, Afghanistan’s continued defiance should now point them toward arbitration. If they have not, they should explain why nearly two years have not produced the treaty-specific engagement the process demands, and why the most extreme system of gender-based persecution in the world has not produced greater urgency from the States that invoked CEDAW in the first place. Either possibility warrants action.
CEDAW is a treaty among States, and any future ICJ case against Afghanistan would formally concern Afghanistan’s compliance with obligations owed to other States party to the treaty. But human rights treaties are not ordinary bargains between governments. In Belgium v. Senegal, the ICJ recognized that the shared value underlying a human rights treaty gives all State parties a common legal interest in ensuring compliance. Under CEDAW, that value is the elimination of discrimination against women “in all its forms and manifestations.”
That legal structure should not obscure whose lives are at stake. A potential CEDAW case would be inseparable from the daily experiences of women and girls in Afghanistan. Their experiences give the dispute its urgency–whether they may learn, work, move, speak, appear in public, and exist as legal persons rather than wards of men and the state. They should therefore be meaningfully informed, consulted, and visible throughout the process, not as symbols of suffering, but as participants whose perspectives are essential to the credibility, legitimacy, and evidentiary grounding of any accountability effort.
The unresolved ambiguity makes the States’ silence especially consequential. When civil society organizations have sought updates, the States have largely declined to provide details, citing the need to preserve “good-faith” negotiations. But good faith does not require opacity, and confidentiality is not a legal element of the negotiation precondition. The Court’s case law requires genuineness, not secrecy.
The four States have repeatedly invoked the suffering of Afghan women and girls as the reason for pursuing this initiative. Their willingness to seek accountability is significant, and they have taken some steps to consult Afghan women and civil society. They need not disclose confidential diplomatic exchanges or negotiate in public. But they can provide general information about the procedural posture without compromising the substance of negotiations. They could disclose, for example, whether diplomatic notes have been exchanged, which CEDAW rights have been invoked, whether Afghanistan has responded, whether meetings have been proposed or held, and what other formats for engagement have been offered. Such transparency would not weaken a potential case. It would strengthen the legitimacy of the process. But to invoke Afghan suffering and then leave hopes for accountability suspended in silence risks a second injustice.
For nearly five years, women and girls have lived with their rights narrowed by decree after decree, while the international community debates engagement, migration, and stability. The announcement of a process that could pave the way to the first ICJ case under CEDAW was therefore significant, and initially promising, foremost for women’s rights in Afghanistan, and the Convention itself. Yet as repression has continued to intensify over the past two years, it is increasingly untenable to argue that negotiation still holds promise.
The credibility of CEDAW itself is at stake. Its promise of equality means little if it cannot be enforced in the country where discrimination against women is most comprehensively enshrined as state policy. If CEDAW fails here, at the very frontier of the violations it was designed to prevent, its protections risk collapsing into little more than paper promises.
