Abstract

Excerpted From: Hannah Sweeney, Gender Equality and State Responsibility: Enforcing CEDAW Through the ICJ, 38 Harvard Human Rights Journal 287 (Spring, 2025) (215 Footnotes) (Full Document).

In a monumental statement on September 25, 2024, Australia, Canada, Germany, and the Netherlands announced their intent to institute proceedings against Afghanistan before the International Court of Justice (“ICJ”) for alleged violations of the Convention on the Elimination of Discrimination Against Women (“CEDAW”). This action came in response to a series of oppressive policies and edicts issued by the Taliban since their return to power in 2021, following the withdrawal of the United States.

Under Taliban rule, Afghanistan has become “the most repressive country in the world regarding women's rights,” according to the United Nations Assistance Mission in Afghanistan. The Taliban dismantled the Ministry of Women's Affairs, replacing it with the Ministry of Propagation of Virtue and Prevention of Vice, which enforces a series of edicts that severely curtail women's freedoms. These include restrictions on women traveling without a male guardian, decrees requiring full-body hijabs, and bans on women's access to public spaces--including secondary schools, parks, and bathhouses. These measures have been described as effectively excluding women and girls from society and denying them access to education, work, and basic services.

In condemning their actions, Germany's Foreign Minister criticized the Taliban's actions as “nothing less than the unprecedented attempt to erase [fifty] percent of the Afghan population from public life.” Taliban leader Haibatullah Akhundzada, however, defended these restrictions as measures intended for “the betterment of women as half of society in order to provide them with a comfortable and prosperous life according to the Islamic Shariah.” Despite such justifications, Afghanistan remains legally bound by CEDAW, which it ratified without reservations in 2001, shortly after the U.S. invasion. As of yet, no reservations nor withdrawal attempts have been sought by the de facto government, leaving Afghanistan obligated to comply with its treaty commitments. Should procedural steps be fulfilled and Afghanistan refuse negotiation or arbitration, the case is expected to proceed to the ICJ in spring 2025.

This case would mark the first successful invocation of CEDAW's ICJ referral clause since the treaty's adoption over forty-five years ago. The significance of this development extends beyond the immediate situation in Afghanistan. It offers an opportunity to reconsider the relationship between state responsibility and gender equality, an area long neglected in ICJ jurisprudence. This Article, therefore, does not focus solely on Afghanistan but rather uses the forthcoming case as a catalyst for considering the broader implications of CEDAW's historically underutilized ICJ referral clause. In doing so, it highlights the potential for the forthcoming case to reframe how doctrinal public international law engages with feminist discourse.

Two important caveats frame this analysis. First, this Article adopts a positivist approach to public international law while acknowledging critiques of the global legal order as a product of colonialism. Critics may argue that the Applicant States' involvement in Afghanistan reflects another form of Western intervention, given the region's complex history, prior military intervention, and strict economic sanctions. While such critiques may be valid, this Article confines its scope to examining Afghanistan's violations of CEDAW from a purely legal standpoint. As the de facto government of Afghanistan, the Taliban's policies are attributable to the state and are in clear breach of the treaty's provisions, regardless of broader geopolitical considerations. This Article presumes that, despite its flaws, the existing international legal framework remains the most viable mechanism for advancing global governance and accountability for human rights.

Second, while this Article advocates for the utilization of Article 29 of CEDAW as an enforcement mechanism, it is important to recognize that the ICJ is not the sole avenue for advancing CEDAW's objectives. Critics may argue that other mechanisms, such as the reporting and inquiry procedures of the CEDAW Committee, regional frameworks, or norm diffusion, offer more valuable frameworks for expanding the treaty's impact. Indeed, these alternative approaches play an essential role in promoting compliance and fostering gender equality. The absence of ICJ litigation does not diminish the significance of these efforts, particularly given that ICJ litigation is only available to states that do not have reservations to Article 29 of CEDAW. Nonetheless, this Article deliberately focuses on the ICJ in order to emphasize the way in which a specific subset of public international law has largely ignored broader questions of gender equality. While CEDAW has long provided a clear enforcement mechanism for addressing gender discrimination, the ICJ has yet to meaningfully engage with these issues. This reflects a broader trend in which gender considerations remain marginalized within the Court's practices and decisions. By emphasizing this omission, this Article underscores the untapped potential of ICJ litigation to hold states accountable for gender discrimination and further integrate feminist legal principles into the framework of state responsibility.

Following a brief primer on CEDAW, Part I will examine the development of human rights enforcement within the ICJ, tracing the evolution of erga omnes (partes) standing and its relevance to CEDAW. Part II considers the rise of public interest litigation and the incentives for third-party states to interfere in seemingly domestic affairs. Part III analyzes the broader treatment of feminist discourse within public international law to explain why Article 29 of CEDAW has been historically overlooked. Finally, Part IV emphasizes the legal significance of the forthcoming claim and advocates for the further infusion of feminism within ICJ jurisprudence. By examining why it took so long for this enforcement potential to be utilized, this Article probes underlying assumptions that have long aimed to relegate women's rights as beyond the scope of international law adjudication.

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While not proposing that merely including the terms “women” or “gender” would result in a substantial feminist vitalization of ICJ jurisprudence, this analysis underscores the absence of any gendered analysis within the Court's extensive jurisprudence. This stands in sharp contrast to the advancements made in international criminal law. As Charlesworth and Chinkin aptly observed, the areas most receptive to addressing the needs of women, such as international human rights law and international criminal law, are themselves marginalized within the broader spectrum of international law. The prior lack of feminist analysis or mobilization around state responsibility in the ICJ represents a lack of prioritization. While it may initially seem easier to operate within individualized approaches to harm, there is value in grappling with more complex doctrinal questions regarding jurisdiction, attribution, and enforcement. Feminist legal scholars ought to lean into this development and further engage with this doctrine, lest we perpetuate our own discriminatory treatment of women's rights as an issue relegated to individualized questions wherein the state holds no responsibility. The forthcoming case should serve as the catalyst for a growing momentum, not an exception to the norm.