Washington International Law Journal


After the American-mediated attempts at facilitating a negotiated transition failed in Doha, on August 15, 2021, the Taliban retook the Afghan capital and soon after re- established the “Islamic Emirate of Afghanistan” (2021-) along with a caretaker government. The forceful return of the Taliban to power in Afghanistan poses difficult questions of international law. Chief among these questions is who has the right to represent the Afghan state internationally after August 15, 2021. Applying the rules of public international to the case of the Taliban’s caretaker government, this article argues that the strongest argument for disqualifying the Taliban as a government capable of representing Afghanistan is that the regime espouses principles, as a matter for formal governmental policies, which, in their totality, are so fundamentally discriminatory that they violate jus cogens norms of international law. These violations are especially egregious regarding the Taliban’s treatment of women. In many ways, the Taliban’s gender-based discrimination shares similarities to South Africa’s racial apartheid. As a result, the Taliban’s effective control over Afghanistan may not be enough to confer on it the status of a “government” under international law. This argument depends on the comparability of race-based discrimination with some fundamental forms of gender-based discrimination in a world where gender-based restrictions are not uncommon albeit not to the extent that the Taliban imposes. The Taliban’s caretaker government has provided the occasion where the unanimous condemnation of the international community could indicate that international law has come to contain a jus cogens norm banning some fundamental forms of gender-based discrimination denying admission to a government that holds those policies de jure recognition under international law.