Education of children, especially girls, is something that many developing countries are paying special attention to. This is in keeping with the international law obligation under Article 28 of the Convention on the Rights of the Child, 1989 (CRC), which requires States Parties to “Make primary education compulsory and available free to all”. The same Article also obliges States Parties to make secondary and higher education accessible to all.
This fundamental duty of States under international law has been given short shrift in Taliban-ruled Afghanistan, which means that the concomitant right to education continues to be violated as far as girls are concerned. Ever since the Taliban take over in August, education of girls has been subject to severe restrictions and girls in Classes 7 to 12 were kept out of school. However, a recent announcement that girls would be allowed to attend school from the start of the school year in March was supposed to change that. But it appears that the decision to reopen schools was reversed within hours, thus once again stymying girls’ access to their right to education.
It is pertinent to note that during the Najibullah years, the Democratic Republic of Afghanistan became a signatory to the CRC in 1990. After the fall of Najibullah’s regime, its successor – Islamic State of Afghanistan, in which the sovereignty of Afghanistan was formally vested, ratified the CRC in 1994. Although the first Taliban regime [1996–2001] remained a pariah state, the international law obligations of Afghanistan were not extinguished merely on account of that fact. The Islamic Republic of Afghanistan, during its twenty years’ existence from 2001 onwards, was the legitimate vessel for the exercise of Afghanistan’s sovereignty, assuming all attendant rights and obligations. In 2003, the Republic further strengthened the country’s adherence to protecting internationally recognized rights of children and women, by ratifying the Optional Protocol to the CRC on the Involvement of Children in Armed Conflict, as well as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
Afghanistan’s education system, built upon these standards, while not perfect, had enrolled around 4 million girls by 2018. While girls in Taliban-controlled areas had always been subject to severe restrictions, in large parts of the country they enjoyed access to education, but lost it upon the arrival of the Taliban- regime.
Obligations of Unrecognized States
This situation gives rise to some questions of international law that require nuanced treatment and also exposes the limits of international law. First, the Taliban regime being unrecognized State, could argue that it is not bound by any international treaties/conventions that previous regimes of Afghanistan has acceded to. However, international law is not a basket from which a State can pick and choose. Such an argument would also imply that the Taliban regime will not benefit from any norms of international law, e.g. those governing the conduct of diplomatic relations. Further, every entity that makes a claim of being a government of some form would do well to strive to meet the standards of customary international law in particular, and well recognized human rights conventions, such as the CRC, in general.
According to a second argument, the Islamic State of Afghanistan was in a peculiar position at the time it ratified the Convention on the Rights of the Child. It was engaged in a civil war with the Taliban with varying levels of control over the country and the Taliban eventually came to power in 1996. The Taliban regime, which titles itself the Islamic Emirate of Afghanistan, cannot then be considered to be a successor of the Islamic State of Afghanistan, neither between 1996-2001 nor after 2021. If so, the Taliban regime has no locus standi to demand the release of Afghanistan’s frozen foreign reserves as those would then
belong to the Islamic Republic of Afghanistan, to which the Taliban is not a successor. At any rate, this does not take away the moral responsibility of the Taliban regime to implement the widely recognized international human rights norms, especially for the protection of girls and women. It is evident that the two arguments above are inherently fallacious, inasmuch as the Taliban cannot choose to be a partial successor of the sovereign rights and obligations of preceding regimes of Afghanistan. If it seeks recognition and benefits as a successor state, then it must hold forth the ability and will to honour its predecessors’ international commitments too.
Reliability and the Rule of Law
Returning to the issue of the sudden U-turn by the Taliban on girls’ education, what is most disconcerting is the manner in which the order permitting reopening of schools. Sudden and unexpected even for the executing officials, it suggests that it might have been the whims of hardliners that prevailed over any step that returns the country to normalcy. The order was not accompanied by any reasoning. There is no mention any timeline by which schools shall once again be opened for girls. The system does not provide for any judicial remedy against such a drastic and draconian move. All these factors taken together, it is evident that the Taliban regime in Afghanistan does not follow the rule of law, however conservative. Further, it also goes on to show that the promises made by the Taliban for the consumption of western media cannot be relied upon at face value.
Finally, the Taliban regime’s behaviour begs the question as to the duties under international law of other countries. To what extent is it justifiable to support a regime which refuses to observe the fundamental norms enshrined in customary international law and respected by the comity of nations? The Taliban regime’s most vocal political and economic supporters, Pakistan and China respectively, would do well to introspect on this account, in light of their own responsibilities as States subject to international law.