Court’s Silence on Sanctions Raises Questions about Sovereign Immunity
In a move that has raised eyebrows among international law experts, the United States has created the Afghan Fund, a mechanism designed to freeze and disburse assets belonging to Afghanistan’s central bank. While proponents argue that this measure is necessary to prevent the Taliban from misusing these funds, others claim that it violates sovereign immunity laws.
The Issue at Hand
The issue at hand is whether executive measures, such as the Afghan Fund, are subject to the same limitations as judicial proceedings when it comes to state property expropriation. Critics argue that by freezing and potentially confiscating assets, the United States is bypassing standard international legal procedures and disregarding the principles of sovereign equality.
Concerns about Sovereign Immunity
One of the main concerns is that the creation of the Afghan Fund may be seen as a violation of Afghanistan’s sovereign immunity. According to international law, states are entitled to immunity from foreign jurisdiction in matters related to their internal affairs. However, the United States has chosen not to recognize the Taliban government, which some argue means that it does not have the same rights and responsibilities under international law.
- The requirement that the central bank remain independent from its government could be viewed as an attempt to dictate the country’s domestic political and economic system, which is a protected domain under international law.
- Experts point out that the Afghan Fund’s conditions for returning assets may be seen as interference with Afghanistan’s internal affairs.
The International Court of Justice’s Silence
The silence of the International Court of Justice (ICJ) on this matter has also raised concerns among experts. While the ICJ has been vocal in criticizing similar measures taken by other states, its lack of response to the Afghan Fund has led some to question whether it is turning a blind eye to this new development.
Experts Weigh In
- “It is difficult to comprehend what could give the United States the right to recognize two handpicked economists as the new representatives of Afghanistan and then hand them (shared) control over Afghanistan’s Central Bank assets,” said Menno Kamminga, an expert in international law.
- “The Afghan Fund cannot plausibly constitute a legal countermeasure under international law. Countermeasures may be taken only in response to ongoing violations of international law,” said another expert.
What’s Next?
As the debate around the Afghan Fund continues, it remains to be seen how states will react to this new development. Will other countries follow suit and create similar mechanisms to deal with state property expropriation? Or will the international community come together to address these concerns and reaffirm the importance of respecting sovereign immunity under international law? Only time will tell.