Legal Questions In U.S. Nod To Libya's Opposition

By John B Bellinger

The Obama administration's announcement July 15 that the United States will now "recognize" the Libyan opposition as the legitimate government of Libya, while welcomed by those who have advocated this step, goes farther than many other countries have been willing to go and raises difficult questions under international law.

Meeting in Istanbul, Turkey, the thirty-two-country "Libya Contact Group"--which includes the United States--announced that "the Qaddafi regime no longer has any legitimate authority in Libya and that Qaddafi and certain members of his family must go." The statement went on to say that "until an interim authority is in place, participants agreed to deal with the National Transitional Council (NTC) as the legitimate governing authority in Libya." The fact that the statement says Contact Group members agreed to "deal with"--rather than "recognize"--the NTC as the legitimate government of Libya indicates that there remains disagreement among Contact Group members about the issue of recognition.

U.S. Secretary of State Hillary Clinton went further, stating that the United States will "recognize" the NTC as the legitimate governing authority for Libya, though she noted that "various legal issues remain to be worked through." This recognition allows the United States to unfreeze certain Libyan assets in U.S. banks and allow them to be used by the NTC. Clinton said that the United States has received assurances from the NTC--which includes former Libyan government officials, military leaders, businessmen, and others--regarding its "intention to pursue democratic reform that is inclusive geographically and politically, and to uphold Libya's international obligations and to disburse funds in a transparent manner, to address the humanitarian and other needs of the Libyan people."

Earlier this year, France and Germany stated that they would recognize the NTC as the government of Libya. Other countries, including the United Kingdom, have been unwilling to do so for either political or international legal reasons.

U.S. and British diplomatic practice (and that of most countries) for the past several decades has been to recognize foreign "states" but not "governments." In other words, the United States will make a decision whether to recognize as a new state a defined geographic territory (such as Kosovo) that has a government capable of governing the territory and engaging in diplomatic relations. But the United States has generally not wanted to get drawn into decisions about which government of a geographic territory to recognize when there are competing claims. The U.S. recognition of the NTC represents a departure from this practice and likely reflects the strong desire of some Obama administration officials to show greater political support for the Libyan opposition, especially in light of the limited U.S. military support.

Recognition by the United States (and other countries) of the NTC as the "legitimate governing authority" of Libya is especially unusual under international law because the NTC does not control all of Libyan territory, nor can it claim to represent all of the Libyan people. Indeed, as a general rule, international lawyers have viewed recognition by states of an insurgent group, when there is still a functioning government, as an illegal interference in a country's internal affairs.

Recognition of the NTC while the Qaddafi regime still controls extensive territory and exercises some governmental functions also raises other legal and practical problems, such as which group bears the responsibility for Libya's treaty obligations. For example, does the Qaddafi regime still have international obligations under the Vienna Conventions on Diplomatic Relations and Consular Relations to protect foreign embassies or to provide consular access to captured foreign nationals, such as members of the press? Will the United States enter into diplomatic relations with the NTC? No doubt these are among the "various legal issues" that Secretary Clinton says the State Department is working through.

-This commentary was published on CFR blog on 18/07/2011
-John B. Bellinger III, Adjunct Senior Fellow for International and National Security Law