Which Entity is the Government of Libya and Why does it Matter?

Which Entity is the Government of Libya and Why does it Matter?

In the past couple of days, Germany and Canada have joined the group of countries that have declared that they consider the National Transitional Council (NTC) in to be the “legitimate representative” of the Libyan people. But what exactly does this mean? According to the BBC, the group of countries extending this recognition includes France, the UK, Italy, Spain, Germany, the UAE, Qatar, Jordan, Gambia, Senegal and Australia. Russia and the United States have had meetings with the NTC and have also made similar declarations about the illegitimacy of the Gaddafi regime and about the legitimacy of the NTC (see previous post by Stefan Talmon on the US position in March). What are the legal implications, if any, of these statements by different countries? One key question with all of these developments is whether they mean that the countries extending this form of recognition consider the NTC as the government of Libya. Secondly, if they do regard them as the government of Libya what are the international law implications of such recognition?

In a previous post, my colleague Stefan Talmon explained that declarations that the Gaddafi regime is illegitimate does not mean that that regime is not (and is not considered to be) the government of Libya as a matter of international law (and in the domestic law of other countries). What about the reverse? Do declarations about the legitimacy of the NTC mean this entity is (or is considered to be) the government of Libya as a matter of law? I think the answer is that Stefan’s point also works in reverse. Declarations about the legitimacy of the NTC are primarily intended to be political and to have effect at that political level. They are not necessarily intended to be statements with legal effect. But the emphasis here is on necessarily. To the extent that what one is dealing with is the question whether the NTC is recognised as the government of Libya, what we are dealing with here is a question of intention. What do the countries extending this form of recognition intend? Do they intend to recognise the NTC as the government of Libya? In addition to these questions of recognition, there is also the question whether under international law recognition matters. Or to put it differently, is the question of which entity is the government determined or affected by who is recognised by others as the government of Libya?

Has there been a Reversal of the Policy of Not Recognising Governments?

One of interesting things here is that many of the countries declaring the NTC as the legitimate representative of the Libyan people are countries that have a policy of not recognizing governments. In the late 20^th century many countries adopted a policy of recognizing only States and not governments. In situations in which there were questions as who was the government of a country in transition, these countries would refrain from making declarations of recognition. The policy was intended to apply to situations precisely like the Libyan situation. So one issue that arises here is whether these declarations about the NTC indicate a change of policy about recognition of governments. In some ways, the policy of not recognizing governments is a bit of sham and one that is almost impossible to apply in reality. States always have to decide on who they will treat as the government of another State. They will need to decide on this question for many purposes (eg appointment of diplomatic representatives between the two states, treaty and other negotiation, decisions regarding consent to the use of force etc). Perhaps all this policy meant was that there would be no formal declaration of recognition (though in practice the State would have to make decision as to who it considered the government). But even this policy of not making declarations has been breaking down. In recent situations where there have been competing claims to be the government of a State, other States have made statements as to which entity they consider to be the government. This has happened in the situation in Cote d Ivoire in 2010-11 (see the post by Jean d’Aspremont) and in Honduras in 2009 (see the posts by Brad Roth). In Libya, some countries appear to be trying to take a middle position. They wish to say something about the changes occurring in Libya but not go the whole way and say that the NTC is the government. The UK Foreign Secretary, William Hague has told Parliament that the UK regards “the NTC as the legitimate interlocutor in Libya representing the aspirations of the Libyan people”. However, he went on to note that this assessment (and the dealings with the NTC):  “does not affect our position on the legal status of the NTC: the British Government will continue to recognise States, not Governments”.  These points were repeated last week by  William Hague when answering questions about Libya (on Twitter no less!). These statements suggest that the UK intends to stick to its policy on not recognising goverments. But in some ways this middle position of saying something about the situation but not making a formal declaration of recognition undermines the theory behind not according recognition to governments. The reason for that policy (as stated by both the British government in its statement of 1980 announcing the policy and by the US State Dept statement of 1977 announcing its policy) is to prevent the impression that recognition of a new government implies approval of it or that withholding recognition implies disapproval. In announcing that the NTC is regarded as the legitimate representative of the Libyan people, there seems to be a clear statement of approval of this entity. This is precisely what the policy of not recognizing governments sought to avoid.

Has the NTC been Recognized as the Government of Libya?

In deciding whether the recognition of the NTC as the legitimate representative of the Libyan people is a recognition of a new government not, the intention of the State making this statement is all important. One has to see precisely what the State means and what it is doing. At one end of the spectrum, Russia and the US seem to be clear enough that though they think the NTC is a legitimate group, they do not consider it to be the government. According to the ITAR-TASS news agency, Russian Foreign Minister Sergei Lavrov stated, when he met NTC representatives in late May, that the NTC representative

“underlined in the course of the talks that he was not asking for recognition of the Transitional National Council as the only legitimate representative of the Libyan people, but for recognition of the Council as a legitimate partner at the talks about Libya’s future …. [and] incidentally, it was precisely in this capacity that we had our meeting.

The US has also made it clear that while it is providing political and other support to the NTC, it does not recognise it as the government of Libya (see LA Times report here). In a State Department press briefing on April 27, Ambassador Cretz, (US Ambassador to Libya) stated that:

“On the question of recognition, we continue to look at … all the issues with respect to Libya. As I mentioned when I was here the last time, the President has not ruled out anything on all those gamut of issues that we were looking at. Recognition remains a legal and an international obligations issue that we’re still studying, and we have not made a definitive determination on that question. But that has not stopped us from doing everything that we could to support the TNC and the Libyans. So I don’t see it as an issue. It’s an issue, but it’s not the main one that we’re dealing with right now.”

When pressed further on what was preventing recognition, he stated:

“look, our legal people here at the Department have been looking at this issue . . . I’m not a lawyer, so I can’t get into the complexity of it. But there are issues with respect to what constitutes a government, what constitutes precedence in United States history for recognition.”

At the other end of the spectrum are countries like France who seem to take the view that the NTC is be regarded as the government of Libya. Alain Juppe, the French Foreign Minister stated on June 7 that: “The National Transitional Council is the only holder of governmental authority in the contacts between France and Libya and its related entities.”

It is not quite clear whether the position of the UK or indeed Germany or Canada is that the NTC is to be regarded as the government of Libya. One can perhaps surmise that while the UK now has a mission in Benghazi (where the NTC is headquartered) and the NTC has been invited to open an office in London, the UK does not regard the regard the NTC as the government.  Or to be more precise, the UK has not ceased to regard the government of Gaddafi as the government. It is interesting to note that the while the UK recognized the legitimacy of the NTC in April, the Gaddafi appointed ambassador in London continued to be regarded as ambassador until he was expelled in May. But he wasn’t expelled because he was not regarded as representative of the government but as retaliation for damage to the UK embassy in Libya.

Why it does matter which entity is regarded as the government of Libya?

The question which entity is the government of Libya matters because a number of international law issues turn on that question. Those issues include matters such as which entity is entitled to appoint ambassadors or representatives to international organizations, which entity is entitled to conclude international agreements that are binding on the State. All of these are important questions in the Libyan situation. But perhaps more important (and Stefan refers to this at the end of his post) is the question of who is entitled to control Libya’s assets at home and abroad. As a result of sanctions, much of Libya’s foreign assets are frozen but if they were to be released would the NTC be regarded as the government so that it could control those resources? This was an issue in the Cote d’ivoire situation where there were competing claims to the external assets of the country, in particular to funds at the Central Bank of West African States. As the LA Times reported last week the NTC hopes that formal recognition by the US would provide access to Libya’s foreign assets which would help the NTC to pay bills.

Another question that is linked to the question of which entity is the government is the legality of providing support to the NTC as the UK, the US, Qatar and other governments as doing. As the International Court of Justice pointed out in the Nicaragua case, it is unlawful, under international law, to provide support to rebel movements. Thus, assistance to the NTC, if were not the government, would prima facie be an unlawful intervention in internal affairs of the State. As discussed on this blog earlier, UN Security Resolution 1973 authorizes the use of force in Libya, and impliedly, the provision of some types of support to the rebels (see here and here). However as argued before, SC Res 1973 only authorizes provision of support to the rebels in so far as the assistance is directed protecting civilians and civilian populated areas. However, the UK, and others, are going further than that in seeking to provide general support to help stabilise the NTC  and help it to perform its administrative functions in the areas that it controls. According to William Hague:

“the UK will be a key contributor to the deployment of a multi-national team of experts to Benghazi. With the UN still unable to deploy, this team will conduct a stabilisation assessment, and advise and assist the NTC on meeting their longer-term needs. I also intend to provide further practical and material support to the NTC in the form of further communications equipment, bullet proof vests and uniforms for the civilian police authorities. I also intend to provide support for the NTC’s fledging media and broadcasting operations.

As with all the material and advisory support we are providing to the NTC, this support is within the terms of UN Security Council Resolutions 1970 and 1973 on Libya.  This support has been requested by the NTC and will help them ensure that they administer territory under their control to international standards and to protect the aspirations of the Libyan people.”

In line with the analysis in my previous post I am not convinced this support is consistent with SC Res. 1973  which is about protecting civilians and civilian populated areas. This assistance, by contrast, is about helping the NTC to govern. That is something that would be caught by the principle of unlawful intervention and without a permission from Res 1973 to do this can only be justified if one assumes that the NTC is the government of Libya.

Regarding the NTC as the government of Libya may also permit consent to the use of force which goes beyond SC Res. 1973. Ordinarily, a government can consent to the use of force on its territory. There is a suggestion that where a civil war is taking place the government may not request foreign support. While the point has been strongly put (eg by Christine Gray in International Law and the Use of Force and Louise Doswald Beck’s in her 1985 BYIL article ) it is not universally held (see Dinstein’s War, Aggression and Self Defence). Also, even those who take this view have also taken the view that what is prohibited is direct military intervention and that provision of weapons and other military supplies to a government is not prohibited during a civil war. So it may be the case that regarding the NTC as the government may be regarded as justification for acts of force that are not authorised by Res. 1973 eg providing a foreign occupation or providing weapons for offensive acts by the NTC. There is no suggestion of these things at the moment but it is a line of argument that may open up were there to be political support for those sorts of activities.

Are we seeing the creation of a new legal status?

One further point to consider in all of this is whether the recognition of the NTC as the legitimate representative of the Libyan people points towards the creation of some sort of new status in international law. A status which perhaps gives certain rights and authority as a matter of international. Something which is not quite a government (or perhaps even a kind of government), not quite a national liberation movement, not quite an insurgent. None of the States that has described the NTC as legitimate representative have stated explicitly that they regard this as a legal status. However, they all seem to be regard this status as having significance. For there to be creation of a new legal status one would have to see that the States putting it forward regard it as having a legal significance in international law. There is the view adopted by many countries that it is lawful to assist the NTC. However, it is arguable that those who take this view regard such assistance as lawful because of the SC resolutions and not because the NTC is the “legitimate representative” of the Libyan people.