I questioned in a previous post if would be legal under international law for the US to just name the rebels in Libya as the “government”. I did some research, and it is, of course, blatantly illegal to do so. I came across this fascinating discussion. The interview below is with John Bellinger, the former legal adviser to the State Dept., now with the Council of Foreign Relations (you know you’re in trouble if those guys don’t like your nation-building policy).
Bellinger is concerned that this latest move is ill-advised and, in fact, against international law. He also clearly states that not all the members of the 30 country coalition has “recognized” the rebels; in fact, and making a lie of the media statements in the US that the entire 30 country coalition had used that phrase, he points out that most of the other countries involved merely avowed a willingness to “deal with” (i.e., “work with”) the rebels, and fell far short of officially recognizing the rebels as the de facto government.
Writing for the Council on Foreign Relations this week, John B. Bellinger III, former legal adviser to the State Department, said the announcement raises “legal and practical problems,” including questions over whether Gaddafi’s government or the NTC is legally bound to respect international treaties….
In an interview, Bellinger said he suspects State Department lawyers “have been advising their policy clients of the difficult international law questions that recognizing the NTC would raise and that, nonetheless, the policy officials wanted to go ahead with this recognition.”
Checkpoint: Why might the recognition of a group like the NTC be seen as problematic from an international law perspective?
Bellinger: For the last several decades, for the United States and indeed most other states, the practice has been to recognize only new states but not new governments. And by that I mean that if a new geographic territory comes into existence, like Kosovo or Montenegro, the United States will make a decision whether to recognize that as a new state.
But for a number of decades, the Untied States has decided as a matter of diplomatic practice that it does not want to get into the business of having to recognize a new government every time there is a change of government. So if there’s a coup or if there’s a dispute over who’s in power or if there’s an insurgent group that claims to be the government, U.S. practice and the practice of most states is just not get into it. It’s just difficult.
This recognition last Friday of the Libyan National Transitional Council is a departure from that practice and is particularly problematic in this case because the council clearly doesn’t control all of the territory of Libya. It only controls part of it, and can’t reasonably say that it even speaks for all of the people of Libya, since there is at least some portion who are still loyal to Gaddafi. So it raises legal questions there.
Historically under international law, an outside country could even be accused of interfering illegally in the internal affairs of a country if it were to recognize an insurgent group. Of course, at this point, the United States is doing far more than just recognizing. We’re providing assistance and military support generally.
And then finally, in this case, [the recognition] raises difficult questions as to who has the international obligations of Libya under international law, and who owes those obligations. For example, under the Vienna Convention on Consular Relations, which requires the government of Libya to provide State Department access to any detained person, who owes that obligation? Is it that the old Libyan government under Gaddafi or the new transitional council?…
[Discussion of how the Obama administration has gone off the policy in several cases. Deleted for space.]
Checkpoint: And the real world consequences, as you say, could be more dire in terms of upholding international obligations, right?
Bellinger: It really does raise questions as to whether the NTC now owes international obligations to the United States and the outside world and whether the Gaddafi regime, which is no longer recognized by the United States and certain other countries, no longer has those obligations.
The State Department has not made clear exactly how it is going to treat the question of treaty obligations…
I think what has been going on is that the lawyers at the State Department have been advising their policy clients of the difficult international law questions that recognizing the NTC would raise and that, nonetheless, the policy officials wanted to go ahead with this recognition. The lawyers than tried to come up with the best alternatives they could…
One of the countries that apparently didn’t go that far was Great Britain. Britain, which has historically been a stickler for finer points of international law, has been willing to go along with the “deal with” formulation but has pointedly refused to recognize the insurgency because of the various international legal problems it raises…
[Discussion of the Libyan funds. Again, space.]
Checkpoint: Now we have to hope that the Gaddafi government, while scorned by the United States, is still happy to oblige by its international obligations?
Bellinger: Well, that’s right. I would be worried about that. It’s not clear, at least publicly, what message is being conveyed to the Gaddafi regime, since they have been told publicly by the State Department that they are no longer considered to have any legitimate authority in Libya. How can we also expect them to fulfill certain international law obligations that they have to us or to others if we don’t think they’re the government anymore? That certainly raises some difficult legal questions….
This is a very interesting discussion and I highly recommend reading it in its entirety.