The decision had far-reaching legal implications — and that has some international law scholars concerned.
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.
The difficulty of resolving those questions might help explain why Harold Koh, the current legal adviser to the State Department, was cautious when asked about the recognition of the TNC during a Senate hearing late last month.
“As a general rule, we are reluctant to recognize entities that do not control entire countries because then they are responsible for parts of the country that they don't control,” he said. “And we are reluctant to de-recognize leaders who still control parts of the country because then you're absolving them of responsibility in the areas that they do control.”
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.”
Excerpts of the interview are below.
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?
Checkpoint: Can you think of any comparable situations whereby the American government recognized an insurgency or another group as a legitimate government, or is this a first in recent history?
Bellinger: The Obama administration has actually done this in a couple of cases, breaking from past practice, although probably not in cases that raise as many international, legal or practical questions.
One was their recognition of the new president of Ivory Coast. The other was the continued recognition of [Manuel] Zelaya in Honduras rather than recognizing the [Roberto] Michelleti presidency, even after he had been confirmed as president by the Honduran government.
In those two cases, this administration did express a willingness to choose sides and to recognize certain groups as governments. But those seem to be much smaller situations than in this case, [in which the United States is] recognizing a group as the legitimate governing authority of the whole country when it actually controls only a certain portion of the territory.
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 suspect that they want to do both … that they want to both recognize the NTC as the governing authority but, at the same time, they don’t want to let Gaddafi regime off the hook and certainly not suggest that the Gaddafi regime no longer has the obligation to comply with the Vienna Convention or human rights law or the laws of war.
Checkpoint: You served as the State Department legal adviser and you know how things work there. Certainly these are issues that they must have thought through and been aware of once they made the decision to recognition of the NTC. Is this just a gamble?
Bellinger: I suspect that what’s going on here – and this is often a problem for the legal adviser’s office at the State Department – is that the policy clients in the State Department and at the White House wanted to provide greater political support for the NTC, particularly given that the U.S. military support has been much more limited.
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.
The secretary of state has conceded publicly that “various legal issues” are still being worked out.
To my mind that means essentially that the lawyers were pressured into going along with this formulation while throwing down the yellow flags to say there are some problems here and that these are still being worked out.
What’s interesting to me is what some of the other countries have done at the same time. The U.S. government’s statement by Secretary Clinton goes farther than what the Libyan Contact Group’s statement said last Friday. The 32-member Contact Group was only apparently willing to say that they agreed to quote “deal with” the NTC and does not use the word “recognize,” which to me means they could not get 32 countries to agree on the word “recognition” and the U.S. than went further out on its own.
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.
Checkpoint: Are there any legal concerns about the transfer of the Gaddafi government’s frozen funds? Does this change anything?
Bellinger: One of the unexpected side effects of the Obama administration’s refusal to concede that the U.S. is in hostilities in Libya for purposes of the War Powers Resolution has been that they have been unable to take advantage of a provision of U.S. domestic law under the International Emergency Economic Powers Act that would have allowed them to seize the asset of the Libyan government – but only if we were in “armed hostilities” with that government.
Since the administration’s position has been that we are not in hostilities with Libya, they have been unable to use U.S. domestic law to seize those assets and turn them over to the Libyan opposition.
One of the effects of stating that we recognize the NTC as the legitimate governing authority in Libya is actually to say that we consider them to be the government of Libya and therefore we don’t’ have to seize the assets anymore. We’re just going to turn over these frozen assets to these people because they are the government of Libya. It does have that substantial effect.
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.