Did the U.S. Stretch International Law In Order to Recognize Libyan Rebels?

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.