Recognition of Libyan National Transitional Council as Government of Libya
On June 16, I wrote a post asking “Which Entity is the Government of Libya and Why does it Matter?” In that post, I explained that what appeared to be recognition by a number of States of the Libyan “rebel” National Transitional Council (NTC) as the government of Libya was not necessarily so (see also the ASIL Insight published on the very same day as my post by my colleague Stefan Talmon). Matters have now changed quite dramatically. A month later (on July 15), a group of 32 States (including the United States and the United Kingdom) at the Libya Contact Group meeting in Turkey issued a statement in which they declared that:
The Contact Group reaffirmed that the Qaddafi regime no longer has any legitimate authority in Libya and that Qaddafi and certain members of his family must go. Henceforth and until an interim authority is in place, participants agreed to deal with the National Transitional Council (NTC) as the legitimate governing authority in Libya.
This is clear recognition, by members of the Contact Group. of the NTC as the government of Libya.
As noted in my previous post, such formal recognition is contrary to the stated policy of many of these countries that they do not recognise governments. In reality, States always have to decide which entity they consider to be the government of other States. However, the policy of not recognizing governments meant that some countries would not make formal statements announcing the recognition decisions they had made. This statement by the contact group not only exposes the lack of reality in the policy of not recognizing but even goes against the practice of not making formal statements regarding recognition.
One of the main consequences of this joint act of recognition is that it may permit the NTC to lay claim to foriegn assets of Libya. Many of those assets are currently frozen under sanctions imposed by the US and the European Union. However, even, if the executive branch in those countries reverses those freezes (see report here at Bloomberg Businessweek), there may well be litigation in domestic courts raising the question of who is entitled to control those resources (the NTC or the Gaddafi authorities). If such litigation does arise, it will be interesting to see whether the domestic courts in those countries feel bound to follow the determination of the government. In England, the position used to be the courts would speak with one voice with the executive in matters of recognition. However, since the UK government adopted the policy of not recognition of governments, the Courts have had to decide on their own which entity they consider to be the government. In making that determination, the executive’s dealings with the authority is just one factor to be considered along with others (in particular whether the authority has effective control of the territory) [see Republic of Somalia v. Woodhouse Drake & Carey (Suisse) SA, High Court, Queen`s Bench. Division, 13 March 1992:  QB 54;  3 WLR 744]. It remains to be seen whether in the face of an old fashioned act of recognition the courts will go back to simply following the executive.
An important issue here is whether the members of the Libya Contact Group have acted lawfully in recognising the NTC. Former US State Dept Legal Adviser John Bellinger addresses some of these issues in a blog post earlier this week. The key point here is that the general position taken in international law is that the government of a State is the authority which has effective control of territory (see the Tinoco Arbitration between Great Britain and Costa Rica). Clearly the NTC is not in effective control of Libyan territory. More recently there may have been some exceptions crafted on to this rule (see earlier posts on the situations in Cote d’Ivoire and Honduras by Jean d’Aspremont and Brad Roth which discuss these issues). However, those possible exceptions deal with circumstances where the international community chooses to recognise an authority not in effective control but which is constitutionally legitimate as demonstrated by winning an election. However, the NTC is not in this position. So the legality of its recognition is rather dubious and if the question does happen to be raised in judicial proceedings, the recogntion may not hold up. Interestingly, the Republic of Somalia case referred to above was one which dealt with competing claims to assets in the UK by entities claiming to be the government of Somalia with the court rejecting the claim by an authority which had some measure of international recognition. However, that government had no control of territory at all unlike the NTC which does control some territory.