At a rare public meeting in Washington today, a veritable who's who of State Department and international lawyers debated what it would mean if the United States were to recognize the Libyan rebels as that country's government.
Libya’s Transitional National Council, or TNC, has been pushing hard for recognition, which might allow it access to $33 billion in frozen Libyan assets and would bolster its international standing.
“There has been pressure on government lawyers [to evaluate] whether recognition should be a tool deployed,” said State Department Deputy Legal Advisor Jonathan Schwartz at the meeting of the Secretary of State’s Advisory Committee on International Law held at George Washington University Law School.
“The primary question is what is the contemporary status in international law regarding recognition of a government,” Schwartz said - a separate question from recognizing Libya as a state, or entering or breaking diplomatic relations.
“There’s a tremendous amount of political churn on this issue,” agreed Sir Daniel Bethlehem, who just stepped down as the legal advisor to the United Kingdom’s Foreign and Commonwealth Office. “Sanctions attach in many instances to state enterprises…Recognition may liberate control of assets.”
But Yale Law School Professor W. Michael Reisman called recognition a “legal metaphysical question.”
“The question is not recognition or non-recognition” he said, but do the rebels “need money to pay the bills...and what strategic steps could achieve this particular result.”
In granting recognition, one key question is the rebels’ effective control–or lack thereof–over the state’s territory. The TNC hold most of eastern Libya, while Moammar Gadhafi controls most of the west.
“I’m skeptical about recognition of the TNC,” said Arnold & Porter partner John Bellinger III, who was the State Department’s legal advisor from 2005 until January 2009. “I don’t understand how it would work. Do we recognize the TNC as the government of all of Libya? Or the government of the part of Libya that they control, and Gadhafi as the other part?”
He also wondered, “If we were to recognize the TNC, do they have the obligations of a state?” For example, who would have the obligation to protect diplomats or journalists?
Participants expressed concern that recognizing the rebels and de-recognizing Gadaffi might have the unhelpful result of “letting Gadhafi off the hook” for such responsibilities.
“Premature recognition could absolve someone of responsibility,” said State Department Legal Advisor Harold Koh.
Sullivan & Cromwell partner Edwin Williamson, legal advisor from 1990-93, suggested that “state recognition of Eastern Libya controlled by the TNC would be less of a stretch than [governmental] recognition of the TNC.”
But one way or another, Koh made it clear he thought Gadhafi's days were numbered. “How many of us would take a bet Gadhafi will be in office five, 10, 15 years from now?” he asked. “Not a lot of us.”