Earlier this week, the UK Foreign Secretary, William Hague announced that the UK now recognises the Libyan National Transitional Council (the rebels fighting Colonel Gaddafi’s forces) as the sole governmental authority in Libya. This was an implementation of the decision reached in the context of the Libya Contact Group meeting which I spoke about last week (see here). As part of the UK’s decision, the UK has expelled those Libyan diplomats in the UK appointed by Gaddafi and has invited the Libyan NTC to appoint a new diplomatic envoy to the UK. As indicated in my previous post, one of the consequences of the recognition decision (and perhaps one of the drivers of the decision) is that the UK is willing to release some Libyan assets in the UK for use by the NTC. In particular, the UK is unfreezing £91 million belonging to a Libyan oil company which is controlled by the NTC. However, the vast majority of the Libyan State’s assets in the UK remain frozen.
In response to all of this the Libyan Deputy Foreign Minister (by which I mean the Gaddafi govt’s Deputy Foreign Minister) declared that these moves by the UK are illegal and that Libya will sue the UK in the International Court of Justice and in British domestic courts. Libya has been involved in quite a few cases before the ICJ – recall the maritime delimitation cases with Tunisia and with Malta in the 1980s, the Lockerbie cases against the UK and the US in the 1990s - so it is perhaps no surprise to hear that they are considering another suit at the ICJ. But are there jurisdictional grounds for such a suit and what exactly might such a claim involve? While the UK has made a declaration recognising the compulsory jurisdiction of the ICJ under Article 36(2) of the ICJ Statute, Libya has not. Also the UK declaration includes a reservation excluding disputes with States that have made a declaration less than 12 months before bringing the case before the Court. So, even if Libya made a declaration now, they couldn’t bring a case for 12 months. Therefore, for Libya to bring a case in the ICJ they would need to find an alternative basis for jurisdiction. This could be a treaty that gives jurisdiction to the ICJ with respect to disputes under that treaty. The lack of compulsory jurisdiction would mean that though there might be some scope to argue that the recognition by the UK is premature and therefore an unlawful intervention in Libyan affairs (see my post from June), there would be no jurisdictional grounds for such a claim based on customary international law.
A Claim based on the Vienna Convention on Diplomatic Relations?
The Libyan Foreign Minister stated that UK action was in breach of the Vienna Convention on Diplomatic Relations of 1961. There is an optional protocol on compulsory settlement of disputes under the Vienna Convention which gives jurisdiction to the ICJ over such disputes. But again though the UK is party to this protocol, Libya is not. Libya might seek to accede to the protocol and thus give the Court jurisdiction over disputes under the Vienna Convention. Mexico did something similar with regards to to the optional protocol to the Vienna Convention on Consular Relations before bringing the Avena case against the US (there was a space of some months before the accession and the filing of the application in the case). But were this to happen, what claim might Libya bring under the Convention? Under Article 9 of the Convention, a receiving State (in this case, the UK) may “without having to explain its decision” declare the head of diplomatic mission or other members of the mission to be persona non grata and thus, in effect, require them to leave the State. So it is difficult to see what claim could be brought with regard to the expulsion of the UK diplomats. However, if the NTC were to appoint a new diplomatic envoy as the UK has invited it to do, and if the UK were to hand over the embassy premises to that person, there might be a claim that the UK is in breach of the provisions relating to the premises of the Libyan embassy (I am grateful to Stefan Talmon for raising and discussing this point with me in a recent discussion). Article 22 of the Vienna Convention provides for the inviolabilty of diplomatic premises and requires the receiving State to prevent intrusion into those premises. Perhaps Libya could argue that handing over the premises to a person that is not appointed by the “government” of Libya is a breach of these provisions regarding inviolability of and intrusion into the premises. More relevant might be Article 45 of the Convention which provides that:
If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily recalled:
(a) The receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives;
It could be argued by the Gaddafi government that by expelling all its diplomats, the UK is in effect breaking off diplomatic relations with Libya, and that by handing over the embassy to representatives of an entity that is not the proper government of Libya, the UK is in breach of this provision.
Action in the English Courts
As noted above, Libya also says they intend to bring suit in the UK domestic courts. If they do, it is more likely that such a claim would relate to the transfer of assets than to the expulsion of the diplomats. I discussed this possibility in my previous post. If the claim relates to the assets of this Libyan oil company indicated in news reports, the question would be one of who controls the company. I am not familiar with the details regarding this company but presumably the question may boil down to whether or not it was the Gaddafi government or the NTC that had the right to appoint directors of the company. If the question “who is the government of Libya does arise?”, English courts will have to decide whether they will revert to pre 1980 practice of following executive determinations on this issue (under the principle that on these issues the UK should speak with “one voice”). The alternative would be to follow the decision in Republic of Somalia v. Woodhouse Drake & Carey (Suisse) SA  QB 54;  3 WLR 744 indicating that the dealings of the executive with the authorities in question is just one factor to be considered alongside others. It could be argued that the Somalia decision is only applicable in cases where the British government has chosen not to issue formal recognition of a government but that if it does (as it has done in the case of Libya) the courts have to follow that determination.