The Difference between Rhetoric and Reality: Why an Illegitimate Regime May Still be a Government in the Eyes of International Law

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Stefan Talmon is Professor of Public International Law at the University of Oxford.

The current situation in Libya provides a good example of grand political rhetoric meeting legal reality. Over the last fortnight the Qadhafi administration seems to have undergone a transformation from being the ‘Government of Libya’ to being an ‘illegitimate regime’. On 26 February 2011, US President Barack Obama said with regard to Colonel Qadhafi: ‘when a leader`s only means of staying in power is to use mass violence against his own people, he has lost the legitimacy to rule’. This was echoed two days later, by UK Prime Minister David Cameron who told the House of Commons: ‘It is clear that this is an illegitimate regime that has lost the consent of its people.’

Through his actions, Colonel Qadhafi may ‘have lost the legitimacy to govern’ but has he also lost the competence to do so under international law? International law does not distinguish between illegitimate regimes and lawful governments. ‘Legitimacy’ is a political concept and not a legal term of art. In fact, international law does not provide any criteria for defining and determining legitimacy. If consent of the people or a democratic mandate were indeed such criteria, many governments in the world would have to be ‘downgraded’ to illegitimate regimes. Both the United States and the United Kingdom are, of course, aware of the distinction. Thus, on 25 February 2011, US Assistant Secretary of State Philip Crowley told a press conference

‘I believe, from a legal standpoint, he [Colonel Qadhafi] is still the head of state and head of government. But clearly, he has lost legitimacy in the eyes of his people, and that obviously influences our perceptions of him as well.’

While it is in the interest of the United States and the United Kingdom to keep channels of communication open and to deal with the representatives of the Libyan government as long as that government is in power, however obnoxious it may be, such behaviour is difficult to explain against the backdrop of the ‘illegitimacy’ rhetoric and may also cause some embarrassment.

Such seems to have been the case, when on 28 February 2011 the Secretary of the General People`s Committee of Foreign Liaison and International Cooperation (the Libyan Foreign Minister) sent a fax to the State Department informing them that he was withdrawing the accreditation of Libya`s Ambassador to Washington, Ali Suleiman Aujali, who had sided with the opponents of Colonel Qadhafi. Asked about the withdrawal of the ambassador`s accreditation, Assistant Secretary of State Crowley told reporters that Aujali no longer represented Libya`s interests in the United States and that there was now a chargé d`affaires at the Embassy who had been authorized by the Government of Libya to represent its interests. Questioned whether this meant that the United States still regarded the Libyan Government as still the legitimate government, i.e. whether it regarded the Qadhafi government as legitimate, Crowley replied:

‘Well, there are two separate considerations […]. As a legal matter, there is a legal aspect of a formal representation of a government, and that has, at this point, not changed. That said, we believe that as the President, the Secretary, and others have said, that given that it has turned its weapons on its own people, we – the people of Libya feel that it has forfeited its legitimacy. But […] there`s a separate legal matter. There is now a chargé d`affaires at the Embassy here. And as a legal matter, should we wish to pass on something to the Government of Libya, we have the option of dealing with that individual.’

The US Government drew a clear distinction between ‘legitimacy’ and ‘legality’. Crowley told the press that

‘there`s a question of legality […] and there`s a question of legitimacy. As a legal matter, there […] is still a duly constituted [Libyan] government that […] meets the international definitions.’

These statements caused not little confusion amongst commentators and negative reports in the press which led the US Government to backtrack the following day. On 1 March, an unnamed senior State Department official told the press that the Department had received not an official diplomatic note but ‘a fax from the Libyan government regarding its representation in Washington, and we are still reviewing its authenticity’ and until the review was complete ‘Ambassador Aujali continues to be the head of mission at this time.’ It will be interesting to see how long this review will take and what its outcome will be. Either Assistant Secretary Crowley was jumping the gun on 28 February when he told the press that Aujali ‘no longer represents Libya`s interests in the United States’ or it suddenly dawned on State Department officials that the legitimacy – legality distinction was not immediately obvious to the general public.

The United States is not alone in facing the problem of the Libyan Government replacing its representatives abroad. On 1 March 2011, the United Nations received a note informing them that Libya`s ambassador and deputy ambassador to the United Nations in New York, who both have called for an end to the Qadhafi regime, had been relieved of their duties. U.N. spokesman Martin Nesirky confirmed ‘that the United Nations has received a notification from the Libyan authorities’ but refused to elaborate, saying only that ‘the correspondence is being studied.’

It seems that both the United States and the United Nations are playing for time here. The fact, however, remains that as long as they do not de-recognize the Qadhafi government as the government of Libya it will remain competent under international law to act for Libya on the international plane, including appointing its representatives and gaining access to Libyan State assets abroad. The continued recognition as government of Libya may also result in the biggest hole in the current UN sanctions regime. UN Security Council resolution 1970 (2011) technically freezes only the private assets of six members of the Qadhafi family and not Libyan State assets, including the estimated US$40bn in real estate, industrial holdings and foreign bank deposits administered by the Libyan Investment Authority. It is however the ‘government of Libya’ that is ultimately controlling these assets. This may explain why the US Government went further that the United Nations and also froze all property in the United States ‘of the Government of Libya, its agencies, instrumentalities, and controlled entities, and the Central Bank of Libya’.

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Thomaz Santos says

March 4, 2011

Any movement within the US Government concerning a possible recognition of the rebels as beligerants and then claiming no longer to recognize Qadhafi, legally and legitimaly, as head of State?