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I. BRITISH POLICY AND THE NATIONAL TRANSITIONAL COUNCIL OF LIBYA1

  • Colin Warbrick (a1)
Abstract

In February 2011,2 an uprising began in Benghazi in eastern Libya against the long-established Gaddafi3 Government. After initial military success by the rebels in the east, the government responded forcefully. In the light of threats made by the government to the lives of people in Benghazi, the Security Council authorized ‘any necessary measures’ to protect civilian lives in Libya and to enforce a no-fly zone over Libya's air space.4 Acting on this authorization, NATO forces intervened to enforce the no-fly zone and to protect civilians. The resolution precluded the occupation of Libya, so the NATO action was confined to aerial and some naval bombardment of regime targets in Libya. The combined effects of operations by the irregular forces of the rebels and the bombing by NATO eventually led to the defeat of Government forces and the death of President Gaddafi on 20 October 2011. However, the overthrow of the regime was principally the work of groups in the west and south-west, not formally associated with the original insurrection in the east. This note is not concerned with matters of legality of the use of force or the way in which the campaign was conducted by any of the participants.5 It deals with the diplomatic aspects of the development of relations between the United Kingdom, the Gaddafi Government of Libya and the ‘National Transitional Council’ (NTC). It raises some speculation about the implications in domestic law of the way British policy was conducted.

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2 The ‘National Transitional Council’, which is a key institution in this story, was founded on 27 February 2011.

3 I have used the most usual transliteration ‘Gaddafi’ for the name of the former president of Libya. Some of the documents quoted in the note used a different form.

4 Security Council resolution 1973, paras 4 and 8.

5 See Security Council resolution 2016 paras 5 and 6; NATO statement by Secetary-General, <http://www.nato.int/cps/en/natolive/news_80052.htm?mode=pressrelease>; Henderson C, ‘International Measures For The Protection Of Civilians In Libya And Côte D'ivoire’ (2011) 60 ICLQ 767.

6 Talmon S, ‘De-recognition of Colonel Qadhafi as Head of State of Libya?’ (2011) 60 ICLQ 759.

7 The constitutional ad hockery of the arrangement under gaddafi was extraordinary. Despite the local nomenclatures, I shall refer to the administration as ‘Government’, its legation in London as its ‘embassy’ and its senior representatives there as ‘ambassador’ or ‘chargé d'affaires’, whichever was appropriate at the time.

8 For the original implementation regime in the UK, see UK note to the Chair of the Sanctions Committee under res 1970, paras 9–13, S/AC.52/2011/7, 17 June 2011 (which was modified as later resolutions required).

9 <http://www.fco.gov.uk/news>, 19 April 2011, Foreign Secretary.

10 See below, Section E.

11 Talmon (n 6).

12 Talmon, ASIL Insights, Recognition of the Libyan Transitional Council, 15/16, 16 June 2011 <http://www.asil.org/pdfs/insights/insight110616.pdf>.

13 See below, Section I.

14 See below, Section H.

15 See, for example, Human Rights and Democracy: FCO Report 2010: Countries of Concern – Libya, <http://fcohrdreport.readandcomment.com>.

16 HC Deb 9 May 2011 Vol 527 c989W.

17 Libya described its embassy in London as the ‘Libyan People's Bureau’ but nothing turned on the denomination, HC Deb 5 May 2011 Vol 527 c624WS; also HC Deb 20 June Vol 530 c22W.

18 HC Deb (n 16).

19 See Rich R, ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’ (1993) 4 EJIL 36.

20 HL Debs 28 April 1980 Vol 408 cs1121–1122.

21 UKMIL 2008, 5/31, (2008) 79 British YBIntlL 617. See Talmon S, ‘Recognition of Governments: an Analysis of the New British Policy’ (1992) 63 British YBIntlL 231.

22 Id 5/32 (Kenya), (2008) 79 British YBIntlL 618 and HC Deb 16 May 2011 Vol 528 c61 with respect to Libya.

23 Wilmshurst E, ‘Executive Certificates: the United Kingdom’ (1986) 35 ICLQ 157.

24 Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA [1993] QB 54.

25 For instance, the ‘Turkish Republic of Northern Cyprus’, see UKMIL 2008 5/41, (2008) 79 British YBIntlL 622 referring to Security Council resolutions 541 and 550.

26 For example, Somaliland, see UKMIL 2009 5/7 and 5/13, (2009) 80 British YBIntlL 710 and 712.

27 But not none at all, for example the recognition of Kosovo, UKMIL 2008 5/16, (2008) 79 British YBIntlL 604.

28 HC Deb 16 May 2011 Vol 528 c61.

29 HC Deb 24 May 2011Vol 528 c586W; HC Deb 20 June 2011 Vol 530 c22W.

30 HC Deb 27 June 2011, Vol 530 c566W.

31 The ‘Libya Contact Group’ was an informal and changing group of States which were opposed to Gaddafi's continuing in office and which supported the cause of the NTC. It met in various places.

32 <http://www.fco.gov.uk/news>, 15 July 2011.

33 <www.fco.gov.uk/news>, 27 July 2011.

35 See HC Deb 21 March 1951 Vol 485 cols 2410–2411.

36 FCO news (n 33).

38 HC Deb (n 35).

39 Security Council, S/PV.6622, p 6.

40 The ambassador had been expelled earlier, (n 16).

41 The new ambassador appointed by the NTC was received on 10 August 2011.

42 FCO news (n 33).

43 See below, Section H.

44 See UK note (n 8).

45 HC Debs June 2011 Vol 529 c47.

46 <http://www.fco.gov/uk/news>, 31 August 2011.

47 General Assembly resolution A/66/3.

48 A British diplomatic mission had been ‘re-established’ in Tripoli on 5 September 2011, <www.fco.gov.uk/news>, 5 September 2011.

50 See in general, Peterson M, Recognition of Governments. Legal Doctrine and State Practice, 1815–1995 (Macmillan 1997).

51 When one looks at the domestic consequences of recognition decisions (which is a United Kingdom matter) for judicial proceedings, they will be determined by the legal system in which the litigation proceeds. It is a matter of convenience to use ‘English’ as the example.

52 Shaw M, International Law (6th ed, CUP 2008) 472482; DPO'Connell, International Law (2nd ed, Stevens 1970) 167172.

53 The Arantzazu Mendi [1939] AC 256.

54 Haile Selassie v Cable and Wireless (No 2) [1939] 1 Ch 182.

55 Gdynia Amerkya Linie v Boguslawski [1953] AC 11.

56 Civil Air Transport v Central Air Transport [1953] AC 70.

57 [2011] EWHC 2274 (Comm).

58 ibid para 10.

59 ibid para 14. NTC officials began to work from the Libyan embassy in London from 9 August 2011.

60 ibid para 22.

61 [1993] QB 54; also Sierra Leone Telecommunications v Barclays Bank [1998] 2 All ER 821.

62 British Arab Bank (n 57).

63 ibid para 24.

64 The judgment refers to Gur Corporation v Trust Bank of Africa [1987] 1 QB 599, para 604, per Steyn JThe Arantzazu Mendi (n 53) p 264, per Lord Atkin; and Sultan of Pahang, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 616, paras 14 and 30, per Maurice Kay and Moore-Bick LLJ.

65 See D Akande, ‘Can Libya sue the UK on Recognition of the National Transitional Council?’ <www.ejiltalk.org>, 30 July 2011.

66 Warbrick C, ‘Executive Certificates in Foreign Affairs: Prospects for Review and Control’ (1986) 35 ICLQ 138.

67 R v Home Secretary ex p Northumbria Police Authority [1988] I All ER 556.

68 Announcing a meeting between the Foreign Secretary and representatives of the Syrian opposition to be held on 21 November 2011, FCO officials made it clear that this did not signal that they were being recognised as a government, a step made necessary by what had happened with the NTC, The Independent, 19 November 2011, p 1; see also <http://www.fco.gov.uk/news>, 21 November 2011. If this is the start of a revival of the old policy, it is something of a vindication for Peterson M, ‘Recognition of Governments should not be Abolished’ (1983) 77 AJIL 31.

69 There is considerable background information on British activities with respect to Libya from February to October 2011 at <http://www.fco.gov.uk/en/global-issues/mena/libya/website>.

1 There is much which is tentative about this note. This reflects the still unresolved conclusion of events in Libya and the surprising resort to the recognition of governments power by the British government to deal with the unfolding situation there. I am very grateful to Roger Masterman of the Durham Law School for discussions about aspects of this paper. He has saved me from error but is not implicated in any which remain.

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International & Comparative Law Quarterly
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