Legal Commentary

France Recognizes Libyan Rebels? And a Comment on the Obama Administration?s Vaciliations

By Kenneth Anderson

The Wall Street Journal reports that France ?formally recognized Libya?s main opposition group, the first country to do so.?

It is an excellent story and walks in brisk fashion through the latest moves in diplomacy and assessment of the military chances of the rebels.  However, it is prudent at this point not to over-interpret the implications of this report about France.  From a legal standpoint, there are degrees and types of recognition, and I have so far not been able to get more detail from either English or French-language press on what exactly this recognition is in a technical sense.  (I?d welcome more information if readers have any on what the French government has actually said, in English or French sourcing.)

Possibilities include, however: recognition of the rebels as the legitimate government of Libya, or recognition of belligerency and the rebels as a belligerent group.  These and more have different international law implications.   The US government seems to have suspended relations with the Qaddafi government and apparently plans to meet with some representatives next week.  But it has not moved to recognize the rebels in whatever way France has.

Regarding intervention, the Obama administration seems to be waffling between the view that it must have Security Council authorization to act, if it is so inclined; and the view that it has sufficient latitude to do so on at least a humanitarian basis without a SC resolution.  It initially seemed to take the view that lack of Security Council authorization ended discussion, but seems to have walked that back somewhat.  My own estimation is that the administration is thinking less about its legal position than the position it wants to adopt in Real Life, and letting that drive its legal formulation; that?s not a judgment of the Obama administration, it?s a statement about what governments do in difficult and tricky situations.

On the other hand, the distinctively Obama administration foreign policy is on display in this statement from Ben Rhodes, deputy national security advisor for strategic communcations:

?This is the Obama conception of the U.S. role in the world ? to work through multilateral organizations and bilateral relationships to make sure that the steps we are taking are amplified ... Maybe this is a different conception of U.S. leadership. But we believe leadership should galvanize an international response, not rely on a unilateral U.S. response. ...?

It is true that this statement, while putting the emphasis on multilateral engagement, leaves lawyerly room for actions that don?t involve the UN.  It does not absolutely rule out what we might call the Kosovo response by NATO.  Still, I would say that the Obama conception of the US role in the world is one that runs through the UN and is not the Kosovo precedent that ran instead through NATO without SC authorization.  The impulse to the UN to which Rhodes alludes is, I think, a different conception of US leadership than what US leadership has since 1945, even under Carter and and the first Clinton term. I?m sure I won?t be alone in citing the Rhodes? statement in the years to come.

What seems to characterize it is something I discuss in my forthcoming book on US-UN relations, Living with the UN.  It appears loosely premised upon a further view ? one that has always been at the heart of the UN bureaucracy?s view of what the US should be in relation to the UN ? that the US should play the role of the most powerful player within the UN system, and at the disposal of the collective security system of the UN.  In this view of the world, the US provides the ?muscle? at the direction of the Security Council.  The Security Council makes the decisions, though of course it takes in the US views ? the US has its great power prerogatives and does not lose them ? but the US is supposed to act as the most powerful player within a system of UN legitimacy, not outside it, to the ends that UN legitimacy provides.  Many people think that anything else is lawless because it offends the UN Charter view of the world; it is also a view that empowers, and indeed gives a hold-up, to many, many bad actors, including, until 10 minutes ago or so, Libya.

The alternative view is a US that in effect runs a parallel security system that provides global public goods in security to the world, but does so as a parallel to the UN, and so provides a backstop against ever having truly to test whether UN collective security could overcome what would otherwise appear to be insurmountable collective action problems.  It seems to be a more likely explanation for how security actually takes place in the world; countries pay lip service to UN collective security at least sometimes, but the leading players actually rely on the provision of loosely hegemonic public goods, starting with security of the high seas (until the eruption of piracy) that the US provides.  Beneficiaries of that system of US-provided global public goods include not only friends and allies, but many countries that, for example, might arm against one another but don?t feel they need to because the US guarantees some loose hegemonic ordering against bilateral conflicts.  It even reaches out to the US?s enemies, who nonetheless benefit from transit on the oceans.

When friends, allies, and enemies see statements such as Rhodes?, their assumption, I imagine, is that the US under President Obama is seeking to lessen its commitment to the alternative ?hegemonic? public goods role, and to increase its commitment in the first, the player ?within? UN collective security.  I would guess that the view in France at this moment is that the Obama administration will ?lead? through multilateral organizations until the possibility that the rebels might succeed in Libya is past, and then talk a lot about how hard it is to get anything done through the UN and congratulate itself for having made such a valiant effort.  It?s a win-win for the administration; it doesn?t have to actually intervene, and it can say to its liberal interationalist wing that it has engaged through multilateral institutions.  From Ben Rhodes? standpoint, what?s not to like?

The irony, of course, is that our closest allies ? France, Japan, or Britain particularly ? find this alarming.  It would be good if the US would say all those soothing multilateral nostroms ? but this administration actually appears to believe them.  Or rather, it does not believe them, but has found in them a formula for walking away from its historical role.

I say this as someone who is agnostic ? indeed very wary ? of US military involvement of any kind.  I?m not at all sure it is a good idea ? I read Kristoff and I read Will on intervention today, and at this very moment, I thought Will more persuasive.  Maybe I?ll change my mind tomorrow.  My real point is that whether the US should move toward a direct military role, the Obama administration?s method of deciding to do it or not do it creates its own problems. At least if you think, as I do, that the Obama administration?s ?conception of the US role in the world? might be called, I suppose, ?multilateral engagement? ? but might far more accurately be called ?strategic withdrawal.?

So: We?ve got lots of problems in Wisconsin and Ohio and California and New Jersey and Indiana, and just so we?re clear, here?s the deal.  If we agree that the UN is the place to deal with all your funny and hard to figure out and frankly not very relevant or interesting foreigner stuff, will you all just sod off and let us get on with figuring out our new VAT tax and our grandchildren?s interest payment schedule to China?

Full post as published by The Volokh Conspiracy on March 11, 2011 (boomark / email).