In late November 2019, Turkey and the United Nations (UN)-backed Government of National Accord (GNA) of Libya signed a memorandum of understanding (MoU) on maritime boundaries between the two states, in which the parties agreed on a 30 km-long boundary line which runs close to the Greek island of Crete. In doing so, Turkey and Libya disregarded Greece’s far-reaching and controversial maritime jurisdiction claim off the coasts of some Greek islands and overstepping the perceived maritime zones of Greece and the Greek Administration of Cyprus (GASC). Hence, Greece and the GASC immediately argued the illegality of the MoU in question, with Greece expelling the Ambassador of Libya on December 6 and sending two letters to the UN lodging its objections to the deal.

The MoU came into force on December 8, 2019 and sparked fierce criticism from many global and regional actors. Understandably, Turkey and the GNA’s deal has antagonized many sides given its particular importance in the context of the vast hydrocarbon reserves believed to be in the Eastern Mediterranean. The current competition over hydrocarbon reserves in the region involves many states, including the USA and Russia who are not even coastal states, as well as non-state actors such as multinational oil corporations and armed militias. Immediately after the MoU came into force, the Greek and Egyptian foreign ministers gathered to discuss developing a common strategy against the deal.

Further opposition has come from the European Union (EU), which has called the deal illegal and had already decided to impose some sanctions over Turkey’s drilling operations off the coast of Cyprus. Israel recommended speeding up the East Med Pipeline Project to confront Turkey’s activity. Aguila Saleh Issa, the chief of Libya’s Tobruk-based self-proclaimed parliament, which is under the control of General Haftar, stated that, “The deal is invalid. Those that signed it do not have any legal authority to do so”. The following blog post will address the issue of legality of the deal.  The aim is neither to discuss the geopolitical aspects of the deal nor to examine its legality from the point of international maritime law rules.[1] Instead, I will focus on Saleh Issa’s claim that the deal is invalid and the question of whether the deal would be binding for Libya if General Haftar’s forces took over Tripoli and the Tobruk-based parliament (House of Representatives-HoR) therefore prevailed over the GNA.

The Key Concept: De Jure Government

In international law the doctrine of state continuity plays a key role. As per this doctrine, a state’s international legal personality, thus its rights and obligations, persist in spite of changes in its government. Constitutionally or unconstitutionally, governments can change but a state remains constant. State continuity is crucial for the political stability of the international order. Thereby, a successor government is considered to be bound by all commitments and obligations undertaken by the preceding government, regardless of whether it supported or opposed political decisions made by the preceding government.

When there is a constitutional change of government in a state, state continuity is not a matter of debate at all. However, in case of unconstitutional changes, some controversial situations may arise, as we can see in Libya now. It is important to note that “constitutional change” does not necessarily mean change happening through democratic elections. Meanwhile, “unconstitutional change” entails situations such as civil war, military coups or insurgence through which rival political authorities/governments emerge in a country.

Other states are legally free to recognize any rival governments, although there might sometimes be exceptional restraints, usually stemming from UN Security Council Resolutions, on the recognition of certain entities. Views such as those expressed in the Tobar Doctrine, which argues that only the ‘legitimate’ governments shall be recognized by other states, have so far not been endorsed by the majority of the international community. This is despite the fact that the ‘excuse of legitimacy’ has sometimes been used by states for their non-recognition of other governments, as happened with Sierra Leone in 2010.

The issue of the recognition of governments is largely seen as a unilateral, purely political and practical decision of states. For rival governments, recognition of its possession of the effective control on a considerable portion of the territory, is usually what matters most. The Estrada Doctrine suggests that the recognition of a government should be based on its de facto existence rather than on its legitimacy. Consequently, the issue of recognition is rightly identified as one of the most political matters of international law.

Thus, what will happen in the Libyan case if both rival governments have effective control on different portions of a country’s territory and could gain recognition from different states? Are one side’s commitments considered binding to the other when one of the sides takes over full control of the country? In case the forces of GNA or Haftar gain the full control of Libya, there is no doubt that the triumphant government will be bound by the commitments it has undertaken when it competed with the other government. But when it comes to being bound by the commitments of the defeated side, the answer lies in the concept of ‘de jure government.’

A de jure government is the “legal and principal” government of a state and so widely recognized by other international legal persons. A more practical definition is that, a de jure government is the one possessing the original political authority in a country before it is contested by the other side. It is widely accepted that when there are rival governments in a state, the one considered to be the de jure government preserves its right to make commitments on behalf of the whole country, even when its effective control over the whole country is seriously diminished. Therefore, when a de jure government is defeated and overthrown by a contesting government, its previous commitments shall be binding for a new government. The Tinoco Case between Costa Rica and the United Kingdom in 1923 is one of the best examples of this principle in international law.

Of course, it is not always easy to determine which side is the de jure government and a factual examination of each given case is required.

Broad Recognition for the GNA by the International Community

Firstly, one of the main qualifications of a de jure government is the broad recognition it enjoys by the international community, although recognition of an entity by other states is not necessarily essential for its status. As previously mentioned, the GNA is a UN-backed government and it was established in 2015 in order to reconcile the different factions in Libya, having divided the country since 2014 when it was unanimously recognized by the UN Security Council as the sole executive authority of Libya. The EU also supported the formation of the unity government.

Moreover, the HoR themselves, as well as Haftar’s forces, have already supported the establishment of the GNA following a peace agreement signed in 2015 between the contesting factions in Libya. Just two weeks after the recognition of the Security Council, the afore-mentioned Saleh Issa, currently claiming the lack of legitimacy of the GNA, had declared his support for and recognition of the GNA. When the GNA held its first meeting at the beginning of 2016, the government received a vote of confidence from the HoR. Moreover, Haftar’s forces paved the way for the GNA to settle in Tripoli in March 2016 against rebellious factions.

However, in the summer of 2016, the HoR withdrew its support from the GNA because of some political disagreements and became their rival government by rising against them and retracting recognition of its legitimacy. Despite the talks between both sides in France and Italy in 2018, no result has been achieved. Nevertheless, the GNA is still recognized, as of 2019, as Libya’s legitimate, thus de jure government by the UN and the majority of the international community. The HoR would be incapable of gaining such wide recognition at this time. Therefore, the GNA is the official unity government of Libya and the original political authority as Haftar’s forces initially recognized. The fact that the Libyan ambassador expelled by Greece was assigned by the GNA, is further proof of this reality.

In conclusion, as long as the GNA does not lose all its effective control in Libya and preserves the potential to assert its full control, it preserves its status as the de jure government of the country. Thus, it also preserves its authority for signing international agreements on behalf of the whole of Libya, which should be binding for any successor government, including Haftar’s forces. Thereby, the GNA and Turkey agreed on the exact coordinates of their maritime boundary (Annex 1 of the MoU) to which any future amendment or review of that boundary is precluded as per Article 5 of the MoU. In addition, the MoU, as a binding international agreement, was registered with the Secretariat of the UN pursuant to Article 102 of the Charter of the UN. Hence, Saleh Issa’s claim of the lack of legality of the MoU is not accurate from the point of international law.

[1] For a legal assessment of this from the point of international maritime law rules, please see our previous piece: https://research.sharqforum.org/2019/10/16/the-drilling-war-in-the-eastern-mediterranean-from-an-international-law-perspective/