Cross-posted at Opinio Juris.
It is becoming increasingly likely that Russia and China are going to block just about any resolution on Syria coming out of the Security Council, regardless of whether it is meaningful or not. They aren’t going to support a resolution that seriously denounces the regime, nor are they going to support an ICC referral, I believe. And they definitely will veto any resolution that authorizes military action in Syria.
Consequently, people are starting to talk about recognizing the rebels in Syria as the legitimate government of Syria. That’s something that also happened during the Libyan conflict, although the move was only of marginal significance to the legal argument. The Security Council voted to authorize military action in Libya pursuant to its Chapter VII authority, so Libya wasn’t really a case of unilateral humanitarian intervention. True, Russia and China complained that NATO far exceeded its Security Council mandate to protect the civilian population and pursued regime change ultra vires. But that complaint aside, which strikes me as a bit of posturing, the infringement of Libya’s sovereignty was authorized by the Security Council.
Since the Security Council is not likely to pass a similar resolution regarding Syria, the recognition strategy is more pressing. If the rebels have some political structure, and that structure can be recognized as the legitimate government of the Syria people, then any outside military support would be by invitation only, and therefore not an infringement of Syrian sovereignty. Under this view, there would be no violation of Article 2 of the U.N. Charter, so it would not need to be justified by either Article 51 or a Security Council Chapter VII authorization.
There are two options to this strategy. Under option one, recognition is combined with a secession claim, and the rebels are deemed to be the rulers of some newly sovereign sub-set of the Syrian territory. Under option two, recognition is the only claim and the new government is considered the legitimate rulers of Syria proper.
What interests me is if this does indeed happen in Syria, will it set the stage for a general strategy to solve the humanitarian intervention quandary? In other words, can the recognition strategy be universalized? Isn’t it the case that in most situations one can find some council, committee, or “parliament” – or any collective group at all -- and anoint them as legitimate rulers? Could someone justify military action against China by recognizing the ROC in Taiwan as the true leaders of China? (The ROC once ruled mainland China too but lost a civil war to the PRC).
Of course, it would be an exaggeration to suggest that there is no law that could serve as a limiting principle here. There is the Effective Control test, the Montevideo Convention, the EC principles, the Declaratory View, etc., all of which purport to establish criteria for when a country exists and who its government might be. With regard to the Effective Control test, it might be said that neither the rebels nor the Assad government have effective control over the territory at the moment (or put another way, they both have effective control at the same time if such a thing is possible). But I think the take-away from the Kosovo decision at the ICJ is that there is less positive law in this area than one might hope (one reason for the court interpreting that case so narrowly).
That being said, the interesting question about the recognition strategy is whether it’s an impermissible workaround of the Charter scheme. If it can be universalized, does that suggest that it is a reductio ad absurdum?