Libya has a UN seat and a lovely map that shows the borders of what the Libyan government controls. But over a year after the fall of Khadaffi's regime, the government does not control their territory up to those borders. Militias--even those still loyal to Khadaffi--have staked out their own territory. Jihadis are running loose despite the generally good view of America by most Libyans and the friendly attitude of the Libyan government.
I'd meant to mention this earlier, but one of the reasons we didn't send our military in to Libya was that we did not want to violate Libya's sovereignty:
Even if the team had been ready in time, confusion about what was happening on the ground in Benghazi -- and State Department concerns about violating Libyan sovereignty -- made a military rescue mission impractical, the officials say.
The team was too late to save the consulate, which is consistent with my impression. But it was not too late to defend the annex. Whether or not we could have arrived in time to do some good, would we have done so given the issue of violating Libya's sovereignty? In the short time we had to make decisions, that sovereignty concern argues that we would have not sent in forces.
In a war against sub-national and transnational groups that wish to wage war on us, we can't let nominal sovereignty stay our hand when practical control over that territory is lacking:
One of the problems with dealing with non-state actors is that they have enough power to defy the state government that has the responsibility for policing that piece of territory. So when a country goes after the non-state actor exercising the power of a state to wage war, the country runs afoul of the Westphalian assumptions because the country is attacking the formal territory of some state government even if that government does not control the territory. The Hizbollah War is a case in point.
So what if we modify our rules of recognition? Let's split our recognition. We recognize a government that holds a UN seat and borrows money and is responsible for its actions, as we do now. Right now it is all or nothing. You are recognized or not and if you do you are given credit for controlling everything within the lines on the map indicating your country. The government has legal responsibility to control their territory, but in practice there is no way to compel them to do so and yet international law prevents others from trying to install some level of control--or at least to destroy threats gathering in those areas beyond government control.
But as part of this recognition, we also declare the boundaries of these recognized governments that reflect effective control and not just legal fictions based on lines on maps. For most countries, we'd use the formal boundaries. Germany controls their territory. But not all countries are in this situation.
Where a country's government does not or cannot control all their territory, we should declare areas "free of control" by a national government and therefore deprive the non-state actor from hiding behind the nominal legal government when they are attacked on their de facto territory that the non-state actor rules.
I called this the Lexington Rule. I'll modify it to say that such declarations will be done in private with the nominal national government to let them know that however friendly we are with them officially, if we need to act where the nominal government cannot, we will do so and expect the nominal government to help us or stay out of our way.
Libya's fledgling government--through no real fault of their own--failed to exercise sovereignty over their territory on September 11, 2012. Yet we operated in their territory as if Libya did have that kind of authority. And we refused to react to the attacks on the notion that we should pretend Libya had that kind of authority.
Six years after I called for it, we got a painful lesson in why we need the Lexington Rule.
