Coup in Egypt or Not? The Implications Under International Law
The Egyptian election commission announced on 24 June 2012 that Mohammed Morsi
won the presidential election with 51.7 percent of the vote, exceeding
the 48.3 percent of his contender Ahmed Shafik and effectively becoming
Egypt’s first democratically-elected president. Yet since he assumed
office in 2012, many questions have arisen as to the legitimacy of
Morsi’s acts. He has been accused of governing in a totalitarian manner
reminiscent of the Mubarak era. Hundreds of thousands took to the
streets after Morsi temporarily granted himself unlimited powers to
“protect the nation” and legislate without judicial review. Various
opposition groups questioned the legitimacy of the assembly tasked with
drafting the new Islamist-backed constitution. Many protested the
purging of hundreds of Mubarak-era officials from government
institutions. Some accuse Morsi’s policies of crushing Egypt’s tourism
industry and the wider Egyptian economy.
On
30 June 2013, marking Morsi’s one-year anniversary in office, mass
protests erupted across Egypt calling for the Morsi’s resignation. On 1
July, the Egyptian Army warned that it would intervene if the
protesters’ demands were not met within 48 hours. On 3 July, defence
minister Abdul Fatah al-Sisi, with the support of opposition leader
Mohamed ElBaradei, the Grand Imam of Al Azhar Ahmed el-Tayeb and Coptic
Pope Tawadros II, declared that Morsi was dismissed from office. Morsi
was arrested and taken to an undisclosed location.
On the same day, the Office of the Assistant to the President on
Foreign Relations & International Cooperation issued a press release
stating: “For the sake of Egypt and for historical accuracy, let’s call
what is happening by its real name: Military coup.”
Is this press release correct in characterizing the 3 July events as a
military coup? If so, what implications would a coup have on the
legitimacy of the new Egyptian government? This essay examines these
questions in light of international law and state practice.
Legal Overview
In recent years, democratic governance has taken growing importance
in legal theories providing for the recognition of new governments.
Because democratic governance is incompatible with military coups,
determining whether the military’s 3 July 2013 acts constitute a “coup”
will have implications as to whether the interim government is
legitimate under international law.
Three legal doctrines are used to inform whether a new government
will be recognized as legitimate: the traditional doctrine, which is the
most widely-accepted approach, and the Tobar and Estrada doctrines.
Traditional Approach (Effective Control Doctrine)
Under the traditional approach,
States consider four factors in deciding whether to recognize a
government: (i) effectiveness of control; (ii) stability and permanence;
(iii) ability and willingness to fulfill obligations; and (iv) popular
support (i.e., the acquiescence of the people to the government). The
rationale behind these elements is to ensure that a new government is
internally stable before being recognized by and entering into relations
with other States that imply responsibilities and obligations.
Under the traditional approach, whether the new government formed in
Egypt will be deemed legitimate will be based on a variety of factors
that revolve around the effective control of the government over the
State and its land and people. If the interim government organizes
elections that exclude the Muslim Brotherhood or other organizations
that effectively represent the people, thus disenfranchising part of
Egypt’s population, the new government will not be deemed legitimate
under the traditional approach.
Estrada Doctrine
Under the Estrada doctrine,
in contrast, a State automatically recognizes all governments in all
circumstances and at all times. A State applying the Estrada doctrine
thus refrains from making any determination as to the legitimacy of new
governments (including those that came into power by force). Under the
Estrada doctrine, when a new government comes to power (through
constitutional or extra-constitutional means), the relations between the
State and third party States remain unchanged.
For the minority of States following the Estrada doctrine, whether
the interim government has popular approval is irrelevant to its
recognition and legitimacy. Governments that follow the Estrada doctrine
automatically recognize new governments in order to refrain from
passing judgment on the internal affairs of other States or giving
implicit approval through recognition of the acts of the new
governments.
Tobar Doctrine (Doctrine of Legitimacy)
Characterizing the 3 July events in Egypt as a “coup” is most
problematic under the Tobar doctrine, also known as the doctrine of
legitimacy. Under the Tobar doctrine,
States do not generally recognize governments that come into power as a
consequence of military coups or revolutions. The Tobar doctrine does
however recognize as an exception new governments that come to power
through a coup if the people, without coercion, affirm and accept the
new government. States that follow this approach thus accept a new
government when a coup is accompanied by an immediate vote confirming
the new government or a national referendum approving a new
constitution.
Over the past decade, the US and other countries have spent a great
deal of resources discussing the importance of democratic governance.
International organizations such as the OAS have adopted significant
resolutions in this spirit, recognizing the incompatibility between a
legitimate, democratic government and one that comes to power through
violence and keeps power through a constant threat of the use of force.
The Tobar doctrine signifies a new trend in the past decade whereby
States withhold their recognition of new governments where such
governments take power in a manner contrary to basic principles of
democracy. Accordingly, the UN in some cases will not allow a government
to take a seat at the UN when the government was not democratically
installed.
The Importance of Popular Support in Egypt
Given
the importance of democratic governance under international law, one
can see why so many States have been reluctant to characterize the 3
July 2013 events in Egypt as a “coup.” Such a characterization will have
important consequences on the recognition of and establishment of
diplomatic relations with the new Egyptian government. For this reason,
many States are urging the interim council in Egypt to quickly proceed
to parliamentary elections and a national referendum on the
constitution. Only if the events of 3 July 2013 are accepted with
popular support at the polls will they hold any legitimacy under
international law. Egypt will however only reach that point if the
interim government fulfills its promises to proceed quickly to a
national referendum on the constitution and to hold fair and transparent
parliamentary elections shortly thereafter. Only then can observers
determine whether the 3 July events hold popular support in keeping with
the spirit of representative democracy.
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