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    Mohammed Morsi

July 17, 2013

Coup in Egypt or Not? The Implications Under International Law

Mohammed MorsiThe 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.

Morsi-ArrestOn 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

military in CairoGiven 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.