Amid a resurgence in international prosecutions and transnational modes of legal accountability, various states implicated in human rights violations have grown wary about potential legal consequences and how this threatens their reputation and positioning in the international community. Stronger transnational advocacy networks and international accountability mechanisms have blurred the boundaries of state sovereignty and the ability of nationals and other states to find recourse in the international system. Preempting looming trouble from such methods of legal prosecution, some governments have resorted to rhetoric and policy actions to buffer against perceived encroachments on their jurisdictions. One such strategy has been the passing of domestic legislation; Egypt passed a law last August that gave the country’s Supreme Constitutional Court (SCC) power to review the constitutionality of decisions made by international organizations and bodies, as well as foreign court rulings declared against the state.
Ensuing legal debate around validity and enforceability of amendment
Law No. 137 of 2021 grants the Prime Minister the authority to refer decisions made by international bodies or foreign rulings issued by foreign courts to the SCC for constitutional review, giving the court power to disregard any deemed in violation of a particular “constitutional text or ruling.” The exact meaning of this amendment, however, as well as the extent to which it can be implemented, remain a topic of debate among legal practitioners and experts.
“Theoretically, international treaties [were already] subject to the oversight of the SCC,” said Egyptian lawyer Ahmed Ragheb, who suggested that since the Egyptian constitution holds international treaty law on par with ordinary domestic legislation, it could then be argued that the court has constitutional oversight powers over both domestic and international law.
Article 93 of the constitution says, “the state is committed to the agreements, covenants, and international conventions of human rights that were ratified by Egypt. They have the force of law after publication in accordance with the specified circumstances.”
This makes Egypt a “monist” state, meaning that the international treaties it ratifies or signs immediately take effect domestically, whereas a “dualist” state requires a further step of codifying international treaty law in domestic legislation for it to become enforceable domestically.
Ragheb added that the amendment simply gives voice to “a forgone conclusion” to an existing reality on the ground, since the Egyptian state always retains the right to respond and defend its interests as a party to any international case or as the subject of a statement by an international organization or foreign state. Furthermore, decisions that address certain human rights violations based on complaint mechanisms—like those made by the African Commission on Human and Peoples’ Rights—are deemed as recommendations that are not legally binding on the state.
“While it would be difficult to speculate the state’s intentions behind passing that law,” he added, “assuming good intentions…any centralized state will have multiple tools at its disposal to use whenever needed…Maybe the need for this amendment will manifest itself in the future.”
Other human rights lawyers have described the amendment as one of a series of efforts by Egypt to “weaken the application of international law on the global stage,” in a sort of preemptive move against a growing trend of international litigation and accountability mechanisms targeting human rights violations.
Lawyer Ahmed Ezzat concurred that, from a legal standpoint, “Egypt will lose more of its credibility [as it relates to] its compliance with international treaties” by creating an internal mechanism that obstructs international decisions and rulings.
The parliamentary committee entrusted with the issue proclaimed that the reason behind issuing this law was to “fill a gap” in the Egyptian constitution and the SCC law resulting from the absence of a clear text on the court’s jurisdiction regarding international decisions that can impact “Egypt’s national security.”
The legal validity of a judgment by the SCC in this context is questionable and the extent to which it would have any effect beyond Egypt’s borders is highly unlikely. However, it still presents a reluctance on Egypt’s part to abide by its international obligations or to respect the international system of laws. In addition, it remains unclear whether this amendment covers decisions by international arbitration bodies concerned with investment claims. Although the language of the amendment is general and expansive enough to be interpreted in that way, an original version that contained the term “foreign arbitration bodies” was struck off by parliament in fear of adverse effects on the economy and foreign investment in Egypt.
“Populist” laws amid growing international criticism
This piece of legislation can be situated within the broader context of a populist legislative climate which has emerged since 2013. Lawyer Ahmed Ezzat described this populist environment as one in which “laws are issued for political reasons to satisfy or protect certain objectives of the regime.” The latest amendment to the SCC law can thus be viewed as an attempt at “image management” by the Egyptian state, which continues to be the target of international criticism over human rights violations. In the event of an adverse foreign ruling against Egyptian officials, for example, the SCC can be mobilized to provide an aura of legitimacy to the Egyptian state in the eyes of the public.
The Egyptian regime has long implemented terrorism listings, restrictions on rights and freedoms, and targeted media campaigns against international human rights organizations, as part of a counternarrative against a much-touted “foreign conspiracy against Egypt.” As such, Ezzat contends that this legislation has no practical application that extends beyond the purposes of domestic political propaganda. By elevating the rhetoric of national security, and justifying non-compliance with international law and decisions through Egyptian court verdicts, the Egyptian government would be re-framing its behavior to fit within the wider populist, domestic legal environment at the expense of international law and human rights standards.
The latest amendment signals a potential shift in the Egyptian regime’s approach in response to international decisions that might put it at a disadvantage, both legally and from a diplomatic standpoint. By invoking the Egyptian judiciary in the equation, the Egyptian state would be challenging the legitimacy of international legal decisions, and by extension, international legal instruments, by portraying them as incompatible with national interests. According to recent international relations scholarship, governments might do this through various means, including challenging the impartiality of the international regime itself or by issuing their own messaging that serves to contradict or undermine international decisions, or perhaps by doing both.
International litigation and implications for rule of law in Egypt
Over the past decade, international advocacy and litigation efforts have increased in proportion with the evident rise in human rights violations and due process failures in Egypt. For example, litigants resorted to regional mechanisms such as the African Commission on Human and Peoples’ Rights in an attempt to ensure accountability on the part of the Egyptian state and some even attempted to request the investigation of alleged crimes perpetrated by Egyptian security forces in the summer of 2013 at the ICC, but the request was denied. The ongoing trial of four Egyptian security officials in the case of Giulio Regeni’s murder in Italy represents a recent example of international adjudication of human rights violations carried out by Egyptian officials. The torture lawsuit filed by U.S. citizen Mohamed Soltan against a former Egyptian Prime Minister is the latest in a string of transnational advocacy efforts, while also seeking accountability for violations committed. Thus, the Egyptian government has grown more mindful of the impact of such efforts on its officials, legal system, and reputation.
Despite the complex paths that such trials have taken—including procedural hurdles and diplomatic exigencies impeding their progress—they still pose credible challenges to the current Egyptian administration. As Ahmed Ezzat noted, in the event that one such case succeeds in holding Egyptian officials accountable, it would become “an international scandal” for Egypt, triggering media backlash and possible diplomatic strains between Egypt and other countries.
Given such developments, the inclusion of the SCC as an active player in the regime’s strategy to counter the ongoing human rights-driven backlash through the foreign courts risks the credibility of the court itself and further undermines the rule of law in Egypt. By making the constitutional court a third party in an international litigation, the court risks becoming a de facto veto player instead of fulfilling its mandate as a guarantor of state legitimacy through prudent reviews of domestic legislation and state actions.
The idea of constitutional power emanates from the need to create checks on the actions of governments and legislative bodies. However, it stands to reason that national constitutional power should check national legislation and acts, while international bodies have oversight over the interpretation and application of certain treaties or conventions. Clear divisions of jurisdictional powers can help avoid individual states’ encroachment on other international or foreign jurisdictions and reduce their ability to justify non-compliance with international obligations emanating from universal jurisdiction or ratified treaties.
The more authoritarian governments resort to unorthodox ways to shield their officials from accountability, the more transnational advocacy networks and legal mechanisms will direct their efforts regionally and internationally.
Nourhan Fahmy is a former Bassem Sabry Democracy Fellow at TIMEP.