This post was written while at the Tahrir Institute for Middle East Policy and can be found here.
Egypt’s constitution has recently garnered praise for its “commitment to abide by international human rights treaties signed by Egypt.” Yet a close analysis shows that such praise may yet be premature; the commitment can be easily circumvented by Egypt’s soon-to-be elected House of Representatives.
The relevant section of the new constitution, Article 93, states in full:
“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.”
Plainly, ratified human rights treaties are now considered Egyptian domestic law. Nathan J. Brown and Michele Dunne call this article “a potentially major innovation,” but note that it is only as good as the courts which interpret it. Heba Morayef of Human Rights Watch noted that the article offers Egyptians stronger human rights protections than the 2012 constitution.
This constitutional article incorporates international treaties as part of Egyptian domestic law without the requirement of enabling legislation, exhibiting the characteristics of legal monism. In a monist legal system, the judiciary can generally interpret and apply international law as it would domestic law. Like other legal monist countries, Article 151 requires the legislature to approve treaties in order for them to be ratified.1 This approval is taken as the requisite sovereign action of affirming the role of a treaty as law within the state.
The key issue here, then, is how a treaty functions as a statute within a domestic legal system. The Egyptian constitution is unusually lucid on this point: treaties have the force of law. (That is, international treaties are to be treated the same as legislation.) As such, these treaties enter Egyptian law as statutory law; they are subject to the legal concept of leges posteriores priores contrarias abrogant, which holds that if two laws are passed which are prima facie contradictory, the law passed most recently is enforced.
Of course, in most legal systems a more recent statute is often interpreted in an attempt to avoid the implicit repeal of a previous statute. Moreover, the rebuttable presumption of conformity2 assumes that domestic legislation is intended to comport with the treaty obligations of the state. What is clear, however, is that the Egyptian legislature can nullify the force of previously ratified human rights treaties by passing legislation which explicitly contradicts them.
Brown and Dunne are certainly correct in pointing out the importance of the judiciary in enforcing the statutory role of international human rights treaties within Egyptian domestic law. However, perhaps just as important will be the role of the House of Representatives. While any political discussion must wait until the body is actually elected, the House has the effective ability to negate the legal effects of a ratified treaty by a simple majority vote.3
It is possible, however, that such a statute would be considered complementary legislation under Article 121, as it may be construed to “organize the rights stipulated in the constitution.” In this case, such a statute would require a two-thirds majority approval in the House. Nonetheless, this is still quite different from a formal amendment process to change the constitution, which is found in Article 226. That article states that a constitutional amendment must be approved by two-thirds of the House and pass a public referendum.4 While it is unclear how exactly legal challenges of this nature would play out, it is clear that Article 93 can be effectively appealed without consulting the Egyptian people, in contrast with any other constitutional article. As Article 93 has been widely considered a high point in the constitution, this subtle fact of the Egyptian constitution is important to note.
This analysis thus far has ignored the Article 2 requirement that legislation is to be crafted with sharia as a source of inspiration. While this language has evaded precise definition during its decades of presence in various Egyptian constitutional documents, its place in the constitution undoubtedly holds it superior to the statute-equivalent ratified human rights treaties. That is to say that international human rights conventions are held inferior to Egypt’s Supreme Constitutional Court’s interpretation of Article 2.5
While this is important to note when considering legal challenges in Egyptian courts, the Supreme Constitutional Court generally does not strike down legislation for violation of Article 2. Additionally, as the Article 93 text specifically mentions treaties, it is silent regarding customary international law. This means that enabling legislation in the House is possibly required to bring in customary international law in as part of Egyptian law. As such, international norms not codified in treaties ratified by Egypt have no domestic legal effect.
What does this all mean for the average Egyptian? Right now the International Covenant on Economic, Social and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) (with important reservations) are all a part of Egyptian law. But Egyptians will want to be careful about those for whom they vote over the next few months—they will be empowered with the ability to negate these documents.