When my Arab friends talk about “the humiliation of the street” and express their earnest support for the protesters’ demand that Mubarak step down, I empathize with them. But one observation stands in the way of my fullest sympathy. Egypt has a constitution, and nobody is saying that Mubarak has violated it. We can agree -- can we not? -- that people shouldn’t be able to change a country’s legitimate constitutional leaders merely by taking to the streets. If Mubarak has not violated the constitution, his rule is illegitimate only to the extent that Egypt’s constitution is itself illegitimate.
What has been missing in the U.S. government’s response is some consideration of the central constitutional question. We have expressed solidarity with the protesters’ demand that elections be opened to all parties and that the sweeping emergency detention powers that were promulgated in 1981 be lifted. But our recognition of the states that were created in the wave of decolonization -- recognition we granted automatically, with no regard to the nature of their regimes -- has left us with no objective criteria with which to judge the legitimacy of any state’s constitution under international law. As a result, we are forced to focus on the marginal problem of Mubarak rather than the central problem of Egypt’s constitution.
#ad#In Mubarak’s speech this week, he promised to address the grievances related to elections and emergency powers, through a dialogue with the opposition, and through constitutional amendments if necessary. But that will not solve the problem. The constitution confers upon the president sweeping, arbitrary powers that are incompatible with checks and balances, basic freedoms, and a true representation of what James Madison called “the multiplicity of interests.”
Egypt’s constitution needs a fundamental transformation. In the meantime, the country will remain a halfway house between dictatorship and democracy. But the U.S. government will feel bound to recognize its sovereign legitimacy anyway, because under current international law, we recognize the “sovereignty” of whatever regime happens to control the official territory of the state -- and hence, by implication, we also recognize the legitimacy of its constitution. The complications that arise from the automatic recognition of state sovereignty, which have hamstrung the administration’s response to this crisis so far, will only grow worse and more dangerous in the decades ahead.
There should be objective criteria for judging the legitimacy of constitutions. As the positivist legal philosopher Hans Kelsen argued decades ago, the legitimacy of a given constitution is ultimately a question of international law. My fellow conservative hawks will shriek, but the question of constitutional legitimacy must be a matter of objective and internationally accepted principles. Certainly it cannot turn only on current popular support, given the vicissitudes and vagaries of public opinion.
Egypt was born into perhaps the worst set circumstances that any state could be born into, namely the socialist decolonization movement that swept the globe after the Second World War. The premises of the decolonization movement -- independence (for local dominant majorities), sovereign equality, non-interference in the domestic affairs of sovereign states, and socialism -- were all confirmed as legitimate in the Charter of the United Nations, where there were no standards for membership.
This was a recipe for the proliferation of dictatorships, and after Egypt’s independence in 1952, the new regime of Gamal Abdel Nasser quickly adopted a stiflingly socialist and authoritarian orientation. To be fair, Nasser was a more genuine believer in democratic liberties than in economic ones. His various constitutional schemes were based on the premise that Egyptians were not ready for modern democratic institutions, but could be made ready through appropriate participation in the political process, so long as the state could meet the people’s needs. Egypt quickly became a dictatorship clad in thin constitutional raiment, one that drew its “legitimacy” not from conformity with any objective criteria, but rather from popular support, often in the form of hostility toward Israel. Its constitution was thus a Faustian bargain with a mass mob -- precisely the mass mob we see today, coming round to collect its debts, on Liberation Square in Cairo.
#page#The modern diplomatic practice of recognizing the legitimacy of regimes -- and their rights under international law -- on the simple basis of whether they control their territory, is working an increasingly terrible distortion into the international system. Let’s take two modern examples: Iraq’s Saddam-era debts, and Iran’s nuclear program.
In the years of his rule, Saddam incurred hundreds of billions of dollars in debt, chiefly to finance the Iran–Iraq War. At the time of his fall, $130 billion remained outstanding -- more than five times Iraq’s GDP as of the year 2000. Was it not manifestly unfair to burden the Iraqi people with the debt incurred by their tormentor to feed his obscene luxuries and ghoulish crimes? International law should have put bankers on notice that if the tyrant ever fell, the debt would not be enforceable against a future legitimate regime. This would not have cut Saddam off from the international capital market, but it would have made it significantly more expensive for him to borrow money -- a tyranny premium.
#ad#As any law student knows, corporate law requires observance of the formalities of corporate form as a precondition of enforceable obligations because justice demands that those with a stake in the outcome of a transaction be duly represented in its negotiation. The same principle ought to apply in international relations, but it doesn’t, because the principles of recognition, “sovereign equality,” and “non-interference” combine to give criminal dictatorships the same standing under international law as established democracies.
Consider Iran’s nuclear program. We are lucky that Ahmadinejad helped unite the West against Iran, which made it possible to obtain several U.N. Security Council resolution against Iran. Those resolutions specifically make Iran’s continued enrichment of uranium illegal under international law. By continuing to enrich uranium, Iran is in breach of Article 25 of the U.N. Charter, under which all members agree to obey the pronouncements the Security Council makes under Chapter VII of the Charter (which deals with “threats to the peace, breaches of the peace, and action of aggression”). But before those Council resolutions, Iran was entirely correct to argue that it had the same right to enrich uranium as, say, Brazil.
International law is blind to the crucial constitutional difference between Iran and Brazil. That is a major problem: Brazil is a representative democracy, which can be trusted with nuclear technologies because of certain structural indicia of transparently law-abiding policy. Iran, on the other hand, is ruled by a messianic cult that recognizes no law but its own. The two governments should not be treated the same under international law when it comes to the right to develop nuclear technologies. As in Egypt, the question is not one of personalities, but of constitutional order.
The 21st century will confront the U.S. and its allies with one major crisis after another in which the problem starts internal to one state, but the effects spill across borders. From tsunamis and earthquakes in areas of dense population, to failing states where terrorists find safe haven, to criminal dictatorships that develop weapons of mass destruction illegally and in secret, the traditional criteria of sovereign recognition will impose an artificial and dangerous constraint on our freedom to take necessary actions.
A major challenge facing U.S. diplomacy in the decades ahead will be to develop criteria of conditional sovereignty -- criteria that make it clear that a state’s rights under international law, including the right to non-interference in its internal affairs, and the enforceability of its treaty rights generally, will depend upon the degree to which the state’s institutions of governance make up what John Locke deemed a “political society properly so-called.”
#page#The precedents for the establishment of such criteria already exist in U.S. diplomatic history. In 1913, Pres. Woodrow Wilson railed against the coup d’etat of General Huerta in Mexico. Wilson argued that because a “just government rests always upon the consent of the governed,” a regime that takes control by force should not be dealt with on equal terms by other governments.
More recently, in the breakup of the Soviet Union, Secretary of State James Baker III laid down several key criteria for the sovereign recognition of the newly emerging states. Recognition would require (a) adherence to democratic and peaceful transition; (b) respect for all existing borders, and changes to borders only through peaceful and consensual means; (c) support for democracy and the rule of law, with an open, free, and fair electoral system; (d) safeguarding human rights, including individual freedoms and the equal treatment of minorities; and (e) respect for international law and obligations.
#ad#The Baker criteria are useful, but still focus too much on the behavior of the leadership. They provide few clues for judging the inherent legitimacy of a state’s constitutional order. That is where the U.S. and its partners must develop refined criteria, including at the very least full representation in the legislature, impartial execution of the laws, and an independent judiciary -- as well as individual freedoms not marred by sanctioned justifications for arbitrary abuses, whether religious or otherwise. Under international law, such principles could be established in declarations of the U.S. government and endorsed by groups such as the G-8.
Where does this leave us in the case of Egypt? The U.S. should be able to fall back on objective criteria when taking a position on the legitimacy of Mubarak’s rule. We should insist that Mubarak’s legitimacy is a constitutional question -- and that the solution is a new constitution.
President Obama is skirting very dangerous ground when he insists that the transition to the next government “must begin now.” There is nothing in Egypt’s constitution that says so; only a mob in the streets calling for the president’s ouster. The Obama administration’s sympathy for the protesters is entirely understandable. But the U.S. cannot endorse the right of protesters to terminate governments that are duly authorized under constitutions we consider legitimate. That would be the same as endorsing mob rule.
On the other hand, if what Obama means is that the transition to a legitimate constitution “must begin now,” that would be good news. The trouble is that without objective criteria for distinguishing between legitimate constitutions and illegitimate ones, we won’t have any standards by which to judge whether the transition Obama is calling for has actually occurred.
Obama’s Egypt dilemma -- to endorse either the objective criteria of constitutionalism, or mob rule -- is made more difficult by the fact that the endorsement of any objective constitutional criteria would call into question the legitimacy of regimes such as those in China and Saudi Arabia. That, in turn, would contradict the supposed “realist” orientation in Obama’s foreign policy, to make no mention of unsettling some of our most important trading partners and allies.
But the automatic recognition of states on the basis of no principle other than territorial control will only contribute to instability in an increasingly unstable world. More often than not, it will also put us on the wrong side of historical pivot-points such as the pro-democracy protests in Egypt -- creating a strong incentive to shift from the endorsement of dictatorships to the endorsement of mob rule.
--- Mario Loyola is director of the Center for Tenth Amendment Studies at the Texas Public Policy Foundation.
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