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Abstract
During the 2005 elections in Egypt, newspapers around the world widely reported on the ‘judges’ revolt'. The judiciary, supported by civil society, confronted the executive by denouncing the fraudulent results of the constitutional referendum, as well as 2005 presidential and legislative elections. The ‘judges’ revolt' was a test case for external promoters of the rule of law in Egypt. Following a detailed analysis of the events of 2005 in Egypt and the case of the judges' revolt, this article aims to understand the reasons for the EU's difficulties in promoting rule of law in Egypt. This article reveals that the EU's action in the field of rule of law promotion in Egypt was constrained by two categories of factors: ‘exogenous factors’ related to the external promoters of rule of law (the EU, the US) and then ‘endogenous factors’ related to the domestic context. At an exogenous level, it is possible to distinguish three main factors interacting with rule of law promotion. Firstly, the EU's intergovernmental nature as a foreign policy actor weakens its position as a rule of law promoter. Secondly, ongoing negotiations over the ENP Action Plan (Egyptian–EU relationship) at the time of the revolt, coupled with a third factor (Egyptian–US relationship), have compelled the EU to opt for an integrated approach towards promoting rule of law in Egypt. Then, at an endogenous level, the instrumentalization by the Egyptian regime of external aid funding in the field of human rights and democratization complicates the EU's activities in the country, compelling the EU to look for strategies that bypass domestic constraints.
Notes
European Union, Consolidated Version of Treaty on the European Union. Official Journal of the European Communities, C 325/5 (2002), Article 6.
European Union, Consolidated Version of the Treaty Establishing the European Communities, Official Journal of the European Communities, C 325/33 (2002), Article 177(2) and 181a(1).
Along the five main objectives of CFSP is the objective ‘to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms’. Ibid., Article 11.
The Copenhagen criteria are as follows. Political: stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities; economic: existence of a functioning market economy and the capacity to cope with competitive pressure and market forces within the Union; acceptance of the Community acquis: ability to take on the obligations of membership, including adherence to the aims of political, economic, and monetary union. Presidency of the European Union, Conclusions of the European Council in Copenhagen (1993) SN 180/1/93 REV 1.
Belton, ‘Competing Definitions of the Rule of Law’.
Ibid. Emphasis added.
Alter, Establishing the Supremacy of European Law, 208
Aliboni and Guazzone, ‘Democracy in the Arab Countries’.
Hinnebusch, ‘Prospects for Democratisation in the Middle East’.
Hinnebusch, ‘Explaining International Politics in the Middle East’.
Albrecht, ‘How Can Opposition Support Authoritarianism?’.
The Judges' Club is the professional association of Egyptian judges.
These institutions still exist nowadays. Brown, The Rule of Law in the Arab World, 91.
Brown and Nasr, Egypt's Judges Step Forward, 2.
Albrecht, ‘How Can Opposition Support Authoritarianism?’, 379.
The reform of the 1972 law took place in 1984. Brown, Arab Judicial Structures
A Study Presented to the United Nations Development Program, Washington: POGAR-UNDP, 2001, http://www.pogar.org/publications/judiciary/nbrown/
Brown and Nasr, Egypt's Judges Step Forward, 97.
Ibid., 99.
Hill, ‘The Supreme Constitutional Court of Egypt’.
Wolff, ‘The Externalisation of Justice’.
Confidential interview conducted by the author with a lawyer in Cairo, Egypt, 4 September 2006.
Zuhur, Egypt: Security, Political and Islamist Challenges.
Barah, ‘Egypte: Une Révolution Prolétaire?’
Van Munster, ‘Review Essay. Security on a Shoestring’; Balzacq, ‘The Policy Tools of Securitization’, 75.
FIDH, ‘La Fidh Dénonce Les Excès’, www.fidh.org/spip.php?article2112
This evolution implied a revision of Article 76 of the Egyptian Constitution. Prior to this amendment, the People's Assembly would vote to nominate a sole presidential candidate by a two-thirds majority. The name of the candidate was put to the Egyptian electorate in a referendum. Hence commentators would refer to a plebiscite. See International Crisis Group, Reforming Egypt: In Search of a Strategy, 38.
Dunne, Time to Pursue Democracy in Egypt, 3.
It is also important to bear in mind that Egypt has 77.5 million inhabitants.
Winstone, Democracy and the Middle East, 16.
Confidential interview conducted by the author with a lawyer in Egypt, Cairo, 4 September 2006. This contrasts with the more moderate report from the Carnegie Endowment, which considers that, while the 2005 parliamentary elections were flawed, ‘they were more competitive and transparent than any Egypt had held since the 1952 revolution for two reasons: the active supervision of judges and monitoring by thousands of trained civilian observers’. Dunne, Time to Pursue Democracy in Egypt, 5. See also ‘Fraud claims mar Egyptian presidential poll’, The Guardian, 2005, (7 September 2005) and Human Right Watch ‘Egypt: election offer public debate’.
Brown and Nasr, Egypt's Judges Step Forward, 4.
‘La Révolte des Juges Égyptiens’, Le Monde, 4 May 2006.
Winstone, Democracy and the Middle East, 16.
Ibid.
Amnesty International (EU office), ‘Eu-Egypt Association Council Meeting’, 3.
Zuhur, Egypt: Security, Political and Islamist Challenges, 102.
On the heterogeneity of those movements, notably Kifaya, see the article by Demmelhuber in this issue.
On the importance of democracy and rule of promotion in the EU's discourse and policy documents, see Börzel and Risse, One Size Fits All!
Article 11 of the Treaty of the European Union, http://eur-lex.europa.eu/fr/treaties/index.htm
Smith, The Role of Democracy Assistance, 37.
Kingdon, Agendas, Alternatives and Public Policies, 166.
Barah, ‘Egypte: Une Révolution Prolétaire?’.
Bruter, ‘Diplomacy without a State’.
Dimier and McGeever. ‘Diplomats without a Flag’.
Bruter, ‘Diplomacy without a State’.
Ibid.
Confidential interview conducted by the author with an official from the EC Delegation in Cairo, August 2006.
EU Presidency, ‘Declaration by the Presidency’, http://www.britainusa.com/sections/articles_show_nt1.asp?d=0&i=60058&L1=0&L2=0&a=38613&pv=1
Ibid.
Confidential interview conducted by the author, Cairo, 31 August 2006.
EU Presidency, ‘Declaration by the Presidency’.
Confidential interview conducted by the author, Egyptian Ministry of Foreign Affairs, Cairo, 13 September 2006.
Winstone, Democracy and the Middle East.
Dunne, ‘Time to Pursue Democracy in Egypt’.
Wahish, ‘Trading Diplomacy’.
European Commission and OECD, EU Donor Atlas 2006. Volume 1 (Brussels: Development Strategies, 2006), http://ec.europa.eu/development/body/publications/docs/eu_donor_atlas_2006.pdf
El-Kersh and Nkrumah. ‘Limits to What We Can Do’.
MEDA was established with Council Regulation (EC) No 1488/96 of 23 July 1996.
Bayoum, ‘Egyptian Views of the EU’, 331–47.
Following the expiry of Council Regulations No 975/1999 (developing countries) and 976/1999 (other third countries), the legal basis for EIDHR was replaced by the financing instrument for the promotion of democracy and human rights worldwide on 1 January 2007.
Since the 2007 reform of EC external aid it has been called the European Instrument for Democracy and Human Rights, and has a single legal basis (EC Regulation 1889/2006 of 20 December 2006). Before 2007, it is correctly referred to as the European Initiative for Democracy and Human Rights, whereas after, one needs to refer to the European Instrument for Democracy and Human Rights.
European Commission, ‘European Initiative for Democracy and Human’, 14.
European Commission, 9.
Sayigh, ‘US and European Support to Democratic Reform’, 52.
Ibid.
Youngs, ‘The European Union’, 64.
Abdelrahman, ‘The Nationalisation of the Human Rights Debate’, 300.
Ibid., 288.
Ibid., 293.
See Demmelhuber in this volume.
Abdelrahman ‘The Nationalisation of the Human Rights Debate’.
The other priorities are human rights and fundamental freedoms, security sector reform, cooperation on foreign and security policy, regional and international issues, and conflict prevention and crisis management.
EU-Egypt Association Council, EU–Egypt Action Plan.
Since there has not yet been any evaluation of the programme, it is difficult to assess quantitatively its results.
European Parliament, Resolution of 17 January on the Situation in Egypt. P6_Ta(2008)0023 (Strasbourg: European Parliament, 2008).
Agence France Presse, ‘EU Lawmakers Vow Not to Yield to Egyptian Pressure’, 17 January 2008.
Regarding policy networks in the field of JHA please refer to the detailed analysis of Lavenex and Wichmann. ‘The External Governance of Internal Security’.
The ideas developed in the conclusion have also been expanded in Wolff, ‘The Externalisation of Justice’.