Sovereign Acts under the 2014 Egyptian Constitution

By Nesrine Badawi
Submitted to Session P6128 (Territoriality and Contested Borders, 2020 Annual Meeting
LCD Projector without Audio;
Egyptian law and judicial practice shield sovereign acts from judicial overview. This practice has recently come under heavy scrutiny, with the Egyptian Supreme Constitutional Court’s decision in cases 37 and 49 of Judicial Year 38 asserting that the Egyptian Supreme Administrative Court’s decision to annul the Egyptian-Saudi border demarcation treaty overstepped by ruling over an act of sovereignty. As part of its reasoning, the court cites the long legal tradition of shielding sovereign acts from administrative judicial overview, as well as the consistent treatment of the conclusion of international treaties as “a sovereign act”. Yet, critics of the court’s decision cite Article 151 of the 2014 Constitution as basis for reformulating the contours of sovereign acts shielded from judicial review. Critics argue that Article 151 states that “no treaty may be concluded which is contrary to the provisions of the Constitution or which results in ceding any part of state territories.” Thus according to proponents of annulment of the treaty, since the treaty involved cession of two Egyptian Islands, the court must employ this constitutional provision to annul the prime minister’s signature of the treaty. This article argues that, while the court’s decision was consistent with the court’s doctrine on sovereign acts, the 2014 Constitution provided an opportunity, albeit indeterminate, to expand the court’s jurisdiction over different steps of treaty conclusion if the court had wished to do so.
The article proposed is going to examine the court’s decision in this case in light of historical cases adjudicated upon either by the Supreme Constitutional Court or the Supreme Administrative Court and assess coherence in the court’s sovereign acts doctrine as applied in the different cases. Additionally, the article will examine the argument that the 2014 constitution re-calibrates our understanding of sovereign acts in favor of judicial oversight over acts potentially conflicting with Article 151 and its newly imposed restrictions on conclusion of treaties.