While the world waits anxiously to see how the political situation in Egypt will play out, and at the same time hails the peaceful vote in Sudan concerning the creation of a new country, we are reminded that the most basic elements of the organization of international life are not at all obvious. Mubarak's succession by vote or coup or military takeover is not predetermined. One day we surmise that Mohammed ElBaradei will head a transition government; since the departure of Hosni Mubarak, it appears that the Supreme Council of the Armed Forces will manage state affairs, according to Mr. Mubarak's vice-president Omar Suleiman. There is no direct precedent for what is taking place in Egypt.
One of the most impressive facts about the United States is that there have been regular elections for over 200 years. There have been no coup d'etats or postponed elections. The rules set out in the Constitution and its amendments have been followed, something quite exceptional in practice around the globe. Although, as a friend reminds me, in December 1973, with Watergate and impeachment paralyzing his presidency, Richard Nixon met with the Joint Chiefs to "sound out," as Seymour Hersh reported, if they would "support him in some extra-constitutional action." Shortly thereafter the Joint Chiefs, with James Schlesinger concurring, responded, sending the following to all US military commanders: "Upon receipt of this message you will no longer carry out any orders from the White House. Acknowledge receipt."
The creation of a new state by popular vote in Sudan is also extraordinary. The birth and death of states, if not the definitions of their borders and citizens, are not determined by any international regulations but rather by custom. Language, history and organization are certainly important criteria, but most important is recognition by other countries, especially important ones. The situation in Kosovo is a complex one since certain countries have recognized its existence, while many others have not. The Western Sahara is recognized by the African Union, but not Morocco and many other countries. Cases before the International Court of Justice are supposed to arbitrate these disputes, but the recent decision of the Court in favor of Kosovo has not led to a rash of new recognitions.
Who is in charge in Egypt, and on what basis? Certainly there is a Constitution. But, that can be suspended in times of emergencies and the military has taken over before, as it took over in Algeria overturning a popular vote. Again, recognition is the key. While a country itself may be recognized, it might be possible for the government of that country to be excluded from certain aspects of international life, as has happened with the junta in Myanmar. The current situation in the Ivory Coast is a good example where two people both claim to be the legitimate ruler of a recognized state. In this sense, it is to Al Gore's credit that once the Supreme Court had declared George Bush victorious in the 2000 election he threw in the towel. The peaceful transition of power based on the rule of law overcame whatever ambitions or interpretations of the law he might have had. There was no higher place to go within U.S. law, no higher court of appeal than the Supreme Court and no place to turn internationally. The use of force was never considered.
The situation in Egypt is volatile not only because we are uncertain about the outcome, but also because we are not certain of the process. We know there is a scheduled election for September. Mubarak has said he will not run. We now don't know when there will be an election. Will it be free and fair? Will the Muslim Brotherhood be accepted as just another political party if there is an election? Will the West accept a vote if the Brotherhood has a majority in the new government? The Sudan election was orderly and the government of Sudan - whose leader is under indictment by the International Criminal Court - seems to be accepting the results of the vote, a fascinating example of someone who violates international law choosing to follow international law in a given situation.
We often use the binary distinction between order and chaos. In the cases of succession and secession, we can often observe chaos within order - the U.S. election of 2000 - and sometimes order within chaos - the Sudan election. In either case, international law certainly has a role to play, but that role is not always determined by law. International law's "unfolding purpose" is often relevant more for the purpose than the law.