Islands enter legal battle

Amira Howeidy | 23 June, 2016 | Al-Ahram

A ruling by the Adminstrative Court nullifying the Egyptian-Saudi maritime border deal puts the government in a legal and political predicament, reports Amira Howeidy

Few expected that less than three months after Egypt ceded two strategic Red Sea islands to Saudi Arabia a court ruling would nullify the deal and declare that they fall under Egyptian sovereignty. Even the lawyer who took the case to court didn’t see it coming.

“I had my fears and considered the many possibilities, but I also had a feeling that God wasn’t going to let us down,” Khaled Ali, the left-wing human rights defender, lawyer and former presidential candidate, told Al-Ahram Weekly after Tuesday’s verdict.

The 9 April Egyptian-Saudi maritime border agreement was announced during a five-day visit by the Saudi monarch, King Salman bin Abdul-Aziz, to Cairo. A statement by the Egyptian cabinet declared that the islands of Tiran and Sanafir — which lie in the narrow sea passage between Egypt and Saudi Arabia, separating the Gulf of Aqaba from the Red Sea — fall squarely within Saudi maritime waters.

Prior to the border agreement, the islands were considered Egyptian. This was reinforced by school textbooks, official documents and promotion of the islands by the Egyptian tourism industry as Red Sea tourist destinations.

The cabinet said that the decision to cede the islands to Saudi Arabia came after a six-year process of studies and 11 rounds of negotiations. The decision, however, must be presented to the House of Representatives for discussion and then ratification, neither of which has happened. The Saudi Shura Council approved the deal on 25 April and the Saudi cabinet followed suit on 2 May.

On Tuesday morning the Administrative Court, the judicial body that looks into cases filed against the government, issued a ruling annulling the decision and re-declaring the two islands as falling under Egyptian sovereignty.

“Egyptian sovereignty over the islands holds, and it is forbidden to change their status in any form or through any procedure for the benefit of any other state,” it said.

The State Lawsuit Authority will appeal the decision before the Supreme Administrative Court whose rulings are final.

The case against the Egyptian-Saudi agreement was filed by Ali on 10 April amid a public uproar on social media that was followed by anti-government demonstrations. Because the agreement was announced during King Salman’s visit, during which he pledged generous aid packages, critics accused the authorities of giving up the strategic islands in return for Saudi financial assistance.

Documents and maps provided by the Foreign Ministry and other official bodies claiming proof that the islands belonged to Saudi Arabia did little to persuade critics who flooded social media with counter documents and maps supporting the claim of Egyptian sovereignty over Tiran and Sanafir. The unresolved debate was quickly overshadowed by stringent security measures to quash further protests against the agreement, with nationwide arrests following. Over 200 were arrested, including Malek Adli, a lawyer who was among dozens who, according to Ali, joined the lawsuit as plaintiffs.

Most detainees were released on bail and now face expensive fines. Approximately 14 to 15 remain in prison, including Adli.

During the sessions before the Administrative Court, the state’s representative argued that the judiciary has no jurisdiction over the islands’ issue since it is a question of sovereignty.

In a 21-page ruling, the Administrative Court said that only the judiciary is qualified to assess what falls within the president’s powers as an act of sovereignty. It cited Article 151 of the Egyptian Constitution, which stipulates that the president represents the state in foreign relations and ratifies treaties after the approval of the House of Representatives.

The article also stipulates that agreements of peace and alliances and related questions of sovereignty may not be ratified without a public referendum that approves them. “In all cases, no treaty may be concluded that is contrary to the provisions of the constitution or which leads to concession of state territories.”

The ruling said that the court was assured by legal and historical decisions and considerations of Egyptian sovereignty over the islands, supported by official documents provided by the plaintiffs. Reality on the ground confirms that Egypt exercises sovereignty over the islands from the long-distant past, “sacrificing the blood of its sons to defend them”, the court added.

Although the Supreme Administrative Court is likely to adopt the same approach towards the case, it is impossible to predict the outcome of its ruling. It also takes the debate to another level. Instead of the unequal confrontation between the authorities and activists, the dispute -for now- is between the government and the judiciary.

It is possible, observers say, that the government will maintain the same position presented by its representatives in court, which insists that the judiciary has no say on a matter of national sovereignty.

“The ruling could be ignored but that will only invite questions on the legitimacy [of the government],” said Tarek Al-Bishri, a former judge who served as vice president of the State Council.

The ruling could impact relations with Riyadh, Egypt’s biggest supporter since 2013, experts say, but not threaten them.

“The Egyptian-Saudi alliance is based on more stable and consensual foundations,” said Mustafa Kamel Al-Sayed, professor of political science at Cairo University.

“The bigger crisis is at home because the ruling is seen by all those who protested the agreement as evidence of the correctness of their position in opposing the authorities on such a matter,” said Al-Sayed. “The ruling effectively weakens the government’s legitimacy.”

No official statement has been issued by the Egyptian or Saudi governments in response to the ruling, leaving pundits speculating on their next moves.

For Egypt, the options seem limited to an appeal that might — but might not — result in a final verdict in the government’s favour. Although the government-leaning House of Representatives has the right to discuss and ratify the islands’ agreement it has shied away from doing so, ostensibly due to the government delays in providing it with the necessary documents to make its case.

Now that it is an issue before the courts, it is unlikely that parliament will want to discuss the matter before the legal path is exhausted, to avoid a clash between the legislative and judicial branches of the state.

Cairo’s decision to cede Tiran and Sanafir marked a turning point in Arab national security because it would give Saudi Arabia — rather than Egypt — the means to control entry to the Gulf of Aqaba, where Israel’s Eilat, Jordan’s Aqaba and Egypt’s Nuweiba ports are located.