Tiran and Sanafir: Key questions and answers

Ahram Online , Sunday 15 Jan 2017

With a verdict on a government appeal in the Red Sea islands case expected Monday, Ahram Online provides answers to common questions about the case

An aerial view of the coast of the Red Sea and the two islands of Tiran and Sanafir is pictured through the window of an airplane near Sharm el-Sheikh, Egypt November 1, 2016 (Photo: Reuters)

The High Administrative Court is due Monday to issue its ruling on a government appeal against annulling a controversial maritime border accord that establishes Saudi Arabian sovereignty over two Red Sea islands.

The decision to transfer Tiran and Sanafir prompted outcry from many Egyptians and provoked protests when announced in spring of last year. The issue has been a source of tension between Cairo and the oil-rich kingdom, which has been one of the main financial backers of Egypt's current government, but recently halted fuel shipments.

Saudi and Egyptian officials say the islands originally belonged to Saudi Arabia and were only placed under Egyptian control when Riyadh asked Cairo in the 1950s to protect them.

While there is a court ruling blocking the maritime border deal that acknowledges this, the government last month approved the agreement and sent it to parliament for ratification.

Here are some answers to key questions about the case:

Why are the islands important?

The islands of Tiran and Sanafir are strategically positioned at the mouth of the Gulf of Aqaba, which leads to Israel and Jordan. They lie in key international shipping routes in the Red Sea. Egypt’s blocking of the Strait of Tiran in 1967 prompted Israel to launch the Six-Day War.

The strait also overlooks the Ras Hamid headland along the coast of Saudi Arabia's northwestern city of Tabuk.

The islands are vital to the security of Egypt’s Sinai Peninsula and Egyptian territorial waters in the Red Sea. They are also an important tourist destination, known to be great diving sites rich with coral reefs.

When did the legal debate start?

Rights lawyer Khaled Ali brought a case before the State Council's administrative court to appeal the deal shortly after it was announced in April 2016. He was joined by a large team including prominent rights lawyers Malek Adly and Tarek El-Awady.

In June 2016, the court annulled the maritime demarcation accord, saying the agreement contravened Egypt's constitution, which prohibits giving away any part of Egypt's territory to another country. The verdict stressed the islands remain “Egyptian.”

A more senior court, the High Administrative Court, is scheduled to issue its verdict Monday, 16 January.

What was the evidence provided by Ali and other lawyers in the case?

Evidence provided include historical maps, some officially issued by the government, three items of British correspondence dating back to 1936, and a 1940 Cambridge University atlas, all referring to the two islands as Egyptian. 

Ali argued that under a 1906 maritime treaty between Egypt and the Ottoman Empire, the islands are Egyptian. The accord dates back before the founding of Saudi Arabia in 1932.

Did the govenment appeal the verdict overruling the deal?

In August, the State Lawsuit Authority, the body representing the government in legal cases, took two steps to challenge the annulment ruling. The first was lodging an appeal against the verdict before the High Administrative Court, whose ruling is due Monday 16 January.

It also filed two cases, in August and November, before the Supreme Constitutional Court arguing that the administrative court has no jurisdiction in matters related to sovereignty. The challenge is based on a previous ruling by the Supreme Constitutional Court that international accords are related to sovereignty and thus shall not be heard in court. The court’s commissioner is still considering the two cases.

What are the possible scenarios in the case?

Khaled Ali told Ahram Online that the court on Monday will either reject the government’s appeal, which means upholding the verdict annuling the deal and saying Egypt still holds sovereignty over the islands, or the court could send the case to another circuit of the High Administrative Court, thus leading to new round of hearings, possibly one or two.

The second scenario, sending the case to another circuit, will only happen if the current circuit, which for legal reasons can only reject appeals but not accept them, believes that the government's appeal has strong legal grounds, Malek Adly explained. 

In this case, lawyers say a decision by that second circuit, dubbed the subject matter circuit, cannot be predicted. The decision of this circuit can vary from upholding the annulment of the deal, to ruling the islands are Saudi, or saying the case is a matter of sovereignty that lies outside the court's jurisdiction.

Were there any other verdicts in the case?

In September, Egypt's Court of Urgent Matters suspended the ruling by the administrative court that cancelled the deal and a higher urgent appeals court upheld the suspension. That case was brought by an individual.

But the administrative court said two months later that the Court of Urgent Matters ruling is void because it lies "outside the jurisdiction" of the court and refused a challenge by the government to block the deal annulment.

It said that the government's failure to implement the verdict would mean "undermining the provisions of constitutions and law."

Article 190 of the Egyptian constitution states that the administrative judiciary has sole jurisdiction in settling administrative disputes and is the only authority that can rule on a challenge to a lower administrative court ruling.

What is the latest move by the Egyptian government?

Despite the ongoing legal dispute over the accord, the Egyptian government approved the deal to hand over the islands in December and sent it to parliament for ratification.

Ali says the move by the government is "void and illegal" and “unconstitutional” because there is a court ruling annulling the deal. 

The government says the court does not have jurisdiction in the case, which it says is a matter of state sovereignty, and that parliament has the final say in endorsing such deals.

How do MPs see the deal?

MPs are divided between opposing and supporting the agreement. Other lawmakers say the chamber should wait until the court gives a final verdict on the issue.

The 25-30 group – named after the two revolutions of 25 January 2011 and 30 June 2013 – says the islands are Egyptian and has provided documents supporting that argument.

The Free Egyptians Party, which has the largest number of seats in the chamber, urged in a statement last week that the deal be subjected to "close scrutiny" by MPs, saying it supports whatever serves the national interest of the country.

Other lawmakers, including independent MP Mostafa Bakry, back the deal and say the islands are Saudi.

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