The case concerning Egypt’s transfer of sovereign control of Tiran and Sanafir Islands to Saudi Arabia was adjourned to June 7 during the first session on Tuesday, to allow for the submission of official documents.
The documents to be submitted include maritime maps, historical records, legal resolutions and the parameters of the new border agreements.
The court also moved to consolidate the primary appeal with another lawsuit on the Egyptian-Saudi border agreement, filed by lawyer Ayman Ayoub.
Human rights lawyer Khaled Ali based his appeal of the Red Sea island transfer on Article 1 of the 2014 Egyptian Constitution, which stipulates, “The Arab Republic of Egypt is a sovereign state, united and indivisible, of which no part shall be conceded.”
The appeal also refers to Article 151: “In all cases, no treaty may be concluded that violates the provisions of the Constitution or results in a concession of any part of the territory of the state.”
“The maps of Egypt and the world, which have been issued by the Ministry of Defense’s Survey Authority, includes four pages about Tiran and Sanafir, which I have submitted to the court for review, along with other national documents regarding these islands,” Ali stated. He also called on the State Council Administrative Court to urge the Interior Ministry to release fellow lawyer Malek Adly, who was arrested after voicing opposition to the transfer of the islands.
Adly must be able to attend these court sessions “in order to allow him to make his defense and to present his case,” Ali contended.
However, the government’s legal team claimed the transfer of the two islands is an administrative decision, issued by President Abdel Fattah al-Sisi. They argued that the new border agreement with Saudi Arabia is not final as it has not been approved by Parliament.
The government’s legal team disputed the State Council court’s right to preside over the case, claiming that, as an “act of sovereignty,” the agreement governing the maritime borders is not subject to judicial oversight. The government’s lawyers cited a previous case in which the court found that it had no jurisdiction over a maritime border demarcation agreement with Cyprus.
Countering the government’s claim to absolute sovereignty, Ali referred to Egypt’s Constitutional Article 151 which stipulates that, “Voters shall be called for a referendum on treaties of reconciliation and alliances, and matters of sovereignty; they may only be ratified upon the announcement of referendum results granting approval.”
Ali also referred to national documents concerning Egypt’s territorial waters, and the demarcation of its eastern border, including the Kingdom of Egypt’s territorial agreements of 1906 with the Ottoman Empire, a royal decree concerning Egypt’s territorial waters which dates back to 1951, and a 1958 presidential decree amending provisions of the royal decree, along with a presidential decree in 1983 ratifying the United Nation’s Convention on the Law of the Sea. Additionally, he referred to a 1990 presidential decree specifying the parameters and standards of measurement for Egypt’s maritime borders, and a 1996 decree from the prime minister which declares Sanafir and Tiran to be natural protectorates affiliated to the Ras Mohamed Marine Protectorate.
The appeal cites 12 decrees and laws concerning Egypt’s historic sovereignty over the two islands, including a 1979 presidential decree issued in light of the peace treaty with Israel. This decree stipulates Egypt’s commitment to safeguarding the freedom of navigation through the Straits of Tiran, along with a decree from the Interior Ministry in 1982, which established a police station and permanent presence on Tiran Island. Another decree, issued by the Ministry of Agriculture in the same year, banned hunting and fishing in protected areas of the Sinai Peninsula, including Tiran island, located just off its shores.
The two islands are sovereign Egyptian territories, according to the appeal, represented by a 1990 presidential decree ratifying a Memorandum of Understanding between Egypt and the European Economic Community. This agreement made provision for the financing of the Ras Mohamed Natural Protectorate, which stipulated that both Tiran and Sanafir islands would be managed under the protectorate.
Egyptian Center for Economic and Social Rights lawyer Ahmed Saleh told Mada Masr, “The primary point of contention with the state’s lawyers in this case is based on a legal theory pertaining to so-called “acts of sovereignty,” which are decrees of a political nature and therefore these lawyers perceive the judiciary does not have jurisdiction over them.
“There is no clear or unified definition for what constitutes an act of sovereignty. Although, the judicial authority law and the legislation regulating the State Council do contain references to it. Yet, all its definitions are elastic, and extremely flexible,” Saleh continued, adding, “The plaintiffs are building their case upon previous verdicts and precedents set by both the State Council Administrative Court and the Supreme Constitutional Court. The state’s lawyers are also seeking to build their case on previous verdicts issued by the State Council Administrative Court.”