Will the Tiran and Sanafir dispute reach international courts?
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After the Supreme Administrative Court’s decision on Monday affirming Egypt’s sovereignty over the two Red Sea islands Tiran and Sanafir, many have speculated that the Saudi Arabian government will resort to the International Court of Justice (ICJ) to claim its ownership of the two islands.

Following an extensive legal contest Monday’s ruling is final, invalidating the agreement signed by Egypt’s Prime Minister Sherif Ismail and Saudi in April 2016 which conceded ownership of the islands to the gulf state, and asserting that the Egyptian government failed to provide proof of Saudi sovereignty over the islands.

However Parliament is yet to have its final say on the decision. A statement from the Alliance to Support Egypt coalition, the majority parliamentary bloc, says that despite the recent ruling Parliament will fulfill its constitutional role and look into the agreement to decide on its validity. However another statement from the 25-30 Alliance asserts that Parliament should abide by the court ruling. Amid the speculation around what Parliament’s response to the case will be, opting for international arbitration has emerged as a serious contender.

Former Ambassador Ibrahim Yousry says that Egypt’s previous encounters at the ICJ have not been promising. Yousry, who represented the Foreign Ministry in the committee to defend contested  land in Taba in 1989, said that implementing Monday’s court ruling will result in a conflict with Saudi, which will likely push for referral to the ICJ.

He claims that the Egyptian representatives who appeared before the court in the past have proved incompetent, and expects that should the dispute reach international arbitration Egypt’s defense will again be weak, making it likely they will lose the case.

Egypt ranks highly among the countries with the most judicial suits in international courts. According to a report published by the Egyptian Center for Social and Economic Rights in 2013, out of the 11 lawsuits that have appeared before the World Bank’s International Centre for Settlement of Investment Disputes (ICSID), Egypt won two and lost four others, while the rest either reached a settlement or agreed to pay half the litigation costs.

Yousry cautions that Egypt’s representatives in international arbitration should not be loyal to the government, which he states has worked very hard to legitimize Saudi sovereignty over the islands. He expresses doubts that the government will work as hard to achieve a ruling affirming Egypt’s ownership, posing that government representatives may deliberately present a weak defense.

Lawyer Khaled Ali, who is a member of the legal team who filed the initial lawsuit against the agreement, says that resorting to international arbitration is a possibility. However he adds that this is not a traditional case between a state and companies, but is rather a regional issue with strategic dimensions.

The government’s attempts to circumvent Monday’s ruling by pressuring Parliament to ratify the agreement would work in Saudi’s favor, according to Ali, as they have provided the Saudi government with new ammunition in their quest to prove that the two islands fall under their sovereignty.

The lawyer also expresses concerns about the intentions of Egypt’s representatives, should the government resort to international arbitration, recalling President Abdel Fattah al-Sisi’s remarks in April 2016 asserting that Tiran and Sanafir are Saudi Arabian. Ali explained that the problem is not in the professionalism of the government representatives before international courts, but rather the freedom the government permits its representatives and the limitations it will impose on them.

In a previous interview with al-Araby TV, Ali claimed that government representatives would be “more Saudi than Saudis,” and that the Egyptian people should resort to a popular campaign to choose Egypt’s representatives before international courts, removed from the government’s lawyers.

However professor of international law at Ain Shams University Hazem Atlam believes that the likelihood of resorting to international courts is almost non-existent for two reasons. First, he highlights that Monday’s ruling essentially voided the agreement, “as such there are no commitments from Egypt to Saudi.”

The second reason, Atlam says, is that turning to the ICJ necessitates a conflict and differing viewpoints between the Egyptian and Saudi governments, which is not the case here. The Egyptian government tried to prove Saudi’s sovereignty over the two islands by filing appeals against the invalidation of the agreement, making it impossible to resort to the court. Additionally, the court’s rules stipulate that both governments must agree to arbitration before the ICJ.

Translated by Mai Shams El-Din

Osman El Sharnoubi