On March 3, Egypt’s Supreme Constitutional Court gave a definitive ruling on the agreement concluded in April 2016 between Egypt and Saudi Arabia over the demarcation of their maritime borders, effectively transferring sovereignty of the islands of Tiran and Sanafir from Egypt to Saudi Arabia.
That ruling voided all previous judicial decisions on that issue, including that of the Supreme Administrative Court, which had rejected the deal, and of the Court for Urgent Matters, which had sustained it. According to another ruling on the same day, all pending appeals against the decision were dismissed.
Some commentators were prompt to point out that the rulings were issued one day before the beginning of the visit of Crown Prince Muhammad bin Salman, the powerful Saudi crown prince, hinting that it was done to demonstrate that the issue had been put to rest.
In its dispositions, the Supreme Constitutional Court states that at issue is an international agreement between Egypt and Saudi Arabia. Therefore, courts have no jurisdiction and that it is the prerogative of the parliament to monitor measures taken by the executive branch. According to article 151 of the constitution, the president ratifies international agreements and signs them into effect after they have been voted by parliament.
However, the same article adds that peace treaties and alliances can only be ratified after a referendum and that the same applies to agreements renouncing sovereign rights. Therefore, there can be no agreement or treaty contrary to the constitution or leading to relinquishing parts of the nation’s territory.
This disclaimer is particularly apposite since the present case deals with the transfer of what appears to be Egyptian territory – the two islands have been long considered as belonging to Egypt – to Saudi sovereignty. In this instance no referendum was ever held.
On the other hand, according to Article 195 of the same constitution, a final decision of the Supreme Constitutional Court cannot be appealed and enjoys the status of res judicata.
The court went a step further and stated that the judicial branch should not interfere in any way in the ratification process of international agreements, which come into effect after they have been voted by parliament.
Which is a rather controversial statement.
Judicial supervision of the process, added the Supreme Constitutional Court, will examine two aspects: On the one hand, is it indeed an international agreement and have procedures set down by the constitution been observed? And on the other, does it conform to Egyptian interests? These two aspects are constitutional parameters not subject to ordinary judicial review. The SCC has sole jurisdiction.
THIS COMPLEX state of affairs is the result of the decision taken by President Abdel Fattah Al-Sisi to transfer the islands to Saudi Arabia when an agreement was reached regarding the maritime demarcation between the two countries in April 2016, during the visit of the Saudi king.
The move surprised Egyptians, who had always believed that Tiran and Sanafir belonged to them.
But the islands that had been twice conquered by Israel and returned to Egypt – were they not even Egyptian after all?
Textbooks said they were.
Besides, the agreement appeared unconstitutional since the first article of the constitution states that Egypt is a sovereign and united nation which cannot be divided.
There was a great deal of anger at what was perceived as Sisi’s yielding to the will of the Saudis because of the much-needed financial support they provided.
There were violent street demonstrations while appeals to cancel the agreement were filed. Voices were heard in the parliament claiming that the islands had belonged to Egypt since the dawn of history and that abandoning them for Saudi money was a stain on its honor and a violation of the constitution.
The embattled president tried to explain that Egypt was not renouncing part of its sovereignty and that it had only controlled the islands since 1950.
The Egyptian Foreign Affairs Ministry made public a number of documents, including a memorandum stating that after the taking of “Umm el-Rashrash” (Eilat) by “Zionist bands” (the Negev Brigade during the Uvda Operation in March 1949), Egypt and Saudi Arabia had felt the need to reinforce their defenses. At the request of former Egyptian King Farouk, former Saudi King Ibn Saud agreed to the temporary transfer of the islands.
Nevertheless, in April 2016, those in favor and those against the deal produced ancient maps and documents to prove their cases, which remained inconclusive.
The Supreme Administrative Court decided that the agreement was null and void while the Court for Urgent Matters upheld it. A large majority of the parliament voted to ratify the decision while new appeals were made based on the ruling of the Supreme Administrative Court and the fact that the agreement contravened the constitution.
This is when the Supreme Constitutional Court had to step in at the request of the government to cut the Gordian knot, so to speak.
The March 3 decisions have already unleashed a storm. A majority of members of parliament declared that this put an end to the affair, since the SCC had the final say, and rejoiced at the affirmation that they had been right when they ratified the agreement in 2017. Furthermore, the SCC had ruled that it had sole and exclusive jurisdiction concerning international agreements.
Opposition members agreed that the debate concerning the ratification process was over, but that Egyptians were unhappy that no judgment had been made about the core issue.
The agreement has now become legal and binding as from the date of its publication in the legal gazette in August 2017. Saudi Arabia now officially owns the islands.
Which raises a new question... Tiran and Sanafir are - or were - in Area C, "and according to the military annex of the peace treaty with Israel should remain demilitarized." Only civilian police can be there, and it is subject to the control of the Multinational Force of Observers
Since no one has been living on the islands, lightly armed Egyptian police visited at scheduled intervals in small naval crafts.
Where will the MFO now present its reports? To the Egyptian government, which will forward it to the Saudis? Directly to the Saudis?
In an exchange of notes between Prime Minister Benjamin Netanyahu and Egyptian Foreign Minister Sameh Shoukry, Egypt reaffirmed its commitment to the peace treaty, the document creating the MFO and to all treatises and understandings between Egypt and Israel. Egypt also stated that Saudi Arabia had accepted to implement all Egyptian obligations regarding the islands and that Egypt would see to it that there would be no violation of the agreement by Saudi Arabia.
But Saudi Arabia now rules the two islands and the Tiran straits – Israel’s maritime path to Asia and Africa. The two countries are still officially at war, though there is a community of interest and both are at the forefront of the fight against the Iranian menace.
Prince Salman plans a vast industrial, commercial and touristic project along the western coast of his country in cooperation with Egypt. A bridge will connect the two countries via the two islands. The project is touted as conducive to peace and cooperation. During his visit, the crown prince also announced the creation of a joint $10 billion fund to set up a similar project in southern Sinai.
It would seem that Israel has nothing to fear... but this is the volatile Middle East where anything can happen and Israel might well be facing unforeseen obstacles as a result of this move at some point in the future.
The writer, a fellow of the Jerusalem Center for Public Affairs, is a former ambassador to Romania, Egypt and Sweden.