The Tiran and Sanafir Islands Deal: A Political Test for al-Sisi

July 7, 2017

Daniel Leone

On June 24, Egyptian President Abdel Fattah al-Sisi ratified [Ar] a controversial maritime demarcation agreement that cedes Egyptian control over the Red Sea islands of Tiran and Sanafir to Saudi Arabia. This step followed the Egyptian Parliament’s June 15 approval [Ar] of the agreement. The transfer of sovereignty has struck a nationalist nerve among many Egyptians, provoking public criticism and sparking street protests rare in al-Sisi’s repressive system. It could place Egypt’s highest court in direct opposition to Parliament and the President.

President al-Sisi first announced the agreement to transfer the islands to Saudi Arabia in April 2016, while the Saudi monarch King Salman bin Abdulaziz Al Saud was in Cairo for a five-day visit. During the same visit, Saudi Arabia agreed to concessional loan agreements and investment for Egypt reportedly worth more than $24 billion, leading observers to posit a link between transfer of the islands to Riyadh’s control and the Kingdom’s financial backing for al-Sisi’s regime. The transfer of the islands would set the stage for a long-proposed bridge linking Saudi Arabia and Egypt, which would likely provide a financial windfall for Saudi Arabia. The strategic placement of the islands is also appealing to the Saudis, though it would not dramatically change the military balance of power in the region.

Soon after the announcement, thousands of Egyptians took to the streets in the largest demonstrations since al-Sisi took office. As public demonstrations against the government are effectively banned and anyone going into the streets risks arrest, injury, or death, the crowds were notable. Many protesters chanted for the fall of the regime; organizers wrote on Facebook [Ar] that “we gave more than 100,000 martyrs in our wars with Israel to restore this land. Tiran and Sanafir are our right, Egypt’s right, the right of our children and of our ancestors who were killed there.” Security forces responded with mass arrests, with some 150 protesters receiving prison sentences of two to five years.

 

Historical Background

The two small, uninhabited, but strategically important Red Sea islands lie in the Straits of Tiran at the entrance to the Gulf of Aqaba. Control over the islands has been disputed on and off for the past hundred years. According to a 1937 Egyptian government map, the islands were considered a part of the Sinai Peninsula, and therefore belonged to Egypt. But Saudi Arabia claimed that Tiran and Sanafir fell within its territorial waters. The islands became particularly important to Egyptian interests in 1950, when Egypt deployed troops there to prepare for a possible conflict with Israel. Saudi King Abdel-Aziz al-Saud endorsed the deployment as part of the confrontation with Israel, but stated that the islands remained Saudi. Meanwhile, an internal Egyptian government memorandum asserted that the islands were Egyptian.

Israel invaded the islands during the 1956 Suez War and briefly occupied them, before returning them to Egypt as a result of American pressure. Saudi Arabia made its first official claim of sovereignty in 1957 during a visit by King Abdel-Aziz to the United States. In 1967, Egyptian President Gamal Abdel Nasser closed the Straits of Tiran, prompting Israel to launch preemptive strikes on the Egyptian Air Force and starting the Six Day War, during which it again occupied the islands. In the March 1979 Egypt-Israel Treaty of Peace, Israel agreed to return the Sinai Peninsula and the two islands to Egypt. In 1990, however, President Hosni Mubarak issued a presidential decree specifying the location of Egyptian territorial waters in the Mediterranean and Red Sea that did not include Tiran and Sanafir. His decree was never acted upon, though, and the islands remained Egyptian territory for all functional purposes since then.

Now, the Egyptian government asserts that the islands were only temporarily passed into Egyptian stewardship on behalf of Saudi Arabia in 1950, and that Mubarak’s 1990 decree confirms this. However, Egyptian opposition politicians and lawyers claim that the islands have been de facto Egyptian since before the fall of the Ottoman Empire. They argue that the transfer of the islands is a concession of national territory in exchange for a package of foreign assistance and loans from Saudi Arabia. The opposition narrative centers around the role that the islands played in the conflict with Israel, and frames the concession of territory as an affront to the Egyptian military. According to a recent poll [Ar] by the Egyptian Center for Public Opinion Research (Baseera), only 11 percent of the Egyptian populace believe that the islands belong to Saudi Arabia, while 47 percent believe that Tiran and Sanafir are rightfully Egyptian, and 42 percent are uncertain.

 

Judicial Challenges

Al-Sisi’s plans to transfer the islands faced an immediate legal challenge in an April 2016 suit brought in an administrative court by a group of lawyers headed by Khaled Ali and Malek Adly. The lawsuit claimed that transferring sovereignty to Saudi Arabia violates Article 151 of the Egyptian Constitution [Ar], which states that “no treaty may be concluded that is contrary to the provisions of the Constitution or that leads to concession of state territories.” The lawsuit argued that since the government had failed to provide sufficient evidence that the islands were originally Saudi, al-Sisi’s agreement to transfer the islands was unconstitutional. On June 21, 2016, senior administrative court judge Yehia al-Dakroury ruled in favor of the suit, calling the islands’ transfer to Saudi Arabia unconstitutional. But on September 28, 2016, the Court of Urgent Matters ruled [Ar] that the administrative courts do not have jurisdiction on issues of sovereignty, supporting the government’s position.

In the next legal twist, on January 16, 2017, the Supreme Administrative Court upheld [Ar] the June 2016 ruling against the island transfer. Then, on April 2, 2017, the Court for Urgent Matters ruled that the Supreme Administrative Court did not have jurisdiction, despite the opinion of prominent legal experts that the Court of Urgent Matters itself had no jurisdiction on this issue.

 

Parliament Takes Action

To ensure that the islands transfer could move forward amidst this judicial ping-pong, al-Sisi shifted the action to the Parliament, which is dominated by supporters of the government and lacks any genuine opposition representation. On June 11, legislation to implement the maritime demarcation agreement was introduced, amid claims by al-Sisi loyalists that the judiciary has no jurisdiction on the issue because it is a matter of sovereignty. On June 13, the bill passed [Ar] the Committee on Constitutional and Legislative Affairs by a vote of 35-8, despite clashes among members of Parliament (MPs) and loud chants of “Masriyya, Masriyya” (Egyptian, Egyptian). After these chaotic scenes, the legislation was referred quickly to the Committee on National Security and Defense, which approved the bill by a 35-2 margin on June 14.

Later that very day, the legislation passed in a plenary session with more than two-thirds of the 596-member parliament supporting the transfer. The vote was taken by a show of hands, not by a roll call, so the votes of each MP were not recorded officially. However, the independent news site Mada Masr estimates that some 400 MPs supported the agreement, and 119 MPs publicly stated their opposition to it. MPs against the agreement were mostly members of the 25/30 Bloc, the Will of the Egyptians Bloc, and the Right of the People Bloc. These are small, marginal parliamentary groupings that, according to Mada Masr, are “less close to the executive authorities.” 25/30 is a leftist and vaguely pro-democracy group. The Speaker of the Parliament banned its prominent MP Ahmed el-Tantawi from the fall legislative session for “insulting parliament” after he reportedly “smashed a microphone” during the rowdy debate on June 13. The Will of the Egyptians was established by a former military intelligence officer, Medhat el-Sherif, and describes itself as “standing for Egyptian interests and national security.” The Right of the People is headed by retired general Mostafa Kamal ed-Din Hussein, the son of one of the 1952 Free Officers, and includes nationalist and leftist MPs.  

During the vote, MPs opposing the transfer chanted “History, geography, and the judiciary say Tiran and Sanafir are Egyptian,” and argued that the decision was an affront to the armed services and the Egyptian people. MP Mohamed al-Sweidy, head of the pro-Sisi Support Egypt coalition that dominates the legislature, quoted a Quranic verse to support the deal: “God commands you to give what you have been entrusted with to its proprietors.” Al-Sweidy said, “We know that we will lose popularity by voting for the agreement, but integrity requires taking such a decision.” The Minister of Parliamentary Affairs, Omar Arafa, declared that “the maritime border agreement between Egypt and Saudi Arabia achieves the supreme interests of the country.” The outcome of the vote was unsurprising, given the well-documented rubber-stamp role of this parliament.  

 

Repression of Dissent

Around the time of the vote, to stifle dissent, Egyptian security forces launched an arrest campaign against opposition figures who had spoken out against the island transfer and activists who the government thought might call for protests. Khaled Ali, the public face of legal challenges to the islands agreement, was arrested [Ar] on May 23 on charges of “offending public decency,” and more opposition figures were arrested after parliamentary discussion began. According to the independent Freedom for the Brave [Ar] campaign, approximately 120 people were arrested starting on June 12, although some have since been released. These recent arrests were one part of a broader crackdown over the last few months, during which the government has arrested several opposition figures and blocked [Ar] at least 103 websites, including tiranwsanafir.com, a site that circulated a petition to Parliament condemning the transfer of the islands. On June 16, several dozen journalists and activists protested outside the Journalists’ Syndicate headquarters in Cairo. Egyptian security forces quickly broke up the protest, injuring several demonstrators.

In the latest legal development, on June 21 Egypt’s highest court, the Supreme Constitutional Court (SCC), ruled [Ar] to temporarily freeze all previous court rulings on the agreement. The SCC decision allowed al-Sisi to move forward on June 24 to ratify Parliament’s law without directly confronting the earlier administrative court rulings against the transfer. According to a member of the government’s legal team, al-Sisi’s signature on the law means that the islands are now officially Saudi sovereign territory. On June 28, Khaled Ali filed another lawsuit in an administrative court to halt any action that would cede control of the islands. Ali slammed Parliament for disregarding the administrative order and giving the “unconstitutional deal the kiss of life.”  

 

What Happens Next?

The SCC will hold hearings this month to determine whether the administrative courts have jurisdiction. If the SCC upholds the January 2017 Supreme Administrative Court ruling against the islands transfer, it would set up a damaging face-off between al-Sisi and the judiciary, as the constitutional court has the authority to nullify al-Sisi’s ratification of the law. However, given the priority al-Sisi has placed on the islands transfer, his regime’s close relations with (and economic dependence on) Riyadh, and the executive branch’s ability to influence the courts on sensitive matters, it is highly unlikely that the SCC will rule against the government. Legal expert Mohamed el-Ansary tells POMED, “I don’t expect a battle between the courts, because the SCC has the upper hand after it stopped the judgments issued by the Supreme Administrative Court and the Court of Urgent Matters to pave the way for al-Sisi’s ratification of the deal. I anticipate that the SCC will say that both Parliament and the President have the constitutional authority to transfer the territory to Saudi Arabia, although legally that is not actually clear.”

Notably, Judge al-Dakroury, who took an uncommon stand against al-Sisi when he ruled against the transfer in June 2016, has been nominated by fellow judges to head the Supreme Administrative Court (also called the State Council). It is likely not a coincidence that the new judicial authorities law, passed by Parliament three months ago, changes the appointment process for top judicial bodies to allow the President to choose someone more pliant than al-Dakroury. The State Council post becomes vacant on July 19.

In any event, the political fallout from this episode may not fade away quickly. As POMED Nonresident Senior Fellow Ashraf el-Sherif wrote recently, “The Tiran and Sanafir controversy has damaged the pro-Sisi camp, which built its legitimacy upon a nationalist mythology steeped in jingoism.”