Defenders of the Red Sea islands sovereignty present constitutional, historical, legal context to disputed case

Controversy at peak ahead of expected court verdict on islands' ownership

Since a panel of lawyers decided in April to file a lawsuit against the Egyptian-Saudi maritime border agreement, they were determined to put up front the historical evidence proving that the Red Sea islands of Tiran and Sanafir could be nothing but Egyptian lands.
Lawyers working on the case have since been collecting and releasing to the public maps and records authenticating their argument. "It has been the work of many people, professors, lawyers, and more importantly ordinary citizens who dug up their personal libraries to present us with such documents," said lawyer Khaled Ali, who leads the judicial battle against the agreement in the Administrative Court.
The collection of documents has been a progressive effort until now, as the trial is coming to an end with the court's expected final verdict on 16 January.
As the case unfolded in court, defence lawyers had to face legal and constitutional complications regarding the fact that many courts have said they are not specialised to deal with it.
In a press conference Wednesday at the Egyptian Center for Economic and Social Rights (ECESR), professors and lawyers presented documents verifying that the islands are Egyptian lands, as well as the details of the judicial and constitutional dispute over the case.
"This press conference is not related to the judicial case. We are doing it for the public, the media, and parliamentary members who don't have the details about the legal situation after the cabinet referred the deal to the parliament. What the documents show is the sovereignty of the islands," said Ali.
Legal context of dispute with government
"The government has been pushing for the argument that the agreement is a matter for the sovereign of the state, in which the judiciary cannot interfere," said lawyer Essam El-Islamboly, who added that the judiciary decides which matters fall under the state's sovereign authority.
According to him, the verdict issued by the Administrative Court at the State Council in June annulling the agreement, said that the new Constitution banned any dealing of Egyptian lands, so the legislative and executive powers have no authority over the lands.
On the other hand, the government resorted to the Court of Urgent Affairs to cancel the Administrative court verdict verdict and stop its implementation. Moreover, it referred the agreement with the cabinet's approval to the parliament despite the case still being judicially disputed.
However, El-Islamboly argued that according to Article 190 of the Constitution, the case falls outside the authority of the Court of Urgent Affairs.
The constitutional article stipulates that "the State Council is an autonomous judicial body, and it shall have the exclusive jurisdiction to settle administrative disputes and disputes relevant to the execution of all its rulings," as well as have "jurisdiction over disciplinary suits and appeals."
Public controversy and possible scenarios
Lawyer Tarek El-Awady accused the executive power of breaching the separation of powers and that according to the Penal Code, the cabinet committed the crime of abstaining from executing an obligatory judicial verdict.
Moreover, according to him, the government abused power by referring their approval on the agreement to parliament, in violation of Article 151 of the Constitution which bans ceding lands by any authority nor even public referendum, and also in violation of the court's compulsory verdict for the parliament as well, which has been a party in the official case alongside with the government.
Besides protests stirred by the signing of the agreement back in April, more political groups were further infuriated by the cabinet's recent move.
As for the expected court verdict on 16 January, El-Awady put forward three possible scenarios, taking into consideration that the court's division looking into the current appeal filed by the government against the annulment of the agreement does not have the authority to reverse the initial verdict.
"As a natural progress of the legal case so far, the first and most plausible scenario is that the court will reject the government's appeal. It might add among reasons of rejection that the government has no interest in filing an appeal, since the verdict gives the government power over the islands," said El-Awady.
A second scenario would be that the court sees that it can accept the appeal and refer it back to the judiciary at the High Administrative Court for a new round of legal battle, but according to El-Awady, the procedure maintains the verdict's effectiveness.
A third and least expected option, according to the lawyer, would be for the court to stop looking into the appeal until the dispute over the same case before the Constitutional Court is settled, "and this also means that the annulment verdict is valid," he added.
Several political groups and public figures have been talking about escalating opposition to the agreement through protests, although the Interior Ministry obtained a verdict Wednesday by the Court of Urgent Affairs to ban a scheduled Saturday protest.
Meanwhile, the Free Egyptians Party (FEP) issued a statement Wednesday in which it said that the case, of national security concern, shall be thoroughly examined by members of the parliament before the final decision.
The party also criticised what it described as "movements in the political scene that went beyond the principle of discussions to become a threat, [...] and some attempts to acquire popularity over quarrels" about the islands issue.
Sovereignty rights
Dalia Hussein, law professor at Zagazig University, said during the conference that the argument of the government was to claim the islands were initially owned by Saudi Arabia and that Egypt was temporarily protecting them contradicts the definitions of sovereignty introduced in international laws.
"There is hardly a separation between the ideas of ownership and sovereignty over a piece of land, meaning that with the exception of very few defined exceptions, a country acquires sovereignty rights by practising them on the land," Hussein said.
She gave a few examples of those practices such as imposing taxes on the islands, issuing legislations that concern them, and the Egyptian army's presence on them.
Referring to several internationally disputed land cases, Hussein pointed out that Saudi Arabia did not fight much for the islands in the past.
Historic evidence presented
For his part, ECESR's lawyer Malek Adly had begun Tuesday to share documents authenticating that the islands are Egyptian on a daily basis until the day of the court verdict.
Adly, who was shortly detained in inhumane conditions according to his family and lawyers over opposing the state's sealed deal with Saudi Arabia, started the series with a map from an atlas issued in 2006 by the Egyptian Ministry of Defence.
The map, thus valid under the former regime of Hosni Mubarak, shows South Sinai coloured in yellow, as well as the two islands of Tiran and Sanafir.
Adly further published a copy of a cabinet decision issued in 1996, considering South Sinai's Ras Mohamed and the two islands among natural protected areas.
In Wednesday's conference, Adly said that they were able to collect several documents in response to the "government's misleading information," one of them being promoting the idea that it was Mubarak who gave the islands to Saudi Arabia—a claim which was rejected by court, according to Adly.
"We discovered one of the oldest maps in Egyptian history in a book on the borders of the countries between the Ottoman Empire and Egypt, translated by historian Ahmed Fouad Metwally, accredited and used while settling Taba's sovereignty case. The map shows Egypt's ownership of the islands dating back to 1906, before Saudi Arabia as we know it today existed," said Adly.
Other documents presented during the conference included the history of the islands in borders' definition by decrees, sessions from the UN security council, letters exchanged between Egypt and Saudi Arabia during the war with Israel, and the position of the islands in the Camp David accords.
Speakers at the conference further argued that Egypt would not have officially assigned a police station on the islands and allowed civil registration for their citizens if they weren't Egyptian property.
They also argued that if there had ever been such an agreement with Saudi Arabia, then there wouldn't be a need for the one signed in April 2016, because then the old agreement would have included a defined period of time in which Egypt supposedly watched over the islands on behalf of Saudi Arabia.
Last but not least, they also clarified the term "occupation" of the two islands which appear in many of the documents, explaining that it designates military presence on the lands, not within the context of colonisation of another land.
To prove this point, Ali shared with the audience two videos. The first one is the official army broadcast declaration of acquiring Sinai in the 6th of October War in 1973, where the word "successfully occupied" was featured.
The second video was during the last parliamentary elections of 2015, where an army colonel in charge of securing polling stations in Giza schools said "we have occupied the schools," within the content of his statement about increasing security presence in the schools.