Will Egypt hold popular referendum on islands transfer?

In an interview with Al-Monitor, former Egyptian presidential candidate and lawyer Khalid Ali discusses the case he brought before the administrative court to challenge Cairo’s decision to transfer ownership of two Red Sea islands to Saudi Arabia.

al-monitor Egyptian activists shout slogans against President Abdel Fattah al-Sisi and the government during a demonstration protesting the government's decision to transfer two Red Sea islands to Saudi Arabia, in front of the Press Syndicate in Cairo, April 13, 2016. The sign reads, "The two Islands Tiran and Sanafir are the Egyptians."  Photo by REUTERS/Amr Abdallah Dalsh.

Topics covered

tiran and sanafir, saudi arabia, protests in egypt, israeli-egyptian border, egyptian constitution, egyptian parliament, egyptian foreign policy, abdel fattah al-sisi

Jul 31, 2016

Egypt and Saudi Arabia reached an agreement in June concerning their maritime borders that provided for transferring ownership of the Red Sea islands of Tiran and Sanafir to Saudi Arabia. This raised the ire of the Egyptian street, provoking protests in opposition to the move. Despite all that, an Egyptian administrative court ruled that the islands are still legally Egyptian, providing a victory to Egyptian public opinion that was opposed to the official position of the state and government.

The government and members of the House of Representatives desperately defended the transfer of ownership of the two islands to Riyadh while the Egyptian street burst out into protests repudiating the agreement.

The agreement would convert the straits of Tiran into an international waterway that other states, including Israel, would be entitled to use. In contrast, prior to the agreement’s signature, the straits were an Egyptian waterway that no other state was entitled to use without Egyptian agreement, according to Khalid Ali, the lawyer who brought a lawsuit against the state and won the first round in the administrative court.

Ali is an Egyptian lawyer and politician, a member of the Socialist Front and the director of the Egyptian Center for Social and Economic Rights. He had previously participated in establishing the Hisham Mubarak Center for Law. Ali spoke with Al-Monitor about the documents he used to support the Egyptian claim to the two islands.

The full text of the interview follows:

Al-Monitor:  From a legal and political perspective, what’s your view of the Egyptian administrative court’s verdict that Tiran and Sanafir remain Egyptian?

Ali:  It is one of the most important and powerful verdicts in the history of the State Council [administrative court system]. It reaffirms that the State Council has evolved, now addressing the theory of sovereignty. This is something that the state worked hard to leverage as concerns the theory of sovereignty, despite the fact that the theory itself is not fixed and there is no agreed-upon definition for the meaning of sovereignty. However, the court [system] had always kept its distance from cases like this, with the excuse that they lie outside its jurisdiction.

Al-Monitor:  Why did the court issue a verdict this time on the Egyptian claim to the two islands?

Ali:  Because the entire matter was left to the judge, who in turn determined whether the case constituted a sovereign act or not. Every case has its own particular circumstances. For example, when the maritime borders between Egypt, Cyprus and Greece were established, the court viewed it as a sovereign act. Whereas, in the case of Egypt and Saudi Arabia, the court did not take that view, due to the presence of a key variable: the Egyptian territories of Tiran and Sanafir, whose ownership was transferred to Saudi Arabia on the basis of a [diplomatic] agreement. These two islands are considered an extension of Egyptian territory. Moreover, the constitution affords both a different sort of protection.

Al-Monitor:  Doesn’t Egypt’s signing of the agreement represent a sovereign act that the court is not permitted to exercise control over?

Ali:  Of course not, as long as the agreement violates the constitution. If the act in question violates the constitution, even if it is a signed agreement, then the theory of sovereignty affords it no protection. On the contrary, such an agreement would need to be protected from the theory of sovereignty.

Al-Monitor:  What support did you rely on in your defense of Egypt’s claims to the two islands?

Ali:  I provided many documents and records. We began our research into history starting with 1811, when Muhammad Ali began his war in the Arabian Peninsula and occupied several of its regions. The area of the Hijaz, or present-day Saudi Arabia, was known as "the Egyptian Hijaz." He established fortifications on the Egyptian Hajj Road on the model of his castles in Egypt in order to secure the Egyptian Hajj Road. In 1840, the Ottoman sultan signed the Convention of London, seeking the aid of Austria, Britain and Russia to force Muhammad Ali to withdraw from the Arabian Peninsula in exchange for a firman [decree] that Egypt would belong to him and his children as an inheritance. The agreement was concluded [but] it preserved Muhammad Ali’s control of the Egytian Hajj Road.

In 1892, Muhammad Ali’s [descendant Abbas II] came to power as Egypt was under English occupation. In light of [Egypt’s] weakened position, the Ottoman sultan reclaimed the fortifications up to the Gulf of Aqaba, and attempted following that to take control of Taba. England and Egypt both repulsed that effort, however.

According to Finnish Orientalist Georg Wallin, who visited these territories, which included both Tiran and Sanafir, there were Egyptians [living there]. This is according to a publication bearing the title “Notes taken during a Journey through Part of Northern Arabia, in 1848.”

I also relied on a book “Atlas,” a textbook released in 1922 in Egypt, published by the Ministry of Education, which also confirmed the Egyptian claim to the two islands.

When a member of the Israeli Knesset called for raising the Israeli flag over Tiran, due to the absence of any flag there, the Egyptian forces hastened to move in January 1950 to raise the Egyptian flag over the island. Saudi Arabia blessed the move at the time. I obtained the correspondence that was exchanged between the two countries from a doctoral thesis supervised by Dr. Mufid Shahab al-Din, who was reported to be an adviser to the Saudi Embassy.

Al-Monitor:  What do you expect will happen next, following the [expected] ruling of the Supreme Administrative Court?

Ali:  It might approve the agreement as a sovereign act, which would mean that there will be a new burden upon the government. Moreover, we might embark on a new round of conflict, particularly [if there is] a popular referendum on the agreement.

Al-Monitor:  Do you expect that Egypt will withdraw from the agreement if the final verdict supports Egypt’s claim to the two islands?

Ali:  Of course that will happen if the Supreme Administrative Court supports the ruling of the administrative court. This verdict concerns Egyptian territory. It’s not me who will benefit [from such a ruling], but the Egyptian people.

Al-Monitor:  What consequences would accrue to an Egyptian withdrawal from the agreement with Saudi Arabia?

Ali:  Saudi Arabia might resort to international arbitration, subject to approval by Egypt.

Al-Monitor:  Which Egyptian institutions would set the conditions for agreement to [international] arbitration?

Ali:  The Egyptian president and House of Representatives together.

Al-Monitor:  The agreement, according to the minister of legal affairs, lies outside the [parameters of] the constitutional text, which calls for a referendum on the subject. What’s your view, following the verdict, of how the House of Representatives will handle the issue?

Ali:  The state is saying things that do not make sense. It wants the agreement to lie outside the supervision of the judiciary, on the pretext that it is a sovereign act, while [it does not want] a popular referendum on the pretext that it is restoring territory to its previous owners — namely, Saudi Arabia — and that the matter is not a sovereign act. This despite the fact that the state’s counsel confirmed in court that it was a sovereign act, in accordance with Article 151, paragraph 2 of the Egyptian Constitution, which states that “voters must be called to a referendum for treaties of reconciliation and alliance, and matters pertaining to sovereign rights, and [said agreements] may not be credited until the results of the referendum have approved it. Under no circumstances may any agreement be signed that contradicts the provisions of the constitution, or which concedes any part of the region of the state.” Therefore, there must be a referendum.

Al-Monitor:  Now, following the verdict, how do you interpret the president’s position regarding the signing of the agreement and transferring ownership of the islands to Saudi Arabia?

Ali:  I cannot prognosticate the future, but there is a view that the president’s advisers misled him when he asked them and sought their counsel regarding the ownership of the two islands, before he signed the agreement. There is another view that he was not misled, but was fully aware of what he was doing, and knew the truth of the conflict between Egypt and Saudi Arabia over this territory, which began in the days of King Farouk. According to this view, this lies within the framework of different regional priorities that have not been openly discussed as of yet.

Al-Monitor:  Will the administrative court’s verdict cause a new revolution because of its independent rulings?

Ali:  On the path we are currently heading, there are many things driving people toward revolution. We are now witnessing a double blow whereby the Egyptian pound is suffering a decline in its purchasing power even as prices are rising and economic gaps are widening. But from a collective, informed perspective, justifications for rebellion are very often not the products of a single moment. So it is not at all out of the realm of possibility that there could be a revolution due to economic conditions.

Al-Monitor:  Many of those you know have left the country and become opponents of the government from abroad. Do you believe your time will come? That, as a result of pressure from the security services, you will be driven from the country?

Ali:  I will not emigrate, and I will choose the same situation that I am in now. That does not mean that my [behavior is] heroic or that others are behaving in an unheroic manner. All of them are choices, one is not better than the other.

Al-Monitor:  You have already competed in presidential elections, in the first elections that were held after the January 25 Revolution. Do you intend to compete again in less than two years when Sisi’s first term expires?

Ali:  I am always in the square. If there are elections, then there will be a decision, but we are now in a closed political climate, and one cannot judge what shape elections will take now, or even if there will be elections or not.

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