Egypt's Supreme Administrative Court faces an important decision. In April, Egyptian President Abdel Fattah al-Sisi signed a deal to transfer control of the Red Sea islands of Sanafir and Tiran from Egypt to Saudi Arabia. Al-Sisi hoped that the agreement would win Cairo economic concessions, finance and investment from Riyadh, but instead it met with stiff public opposition and sparked protests. Judge Yahya al-Dakroury invalidated the deal on June 21, stating that the islands near the mouth of the Gulf of Aqaba "should remain part of Egyptian territory."
Now the Supreme Administrative Court, the highest administrative court in Egypt, is set to hear an appeal of the decision on June 26. Even if al-Dakroury's ruling is overturned, it still represents a political blow to al-Sisi. Though an unfavorable ruling would not necessarily cause Saudi Arabia to waver in its support for al-Sisi's government, the case could further embolden Egyptian opposition groups and strain the president's popular support.
Ownership of the islands has proved a controversial subject. Al-Sisi's government has argued that Egypt never owned the islands. Instead, it contends, Egypt began leasing Sanafir and Tiran in 1950 to keep them from being seized by Israel at a time when Saudi Arabia was too weak to defend them. To support the claim, al-Sisi's administration has pointed to a 1990 decree by former Egyptian President Hosni Mubarak that demarcated the maritime border between Egypt and Saudi Arabia, placing the islands' control beyond Egyptian territorial waters. Meanwhile, opponents of the April transfer have presented a number of other documents, decrees and prior court rulings that show that Egypt has been exerting sovereign control over the islands.
The distinction between the two arguments is an important one. Al-Dakroury — who is vice president of Egypt's administrative court system, the State Council — was succinct in his ruling, upholding the country's control of the islands and affirming that "it is forbidden to change their status in any form or through any procedure for the benefit of any other state." Article 152 of the 2014 Egyptian Constitution includes three salient points relevant to the case:
"The President of the Republic shall represent the State in its foreign relations and conclude treaties and ratify them after the approval of the House of Representatives.
Voters must be called for referendum on the treaties related to making peace and alliance, and those related to the rights of sovereignty. Such treaties shall only be ratified after the announcement of their approval in the referendum.
In all cases, no treaty may be concluded which is contrary to the provisions of the Constitution or which results in ceding any part of state territories."
The appeal puts the decision in the hands of the Supreme Administrative Court, where a panel of five judges will hear the case. If the court confirms the previous decision that the islands are part of Egyptian territory, then the treaty ceding the islands to Saudi Arabia would be unconstitutional. In that event, al-Sisi — should he respect the ruling — would need to seek a constitutional amendment to push the deal through. If the court decides that the islands are not Egyptian territory but that Egypt has been exercising sovereign power over them, then the deal could require parliamentary approval and a public referendum. Alternatively, the court could determine that Egypt is only administering the islands without acting in a sovereign manner. In that case, the deal, like any other treaty, would need only ratification in parliament to be valid. Otherwise, the court could rule that the deal was a sovereign decision over which it has no jurisdiction.
Many of the concepts at play here are ambiguous and relatively untested. The definition of sovereign control and the interpretations of maritime delineation and ownership are not well defined. This could work to al-Sisi's advantage in his attempt to exert informal influence over the high administrative court's decision.
The Judiciary and Challenges to al-Sisi
The judicial system has played a fundamental role in post-Mubarak Egypt. In 2012, the Supreme Constitutional Court dissolved the Islamist-dominated parliament under former President Mohammed Morsi, contributing to the rise of the Tamarod movement and its associated protests, as well as to Morsi's ultimate ouster in 2013. The country's judicial bodies have largely been more amenable to working with the military and al-Sisi since Mubarak fell from power, though there are underlying political divisions in the country's complicated court structure. Since Morsi's removal, the Supreme Council of the Armed Forces and its head, al-Sisi, have been successful in cracking down on judges favorable to the Muslim Brotherhood by forcing their early retirement. Nonetheless, the judiciary remains fairly strong and independent under al-Sisi.
The State Council, which has jurisdiction over cases involving Egypt's state bodies, was not as instrumental in bringing down Morsi and ushering in al-Sisi as other parts of the judiciary were. But earlier this year, it sided with the al-Sisi government when the Supreme Administrative Court declined to review a 2013 law that severely restricts legal protests, citing a lack of jurisdiction. Furthermore, the trend in Egyptian judiciary rulings has broadly favored strengthening stability, a position that al-Sisi shares.
Most observers think the Supreme Administrative Court will uphold the island transfer. If it does not, though, al-Sisi and his Cabinet have said they will respect the court's ruling — and the parliament's decision, if it comes to that. The approval of parliament, which is stacked with al-Sisi supporters, is not nearly as significant an obstacle as the final court ruling could be. Moreover, if al-Sisi wins a favorable judgment, it will demonstrate that he can work through the legal system rather than defy it.
Should the court rule against al-Sisi, it could embolden opposition groups to challenge him in the limited outlets where they can. Already, protests have increased over the past few months in Egypt, most notably over the island deal and the state's control of the press. Al-Sisi's honeymoon period after taking over for Morsi is winding down, and his popularity has been waning. Though he initially passed some economic reforms, his progress on that front has since slowed, and the country is now under even greater financial strain. The lack of progress on further reforms, along with cumbersome regulatory and bureaucratic oversight, continues to hamper economic growth.
Meanwhile, Saudi Arabia has been noticeably silent about the public backlash against the island deal and the court's ruling. Riyadh would like the islands returned to Saudi control for sentimental — or even economic or security — reasons. But realistically, the islands are of little economic or military value to either country. The proposed bridge to connect Saudi Arabia to Egypt, which would span at least part of the islands, could still be built regardless of their ownership, even if the economic gains from that project are limited. The strategic value of the territory has declined dramatically since the post-World War II era, when Israel was establishing itself.
Besides this, Riyadh's support for an al-Sisi or military-backed government in Egypt does not hinge on the island deal. Riyadh needs al-Sisi to prevent a resurgence of the Muslim Brotherhood and wants Egypt's support for larger security initiatives in places such as Yemen. For these reasons, Saudi Arabia will continue to back the al-Sisi government financially to limit the potential for Egypt's financial crisis to cause his government to fail.
Al-Sisi has taken the rare position as a political leader of fighting to relinquish control over territory. Regardless of whether he prevails in his fight, the courts have made an obvious statement by visibly pushing back, and it will be important to watch how al-Sisi reacts.