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President of the Republic et al. v. Ali Ayyoub et al.

  • Ginevra Le Moli (a1)

Extract

On April 8, 2016, the Egyptian government announced the signing of a “Convention of Demarcation of the Maritime Border” with Saudi Arabia (Convention). Under the Convention, the Red Sea Islands of Tiran and Sanafir lay in Saudi territory. The move was perceived by foreign and domestic observers as the abandonment by Egypt of a long-held territorial and maritime claim in exchange for a loan from Saudi Arabia, and it was challenged before the Egyptian courts. On January 16, 2017, the Egyptian Supreme Administrative Court rendered a judgment annulling the act of cession of the islands on the basis of the Egyptian people's entitlement over them (Judgment). The Judgment triggered a domestic judicial saga, which only ended in 2018. Aside from the intriguing political dimensions of this incident, the Judgment, while interpreting the Egyptian Constitution of 2014, sheds light on some fundamental aspects of international law, namely: the identity of the “holder” of sovereignty and its relations with the “delegatee,” i.e., the government; the contribution of human rights as an analytical frame for this issue; and the validity of a treaty concluded in violation of a state's treaty-making powers, a question for which there is limited practice.

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References

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1 Government: Sanafir and Tiran Islands Within Saudi Territorial Waters, Almasryalyoum (Apr. 9, 2016), at https://www.almasryalyoum.com/news/details/926066.

2 Convention of Demarcation of the Maritime Boundaries Between the Arab Republic of Egypt and the Kingdom of Saudi Arabia, Apr. 8, 2016 (Arabic original) [hereinafter Convention].

3 Heba Saleh, Egypt Parliament Approves Giving Red Sea Islands to Saudi Arabia, Fin. Times (June 14, 2017), at https://www.ft.com/content/9aaf0e00-5113-11e7-bfb8-997009366969; Timothy E. Kaldas, Tahrir Institute for Middle East Policy, Tiran, Sanafir, and the Island of Executive Power in Egypt (Apr. 21, 2016), at https://timep.org/commentary/analysis/tiran-sanafir-and-the-island-of-executive-power-in-egypt.

4 The President of the Republic et al. v. Ali Ayyoub et al., Judgment, 2017 Supreme Administrative Court, on appeal No. 74236/62 J S (Jan. 16, 2017) [hereinafter Judgment].

5 The case-note is based on an unofficial translation of the Judgment made by a professional translator, to be found as an annex to the Communication 115, 2017 African Commission on Human and Peoples’ Rights (ACHPR), ACHR/Comm/115/18 (Nov. 2). The document is on file with the author and the AJIL Editorial Board.

6 Case No. 37 and 49, Judgment, 2018 Supreme Constitutional Court, Year 38 (Mar. 3) [hereinafter Judgment SCC 2018].

7 Jared Malsin, The Fate of Two Deserted Islands Has Egyptians Taking to the Streets Again, Time (Apr. 15, 2016), at https://time.com/4296334/egypt-protests-tiran-sanafir-islands.

8 Ali Ayyoub et al. v. The President of the Republic et al, Judgment, 2016 Administrative Court, no 43709/70 J, (June 21) [hereinafter Judgment 2016].

9 Decision, 2016 AC, No. 68737/70 J (Nov. 8), on the Petition Filed by the President of the Republic, the Government and the Speaker of the House of Representatives for the Stay of Enforcement of the Judgment of 21 June 2016. Decision, 2016 AC, No. 66959/70 J (Nov. 8), on the Petition Filed by Mr Khaled Ali for the Continuation of Enforcement of the Judgment of 21 June 2016.

10 In Egypt, the State Council refers to the entire administrative court system.

11 Decision, 2016 Cairo Court, (Sept. 29), suspended the Administrative Court Judgment 2016. Decision, 2017 Cairo Court (Apr. 2), concluding that the Administrative Courts, namely both the Administrative Court and the Supreme Administrative Court, had no jurisdiction over the dispute concerning the signature of the Treaty of Transfer and their judgments were devoid of legal effect. The Cairo Court has no jurisdiction over such matters. Ex Law No. 13/1968, 1968 Code of Civil and Commercial Procedure, Arts. 27, 45 (Jan. 1).

12 On August 2017, President Abdel Fattah al-Sisi ratified the Convention. See Decree of Ratification, The Official Gazette, Egypt, No. 33 of 17 August 2017.

13 Judgment SCC 2018, supra note 6, 13.

14 Id. at 12.

15 Id. at 20.

16 Communication 115, 2017 ACHPR, ACHR/Comm/115/18 (Nov. 2); see Egypt Activists Take Int'l Legal Action Against Island Deal with Saudi Arabia, PressTV (Mar. 13 2018), at https://www.presstv.com/DetailFr/2018/03/13/555310/Egypt-islands-deal-Saudi-Arabia-lawsuit-African-Union.

17 See Western Diplomat: Saudi Arabia Received the Island of Tiran from Egypt, i24News (Feb. 6 2018), at https://www.i24news.tv/ar/أخبار/middle-east/167052-180206-دبلوماسي-غربي:-السعودية-تسلّمت-جزيرة-تيران-من-مصر; Saudi Economic Zone Planned for Tiran and Sanafir Islands, Mada Masr (Oct. 25 2017), at https://madamasr.com/en/2017/10/25/news/u/saudi-economic-zone-planned-for-tiran-and-sanafir-islands.

18 It provides that “[s]overeignty belongs only to the people, who shall exercise and protect it. The people are the source of powers … .”

19 2014 Constitution of the Arab Republic of Egypt (Jan. 15) (emphasis added).

20 See, e.g., UNSC Official Records, 659th mtg., para. 133 (Feb. 15, 1954) [hereinafter Feb. 15, 1954 UNSC Official Records].

21 Judgment 2016, supra note 8, 21 et seq.; Judgment, supra note 4, 23 et seq.

22 Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, at 35, para. 144 (Int'l Ct. Just. F8eb. 25, 2019); see also Diane Amann, Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, 113 AJIL __ (2019).

23 Id., paras. 144–74.

24 Article 46(1) reads: “State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.” See Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, at 343.

25 See, e.g., Case Concerning the Delimitation of Maritime Boundary Between Guinea-Bissau and Senegal, Decision, XX RIAA 119, 139, paras. 53 et seq. (July 31, 1989) (where the rule did not apply due to Salazar's practice); Land and Maritime Boundary Between Cameroon and Nigeria (Cameroon v. Nigeria: Eq. Guinea Intervening), Judgment, 2002 ICJ Rep. 303, 430, para. 265 (Oct. 10).

26 Land and Maritime Boundary Between Cameroon and Nigeria, supra note 25, para. 265.

27 Feb. 15, 1954 UNSC Official Records, supra note 20.

28 Amina Moustapha, Saudi Arabia Announces First Project on Tiran and Sanafir, Egypt Indep. (Oct. 25 2017), at https://www.egyptindependent.com/saudi-arabia-announces-first-project-tiran-sanafir.

29 See, e.g., Redgwell, Catherine, Contractual and Treaty Arrangements Supporting Large European Transboundary Pipeline Projects: Can Adequate Human Rights Be Secured?, in Energy Networks and the Law: Innovative Solutions in Changing Markets, ch. 6 (Martha M. Roggenkamp, Lila Barrera-Hernández, Donald N. Zillman & Iñigo del Guayo eds., 2012).

30 There is a significant, albeit piecemeal, literature on the entitlements over natural resources arising from human rights. See, e.g., Ben Saul, Indigenous Peoples And Human Rights: International And Regional Jurisprudence, intro. (2016).

31 See, e.g., Sachs, Jeffrey D. & Warner, Andrew M., Natural Resources and Economic Development: The Curse of Natural Resources, 45 Eur. Econ. Rev. 827 (2001).

32 Social and Economic Rights Action Center (SERAC) and Center for Economic and Social Rights (CESR) v. Nigeria, Comm. 155/96, ACHPR, para. 56 (Oct. 27, 2001).

33 Front for the Liberation of the State of Cabinda v. Republic of Angola, Comm. 328/06, para. 130 (ACHPR Nov. 5, 2013).

34 ACHPR v. Republic of Kenya (“Ogiek Case”), Judgment, App. 006/2012, paras. 195–201 (ACHPR May 26, 2017).

35 Fatsah Ouguergouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity and Sustainable Development in Africa 287 (2002).

36 Lubicon Lake Band v. Canada, Ominayak (on behalf of Lubicon Lake Band) v. Canada (“Ominayak Case”), Merits, Comm. No. 167/1984, UN Doc. Supp. No. 40 (A/45/40) (Mar. 26, 1990).

37 Id. at 2.

38 International Covenant on Civil and Political Rights, Dec. 16, 1966, GA Res. 2200a (XXI), 999 UNTS 171 (entered into force Mar. 23, 1976).

39 Ominayak Case, supra note 36, para. 13.3.

40 Id., para. 32.2.

41 Id., para. 33.

42 Leif Wenar, Blood Oil: Tyrants, Violence, and the Rules that Run the World (2015).

43 See, e.g., Alexkor Ltd v. Richtersveld Community, 2003 CCT 19/03, CCSA, para. 64 (Oct. 14) (S. Afr.).

44 See, e.g., First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (representing the Minister of Indian Affairs and Northern Development Canada), 2016 CHRT 2 (Jan. 26).

45 See Omorogbe, Yinka & Oniemola, Peter, Property Rights in Oil and Gas Under Domanial Regimes, in Property and the Law in Energy and Natural Resources 118 (Aileen McHarg, Barry Barton, Adrian Bradbrook & Lee Godden eds., 2010).

46 See, for instance, as regards national constitutions, Article 20(XI), Constitution of the Federative Republic of Brazil, which states that “those lands traditionally occupied by the Indians” belong to the federal government; similarly, for decisions of national courts, see Attorney-General of the Federation v. Attorney-General of Abia State, 2002 6 NWLR, S.C.N., 542–905 (Apr. 5) (Nigeria).

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President of the Republic et al. v. Ali Ayyoub et al.

  • Ginevra Le Moli (a1)

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