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Like Gaza, the Tiran islands transfer called for a consistent policy approach

Photo by Vinsen Cekrani on Unsplash

Shortly before the latest Gaza rocket attacks, this week’s news that Air Seychelles has become the first airline to fly from Israel over Saudi airspace has come to ascertain the euphoria behind the recent Israeli green light for Egypt to transfer the islands of Tiran and Sanafir to Saudi Arabia. Indeed, the particular agreement’s geo-strategic benefits for Israel cannot be underestimated, particularly given the current Gaza situation and the role Saudi Arabia as a major Sunni state can additionally play for the de-escalation of the situation. Yet, the same need for the agreement’s benefits to be stressed, can be equally said for its possible legal shortcomings.

For example, the question of what will happen to the Straits of Tiran if either Egypt or Saudi Arabia revert in the future from their pro-western orientation has remained largely unaddressed.  Israel has sought reassurances that the freedom of navigation will be preserved.  Yet, whereas Egypt provided these assurances in writing through the Camp David peace treaty, the Saudis have given them orally, with no treaty in place.

Of course, written reassurances do not guarantee that any terms of an agreement will never be breached. Yet, putting things on paper does create more difficulties for States to overwrite them. All States want to appear as adhering to international law. This is easier if due to the written form, it is clear from the beginning what these international law obligations are and States undertake with no doubts and asterisks the obligation to adhere to certain standards. Consequently, if these standards are breached, it is easier to protest before the international community, claim damages or the right to self-defence if a plausible threat is perceived to be stemming from the change of the circumstances.

By not insisting on such written Saudi reassurances, Israel erred in its international law appraisal. The security and defence officials might have been correct that insistence on these legal details should not stand in the way for Israel to approve the transfer, but the law officials could have maybe put forth their voices also in a starker tone. Quite interestingly, not only from an international law, but also from a domestic law perspective.

The transfer of the islands from Israel to Egypt changed the terms of the Camp David accords between the two countries. Yet, this was done with no Knesset intervention. This, contrary to the fact that such parliamentary intervention did take place in 2006, when the Gaza disengagement brought forth an alteration to the Camp David terms and despite a constitutional custom according to which all major political agreements are to be approved by the Knesset. It is noteworthy that the Egyptian parliament did have a saying to Egypt’s decision to consequently pass the islands’ sovereignty to Saudi Arabia.

Through the transfer, Israeli law was weakened also on political semantics. Already in the end of the ‘90s with Ehud Barak’s then government serving ahead of the proclamation of general elections, the Supreme Court held that a transitional government cannot negotiate and sign peace treaties and agreements that will bind the State in the future. With the November elections already formally declared, it is questionable whether the current government had the legal leverage to consent on behalf of the State for such transfer to take place, given the issue’s wider national security importance.

The current transfer can be seen as the last act of a play unveiling already from 2016 when Israel yielded sovereignty of the islands to Egypt. The continuity of the same policy for all these years despite the change of governments, arguably shows how the matter does not cause rifts along the political spectrum. This would be the good scenario.

Skeptical thinkers might though also ask whether the islands’ transfer highlights the power officials and technocrats can exert to policy making due to the frequent change of politicians in the different posts. After all, as the current round of violence shows that in Israel, sometimes security issues tend to be treated on a delay-policy basis, for when the problem will emerge, in a concealed hope that this will never occur. Yet, like in the case of Gaza, also in the current transfer of the islands, it is leadership-inspired decisions that our times call for. This is an interesting lesson for the Israeli public to think about in light of the coming elections.

About the Author
Dr. Solon Solomon is lecturer in law, holding degrees from the Hebrew University and King's College London and in the past has served in the Knesset Legal Department on international and constitutional issues
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