On August 4 2019, Egypt’s official gazette published Presidential Decree No. 380 of 2019, which reallocated 47 islands in the Red Sea Governorate to the Armed Forces on the basis that they were strategic territories of military importance.[1] As anticipated, the decree has rekindled the controversy surrounding the military’s dominance over the majority of Egypt’s uninhabited territory, and the extension of the Armed Forces’ economic activities into multiple sectors.[2] While the primary, declared objective behind the decree was the islands’ military significance from a security standpoint, its statutes also permit the utilization of most of the islands for tourism and diving.[3] This discrepancy between the alleged purpose of the decree and its actual contents, which permit other activities, has raised many doubts about its legitimacy. The use of the justification of the islands’ “strategic importance” appears to be a pretext for taking control of the islands and benefitting from the revenue they generate.

Additionally, the Red Sea islands affected by the decree are considered to be natural reserves in accordance with previous decrees issued by the Egyptian Cabinet.[4] They are also covered by protections conferred by the Law on Natural Reserves.[5] The decree, however, disregards these protections, and treats these islands as “privately held state lands.”[6] But as this article will explain, this is not the case. This article will address the problems with the way the state is administering this property and the procedures that ought to be followed in order to transfer these assets from public ownership to state-held private property. 

 

Legal Status of the Islands Affected by the Reallocation Decree

Before addressing the decree itself we must consider the nature of these islands and their level of economic and touristic importance. The reallocation decree includes Giftun Island, one of the best-known touristic islands in the Red Sea Governorate; thousands of Egyptians are very familiar with it and travel there during their summer vacations.[7] The island is one of Egypt’s most famous natural reserves.[8] The other islands named in the decree are also considered natural reserves in accordance with Decree No. 1618 of 2006, issued by the Cabinet, and Decree No. 642 of 1995 concerning the establishment of natural reserves in the Elba Region of the Red Sea Governorate.[9][10]

Based on these decrees and in accordance with the statutes of the Law on Natural Reserves, these islands enjoy special protection and a unique legal status distinct from other islands. This law’s second article stipulates that “it shall be prohibited to carry out work, behavior, activities or measures that destroy, damage or degrade the natural environment, or which harm wildlife, marine life, or plant life, or infringe upon its level of beauty as a protected area.” Article 3 of the same law states that any activity or work within a reserve can only take place after the issuance of “a decree by a competent minister (the prime minister) –– based on a proposal from the Environmental Affairs Agency to the Cabinet.”

 

Natural Reserves are Public Not State Property

Natural reserves are considered among the natural resources of the state, and the framers of the Egyptian Constitution gave them special attention. According to the Constitution, “the state is obligated to protect its seas, beaches, lakes, and waterways, as well as its natural reserves. It is prohibited from encroaching upon them, polluting them, or using them in a manner that contradicts their nature. Every citizen is guaranteed the right to enjoy them.”[11] Likewise, it states that “the state’s natural resources belong to the people. The state is obligated to preserve such resources, to utilize them in a sound manner, to prevent their depletion, and to take into consideration the rights of future generations to them.”[12] Furthermore, it places natural reserves within the framework of public assets of which the state is a steward and cannot administer freely.

We can also refer to the basic principles by which the civil code differentiates between what constitutes a public good versus the private assets of the state. According to Article 87 of the code, public property is any “immovable or movable property owned by the State or other public legal persons and allocated for the public benefit either in fact or by virtue of a law or a regulation or a decree by the competent minister.” This provision applies to the status of the islands within the decree, which became natural reserves in accordance with decrees issued by the prime minister and upon the recommendation of the Environmental Affairs Agency. Article 88 of the civil code also stipulates that in order to remove the status of public property from real estate or movable property such that it is no longer designated for public benefit, that reallocation must be enacted by way of a law, regulation, or decree from the competent minister.

What this means is that even if these islands, as natural reserves, are stripped of their status as public goods, the prime minister must also issue a new decree stating the removal of those areas from the list of natural reserves; such a decree must also include the reasons for its issuance. The distinction between state property that is public property and state property that falls within the state’s private holdings is the decisive factor when it comes to undertaking any action regarding that property. The state’s authority over publicly held property is an administrative authority. It is more akin to trusteeship or stewardship than it is an authority to administer freely or exploit. By contrast, the state’s authority over its privately held property does comprise using, investing in, and capitalizing on that property.

At the same time, public property is divided into numerous subclassifications. One of these is “natural,” which applies to property that exists in its natural state, without the interference of humans. This includes beaches, rivers, lakes, and natural reserves. There is also legal or industrial public property, which is manmade, such as roads and streets. The significance of this distinction emerges when and if a property’s public ownership status is removed: natural public properties, like beaches and seas and rivers, only lose this status for natural reasons, such as a river deviating from its original course, or the disappearance of rare natural features from a natural reserve. This is because its public benefit hinges upon its indelible nature.[13] The Egyptian judiciary and Egyptian jurisprudence have followed this division for decades.[14] Accordingly, the islands in the reallocation decree, which carry the status of natural reserves, did not lose their classification as public property, and they will not lose that classification so long as they retain their distinctive environmental characteristics. Furthermore there is no possible way they can be transferred from the ownership of the public to the private holdings of the state. For this reason were are certain that the decree violates the law in treating these islands as the state’s private property, which, as we have shown, it is not.

 

Classifying Territories and Islands as Strategic Territory with Military Significance

The president’s reallocation decree declaring these Red Sea islands as strategic territories of military importance is not the first of its kind by any means. Egyptian presidents have issued decrees like this from time to time. But it is worth pointing out that the pace of issuing decrees that allocate territory to the Armed Forces has increased notably since 2013.[15] At the same time it has become customary for such decrees to be issued without providing justification: they simply state that territories “have military importance.” This prompts us to question the level of transparency in issuing such decrees, especially given that the majority of territories that have been reallocated in this way have distinctive geographical features that, if exploited, could render them economic and touristic attractions.

For example, the issue of the Official Gazette that included Decree 380 of 2019, regarding the Red Sea islands, included two other decrees reallocating additional territories to the Armed Forces, also for reasons of military significance. One of these reallocated nearly a million feddans of land on the eastern side of the Sharm el-Sheikh channel to the Armed Forces. Because of its prime location on the coast of the Gulf of Suez, this particular region is expected to see investment by the marine shipping industry.[16] The other decree reallocated about 200,000 feddans of coastal territory in the regions of Zafrana and Gamsha Bay in the South Sinai Governorate, also deeming them to be of military importance.[17]

Here it is necessary to point out that judicial oversight of these decrees is nearly impossible. For the administrative judiciary to issue a ruling, a necessary condition is the personal interest of those challenging the decree. This is clear from one of the cases that was raised in order to nullify a decree reallocating the island of Qursaya, located in the Nile River in Giza, to the Armed Forces: the court did not accept the case because it did not meet this condition.[18]

 

Conclusion

Given the established principles of civil law on the matter, the question of transferring state-owned real estate and movable property from public ownership to the state’s private ownership has never been raised as an issue for debate within the legal arena. But given that information has been withheld, and legal principles and their statutes have been ignored by the state in the case of the decree discussed here, we must call attention to these guiding principles and shed light on them. 

Even if we were to presume that these territories were privately held by the state, a decree justifying their reallocation would still need to be presented to an administrative body rather than merely giving the constantly invoked specter of “military importance” as a reason.

What we are witnessing is the expanding legalization of military control over all unpopulated Egyptian territory. This is only one of many measures that the military establishment is taking in order to impose its economic control and investment ventures in Egypt’s resources across the map.

 

This article is an edited translation from Arabic. 

 

Keywords: Egypt, Armed Forces, Islands, Public Property

 

[1] “Presidential decree reallocates 47 Red Sea islands for the armed forces,” al-Tahrir, 7 August 2019.

[2] “The army’s economic imperialism: the ruling authority’s support threatens the influence of the private sector,” Mada Masr, 24 December 2014. 

[3] See the table attached to the decree, which includes a statement regarding each island.

[4] Cabinet Decrees No. 642 of 1995 regarding the establishment of natural reserves in the Elba Region of the Red Sea Governorate, and No. 1618 of 2006, regarding the establishment of natural reserves on the northern islands of the Red Sea. See also the official website of the Ministry of the Environment. 

[5] Law No. 102 of 1983.

[6] The first article of the reallocation decree, No. 380 of 2019, issued recently. 

[7] The official website of Giftun Island describes the charming nature of the island and the various activities that take place there. 

[8] According to Cabinet Decree No. 642 of 1995, both Giftun Kabir and Giftun Sughayir (the large and small islands) are considered natural reserves.

[9] According to the decree, the region of the Northern Red Sea islands are included as natural reserves. The following islands are covered by this designation: Ghanim, al-Ashrafi (3 islands), Qaysum al-Shamaliya, Qaysum al-Junubiyya, Umm al-Haba’at al-Kabir, Umm al-Hamayat al-Sughayir, Sha’ab Gwayal, Gwayal al-Sughra, Umm al-Bisan, Tiwal, Dahar Qaysum al-Hamra, Sayul al-Kubra, Sayul al-Sughra, Umm Qamar, al-Fanadir, al-Mitin (3 islands).

[10] The decree covered the following islands: Giftun Kabir, Giftun Sughayir, Abu Rumani, Abu Minqar, Umm Gawish (2 islands), Sahl Hasheesh, Sa’dan, Umm al-Garsan, Tubiya, Safaga, Wadi Gamal, Qalqa’an, Sayul, Shawarit, Mahabis, Maku’, Maryar, Siyal (3 islands), the two islands of Rawabil, Diba, Kulala, Halib Kebir, al-Akharayn Islands, Abu al-Kizan, Sha’b Daedalus, and Zabargad Island.

[11] Article 45 of the 2014 Constitution.

[12] Article 32 of the 2014 Constitution.

[13] The principles issued by the General Assembly of the Sections of Religious Legal rulings and Legislation, Ruling No. 161 of 1998, 16 February 1998.

[14] See: Abd al-Razzaq al-Sanhuri, Explanation of the Civil Code, Volume VIII: Property Rights, Section I: Division of Material Items into Real Estate and Movable Property, pp. 11-49.

[15] Examining issues of the Official Gazette issued after 2013 one notices there has been an increase in the number of privatization decrees after 2013 in comparison with what came before.

[16] Presidential Decree No. 379 of 2019, 4 August 2019.

[17] Presidential Decree No. 378 of 2019, 4 August 2019.

[18] Administrative Court, Ruling No. 21604 of Judicial Year 76, Session held 17 March 2015.