The controlling instrument on the ground in the West Bank, the Israeli-Palestinian Interim Agreement of 28 September 1995, splits the territory into 3 kinds of jurisdiction and assigns title to none of them. The Interim Agreement states in its own final clauses that nothing in it prejudices the permanent status and that neither party has waived any existing right, claim or position. Beneath it sits Military Order 59 of 31 July 1967, which states that property Jordan held on 7 June 1967 vests in a Custodian of Government Property. Water ownership and import-tax revenue are each answered by a committee and a clearance rule rather than by an owner, and Israel’s Supreme Court held in 1979 that a military administration may not create facts intended to outlast its rule while the fate of the territory is still unknown. Everyone arguing about who owns this ground is arguing about documents. So what do the documents say?
Key Findings
- Article XXXI of the Interim Agreement states that “Nothing in this Agreement shall prejudice or preempt the outcome of the negotiations on the permanent status,” and that neither party is deemed to have “renounced or waived any of its existing rights, claims or positions.” The clause after it bars either side from taking any step that changes the status of the West Bank and the Gaza Strip.
- Article XVII states 3 jurisdictions rather than one title: territorial jurisdiction over West Bank territory “except for Area C,” functional jurisdiction over the powers transferred to the Council, and personal jurisdiction over “all persons, except for Israelis.” The same article places 7 named subjects outside Palestinian jurisdiction altogether.
- Article XI states that land in Areas A and B comes under the Council’s jurisdiction, “including government and Al Waqf land,” and that in Area C Israel transfers only “civil powers and responsibilities not relating to territory.” The Agreement prints no area percentage anywhere in its text.
- Military Order 59, signed on 31 July 1967 by the Commander of IDF Forces in the West Bank Area and published in its own Collection of Proclamations, Orders and Appointments, states that the determining day is 7 June 1967 and vests property that belonged on that day to Jordan or another enemy state in a Custodian of Government Property.
- The Montevideo Convention of 1933 states in Article 1 that a state “should possess” 4 qualifications, the second of which is “a defined territory.”
Which instrument assigns sovereignty over the whole territory?
None of them does, and the Interim Agreement of 28 September 1995 states as much in three consecutive final clauses. Article XXXI provides that nothing in the Agreement “shall prejudice or preempt the outcome of the negotiations on the permanent status,” and that neither party is deemed “to have renounced or waived any of its existing rights, claims or positions.”
The clause that follows is the freeze. Article XXXI states that “Neither side shall initiate or take any step that will change the status of the West Bank and the Gaza Strip pending the outcome of the permanent status negotiations.” It is symmetrical on its face and binds both parties, as does the non-waiver before it. The clause after that, repeating Article XI, records that the two sides “view the West Bank and the Gaza Strip as a single territorial unit.”
Three clauses, and each withholds a decision rather than making one. The Agreement was signed at Washington DC by Israel and the PLO, and it runs to a main text plus annexes, appendices and maps, which the Interim Agreement states “shall constitute an integral part hereof.” The schedules, the committee protocols and the maps are the instrument rather than commentary on it, and across all of that apparatus no clause names a sovereign over the territory it governs.
That is not something a reader has to infer from silence. The Agreement states in terms that the permanent status is unresolved, that entering into it cost neither side a claim it already held, and that neither side may change the status of the ground while the question stays open. A document drafted to settle ownership would have to say the opposite of all three.
How does the 1995 agreement divide jurisdiction?
Three ways, and the Interim Agreement states all of them in Article XVII. Territorial jurisdiction covers West Bank territory “except for Area C” and “includes land, subsoil and territorial waters.” Functional jurisdiction “extends to all powers and responsibilities transferred to the Council.” Personal jurisdiction applies “to all persons, except for Israelis.” One of the three excludes a territory; one excludes a class of persons.
| Jurisdiction | What the Agreement says it covers | What the Agreement excludes from it |
|---|---|---|
| Territorial | West Bank territory, and it “includes land, subsoil and territorial waters” | Area C |
| Functional | “All powers and responsibilities transferred to the Council” | Anything not transferred |
| Personal | “All persons” | Israelis |
Source: Israel and the PLO, 1995, Interim Agreement, Article XVII(2).
The three do not stack neatly, and the text says so. Article XVII records a notwithstanding clause: “the Council shall have functional jurisdiction in Area C, as detailed in Article IV of Annex III.” So the territory carved out of territorial jurisdiction is carved back in for a defined list of functions, and a reader who wants to know what the Council may do in Area C has to leave the article and go to an annex.
Each of the three is defined by what it reaches, not by who owns what it reaches. Territorial jurisdiction covers land, subsoil and waters, which is the vocabulary of a power to govern a space rather than a claim to hold it. Functional jurisdiction exists only to the extent of a transfer, so another document measures it. Personal jurisdiction is drawn around a class of people rather than a place.
That is the shape of the whole instrument in one article. It settles what may be done, by whom, where and to whom, four questions that can all be answered without answering the fifth.
Does Israel hold effective control over the land?
It is often said that Israel holds effective control over the West Bank, and the signed Agreement states it in its own words. Article XVII records that “Israel, through its military government, has the authority over areas that are not under the territorial jurisdiction of the Council, powers and responsibilities not transferred to the Council and Israelis.”
The carve-out list sits in the same article. Article XVII states that outside the Council’s jurisdiction lie “Jerusalem, settlements, specified military locations, Palestinian refugees, borders, foreign relations and Israelis.” That is 7 named subjects removed from Palestinian jurisdiction by the agreement itself, and they are not marginal ones: they include the city, the borders, the settlements and the refugees.
Security is split the same way and by area. Article XIII states that the Council assumes “the powers and responsibilities for internal security and public order in Area A.” In Area B, Israel transfers responsibility for public order for Palestinians, while “Israel shall have the overriding responsibility for security for the purpose of protecting Israelis and confronting the threat of terrorism,” with 25 Palestinian police stations and posts provided for.
So the common statement is well founded, and the specific version of it is the stronger one, because it arrives with clause numbers attached. What the Interim Agreement records is an authority defined residually: Israel holds what was not transferred, over the areas that are not under the Council’s territorial jurisdiction, plus a class of persons. A residual authority is a wide one, and it widens further the less that is transferred.
None of that is a statement about title. Authority over an area and ownership of it are different legal facts produced by different clauses, and this Agreement writes only the first kind.
Which land did the agreement transfer, and which not?
Land in Areas A and B, and in Area C powers only. Article XI of the Interim Agreement states that “Land in populated areas (Areas A and B), including government and Al Waqf land, will come under the jurisdiction of the Council during the first phase of redeployment,” while in Area C “Israel will transfer to the Council civil powers and responsibilities not relating to territory.”
The four words that carry the section are “not relating to territory.” In two areas the land itself moves under a jurisdiction; in the third, a list of civil functions moves and the territory is expressly kept out of the transfer.
| Area | How the Agreement defines it | What Article XI transfers |
|---|---|---|
| Area A | “The populated areas delineated by a red line and shaded in brown on attached map No. 1” | Land, “including government and Al Waqf land” |
| Area B | Populated areas “shaded in yellow,” plus the built-up hamlets listed in an appendix | Land, on the same terms as Area A |
| Area C | “Areas of the West Bank outside Areas A and B” | “Civil powers and responsibilities not relating to territory” |
Source: Israel and the PLO, 1995, Interim Agreement, Articles XI(2) and XI(3).
Two areas are defined by a colour on a map and the third as the remainder, which is why the familiar percentages for Area C are not in this document. The words “per cent” appear once in the main Agreement, in the article on appointments to the Executive Authority, and nowhere in relation to territory. Any share quoted for Area C is a later measurement by another body, and the report on the published measurements of land taken sets out what those bodies counted.
Article XII closes the loop between the areas and the settlements. It states that “‘the Settlements’ means, in the West Bank the settlements in Area C,” so the area from which territory was withheld is by definition the area where the settlements are.
Which questions did the parties defer to permanent status?
The parties enumerated 6 subjects themselves, and added a residual clause. Article XXXI of the Interim Agreement states that permanent status negotiations “will commence as soon as possible, but not later than May 4, 1996,” and that they “shall cover remaining issues, including: Jerusalem, refugees, settlements, security arrangements, borders, relations and cooperation with other neighbors, and other issues of common interest.”
This is the parties’ own list, written into the instrument they both signed, and it is a better answer to what is unresolved than any later summary of it. Three of the 6 subjects, Jerusalem, settlements and borders, also appear on the Article XVII list of matters outside the Council’s jurisdiction. The same subjects are therefore excluded from Palestinian jurisdiction during the interim period and reserved for a negotiation about the period after it, which is a deliberate pairing rather than a coincidence of drafting.
The date is the only hard figure in the clause. Permanent status talks were to commence no later than 4 May 1996, a deadline the Interim Agreement fixes to the day and attaches to no outcome.
The list is not exhaustive of what the Agreement defers, and reading it as a complete inventory understates the deferral. Annex III states that water rights and the ownership of water and sewage infrastructure go to the same negotiation, and the enumeration itself leaves open a wider category of “other issues of common interest.”
What the clause does not do is indicate an outcome for any subject on it. The Interim Agreement records the list and the deadline, and the two clauses quoted in the first section above state plainly that nothing in it anticipates how any of them will be resolved.
How long was the interim division meant to run?
Eighteen months, on the face of Annex I to the Interim Agreement. Annex I states that there are three further redeployments, “each to take place after an interval of six months,” to be completed “within 18 months from the date of the inauguration of the Council,” and that after the Council is inaugurated “the Israeli Civil Administration will be dissolved and the Israeli military government will be withdrawn.”
Article XI of the main text records the same schedule, and an appendix to Annex I names the three phases at six, twelve and eighteen months. The structure is a clock: a starting event, three intervals, and a described end state in which one administration is dissolved and the other withdrawn.
The 18 months is what the text promises, and it is never a description of what happened. That the interim period has now run for three decades is a fact about the years since 1995, established by other records and dated by them, and this instrument cannot be cited for it. The distinction governs the whole section: a schedule written into an agreement is evidence of an intention on the day of signature and of nothing later.
It bears on the ownership question in one specific way. The division into three areas, the residual authority described above, and the custody arrangements described below were all drafted as temporary allocations pending a negotiation with a start date attached. A temporary allocation is a weak instrument to read a permanent title out of, and the Interim Agreement states that it is not to be read that way.
Who holds the property that was Jordan’s on 7 June 1967?
Military Order 59, signed on 31 July 1967, vested it in a Custodian of Government Property. The order states that the determining day is 7 June 1967 and defines Government Property to include property that belonged on that day to an enemy state, defined as “the Hashemite Kingdom of Jordan or any other enemy state,” including a corporation in which such a state held any right, direct or indirect.
The operative provision is one sentence. Military Order 59 states that the Custodian may take possession of government property and take any step he deems necessary for that purpose. A later article records the good-faith rule: a transaction made in good faith between the Custodian and another person, over property the Custodian took at the time for government property, stands “even if it is proved that the property was not government property at that time.”
The order runs to 8 articles, is published by the issuing authority in its own Collection of Proclamations, Orders and Appointments, and entered into force on 7 July 1967, twenty-four days before the date it carries as its signature. No official English text of it exists there or anywhere else the issuing authority publishes, so every English wording in circulation is a working rendering rather than the instrument.
Two absences in the 1967 text are worth stating precisely, because later machinery is often attached to this order that is not in it. The eight articles carry no declaration procedure, no objection window and no appeals committee. What they carry is a definition keyed to a single date, a custodian, and a rule protecting transactions the custodian makes.
Custody is not title, and the order does not claim it is. It moves the holding of property from a state that no longer administers the territory to an officer appointed by the military commander who does, and leaves ownership where it found it. Who held title to particular ground before 1948 is a separate record, read in the report on who owned the land of Palestine.
Who owns the water under the West Bank?
The Interim Agreement recognizes a right and defers the ownership in the same paragraph. Annex III states: “Israel recognizes the Palestinian water rights in the West Bank. These will be negotiated in the permanent status negotiations and settled in the Permanent Status Agreement relating to the various water resources.” A later paragraph defers ownership of the water and sewage infrastructure the same way.
What the instrument supplies in place of an owner is a committee. Annex III establishes a permanent Joint Water Committee, gives it “an equal number of representatives from each side,” and states that “All decisions of the JWC shall be reached by consensus, including the agenda, its procedures and other matters.” A schedule to the same article states that prior committee approval is mandatory for all licensing and drilling of new wells and all development of water resources “by either side.”
That schedule is headed “Data Concerning Aquifers” and it is not the quota schedule. Annex III required the committee to prepare a separate schedule of extraction quotas within three months of signature and to update it yearly, and the aquifer data was to be the basis and guidelines for the committee’s work rather than the allocation itself. The widely quoted figure of 118 million cubic metres for the Palestinian share is arithmetic performed on the six Palestinian lines of that data table, and it appears nowhere in the text.
Whether a consensus rule with parity of representation produced a veto, a deadlock or something else is an empirical question about the years since 1995, and no clause answers it. Article 40 also governs the West Bank alone: a closing paragraph leaves the prior arrangements for the Gaza Strip unchanged.
Who owns the import taxes collected at the crossings?
The Paris Protocol of 29 April 1994 answers with a clearance rule rather than an owner. Article III states that clearance “will be based on the principle of the place of final destination,” and that “This revenue clearance will be effected within six working days from the day of collection of the said taxes and levies.” Its 1995 Supplement adds a 3% deduction.
The Supplement is explicit about what the deduction is for: “Israel will deduct 3% from each transfer to the Palestinian side of import taxes and other indirect taxes, in order to cover Israel’s administrative costs in collecting these taxes and in handling matters related to them.” The 3% belongs to the 1995 Supplement and not to the 1994 Protocol, a seventeen-month misdating that is the standing error made about this instrument.
The customs envelope sits around all of it. The Paris Protocol states that, except for goods on named lists, both sides “will maintain the same import policy … and regulations including classification, valuation and other customs procedures,” as applied by Israel to its own importation. Revenue is therefore collected inside one policy and then divided by a destination test.
The Protocol contains no withholding power and no suspension clause. Nothing in Article III authorises either side to hold back cleared revenue, and the only interval the text names is the six working days. A transfer that does not arrive is conduct measured against that clause, never a provision of it, and the ownership of the revenue is settled by a rule about where the goods were going rather than by any statement about whose money it is.
Can a temporary requisition support a permanent settlement?
Israel’s Supreme Court held that it cannot, on an independent ground, in 1979. In HCJ 390/79 the Court ruled that “a military administration cannot create within its territory ‘facts on the ground’ for the purposes of its military needs that were in advance intended to exist past the end of the military rule in that area, when the fate of the territory after the end of the military rule is yet unknown.”
The judgment states that this ground “stands independently, even without regard to the other reasons I have so far detailed.” The order nisi was made absolute over the petitioners’ registered plots, about 125 dunams inside an order of possession covering about 700 dunams, and the respondents were given 30 days to comply.
What the Court did not hold matters as much as what it did. Israel’s Supreme Court recorded expressly that possession of privately owned land for a civilian settlement “is potentially justified under Article 52 of the Hague Regulations,” and the petition succeeded on the facts of that one requisition, where the Court found the political level had initiated the settlement and the military approval had followed. The rule that settlements be established only on State land is a government resolution taken after this judgment, not a holding inside it, and no settlement, settler or land-area total can be derived from the case.
The judgment was given on 22 October 1979, a date worth stating because the English translation in general circulation prints 10 October on its closing line.
The sentence that travels furthest is the one about the unknown fate of the territory. Israel’s Supreme Court stated in 1979 that the ownership of the ground was an open question, and the agreement signed sixteen years later stated the same thing in its own final clauses. Two instruments of very different kinds, a domestic judgment and a bilateral agreement, decline the question in almost the same words.
What does the 1933 treaty standard require of a state?
Four qualifications, and the Montevideo Convention of 1933 states them in a single article. Article 1 provides that a state “should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.”
Three features of that sentence are routinely misquoted and each changes what it asks. The Montevideo Convention states “should possess,” not “must.” The third qualification is “government,” bare, and the word “effective” appears nowhere in Article 1. The fourth is capacity to enter into relations with “the other states,” a definite article usually dropped in the quoting.
The Convention separates statehood from recognition. The Montevideo Convention states that “The political existence of the state is independent of recognition by the other states,” and that even before recognition a state may defend its integrity, organize itself and define the jurisdiction of its courts. Article 11 records “the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force.” How many states have extended recognition to Palestine, and when that changed, is a separate count, set out in the report on the statehood votes.
Four limits belong with the four qualifications. The Convention names no organ to decide whether an entity satisfies Article 1. It is a regional treaty, signed at Montevideo by nineteen American republics, and binds each party only from the deposit of its own ratification. Its English and Spanish columns are both authentic and do not read identically. And on Article 11 the delegates of Brazil and Peru recorded “that they accept the doctrine in principle but that they do not consider it codifiable.”
Set against that second qualification, a defined territory, the instruments read above define jurisdictions, custodies, committees and clearance rules. What they do not define is the thing the qualification asks for.
Methodology
This report reads 5 primary instruments and states what each one says. Every quotation is from an enacted or signed text: the Israeli-Palestinian Interim Agreement of 28 September 1995 with its Annexes I and III, in the English version published by the Israeli Ministry of Foreign Affairs, one of the two signatories; Military Order 59 of 1967, published by the issuing authority in its own Collection of Proclamations, Orders and Appointments; the Protocol on Economic Relations of 29 April 1994 and its 1995 Supplement; the judgment in HCJ 390/79; and the Convention on Rights and Duties of States of 1933, read from the depositary’s scan.
The frame is documentary: what the instruments provide, and what each leaves to a later negotiation. Nothing here weighs the historical claims the same territory attracts, and no quantity is derived that the texts do not print, which is why no area percentage, no water allocation total and no settlement count appears above.
Three translation limits bind the quotations. Military Order 59 has no official English text, so its provisions are described from the Hebrew rather than quoted in English; the 1979 judgment is quoted from the Cardozo Israeli Supreme Court Project translation, which is not the court’s own English and misprints the judgment date; and the Montevideo Convention was signed in four languages, of which the English and Spanish columns differ in force on Article 1.
Two retrieval facts are worth recording because they affect who can check this. The Israeli government site returns an error to ordinary fetching and serves the Oslo and Paris Protocol pages as a JavaScript application, and the Supreme Court’s own site resets automated connections. Both are obstacles to a machine and not to a human reader, who can open these texts in a browser.
One gap is real and is not filled here. These instruments govern the West Bank; Annex III leaves the prior water arrangements for the Gaza Strip unchanged, and no instrument governing jurisdiction in Gaza after 2005 was consulted. Nor does any source read here measure how the ownership framing relates to antisemitism, so that question is recorded as unanswered rather than answered thinly.
Conclusion
Everyone arguing about who owns this ground is arguing about documents, and the West Bank instruments answer the same way: by stating what they are not deciding. The Interim Agreement divides jurisdiction three ways and records in three consecutive final clauses that it prejudices nothing, waives nothing and permits neither side to change the status of the territory. It transfers land in two areas and, in the third, only powers not relating to territory. It lists the subjects the parties left for later, with a date attached to the conversation and nothing attached to the outcome.
The instruments underneath it behave identically across every kind of thing that can be owned. Land in Area C is held back from a transfer that moves land elsewhere. Property that was Jordan’s on a fixed day in June 1967 went to a custodian with power to take possession and a clause protecting his transactions, which is a holding arrangement rather than a title. Water rights are recognized in one sentence and deferred in the next, with a parity committee deciding by consensus in place of an owner. Import revenue is divided by where the goods were going. And Israel’s Supreme Court, sixteen years before the Agreement, described the fate of the territory as yet unknown.
The Montevideo Convention asks a state for a permanent population, a defined territory, government, and the capacity to enter into relations with other states. Four qualifications, and the second is the one every instrument here declines to supply. That is a strange result for a question people fight about with such certainty, and it leaves a plainer one behind. If the documents that actually govern this ground were drafted to avoid deciding who owns it, what is being asserted when someone says the answer is obvious?
Frequently Asked Questions
Why do these instruments cover the West Bank and not Gaza?
Because that is how they are scoped. Annex III states that water arrangements for the Gaza Strip remain unchanged, and Military Order 59 was issued by the commander of the West Bank area. The Interim Agreement does record that the two sides view the West Bank and the Gaza Strip as “a single territorial unit,” which is a statement about status rather than a common set of operating provisions.
Does the Interim Agreement say what share of the West Bank Area C is?
No. The words “per cent” appear once in the main Agreement, in an article about appointments to the Executive Authority, and never in relation to territory. Article XI states that Areas A and B are defined by a red line and a colour on an attached map and that Area C is whatever lies outside them, so any percentage comes from a later measurement by another body.
Does the Elon Moreh judgment mean settlements are unlawful?
No, and the judgment says so directly. Israel’s Supreme Court held in HCJ 390/79 that taking possession of privately owned land for a civilian settlement “is potentially justified under Article 52 of the Hague Regulations,” and struck down the particular order of possession because it found the decision had been driven by the political level rather than by a military need.
Is there an official English text of Military Order 59?
There is not. The order is published in Hebrew and Arabic in the issuing authority’s Collection of Proclamations, Orders and Appointments, and no English version appears there. Every English wording in circulation is an unofficial rendering by whoever translated it, which is why this report describes its provisions rather than quoting them.
How large is a dunam, the unit used in the Elon Moreh judgment?
A metric dunam is 1,000 square metres, a tenth of a hectare. The petitioners’ registered plots in that case were about 125 dunams, roughly 0.125 square kilometres, inside an order of possession that covered about 700 dunams.
Does the Montevideo Convention bind states outside the Americas?
Not by its own terms. It was signed at Montevideo by nineteen American republics, and the Montevideo Convention states that ratifications are deposited with the Pan American Union and that it enters into force between the parties in the order in which they deposit them. Whether Article 1 also states customary law binding beyond the parties is an argument made in the legal literature, not a claim the treaty makes about itself.
Sources
- Commander of IDF Forces in the West Bank Area, 1967. Military Order 59, Order Concerning Government Property. Collection of Proclamations, Orders and Appointments, booklet 5, page 162; idf.il. Primary and official record (security legislation as enacted).
- Government of the State of Israel and the P.L.O., 1994. Protocol on Economic Relations (the Paris Protocol), with its 1995 Supplement. Paris, 29 April 1994; Annex IV to the Gaza-Jericho Agreement, supplemented by Annex V to the Interim Agreement; gov.il. Primary and official record (treaty text).
- Israel and the PLO, 1995. The Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II), with Annexes I and III. Signed Washington DC, 28 September 1995; gov.il. Primary and official record (the instrument itself).
- Israeli Supreme Court, 1979. HCJ 390/79 Dweikat v. Government of Israel (the Elon Moreh case). Judgment of 22 October 1979; English translation, Cardozo Israeli Supreme Court Project, versa.cardozo.yu.edu. Official record (court judgment, unofficial English translation).
- Seventh International Conference of American States, 1933. Convention on Rights and Duties of States (the Montevideo Convention). Signed Montevideo, 26 December 1933; Organization of American States as depositary, oas.org. Primary and official record (treaty text).