A Recent Agreement on the Holy Places
in Jerusalem
Ruth Lapidoth
Ruth Lapidoth is the Bessie and Michael Greenblatt Professor Emeritus in International Law
at the Hebrew University of Jerusalem and is a senior researcher at the Jerusalem Institute
for Israel Studies. She is the author, among other books, of The Basic Law: Jerusalem
Capital of Israel, which was published in Hebrew. For excellence in legal research, Prof.
Lapidoth was awarded the Israel Prize (2006).
On March 31, 2013 an “Agreement to Jointly Defend Al Masjid Al Aqsa” was
signed in Amman1 by King Abdullah II of Jordan and Dr. Mahmoud Abbas, head
of the Palestinian Authority (President of Palestine) and of the PLO. Although
rather short—a preamble and three articles—it raises several legal and political
questions, some of which are to be examined in the following pages.
The highlights of the agreement are indicated here, followed by an examination of
certain general questions concerning the agreement and by a specific analysis of
the Holy Places envisaged as well as of the powers of the custodian.
The contents of the agreement are much more extensive than its title would
suggest. Its central theme is the recognition that the Hashemite King of Jordan
is the custodian of the Holy Places in Jerusalem. The agreement also defines the
Holy Places envisaged as well as his duties and powers as custodian. According to
the agreement, King Abdullah serves in this capacity as descendant of the Sharif
Hussein bin Ali of Mecca, who was the Caliph of Islam in 1924 (from March until
October).2
The recognition of the king as the custodian of the Holy Places in Jerusalem is not
self-evident, since in the past this was not always agreed to by the Palestinians.3
The agreement also recognizes Palestinian self-determination and Palestinian
sovereignty over the land where the Holy Places are situated. This is reminiscent
of the “law on the capital” adopted by the Palestinian Legislative Council in 2002,
which asserts Palestinian sovereignty over Jerusalem and its Holy Places.4 As to
Jordan’s disengagement from the West Bank in July 1988,5 the agreement states
that this does not apply to the Holy Places in Jerusalem.6 The agreement also
includes a laconic reference to other religions: “…bearing in mind the significance
of Jerusalem to those of other faiths.”7
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General Observations
The first question that comes to mind is whether this text is a legally binding
agreement or merely a political declaration.8 The contents of the document
demonstrate that the parties intended it to be a legally binding agreement, since
it states expressly: “Intending to establish legal obligations and to affirm their
recognition of the legal status of the Parties set out in this agreement.”9
A more subtle question concerns King Abdullah: Did he sign the agreement only
in his personal capacity as descendant of the Caliph Sharif Hussein bin Ali and
of the prophet Muhammad, or did he also intend to create rights and obligations
for the Kingdom of Jordan? Although the language used might also imply that
he acted only in his personal capacity, it seems more reasonable to assume that he
also acted as head of state.10
As to the authority to conclude this agreement, the king, as head of state, and
Abbas, as head of the Palestinian Authority (the State of Palestine), and the PLO,
was empowered to do so under international law.11
The agreement does not say whether it came into force with the signing of the
parties or whether it required ratification by the respective national authorities.
It seems, however, that the circumstances themselves suggest that no ratification
was necessary—the contents and the language of the text lead us to this conclusion
(see Vienna Convention on the Law of Treaties, Article 12).
A question can be raised, if not about the authority of Abbas, then about the
capacity of the Palestinians to conclude this agreement. This is so since the
object of the agreement is not included in the purposes for which the PLO was
empowered to conclude agreements for the benefit of the Palestinians according
to the Israeli–Palestinian Interim Agreement on the West Bank and the Gaza
Strip of September 1995.12 However, this limitation and most other limitations in
the sphere of foreign affairs are no longer implemented in practice.
Lastly, the question arises about the validity of an agreement between two parties,
neither of which controls the relevant area. It is not illegal to conclude an agreement
of this kind, and its implementation would be postponed until and if such control
is acquired. As is well known, an agreement between two or more entities usually
does not create obligations for others without their consent.
The present case is, however, somewhat different: Israel, back in 1967, entrusted
to the Muslim Waqf the custodianship of the Muslim Holy Places on the Temple
Mount in all matters except for external security. 13
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Moreover, the legal situation is special with regard to the Muslim Holy Places,
since Israel agreed in its Peace Treaty with Jordan (1994) that “Israel respects the
present special role of the Hashemite Kingdom of Jordan in Muslim Holy shrines
in Jerusalem. When negotiations on the permanent status will take place, Israel
will give high priority to Jordanian historic role in these shrines.”14 This provision
can justify the custodianship of the king over Muslim Holy Places in Jerusalem
while Israel is in control of the city.
Which Holy Places are under the Custodianship of King Abdullah?
The agreement refers in detail to the main Muslim Holy Places. But there may
have been an intention to apply it to others as well, in particular those of the Greek
Orthodox Patriarchate.15 In many provisions, the text refers generally to “Holy
Places,” without qualifying this term. With regard to the Holy Places of the Greek
Orthodox Patriarchate, however, the agreement expressly includes them in the
custodianship of the king, relying on relevant Jordanian legislation.16
Since Jerusalem is under Israeli control, neither the king nor Abbas has the power
to effectively allocate custodianship of Holy Places other than Muslim ones to
anybody, and Jordanian legislation does not apply in Jerusalem. Perhaps the
parties were of the opinion that east Jerusalem is occupied territory and therefore
still subject to Jordanian law. In fact, since June 1967, east Jerusalem has been
subject to Israeli “law, jurisdiction and administration” according to Israeli
legislation.
Unfortunately, the term Muslim Holy Shrines was not defined in the Israel–
Jordan Peace Treaty, and the parties to the new agreement give it an extremely
broad meaning: “Al Masjid Al Aqsa with its 144 dunams, which include the Qibli
Mosque of Al Aqsa, the Mosque of the Dome of the Rock and all its Mosques,
buildings, walls, courtyards, attached areas over and beneath the ground,17 and
the Waqf properties tied-up to Masjid Al Aqsa, to its environs or to its pilgrims
(hereinafter referred to as ‘Al Haram Al Sharif’),”18 namely, the whole Temple
Mount and even its “environs.”
In addition, the text refers to all the places that are sacred to Muslims, without
specifying their names,19 and recalls “the special status of Jerusalem as a holy and
sacred city in Islam.”20 This means that the entire city could be considered a Holy
Place of Islam. This extensive description of the Holy Places to Islam is in line
with the general trend of the Islamists to increase the importance of Jerusalem in
Islam.21
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The Functions of the Custodian22
The agreement broadly defines the powers and responsibilities of the custodian.
These include the preservation of the Holy Places, in particular the Temple Mount
(Haram al-Sharif). It stipulates that it and other sites be respected and that
freedom of access, including visitation, and freedom of worship be maintained for
all Muslims. The shrines must be administered under the custodian so as to uphold
their identity and preserve their religious status and their “historical, cultural and
artistic significance and their physical fabric.”
Moreover, the custodian also has an international duty: to represent the interests
of the Holy Places in relevant international fora and organizations. In this context,
it should be noted that only agreements registered at the secretariat of the United
Nations may be invoked in the organs of the UN.23
Finally, the custodian must “oversee and manage the institution of the Waqf
in Jerusalem and its properties in accordance with the laws of the Hashemite
Kingdom of Jordan.”24
The agreement foresees consultations between the king and the Palestinians on
matters concerning the Holy Places “when necessary.”25
Concluding Observations
This agreement has several significant shortcomings. Above all, it completely
disregards the existence of the State of Israel. Moreover, it professes to allocate
sovereignty over the land where the holy sites are located—which actually are
mainly the Old City and the Historic Basin—to the Palestinian state, whereas
the status of these areas may have to be negotiated, as a result of which a special
regime may have to be agreed upon.26
The definition of the Temple Mount (Haram al-Sharif) as outlined in the agreement
is so broad that it even includes the Western Wall. The apparent attempt of the
custodianship to appropriate authority over non-Muslim Holy Places as well is
unacceptable and unrealistic. This agreement demonstrates how important it is to
establish an agreed list of Holy Places and of their contours.
The great advantage of the agreement is the fact that it allocates custodianship
to the king of Jordan, a country at peace with Israel and opposed to terror.
Moreover, in the past, several problems concerning a Holy Place were solved by
consent between Israel and Jordan. Let us hope that the new agreement, despite
its shortcomings, will help to continue this positive tradition.
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Notes
The author wishes to express her thanks to Dr. Amnon Ramon, Prof. N. Bar
Yaacov, and Ms. Hila Levi for their assistance.
This article refers to the English version of the agreement published on the website
of King Abdullah II, kingabdullah.jo/index.php/en_US/news/view/id/10779/
videoDisplay/1.html. The agreement was also signed by the ministers in charge of
the Jordanian Waqf and of the Palestinian Authority. For various opinions as to the
question of what prompted the parties to conclude this agreement, see Ch. Yaacov,
“Agreement between Jordan and the Palestinian Authority: Attribution of Official
Custodianship over the Holy Places in Jerusalem to Jordan,” MEMRI, July 1, 2013
[Hebrew].
2
For general information, see Joshua Teitelbaum, The Rise and Fall of the Hashemite
Kingdom of Arabia (New York, 2001). On the specific attribution of the function of
custodian and protector of the Holy Places in Jerusalem to Sharif Hussein (on March
11, 1924), and the oath of allegiance [Bay’at Ahl ul-Quds] by the relevant leaders, see
“Hashemite Custodianship: 1924–1967,” in The Keys to Jerusalem, The Royal IslamicStrategic Studies Center, English Series, Book 8, pp. 20–24, (Jordan, 2010).
3
Asaf David, Lecture given at the Jerusalem Institute for Israel Studies on April 29,
2013.
4
Promulgated by the head of the Palestinian Authority on October 5, 2002, and published
in Al-Hayyat al-Jadida on October 10, 2002. Hebrew translation by MEMRI.
5
English translation in 27 International Legal Materials (1988). p. 1637.
6
The publication of the declaration on King Hussein’s official website does not include
an exception of the Holy Places, but the accompanying summary includes it, www.
kinghussein.gov.jo/88_july31.html. According to a declaration of the government of
Jordan of July 28, 1994, the 1988 declaration on the severance of legal and administrative
ties from the West Bank excluded also “the Awqaf, Islamic and Holy affairs, as well
as Islamic Shari’a Courts,” Official Statement on Jordan’s Role in Jerusalem, para.
4, reproduced in PASSIA, Documents on Jerusalem Vol. 3, pp. 196–197 (Jerusalem,
2007). The 1988 and 1994 declarations have also been referred to in the agreement
under discussion, at Preamble, para I.
7
Preamble of “Agreement to Jointly Defend Al Masjid Al Aqsa,” para. B. The preamble
is of importance since, according to Article 1, it is an integral part of the agreement.
8
According to the 1969 Vienna Convention on the Law of Treaties, “‘Treaty’ means an
international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation” (Article 2(1)(a). The word “states”
was included because the Vienna Convention deals only with treaties between or among
states, but this does not indicate that the same does not apply to agreements to which
other subjects of international law are parties (see Article 3).
1
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Preamble, op. cit., para.I, second sentence.
Ibid., first sentence.
11
Vienna Convention on the Law of Treaties, Article 7(2): “In virtue of their functions
and without having to produce full powers, the following are considered as representing
their State: (a) Heads of State, Heads of Government and Ministers for Foreign Affairs,
for the purpose of performing all acts relating to the conclusion of a treaty.”
12
Article IX (5)(b).
13
See, for example, Amnon Ramon, “Beyond the Western Wall: The Attitude of the
State of Israel and the Different Sections of the Jewish Public toward the Temple
Mount (1967–1999),” in Yitzhak Reiter (ed.), Sovereignty of God and Man—Sanctity and
Political Centrality in the Temple Mount [Hebrew] (Jerusalem, 2001), pp. 113–117.
14
Article 9 (2).
15
For a detailed study of the Greek Orthodox Patriarchate in Israel, see Amnon Ramon,
“’There is a major religion in the world with which we have an historical reckoning…’
Israeli Policy toward the Christian Churches and the Question of Jerusalem (1948–
1973),” PhD thesis submitted to Haifa University in 2007, chapter 4 [Hebrew].
16
On the Jordanian legislation on Christian communities, see Daphne Tsimhoni,
Christian Communities in Jerusalem and the West Bank Since 1948—An Historical, Social and
Political Study (Westport, 1993), pp. 1–9. For a summary in English of the specific law
mentioned in the 2013 agreement—law no. 27 of 1958—see Tsimhoni, p. 41–42. This
law established a statute for the Patriarchate and tried to achieve a compromise between
the conflicting interests of the Greek and the Arab groups of the community.
17
This hints at oppostition to President Clinton’s views, as expressed in his December
2000 talk: “Palestinian sovereignty over the Haram, and Israeli sovereignty over a) the
Western Wall and the space sacred to Judaism of which it is a part; b) the Western
Wall and the Holy of Holies of which it is a part.”
18
Preamble, op. cit., para. C.
19
For example, Preamble, para. B.
20
Ibid.
21
See Yitzhak Reiter, From Jerusalem to Mecca and Back: The Islamic Consolidation of
Jerusalem (Jerusalem, 2005) [Hebrew].
22
Article 2 of the “Agreement to Jointly Defend Al Masjid Al Aqsa.”
23
Charter of the United Nations, Article 102.
24
On the statement that Jordanian law applies on the matter, see supra text near note 15.
25
Article 3.2.
26
See, for example, Amnon Ramon (ed.), The Historic Basin—Problems and Possible Solutions
(Jerusalem, 2007) [Hebrew]; excerpts in English were published in 2010. See: www.
jiis.org/.upload/publications/basin.pdf.
9
10
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Agreement to Jointly Defend Al Masjid Al Aqsa
Agreement between His Majesty King Abdullah II Bin al-Hussein,
the Custodian of the Holy Sites in Jerusalem, and His Excellency
Dr. Mahmoud Abbas, President of the State of Palestine, Head
of Palestinian Liberation Organization, and President of the
Palestinian National Authority
Glory to Him Who carried His servant by night from the Sacred
Mosque to al-Masjid al-Aqsa, the environs of which We have
blessed, that We might show him of our signs! Indeed He is the
Hearing, the Seeing. (The Holy Quran, Al-Isra’, 17:1)
Indeed, Allah loves those who fight in His cause in a row as though
they are a [single] structure joined firmly. (The Holy Quran, AlSaff, 61:4)
This agreement has been made by and between:
His Majesty King Abdullah II ibn al-Hussein, King of the Hashemite
Kingdom of Jordan, the Custodian of the Holy Sites in Jerusalem,
And:
His Excellency President Mahmoud Abbas, in his capacity as
President of the State of Palestine, and Head of the Palestine
Liberation Organization, the representative of the Palestinian
People, and President of the Palestinian National Authority,
Preamble
A. Recalling the indissoluble bond between all members of the
Arab and Muslim Umma;
B. Recalling the special status of Jerusalem as a holy and sacred
city in Islam, and recalling present and eternal association of the
Holy Sites with Muslims of all lands and all ages; and bearing in
mind the significance of Jerusalem to those of other faiths;
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C. Recalling the unique religious importance, to all Muslims, of
al-Masjid al-Aqsa with its 144 Dunums, which include the Qibli
Mosque of al-Aqsa, the Mosque of the Dome of the Rock and all
its mosques, buildings, walls, courtyards, attached areas over and
beneath the ground and the Waqf properties tied-up to al-Masjid
al-Aqsa, to its environs or to its pilgrims (hereinafter referred to
as “al-Haram al-Sharif”);
D. Recalling the role of King al-Sharif Hussein Bin Ali in
protecting, and taking care of the Holy Sites in Jerusalem and
in the restoration of the Holy Sites since 1924; recalling the
uninterrupted continuity of this role by His Majesty King of the
Hashemite Kingdom of Jordan, who is a descendant of al-Sharif
Hussein Bin Ali; recalling that the Bay’ah (oath of allegiance)
according to which al-Sharif Hussein Bin Ali held the custodianship
of the Jerusalem Holy Sites, which Custodianship was affirmed to
al-Sharif Hussein Bin Ali by the people of Jerusalem and Palestine
on March 11, 1924; and recalling that the Custodianship of the
Holy Sites of Jerusalem has devolved to His Majesty King Abdullah
II Bin al-Hussein; including that which encompasses the “Rum”
(Greek) Orthodox Patriarchate of Jerusalem that is governed by
the Jordanian Law No 27 of the year 1958;
E. The continuity of Hashemite King of Jordan’s custodianship
of the Holy Sites since 1924 makes His Majesty more able to
maintain the Holy Sites and to preserve al-Masjid al-Aqsa (alHaram al-Sharif);
F. Recognizing that the Palestine Liberation Organization is the
sole legitimate and legal representative of the Palestinian people
and;
G. Recognizing that the right of self-determination of the
Palestinian people is expressed in realizing the State of Palestine
whose territory encompasses the land within which al-Masjid alAqsa (al-Haram al-Sharif) is situated;
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H. Recalling the terms of the official statement by His Majesty
King Hussein Bin Talal, King of the Hashemite Kingdom of Jordan,
Custodian of the Holy Sites in Jerusalem, concerning Jordan’s
qualified Disengagement from the West Bank, made on 31 July,
1988; the statement excluded the Jerusalem Holy Sites;
I. Recalling the terms of the official statement by the Jordanian
Government on its role in Jerusalem, made on 28 July, 1994,
reaffirming Jordan’s invariable position and historic, exclusive
role over the Holy Sites;
Intending to establish legal obligations and to affirm their
recognition of the legal status of the parties set out in this
agreement, the parties to this agreement have agreed and declare
as follows:
ARTICLE 1:
The “Preamble” to this agreement shall be an integral part of this
agreement and is to be read and construed with it as a whole.
ARTICLE 2:
2.1. His Majesty King Abdullah II, as the Custodian of the Jerusalem
Holy Sites, exerts all possible efforts to preserve the Jerusalem
Holy Sites, especially al-Haram al-Sharif, which is defined in item
(c) in the Preamble to this agreement, and to represent their
interests so as to:
A. assert the respect for the Jerusalem Holy Sites;
B. affirm that all Muslims, now and forever, may travel to and
from the Islamic Holy Sites and worship there, in conformance
with freedom of worship;
C. to administer the Islamic Holy Sites and to maintain them so
as to
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(i) respect and preserve their religious status and significance;
(ii) reaffirm the proper identity and sacred character of the Holy
Sites; and
(iii) respect and preserve their historical, cultural and artistic
significance and their physical fabric;
D. to represent the interests of the Holy Sites in relevant
international forums and competent international organizations
through feasible legal means;
E. to oversee and manage the institution of Waqf in Jerusalem
and its properties in accordance with the laws of the Hashemite
Kingdom of Jordan.
2.2. The King of the Hashemite Kingdom of Jordan, the Custodian
of the Holy Sites in Jerusalem, will continue to endeavor to procure
that the duties referred to in Article 2.1. here be fulfilled.
2.3. The Palestine Liberation Organization and the Palestinian
National Authority recognize the role of the King of the Hashemite
Kingdom of Jordan set out in paragraphs (1) and (2) of this Article
2 and undertake to respect it.
ARTICLE 3:
3.1. The Government of the State of Palestine, as the expression of
the right of self-determination of the Palestinian people, shall have
the right to exercise sovereignty over all parts of its territory,
including Jerusalem.
3.2. The King of the Hashemite Kingdom of Jordan and the
Palestinian President will consult and coordinate with each other
concerning the Holy Sites when necessary.
Done at the Royal Palace in Amman on Sunday March 31, 2013 on
Jumada I 19, 1434 Hijri.
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