Why a State of ‘Palestine’ Will Not Remain Demilitarized

France, Spain, Ireland, and Norway have recently announced plans to recognize “Palestine” as a fully-sovereign state. Though these plans may be well-intentioned, they nonetheless disregard an utterly core expectation of international law. Formally, this treaty-based expectation is “peremptory” — a rule that “permits no derogation.”

According to the Convention on the Rights and Duties of States (1934): “The political existence of the state is independent of recognition by the other states.”

This binding treaty (aka the “Montevideo Convention”) clarifies that sovereignty always requires (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter into relations with other states. The above-listed state endorsements of “Palestine” fail to meet every one of these requirements. Whatever their true motives, states that support “Palestine” are effectively urging the acknowledgment of an expansionist state. Over time, this new terror-state could become an existential hazard for Israel, either directly or in collaboration with a still-nuclearizing Iran.

What if the new Arab sovereignty were “demilitarized?” A full and correct response should be easy to identify. For Israel, imposing demilitarization on “Palestine” would never “work.” Inter alia, a new state of “Palestine” could evade any pre-independence promises made to Israel, even ones that had originally been tendered in good-faith.

There is more. Because treaties are binding only on states, any agreement between a non-state Palestinian authority and a sovereign State of Israel would have no foreseeable effectiveness. This is the case even if a “government of Palestine” were willing to consider itself bound by pre-state assurances.

Even in such presumptively favorable circumstances, rulers of Palestine could retain law-based grounds for agreement termination. For example, they could withdraw from the pact on account of a supposed “material breach.” In all likelihood, this withdrawal would stem from an alleged violation by Israel that allegedly undermined the object and/or purpose of the agreement.

The breach won’t be real — just a pretext for the newly formed state of “Palestine” to renege on its commitments.

Further opportunities for Palestinian manipulation would arise. Palestinian decision-makers could point toward what international law calls a “fundamental change of circumstances” (rebus sic stantibus). If a Palestinian state were to declare itself vulnerable to previously unforeseen dangers, perhaps even to forces of other Arab armies or jihadist insurgencies, it could lawfully end its original commitment to remain demilitarized. A new state of Palestine could also point to “errors of fact” or “duress” as permissible grounds for agreement termination.

Prima facie, any treaty or treaty-like agreement is void if, at the time of entry into force, it conflicts with a “peremptory” rule of general international law — a “jus cogens” rule accepted and recognized by the international community of states as one from which “no derogation is permitted.”

Because the right of sovereign states to maintain military forces essential to self-defense is precisely such a rule, Palestine could credibly argue its right to abrogate an arrangement that had “forced its demilitarization.”

In the 18th century, Thomas Jefferson, an American president, wrote knowledgeably about obligation and international law. While affirming that “Compacts between nation and nation are obligatory upon them by the same moral law which obliges individuals to observe their compacts…,” he simultaneously acknowledged that “There are circumstances which sometimes excuse the nonperformance of contracts between man and man; so are there also between nation and nation.” Specifically, Jefferson continued, if performance of contractual obligation becomes “self-destructive” to a party, “…the law of self-preservation overrules the law of obligation to others.”

Summing up, a presumptive Palestinian state could lawfully abrogate any pre-independence commitments to Israel to demilitarize. Recent declarations of recognition by France and other major states have no legal bearing on the creation of such a state. On the contrary, these declarations seriously undermine the authority of law-based international relations, generally, and in particular reference to Israel.

In the final analysis, Jerusalem needs to assess the existential threat of Palestinian statehood as part of a larger strategic whole; that is, in tandem with the continuously intersecting perils of conventional and unconventional war. More precisely, this points to a comprehensive analytic focus on potential synergies between enemy state aggressions and Israel’s nuclear doctrine. Already, recent victories over Iran, Hamas and Hezbollah notwithstanding, Israeli leaders need to calibrate incremental shifts from “deliberate nuclear ambiguity” to “selective nuclear disclosure.” Although recent declarations of national support for Palestinian statehood can be countered on a legal level, even a non-state “Palestine” would remain intolerable.

International law is not a suicide pact. Israel has no legal obligation to carve an enemy state aggressor from its own still-living body. Though expressed in the stirring syntax of high moral authority, recent recognition of “Palestine” by four major states misses larger justice issues altogether.

Assigning formal statehood to violence-centered entities that openly seek an existing state’s elimination violates both justice and logic. In the case of Israel and the Palestinians, such assignment is wrongheaded on several levels and signals an evident contradiction in terms. Now, rather than accept the law-ignoring policy urging of France, Spain, Ireland, or Norway, the community of states should be faithful to law-based treaty expectations.

Prof. Louis René Beres was educated at Princeton (Ph.D., 1971) and is the author of many books and scholarly articles dealing with international law, nuclear strategy, nuclear war, and terrorism. In Israel, Prof. Beres was Chair of Project Daniel (PM Sharon). His 12th and latest book is Surviving Amid Chaos: Israel’s Nuclear Strategy (Rowman & Littlefield, 2016; 2nd ed., 2018).

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