Analysis | Palestinian Statehood and International Law: Easily Overlooked Expectations

Following Israel’s recent 12-day war, France, Spain, Ireland and Norway agreed to recognize Palestine as a sovereign state. Though these intentions could have been well-meaning and genuinely peace-oriented, they all miss a core expectation of authoritative international law. 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”) explains that sovereignty is determinable solely by possession of (a) a permanent population; (b) a defined territory; (c) a government; and (d) a capacity to enter into relations with other states.

Conspicuously, the listed proposals of Palestinian statehood do not meet a single one of these standards. In essence, whatever their motives, states that currently support a Palestinian state are urging the creation of an expansionist terror polity. But what if the new Arab sovereignty were constitutionally “demilitarized?” 

A full and correct answer is not difficult to ascertain. For Israel, imposing demilitarization on the Palestinian territories would not advance its national self-defense. Inter alia, a new state of Palestine could evade any pre-independence promises made to Israel.

There would be additional legal problems. Because treaties are binding only on states, any agreement between a non-state Palestinian Authority and a sovereign State of Israel could have little or no tangible effectiveness. This is the case even if a faux government of Palestine were willing to consider itself bound by its pre-state assurances. 

There is more. Even in such presumptively favorable circumstances, the 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.” This withdrawal would stem from an alleged violation by Israel that seemingly undermined the object and/or purpose of the agreement. 

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 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 it was entered into, 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 such a rule, a Palestinian state could plausibly argue its right to abrogate an arrangement that had “forced its demilitarization.”

In the 18th century, Thomas Jefferson, an American president, wrote knowledgably 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.” Though recent declarations of national support for Palestinian statehood can be countered on a legal level, even a non-state Palestinian adversary would remain insufferably dangerous

International law is not a suicide pact. Ipso facto, Israel has no legal obligation to carve an irredentist enemy state from its own still-living body. Though vocalized in sober rhythms of moral authority, recognition of a Palestinian state by France and several other major states misses the larger issues altogether. 

Assigning formal statehood to violence-centered entities that openly seek an existing state’s elimination represents a grievous violation of justice and logic. In the case of Israel and the Palestinians, such assignment is wrongheaded on several levels, and signals a relentlessly lethal contradiction in terms. Rather than be swayed by law-ignoring policy urgings of France, Spain, Ireland or Norway, the civilized community of states should remain true to law-affirming treaty expectations.

LOUIS RENÉ BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and scholarly articles dealing with Israel and international law. Chair of Project Daniel (PM Sharon, 2004), his writings have appeared in such publications as Jerusalem Post; Israel Defense; Israel National News; Jurist; The New York Times; Yale Global Online; Harvard National Security Journal (Harvard Law School); The Atlantic; U.S. News & World Report; Los Angeles Times; Oxford University Press; The Hill; INSS Strategic Assessment (Israel); Herzliya Conference Papers (Israel); The National Interest; Parameters (Pentagon); Air-Space Operations Review (USAF); The War Room (Pentagon); and Modern War Institute (Pentagon/West Point). Dr. Beres' twelfth book, Surviving Amid Chaos: Israel's Nuclear Strategy, was published by Rowman & Littlefield in 2016. (2nd ed., 2018).In 2016, Professor Beres authored a monograph in Israel at TAU (with special postscript by retired USA General Barry McCaffrey) titled Israel's National Security and America's Nuclear Strategy. Professor Beres is a seven-times contributor to Oxford University Press, annual Yearbook on International Law and Jurisprudence. Louis René Beres was born in Zürich at the end of World War II.