President Emmanuel Macron recently announced France’s intention to recognize “Palestine” as a sovereign state. This follows similar announcements by Spain, Ireland, and Norway.
While it is possible that these declarations were well-intentioned and not just expressions of geopolitical maneuver, they all miss a cardinal point of authoritative international law: “The political existence of the state,” indicates the Convention on the Rights and Duties of States (1934), “is independent of recognition by the other states.”
The Montevideo Convention goes on to explain that sovereignty is only determined by possession of (a) a permanent population; (b) a defined territory; (c) government; and (d) a capacity to enter into relations with other states.
Irredentist terror polity
Significantly, the accumulating proposals of Palestinian statehood do not meet a single one of these requirements. In essence, whatever their motives, those states in world politics that propose a Palestinian state are urging the creation of an irredentist terror polity.
But what if the new Arab sovereignty were “demilitarized”? For Israel, imposing this condition would not add even a scintilla of national protection. To wit, a new state of “Palestine” could easily evade any pre-independence promises made to Israel or legally undermine such promises.
For 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 would have little tangible effectiveness. This is the case even if the government of Palestine were somehow willing to consider itself bound by its pre-state, non-treaty agreement.
Agreement termination
There is more. Even in such presumptively favorable circumstances, the government of Palestine could retain law-based grounds for agreement termination. It could, for example, withdraw from the pact because of a supposed “material breach.” This would stem from an alleged violation by Israel that credibly 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 rebus sic stantibus, a “fundamental change of circumstances."
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, “Palestine” could plausibly argue its right to abrogate an arrangement that had “forced its demilitarization.”
'Self-preservation overrules obligation'
In the 18th century, American president Thomas Jefferson 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.” 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.
Not a suicide pact
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 typically vocalized in sober rhythms of moral authority, recognition of “Palestine” 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 clarifications.
The writer is an emeritus professor of international law at Purdue University. He is the author of many books and scholarly articles on international law, nuclear strategy, nuclear war, and terrorism, including Surviving Amid Chaos: Israel’s Nuclear Strategy. lberes@purdue.edu