The Palestinian Authority (PA), now officially a Nonmember Observer State to the United Nations General Assembly, will likely seek next month a Security Council resolution favoring full Palestinian sovereignty, probably as part of a cooperative Security Council initiative with France. Following such an initiative, the current U.S. president, or the next U.S. president could then be moved to accept the PA position on the grounds of some prior Palestinian "demilitarization." Unfortunately, any such acceptance would be without any legal or practical value; therefore, no state of Palestine should ever be approved because of any apparent promise of demilitarization.
Whoever wins the November election, the next U.S. president will have to deal with the continuing issue of Palestinian statehood. For the moment, agreeing to any such new Arab sovereignty -- a 23rd Arab state -- would appear to be contingent upon some prior acceptance of Palestinian "demilitarization." After all, for a new president to disregard this seemingly prudent contingency would immediately place the United States in stark opposition to Israel.
More precisely, it would put Washington at odds with the core requirements already laid down explicitly by Israel's Prime Minister Benjamin Netanyahu.
Nonetheless, there is substantial irony to this obligation. Simply put, meaningful Palestinian demilitarization could never take place. In essence, international jurisprudence could not allow it. First, international law would not necessarily expect Palestinian compliance with any limitations on negotiated agreements concerning national armies and armed forces.
But what if the government of a fully sovereign Palestinian state were in fact willing to consider itself bound by some pre-state agreement to demilitarize? There is still a big problem. Even in these improbable circumstances, the new Palestinian Arab government could likely identify ample pretext and opportunity to invoke lawful "treaty" termination. Here are some specific examples:
Palestine could withdraw from any such agreement because of what it would regard as a "material breach," a purported violation by Israel, one that had allegedly undermined the object or purpose of the accord. It could also point to what international law calls Rebus sic stantibus: "permissible abrogation," known more popularly as a "fundamental change of circumstances." If Palestine should declare itself vulnerable to previously unforeseen dangers, perhaps even from interventionary forces, or the forces of other Arab armies or insurgencies that it could claim might be trying to occupy it, it could lawfully end its previously codified commitment to stay demilitarized.
There is another reason why any hopes for Palestinian demilitarization must remain unsupportable. After declaring independence, a Palestinian government -- any Palestinian government -- could point to particular pre-independence errors of fact, or to duress, as appropriate grounds for invoking selective agreement termination. In this regard, the grounds that may be invoked under domestic law to invalidate contracts could also apply under international law, whether to actual treaties, or, as in this particular case, to lesser treaty-like agreements.
Further, strictly speaking, recalling the Vienna Convention on the Law of Treaties (1969), an authentic treaty must always be "between states."
Above all, however, any treaty or treaty-like compact is void if, at the time of its entry into force, it conflicts with a "peremptory" rule of international law -- that is, one from which "no derogation is permitted." As the right of sovereign states to maintain military forces for self-defense is always such a rule, Palestine would be within its lawful right to abrogate any pre-independence agreement that had (impermissibly) compelled its own demilitarization.
The next U.S. president, it follows, should take no comfort from any purportedly legal promises of Palestinian demilitarization. Should the government of any future Palestinian state choose to invite foreign armies or terrorists on to its territory, even after the original government had been overthrown by more militantly jihadist or Islamic forces, it could do so not only without practical difficulties, but also without necessarily violating international law.
In the end, the core danger to Israel of presumed Palestinian demilitarization would be far more practical than legal. The illusion of demilitarization without the ability to enforce it could be a potentially lethal threat. Even now, prevailing versions of the Middle East peace process generally stem from the persistent misunderstanding of Palestinian history and goals. From the start, every Palestinian faction has regarded all of Israel as "Occupied Palestine." From the beginning, not a single Palestinian faction has ever expressed satisfaction with a new state that would be confined to West Bank (Judea/Samaria) and Gaza.
The Palestine Liberation Organization (PLO) was formed in 1964, three years before there were any "Israeli-Occupied Territories." What, then, was the PLO originally planning to "liberate?" Even now, the Palestinians remain as divided as ever; it remains unclear, therefore, who can speak with real authority for any still-plausible Palestinian state. Palestinian Authority President Mahmoud Abbas is in the eleventh year of his four-year term; should he agree to anything substantive, others could later legitimately claim, long after land may have been irreversibly "exchanged," that he had no legal authority to make a decision, and they would be right.
Moreover, for Israel and the United States, this insurmountable condition of fragmentation complicates any still-lingering hopes hope for Palestinian demilitarization.
A Palestinian state -- any Palestinian state -- could represent a mortal danger to Israel, especially if it should appear at approximately the same time as Iranian nuclearization. This danger could not be removed or even reduced by any pre-independence Palestinian commitments to demilitarize.
The next U.S. president will need to be prepared to do whatever is necessary to prevent the creation of another enemy state. Palestine would have a high probability of quickly becoming a new launching point for jihadist terror attacks around the region, and possibly the world.
Louis René Beres is Emeritus Professor of International Law at Purdue University.
