What if the government of a new Palestinian state were somehow willing to consider itself bound by the pre-state, non-treaty agreement? Even in these very improbable circumstances, the new Arab government would have ample pretext to identify relevant grounds for lawful treaty termination.
A new Palestinian government could withdraw from the treaty because of what it regarded as a “material breach,” a reputed violation by Israel that had allegedly undermined the object or purpose of the agreement. Or it could point toward what Latinized international law calls Rebus sic stantibus. In English, this doctrine is known as a “fundamental change of circumstances.” Here, if Palestine should declare itself vulnerable to unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of certain other Arab armies, it could lawfully end its previously codified commitment to stay demilitarized.
Another factor explains why Netanyahu’s hope for Palestinian demilitarization was and remains ill-founded. After declaring independence, a new Palestinian state government could point to certain pre-independence errors of fact, or to duress, as appropriate grounds for agreement termination. The usual grounds that may be invoked under domestic law to invalidate contracts can also apply under international law, both to actual treaties, and to treaty-like agreements.
Any treaty is void if, at the time of entry, it is in conflict with a peremptory rule of international law, a rule accepted by the community of states as one from which “no derogation is permitted.” Because the right of sovereign states to maintain military forces for self-defense is always such a rule, “Palestine” could be within its lawful right to abrogate any agreement that had previously, before independence, compelled its demilitarization.
Netanyahu should take no comfort from any legal promises of Palestinian demilitarization. Should the government of any future Palestinian state choose to invite foreign armies or terrorists on to its territory, possibly after the original government had been overthrown by even more militantly Jihadist/Islamic forces, it could do so not only without practical difficulties, but also without violating international law.
The core danger to Israel of any presumed Palestinian demilitarization is more practical than legal. The American-driven Road Map stems from a very basic misunderstanding of Palestinian history and goals. At a minimum, Obama should finally recall that the Palestine Liberation Organization was formed in 1964; three years before there were any “occupied territories.”
Exactly what, during those first three years, was the PLO trying to “liberate”? The answer was the same then as it is now: all of Israel.
If you like Syria, you’ll love Palestine.
Louis René Beres, strategic and military affairs columnist for The Jewish Press, is professor of political science at Purdue University. Educated at Princeton (Ph.D., 1971), he lectures and publishes widely on international relations and international law and is the author of ten major books in the field. In Israel, Professor Beres was chair of Project Daniel.