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 Palestinian Arab government could still have ample pretext, and opportunity, to identify relevant grounds for lawful treaty termination.
Palestine could withdraw from the “treaty” because of what it regarded as a “material breach,” a purported violation by Israel that had allegedly undermined the “object or purpose” of the agreement. Or it could point toward what international law calls Rebus sic stantibus; in English, the doctrine known as a “fundamental change of circumstances.” Here, for example, if Palestine should declare itself vulnerable to previously unforeseen dangers, perhaps even from the interventionary or prospectively occupying forces of certain other Arab armies, it could lawfully end its codified commitment to remain demilitarized.Another factor explains why Prime Minister Netanyahu’s hope for Palestinian demilitarization 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 fully within its lawful right to abrogate any agreement that had, before independence, compelled its demilitarization.Mr. 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 more militantly Jihadist/Islamic forces, it could do so not only without practical difficulties, but also without necessarily violating international law.
In the final analysis, the core danger to Israel of any presumed Palestinian demilitarization is more practical than legal. The Washington-driven Road Map, a one-sided plan of land for nothing, stems from a persistent misunderstanding of Palestinian history and goals. President Obama should finally acknowledge that the Palestine Liberation Organization (PLO) was formed in 1964, three years before there were any “occupied territories.”
A Palestinian state – any Palestinian state – would represent a mortal danger to Israel. This danger would not be relieved by any legal Palestinian pre-independence commitments to “demilitarize.”
For Israel, whether the issue is Egypt, or “Palestine,” or both, it is critical to bear in mind the inherently limited protective benefits offered by treaties and treaty-like agreements.