Though 157 UN member states have now recognized a “State of Palestine,” their actions do not confer legal sovereignty. Under international law, statehood is “independent of recognition by the other states.” More precisely, juridical statehood is based on four explicit treaty requirements: (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter into relations with other states. These requirements are codified in the Convention on the Rights and Duties of States (Montevideo Convention; 1933).
Regarding specific security interests of Israel, recognizing a Palestinian state contradicts both the Oslo Accords and the Arafat-Rabin agreements not to alter the legal status of disputed territories prior to formal accession by Jerusalem. Any such wrongful recognition is also at odds with (1) EU obligations incurred as an organizational witness to the Oslo Accords and (2) endorsements of these Accords expressed in multiple UN resolutions.
Recognitions of “Palestine” pay no attention to the Jewish state’s lack of strategic depth and its continuous exposure to exterminatory enemies. These acts of recognition prejudge the outcome of negotiations that were never completed precisely because of unrelenting Palestinian terrorism.
Palestinian state doesn't align with international law
To this moment, all declared recognitions of “Palestine” fail to meet even a single Montevideo Convention requirement. Whatever their motives, the national governments that support sovereignty for “Palestine” are welcoming a self-declared aggressor state into the community of nations. Prima facie, this terror state would become an existential hazard for Israel, directly or in collaboration with other irredentist states. It would simultaneously undermine international law in general.
In world politics, law is indispensable. Even as leaders of a “nonmember observer state,” Palestinian leaders of every ideological stripe have displayed persistent “criminal intent” (mens rea) toward Israel. But there are associated questions:
Could this lawless behavior be reduced or controlled in a Palestinian state? What if the new Arab sovereignty were “demilitarized”?
There is a clear answer. A sovereign state of “Palestine” could evade pre-independence security promises made to Israel, including those made in alleged good faith. Because treaties are binding only on states, any agreement between a non-state Palestinian Authority and a sovereign State of Israel would have no foreseeable effectiveness. This is the case even if the “government of Palestine” were willing to consider itself bound by pre-state assurances.
Termination of prior agreements
Even in such presumptively favorable circumstances, a Palestinian government could retain law-based grounds for agreement termination. For example, it could withdraw from the pact because of a supposed “material breach.” In all likelihood, such withdrawal would stem from an alleged violation by Israel that “undermined the object and/or purpose of the agreement.”
Palestinian decision-makers could point toward what international law calls a “fundamental change of circumstances” (rebus sic stantibus). If a falsely described Palestinian state were to declare itself vulnerable to previously unforeseen dangers, perhaps to forces of other armies or jihadist insurgencies, it could lawfully end its commitment to remain demilitarized. A faux state of Palestine could also point to “errors of fact” or “duress” as permissible grounds for agreement termination.
Any treaty or treaty-like agreement is void if, at the time of entry into force, it conflicts with a “peremptory” rule of general international law –a rule recognized by the international community of states as one from which “no derogation is permitted.” Because the right of states to maintain military forces essential to self-defense is such a rule, “Palestine” could credibly argue its right to abrogate those arrangements that had “compelled its demilitarization.”
Not a suicide pact
Yet again, we write that international law is not a suicide pact. Israel has no legal obligation to carve a new enemy state aggressor from its own still-living body. Moreover, the rapidly accumulating recognitions of “Palestine” avoid larger justice issues altogether.
On this contradiction, Prime Minister Benjamin Netanyahu’s core comment to the UN General Assembly was correct. In essence, assigning sovereignty to violence-centered entities that seek Israel’s elimination violates law (Montevideo Convention), justice, and logic.
Under the British Mandate, in confirmation of decisions made at the San Remo conference of April 1920, all of Palestine was reserved for the establishment of a “Jewish national home.” In 1922, though no part of mandatory Palestine had ever been designated for the creation of another Arab state, Britain illegally carved Transjordan out of 78% of its mandatory territory. Transjordan became Jordan in 1949, just one year after the declaration of the State of Israel.
On May 15, 1948, one day after the State of Israel was declared by David Ben-Gurion in Tel Aviv, Azzam Pasha, secretary-general of the Arab League, forecast regarding the war being planned by combined Arab forces: “This will be a war of extermination and a momentous massacre.”
The UN partition resolution (1947) included only 22% of the lands originally pledged to establish a Jewish national home. In the interests of a peaceful start, Jewish national authorities accepted the lawlessly reduced landmass (essentially half of the residual one-fifth) in exchange for establishing a Jewish state.
In view of continuing misinformation alleging Israeli displacement of a pre-existing Arab state, all current issues concerning Palestinian statehood and disposition of Gaza should be understood in an accurate historical context. At no time in history has there been a Palestinian state. Among other things, if current UN member states seek to establish the first Palestinian state, they will have to honor all listed expectations of the Montevideo (1933) and Vienna (1969) conventions.
The writer is an emeritus professor of international law at Purdue University and 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 (Rowman & Littlefield, 2016; second edition, 2018).