Amid Israel’s current war in the Gaza Strip, France, Spain, Ireland and Norway plan to recognize “Palestine” as a sovereign state. Though these announced plans could be well-intentioned, they patently ignore a core expectation of authoritative international law.

Requirements

According to the Convention on the Rights and Duties of States (1934): “The political existence of the state is independent of recognition by the other states.” This binding treaty, also known as the “Montevideo Convention,” clarifies that sovereignty always requires (a) a permanent population; (b) a defined territory; (c) a government; and (d) the capacity to enter into relations with other states.

Significantly, the French, Spanish, Irish and Norwegian endorsements of Palestinian statehood fail to meet even a single one of these explicit standards. Whatever their motives, nations that support “Palestine” are urging the acknowledgment of an expansionist terror state. Over time, this state could become an existential hazard for Israel, either directly or in collaboration with a still-nuclearizing Iran.

Demilitarization?

What if the new Arab sovereignty were constitutionally “demilitarized?” A full and correct response is easy to determine. For Israel, imposing demilitarization on “Palestine” would never “work.” Inter alia, a new state of “Palestine” could evade any pre-independence promises made to Israel, even ones that had originally been tendered in good faith.

Manipulation Possibilities

There is more. Because treaties are binding only on states, any agreement between a non-state Palestinian Authority and the sovereign State of Israel would have no foreseeable effectiveness. This is the case even if a “government of Palestine” were willing to consider itself bound by pre-state assurances.

Even in such presumptively favorable circumstances, rulers of Palestine could retain law-based grounds for agreement termination. For example, they could withdraw from the pact on account of a supposed “material breach.” In all likelihood, this withdrawal would stem from an alleged violation by Israel that allegedly undermined the object and/or purpose of the agreement.

Further opportunities for Palestinian manipulation would arise. For instance, Palestinian decision-makers could point toward what international law calls a “fundamental change of circumstances,” rebus sic stantibus. 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 original 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 of entry into force, it conflicts with a “peremptory” rule of general international law, jus cogens, accepted and recognized by the global community of states as one from which “no derogation is permitted.” And because the right of sovereign states to maintain military forces essential to self-defense is precisely such a rule, Palestine could credibly argue its right to abrogate an arrangement that had “forced its demilitarization.”

In the late 18th century, Thomas Jefferson—later, America’s third president—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 ... ,” at the same time, he 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 a contractual obligation becomes “self-destructive” to a party, “ ... the law of self-preservation overrules the law of obligation to others.”