Tuesday, June 16, 2009

Oh-Oh: A Palestinian Agreement To Demilitarize Their State Is Not Legally Binding

Thank you to My Right Word, who pointed me to this paper.

Louis Rene Beres, author on International Law, explains--Why Palestinian Demilitarization Won’t Work [PDF]--addressing Netanyahu's speech where he allowed for a second Palestinian state, with one of the conditions being the demilitarization of the proposed state.

According to Professor Beres, such a condition would not be legally binding:
Here is the core of the demilitarization argument problem: International law would not necessarily require Palestinian compliance with pre-state agreements concerning the use of armed force. From the standpoint of international law, enforcing demilitarization upon a sovereign state of Palestine would be problematic. As a now independent state, any preindependence compacts would not bind Palestine, even if these agreements were to include fully codified Quartet assurances. Because true treaties can be binding only upon states,5 an agreement between a non-state Palestinian National Authority (PNA) and an authentic sovereign state(Israel) 6 could also have little real effectiveness.7

Now, what if the government of “Palestine” were actually willing to consider itself bound by the pre-state, non-treaty agreement, i.e., if it were willing to treat this agreement as if it were a real treaty? Even in these relatively favorable circumstances, the new Arab government would still have ample pretext to identify various grounds for lawful “treaty” termination. It could, for example, withdraw from the “treaty” because of what it would regard as a “material breach”, an alleged violation by Israel that seemingly undermined the object or purpose of the agreement. Or it could point toward what international law calls a “fundamental change of circumstances” (rebus sic stantibus).8 In this connection, if a Palestinian state declared itself vulnerable to previously unforeseen dangers – perhaps even from the forces of other Arab armies – it could lawfully end its sworn commitment to remain demilitarized.

There is another method by which a treaty-like arrangement obligating a new Palestinian state to accept demilitarization could quickly and legally be invalidated after independence. The usual grounds that may be invoked under domestic law to invalidate contracts also apply under international law to treaties. This means that the new state of Palestine could point to alleged errors of fact or to duress as perfectly appropriate grounds for terminating the agreement.

Moreover, any treaty is void if, at the time it was entered into, it conflicts with a “peremptory” rule of general international law (jus cogens) – a rule accepted and recognized by the international community of states as one from which “no derogation is permitted.”9 Because the right of sovereign states to maintain military forces essential to “self-defense”10 is certainly such a peremptory rule,11 Palestine, depending upon its particular form of authority, could be entirely within its right to abrogate a treaty that had compelled its demilitarization.

Thomas Jefferson, an American President who had read Epicurus, Cicero and Seneca, as well as Voltaire, Montesquieu, Holbach, Helvetius and Beccaria, wrote interestingly 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...” he also acknowledged the following: “There are circumstances which sometimes excuse the nonperformance of contracts between man and man; so are there also between nation and nation.” Very specifically, Jefferson continued, if performance of contractual obligation becomes “self-destructive” to a party, “...the law of self-preservation overrules the law of obligation to others.”12

Here it must be remembered that, historically, demilitarization is a principle applied to various “zones”,13 not to the entirety of emergent states. Hence, a new state of Palestine might have yet another legal ground upon which to evade compliance with preindependence commitments to demilitarization. It could be alleged, inter alia, that these commitments are inconsistent with traditional or Westphalian14 bases of authoritative international law – bases found in treaties and conventions, international custom,15 and the general principles of law recognized by “civilized nations”16 – and that therefore they are commitments of no binding character.
Charles Dickens wrote, "the law is a ass."
I wonder what he would say about international law.

Beres has a recommendation with far-reaching consequences:
What does all of this mean, for the demilitarization “remedy” and for Israeli security in general? Above all, it positively demands that Israel make rapid and far-reaching changes in the manner in which it conceptualizes the critical continuum of cooperation and conflict. Israel, ridding itself of wishful thinking, of always hoping, hoping too much, should recognize immediately the zero-sum calculations of its enemies, and should begin to recognize itself that the struggle in the Middle East must still be fought overwhelmingly at the conflict end of the range.23 The struggle, in other words, must sometimes be conducted, however reluctantly and painfully, in zero-sum terms. Understood in terms of international law and world order, 24 this means, inter alia, an occasional willingness in Jerusalem to accept the right25 and corollary obligations of “anticipatory self-defense”. 26 [emphasis added]
Read the whole thing [PDF].

Regardless of how such an agreement to demilitarize the proposed Palestinian state is arranged, it would not be binding. This is not an issue of whether the Palestinian Authority would keep its word or not--as in Oslo and the Road Map, it is simply a question of it is legally binding. Under those circumstances, what is arguably the biggest obstacle to the creation of a second Palestinian state is no obstacle at all. The law would be on the side of the Palestinian Authority.

Professor Beres concludes:
It follows, especially as both Fatah and Hamas continue to regard all of Israel as “occupied Palestine”, that Mr. Louis René Beres 4 Netanyahu will ultimately have to look elsewhere for viable elements of real peace in the region. What is certain is that he will not find these elements in any conceivable plan for Palestinian “demilitarization”.
I imagine that by the same token Israel should examine to what degree it is held accountable--according to International Law--to some of its agreements, based on the same criteria Professor Beres lists.

They could start with the issue of the settlements.

Crossposted on Soccer Dad
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