Any treaty or treaty-like compact is void if, at the time of its entry into force, it conflicts with a “peremptory” rule of international law – that is, one from which “no derogation is permitted.” As the right of sovereign states to maintain military forces for self-defense is always such a rule, Palestine would be within its lawful right to abrogate any pre-independence agreement that had (impermissibly) compelled its own demilitarization.
The Palestinian Authority (PA), now officially a Nonmember Observer State to the United Nations General Assembly, will likely seek next month a Security Council resolution favoring full Palestinian sovereignty, probably as part of a cooperative Security Council initiative with France. Following such an initiative, the current U.S. president, or the next U.S. president could then be moved to accept the PA position on the grounds of some prior Palestinian “demilitarization.” Unfortunately, any such acceptance would be without any legal or practical value; therefore no state of Palestine should ever be approved because of any apparent promise of demilitarization.
Whoever wins the November election, the next U.S. president will have to deal with the continuing issue of Palestinian statehood. For the moment, agreeing to any such new Arab sovereignty – a 23rd Arab state – would appear to be contingent upon some prior acceptance of Palestinian “demilitarization.” After all, for a new president to disregard this seemingly prudent contingency would immediately place the United States in stark opposition to Israel.
More precisely, it would put Washington at odds with the core requirements already laid down explicitly by Israel’s Prime Minister Benjamin Netanyahu.
Nonetheless, there is substantial irony to this obligation. Simply put, meaningful Palestinian demilitarization could never take place. In essence, international jurisprudence could not allow it. First, international law would not necessarily expect Palestinian compliance with any limitations on negotiated agreements concerning national armies and armed forces.
But what if the government of a fully-sovereign Palestinian state were in fact willing to consider itself bound by some pre-state agreement to demilitarize? There is still a big problem. Even in these improbable circumstances, the new Palestinian Arab government could likely identify ample pretext and opportunity to invoke lawful “treaty” termination. Here are some specific examples: