By Louis Rene Beres

Professor of International Law, Department of Political Science, Purdue University

In an editorial column ("An International Conference for the Mideast") back in July/August 1987, TIKKUN Magazine endorsed a Palestinian state, but only conditionally. Said editor Michael Lerner: "TIKKUN continues to stress that the Palestinian state we would support could only be created on conditions similar to those imposed on Austria after World War II - total demilitarization and political neutrality enforced by the Great Powers." Moreover, continued Lerner: "Israel would have to have treaty rights to invade the moment there was any introduction of tanks, planes, or heavy weapons. We have no illusions about the PLO itself and would never agree to a Palestinian state that significantly threatened Israel's security."

Today, some thirteen years later, it is apparent that TIKKUN no longer imposes such conditions and that its endorsement of a Palestinian state is manifestly unconditional. Of course, even in 1987, Lerner was explicitly not worried about threats to Israel's security that were insufficiently "significant." Now the presumed imperatives of Palestinian "self-determination" are so overriding for TIKKUN that the magazine's most palpable concern seems no longer to be Israel's safety. Rather, this concern now seems to be the prevention of an Israeli aggression against a weak and pitiable Palestine.

By itself, TIKKUN'S opinion on such matters is altogether unimportant. And far more important than TIKKUN'S turnaround on conditions for Palestinian statehood is the publication's underlying naivete about "demilitarization." The presumed military constraints that would be placed upon Palestine by such a "remedy" would be utterly toothless, a convenient fiction to make a bad agreement look good. In the end, the "demilitarization" of Palestine might not even be supported by international law. For reasons which we shall now summarize briefly, it could be entirely lawful for the new state of Palestine to refuse compliance with pre-independence commitments.

As a fully-sovereign state, Palestine would not necessarily be bound by any pre-independence compacts, even if these agreements were to include U.S. guarantees. Because treaties can be binding only upon states, an agreement between a nonstate Palestinian Authority (PA) and the State of Israel would have no real treaty authority and no real effectiveness. Consider the American case of Tel-Oren v. Libyan Arab Republic (1984). Here, the Court ruled that any agreement between a state and a nonstate authority must always pose "unequal obligations," that is, lesser obligations upon the latter.

What if the government of Palestine were willing to consider itself bound by the prestate, nontreaty agreement, i.e., if it were willing to treat this agreement as an authentic treaty? Even in these seemingly favorable circumstances, the new Arab government would have ample pretext to identify various grounds for lawful "treaty" termination. It could, for example, withdraw from the agreement because of what it would describe as a "material breach," an alleged violation by Israel that reportedly 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). In this connection, if the Palestinian state declared itself vulnerable to previously unforseen dangers - perhaps even from the forces of other Arab armies - it could lawfully end its codified commitment to remain demilitarized.

There is another method by which a treaty-like agreement 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 and treaty-like compacts. This means that the new state of Palestine could point to errors of fact or to duress as perfectly appropriate grounds for terminating the agreement.

Any treaty or treaty-like agreement 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." Because the right of sovereign states to maintain military forces essential to "self-defense" is certainly such a peremptory rule, Palestine, depending upon its particular form of authority, could be entirely within its right to abrogate any pre-independence agreement that had "compelled" its demilitarization.

Thomas Jefferson, who had read Epicurus, Cicero and Seneca, as well as Voltaire, Montesquieu, Holbach, Helvetius and Beccaria once wrote about obligation and international law as follows:

The Moral duties which exist between individual and
individual in a state of nature, accompany them into
a state of society and the aggregate of the duties
of all the individuals composing the society
constitutes the duties of that society towards any
other, so that between society and society the same
moral duties exist as did between the individuals
composing them while in an unassociated state, their
maker not having released them from those duties on
their forming themselves into a nation. Compacts
then between nation and nation are obligatory on
them by the same moral law which obliges individuals
to observe their compacts. There are
circumstances however which sometimes excuse the
nonperformance of contracts between man and man:
so are there also between nation and nation. When
performance, for instance, becomes impossible,
nonperformance is not immoral. So if performance
becomes self-destructive to the party, the law of
self-preservation overrules the laws of obligation
to others.

Here it must be remembered that, historically, demilitarization is a principle applied to various "zones," not to the entirety of emergent states. Hence, the new state of Palestine might have yet another legal ground upon which to evade compliance with pre-independence commitments to demilitarization. It could be alleged, inter alia, that these commitments are inconsistent with traditional bases of authoritative international law - bases found in treaties and conventions, international custom, and the general principles of law recognized by "civilized nations" - and that therefore they are commitments of no binding character.

Israel, early TIKKUN opinion notwithstanding, should draw no comfort from the allegedly legal promise of Palestinian demilitarization. Indeed, should the government of the new state of Palestine choose to invite foreign armies and/or terrorists onto its territory (possibly after the original Arafat authority is displaced or overthrown by more militantly Islamic, anti-Israel forces), it could do so without practical difficulties and without violating international law. In the final analysis, of course, the overriding danger to Israel of accepting Palestinian statehood contingent upon demilitarization is more practical than legal, and stems preeminently from Israel's persistent unwillingness to acknowledge openly- stated Palestinian objectives. At a minimum, it would seem reasonable for Prime Minister Barak to ask Yasir Arafat: "Why does the official PA map of Palestine include all of Israel?"


LOUIS RENE BERES was educated at Princeton (Ph.D., 1971) and is the author of many books and articles dealing with international law. His work is well-known to Prime Minister Barak; to his immediate predecessors in the prime minister's office; to the Legal Adviser's Office (Ministry of Foreign Affairs); and to the IDF General Staff. He has co-authored several scholarly law journal articles on Palestinian demilitarization with Zalman Shoval, a former Israeli Ambassador to the United States.

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