The Palestinian Treaty Problem

Israel has reason to doubt that any treaty with the Palestinians would be honored.

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Palestinian women show their IDs at an Israeli checkpoint on their way to pray at the Al-Aqsa Mosque in Jerusalem.

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From the beginning, the state of nations has been the state of nature. Always, states and empires are poised for war. Normally, in order to secure themselves within this condition of protracted peril, they have fashioned assorted written agreements under international law. These formal codifications, expressed as treaties, have sought to smooth over the dreadfully harsh realities of anarchic world politics.

Still, on a fragmenting planet, law insistently follows power politics. Throughout history, more or less grievous problems have arisen whenever particular signatories had determined that lawful compliance is no longer in the "national interest." The overriding takeaway here is that treaties can be useful whenever there is a conspicuous mutuality of interest, but they can also become worthless whenever such mutuality is expected to disappear.

For the moment, Israel's 1979 Peace Treaty with Egypt – Muslim Brotherhood rule in Cairo notwithstanding – remains in place. But, at literally any moment, should President Mohamed Morsi decide to shore up his popularity with important Islamist constituencies, this could change. While any willful abrogation of treaty obligations by the Egyptian side would almost certainly be in violation of The Vienna Convention on the Law of Treaties (1969), there is little that the United Nations or the wider "international community" could actually do about it.

For Israel, this prospect should raise a critical warning about certain related issues of Palestinian statehood. Already, in June 2009, Prime Minister Benjamin Netanyahu had agreed to the creation of a Palestinian state. Yet, with an apparent nod to presumptively prudent diplomacy, he also conditioned this acceptance upon Palestinian "demilitarization." More specifically, said the prime minister, "In any peace agreement, the territory under Palestinian control must be disarmed, with solid security guarantees for Israel."

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This was a very daunting condition. On the surface, of course, such a contingent agreement seemed to represent a manifestly "smart" concession, but only if there were also certain reasonable expectations of Palestinian compliance. In fact, such expectations were implausible. This is not only because virtually all treaties and treaty-like agreements can easily be broken – an incontestable historical conclusion - but also because, more particularly, any post-independence Palestinian insistence upon militarization would likely be lawful.

Neither Hamas nor Fatah would ever accept anything less than full sovereignty. And why should they?

Consider this. International lawyers seeking to discover "Palestine-friendly" sources of legal confirmation could conveniently cherry-pick pertinent provisions of the Convention on the Rights and Duties of States (1934), the treaty on statehood. Moreover, they could apply the very same strategy of selective interpretation to the Vienna Convention on the Law of Treaties.

Israel has a "peremptory" or incontrovertible right to remain "alive." Originally, therefore, it was altogether reasonable for Netanyahu to have strenuously opposed a Palestinian state in any form, militarized or demilitarized.  After all, the leaders of both Hamas and Fatah still regard all of Israel as "occupied Palestine." Moreover, they say this routinely, almost as an incantation, and without any reservation or obfuscation.

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International law would not necessarily support Netanyahu’s insistence upon Palestinian demilitarization. These binding rules would not automatically expect Palestinian compliance with any pre-state agreements concerning armed force. This sobering statement remains correct even if these agreements were to include certain explicit U.S. guarantees to Israel.

There is more. Because authentic treaties can only be binding upon states, a non-treaty agreement between the Palestinians and Israel could quickly prove to be of little or no real authority or effectiveness. And this is to say nothing of the prominent and potentially synergistic connections between Hamas, the Islamic Resistance Movement, and the newly-strengthened Egyptian Muslim Brotherhood.