In September 2025, France and Great Britain together with several other states recognized a State of Palestine, bringing the total number of UN members that recognize Palestine to 157. But these declarations of recognition do not confer legal sovereignty. Under the international Convention on the Rights and Duties of States (Montvideo Convention of 1933), statehood is “independent of recognition by the other states.”
Juridical statehood is based on four requirements: a permanent population; a defined territory; a government (interpreted, inter alia, as capacity to enforce law within its territory); and the capacity to enter into relations with other states. These requirements are codified in the Montevideo Convention.
Recognitions of Palestine fail to meet the four Montevideo Convention requirements. For instance, the Palestinian Authority does not govern the Gaza Strip (presumably part of the state’s territory); even in the West Bank, it does not have a monopoly on the use of force throughout its territory.
Whatever their motives, the governments that recognized Palestine have welcomed a self-declared aggressor state into the community of nations, as evidenced by the PLO Charter. Its provisions calling for the end of UN member state Israel were never fully nullified and not replaced, despite PLO undertakings to do so. Such a state would become an existential hazard for Israel. In 2012, the UN General Assembly conferred on Palestine the rights of a “nonmember observer state,” which offers certain rights of deliberation in pertinent UN organs but no corresponding voting rights. Palestinian leaders acting in these UN deliberations have displayed persistently “criminal intent” (mens rea) toward Israel.
But could this lawless behavior be reduced or controlled if a Palestinian state were “demilitarized?”1
There is a clear answer: A state of Palestine could evade any pre-independence security promises made to Israel. Treaties only bind states, any agreement between a non-state Palestinian Authority and a sovereign State of Israel would have no binding legal effectiveness. For instance, in the US federal district court case of Tel-Oren v. Libyan Arab Republic, a 1981 civil suit where the plaintiffs were Israeli survivors and representatives of persons murdered in a terrorist bus attack in Israel in 1978, the judge opined: “…I do not believe the law of nations imposes the same responsibility or liability on non-state actors, such as the PLO, as it does on states and persons acting under color of state law.”
Multiple opportunities for Palestinian manipulation of international law could arise. 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, for example jihadist insurgencies, it could lawfully end its commitment to remain demilitarized. A state of Palestine could also point to “duress” as allegedly permissible grounds for agreement termination.
In the 18th century, Thomas Jefferson wrote about international law.2 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 simultaneously declared “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 contractual obligation becomes “self-destructive” to a party, “…the law of self-preservation overrules the law of obligation to others.”
In short, a presumptive Palestinian state could lawfully abrogate any pre-independence commitments to demilitarize.
International law is not a suicide pact. Assigning formal statehood to an entity that seeks an existing state’s elimination violates both justice and logic. Israel has no legal obligation to facilitate a new enemy state aggressor. Despite their expression in tones of high moral authority, the accumulating recognitions of Palestine avoid larger justice issues.
Another argument, based on misinformation, alleges an Israeli displacement of a pre-existing Palestinian Arab state. But the fact is at no time in history has there been a Palestinian state.
Under the British Mandate, in confirmation of decisions made at the San Remo peace conference of April 1920, all of the territory of Palestine was reserved for the establishment of a “Jewish national home.” In 1922, though no part of mandatory Palestine had ever been designated for the creation of another Arab state, Britain unilaterally carved Transjordan out of 78 percent of its mandatory territory. Transjordan became Jordan in 1949.
The UN partition resolution of 1947 included only “western Palestine” or 22 percent of the original British mandate. Jewish national authorities accepted this partition in exchange for establishing a Jewish state.
If UN member states want to establish the first Palestinian state, they should first honor international law by insisting on the criteria of the Montevideo Convention.
1. See Louis René Beres and Zalman Shoval, “Why a Demilitarized Palestinian State Would Not Remain Demilitarized: A View Under International Law,” Temple International and Comparative Law Journal, Winter 1998, pp. 347-363; and Beres and Shoval, “On Demilitarizing a Palestinian `Entity’ and the Golan Heights: An International Law Perspective,” Vanderbilt Journal of Transnational Law, Vo. 28., No.5., November 1995, pp. 959-972.
2. From the beginning, international law has been part of US domestic law. As the Supreme Court opined in The Paquete Habana case (1900), “International law is part of our law, and must be ascertained by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination. For this purpose, where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations.”
