e Catholic University of America, Columbus School of Law
CUA Law Scholarship Repository
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International Law and the Balfour Decision
Georey R. Watson
e Catholic University of America, Columbus School of Law
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Journal of Levantine Studies
Vol. 8 No. 1, Summer 2018, pp. 101-120
Journal of Levantine S tudies
Vol. 7, No. 1, Summer 2017, pp. 9-34
The Balfour Declaration in International Law
Georey R. Watson
The Catholic University of America
watson@law.edu
Introduction: Why Law Matters
The Balfour Declaration had enormous political significance, but did it have any
legal force? Was it legally binding, exposing Britain to legal remedies for its breach,
or was it merely an expression of policy that could be disregarded without legal
consequences? These questions are of intense interest to legal historians, but they
also have contemporary political relevance. The issue is not so much whether Britain
might be liable to the Palestinians for failing to safeguard the “civil and religious
rights” of non-Jewish residents of Palestine, though that is a theoretical possibility.
Instead, the question is whether the Declaration is legally relevant to the ongoing
peace process. The Declaration’s binding character matters because any negotiated
settlement to the Israeli-Palestinian conflict will take the form of a legal document,
and any such document will build on—indeed, be shaped by—the pre-existing legal
framework. If the Balfour Declaration is part of that legal framework, then a final
settlement to the conflict has to account for the legal obligations set forth in the
Declaration, at least in broad terms. The parties have routinely recited the most
prominent planks of the legal framework in their peace agreements. The Camp
David Accords and the first Oslo Accord, for example, both begin by invoking UN
Security Council Resolutions 242 and 338.
1
The legal framework is important in another way: it shapes the negotiation
process itself. Background legal norms set boundaries for the parties by describing
which negotiating positions are acceptable and which are beyond the pale. What is
more, the legal framework can define the political “center of gravity” of negotiations.
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The Balfour Declaration in International Law
If, for example, there is unquestionably a “Palestinian right of return,” then the
Palestinian negotiating position on displaced persons is somewhat stronger; if, on the
other hand, there is no such right, then the Palestinian position is correspondingly
weaker. If the Declaration has some binding character, in theory it could even be
the basis for a lawsuit for reparations or other relief, although this is very unlikely.
Finally, the legal framework provides a common language for negotiation, a shared
vocabulary. This is no small thing when the parties come to the table without a
shared historical narrative.
Accordingly, this paper takes up several questions about the legal history of
the Balfour Declaration: Was the Declaration binding as a matter of international
law when it was first issued in 1917? For that matter, was it binding in British
domestic law? If not, did the Declaration acquire a legally-binding character once
it was enshrined in the Mandate for Palestine? Did the purported termination of
the Mandate also terminate the Declaration as a matter of law? Does the Balfour
Declaration have any continuing legal effect today? Have modern legal norms of
self-determination and anticolonialism destroyed any remnant of the Declaration
that might have survived termination of the Mandate? Is it possible that some parts
of it have no continuing validity, but others live on?
The Legal Character of the Balfour Declaration, 1917–1923
The main body of the Balfour Declaration reads as follows:
His Majesty’s Government view with favour the establishment in Palestine of a
national home for the Jewish people, and will use their best endeavours to facilitate
the achievement of this object, it being clearly understood that nothing shall be done
which may prejudice the civil and religious rights of existing non-Jewish communities
in Palestine, or the rights and political status enjoyed by Jews in any other country.
2
This instrument, embodied in a letter to Lord Rothschild, was not a treaty. Treaty
law, then and now, generally requires an agreement between states.
3
The Balfour
Declaration did not purport to be an “agreement”; it is a letter to a private citizen
containing a unilateral statement of policy. It was more a proclamation than an
agreement. It became known as the Balfour Declaration, not the Balfour-Rothschild
Agreement or the Britain-Zionist Treaty.
Even if the Declaration could be understood as an agreement, neither Lord
Rothschild nor the British Zionist Organization constituted a “state.” In international
law a state, then and now, consists of an entity with a defined territory, a permanent
population, a government, and the capacity to engage in foreign relations.
4
Certainly,
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103
the international community has sometimes taken a broad view of statehood.
During World War I members of the British government seem to have assumed that
the Hussein-McMahon correspondence constituted a “strict, contractual, treaty-like
obligation.”
5
(Indeed, there is a case to be made that the Hussein-McMahon letters
have more of a legally binding character than the Balfour Declaration.) And treaty
law has come to recognize treaties between a state and a “subject of international law”
such as the Holy See or a national liberation movement that has some characteristics
of statehood. I have argued elsewhere that the Oslo Accords are legally binding treaties
between a state (Israel) and a “subject of international law,” the Palestine Liberation
Organization.
6
It is true, moreover, that the Zionists lobbied the British government,
providing draft language, some of which (like the famous phrase “national home”)
made it into the final document.
7
But the Zionist Organization did not hold itself
out as a state, and Lord Balfour did not purport to be making an agreement with one.
In fact the words of the Declaration do not necessarily promise a full-fledged state.
The curious term “national home,” which has no particular meaning in international
law, could presumably have implied something less than a state—a territorial enclave
inside another state, say, without the capacity to engage in foreign relations on its
own. At any rate, it seems safe to conclude that the Balfour Declaration was not an
“agreement between states” as is required of a treaty.
There is a somewhat stronger argument that the Declaration was binding as
a unilateral promise by a state made in good faith. Sixteen years after the Balfour
Declaration, the Permanent Court of International Justice (the “World Court”) held
that Norway was legally bound by a unilateral oral promise its foreign minister made
regarding Eastern Greenland. The promise was not encased in a treaty, but the Court
found it binding anyway, stressing that Denmark had relied on the promise.
8
In 1974
the PCIJ’s successor, the International Court of Justice, extended the holding in
Eastern Greenland by concluding that a unilateral promise by France not to engage in
certain nuclear tests was binding even without a showing of reliance by other states.
The test for the 1974 Court was whether France’s promise had been made in “good
faith” with intention to be bound.
9
But the 1933 Eastern Greenland decision was
something of a novelty; it is far from clear that it reflects the customary international
law prevailing in 1917. Even today, examples of state practice or case law following
Eastern Greenland and Nuclear Tests are rare. Still, the Balfour Declaration has some
of the formal characteristics of those later, binding unilateral promises: it was issued
by a senior government official, in written form, with a certain amount of formality,
possibly reflecting intention to be bound.
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The Balfour Declaration in International Law
One obvious objection to this “unilateral obligation” theory is timing: Eastern
Greenland postdates the Balfour Declaration. Normally we assess the legal validity
of an act in light of then-prevailing law, not later law.
10
One might circumvent
this obstacle by arguing that Britain effectively reiterated the Declaration in the
1930s, after Eastern Greenland was issued by the ICJ. But Britain did not restate the
Declaration forcefully in that period; if anything, it sought to walk the Declaration
back, as it moved to endorse the partition of Palestine. Alternatively, one might argue
that Eastern Greenland’s “binding unilateral promise” theory was already becoming
the law when the Balfour Declaration was issued in 1917. One might even argue
that a “general principle” of contract law was evolving toward enforcement of some
unilateral promises, particularly those inducing reliance, and that the common law
was in the forefront of this development.
11
But even if one concedes that Balfour’s
declaration was made in good faith and that it induced reliance (in the form of
Jewish immigration to Palestine, say), one might doubt whether the Declaration was
made with “intention to be legally bound.”
12
In particular, one might doubt whether the Declaration embodies any promise
at all. The Eastern Greenland/Nuclear Tests theory of unilateral obligation—and, as
we shall see in a moment, domestic contract law—assumes there was a promise. In
law a promise is understood as a “commitment,” not merely a statement of intention.
Lord Balfour’s words arguably fall short of a commitment. He says the government
“views with favour” the establishment of a national home in Palestine—not that
he “promises” one. A promise does not require the use of the word “promise,” and
indeed Balfour goes on to use one of the most common substitutes: the word “will.”
The government “will use their best endeavours to facilitate this object.” Even so,
the word “will” is qualified with “best endeavours” and “facilitate.” And, as Brian
Klug has pointed out, the Declaration is encapsulated by a cover memorandum that
further dilutes its character as a commitment. Lord Balfour says he is conveying a
“declaration of sympathy.” That is not the language of promise.
To top it off, Lord Balfour’s much-qualified declaration is followed by a proviso
that threatens to swallow up the supposed promise: “it being clearly understood that
nothing shall be done which may prejudice the civil and religious rights of existing
non-Jewish communities in Palestine, or the rights and political status enjoyed
by Jews in any other country.” If the undertaking to facilitate a “national home”
could only be fulfilled by prejudicing the “civil and religious rights” of non-Jewish
communities in Palestine, then it was no promise at all. In law we might call such
an undertaking an “illusory promise”—a promise that has the superficial attributes
of a promise (the word “will”) but in substance lacks the requisite commitment of a
Journal of Levantine Studies
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promise. At the time of Lord Balfour’s promise, illusory promises generally were not
binding in British or American law.
Coincidentally, just one month after the Balfour Declaration was made public, a
leading American court declared for the first time that a seemingly illusory promise
could be rendered nonillusory (and hence binding) by assuming it included an
obligation to use “best efforts” to achieve its aim. A “best efforts” (or “best endeavours”)
clause, in other words, can “cure” an otherwise illusory promise. The decision, Wood v.
Lucy, Lady Duff-Gordon, is one of the most famous in all of American contract law,
and it was rendered by one of its most famous judges—Judge Benjamin Nathan
Cardozo, of the New York Court of Appeals, himself a rather lukewarm Zionist. In
Lucy a fashion designer had agreed to pay a promoter half the proceeds of whatever
sales he made of her designs—but the contract contained no explicit promise that
the promoter try to make any sales at all, and in fact he had not made any. Judge
Cardozo found that the promoter had an “implied” (that is, unstated) duty to use
“best efforts” to put the designs on sale. (As an aside, it is tempting to ask whether
Cardozo had read the Balfour Declaration when he wrote his famous opinion in
Lucy, Lady-Duff Gordon, and if so, whether it influenced his thinking. A review of
the docket in Lucy sheds no light on this question.)
The Balfour Declaration contains just such a “best efforts” clause—the British
version, a “best endeavours” clause. The Declaration says that the government will
use its “best endeavours” to facilitate the object of a national home. British courts and
contract drafters had long used such a clause to strengthen or clarify an underlying
duty. One interesting question is whether any member of the British cabinet was
familiar with this body of English law. Few members of the cabinet were lawyers,
apart from David Lloyd George. Indeed, the 1917 British government seems to
have drafted the Balfour Declaration without much lawyerly input. Thus it seems
unlikely that the insertion of the “best endeavours” clause was designed to give the
Declaration legal effect.
There is at best a weak case, then, that the Declaration was binding in international
law as a unilateral statement. Even if it had such a character, it still might have been
unenforceable for other reasons. It might be said to have been inconsistent with
Britain’s undertakings in the Hussein-McMahon correspondence, which had a more
treaty-like nature than the Balfour Declaration. The binding nature and breadth
of the Hussein-McMahon correspondence is beyond the scope of this paper, but
it is fair to say that there is significant tension between the correspondence and
the Declaration. One might also argue that even if the Balfour Declaration had
some binding character as a matter of treaty law, it was unenforceable because it
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The Balfour Declaration in International Law
violated an emerging international legal norm of self-determination, as embodied
in the Covenant of the League of Nations. The problem with that contention is
that the League of Nations itself endorsed the Declaration, more or less, when it
incorporated much of its text into the Mandate for Palestine. The next section takes
up that question in more detail.
Whether or not the Declaration had binding force in international law, it almost
certainly had no binding effect in British domestic law. There was no general rule
of British constitutional or administrative law that automatically ascribed binding
status to unilateral statements of policy made by cabinet ministers. Then, as now,
British public law was characterized by parliamentary supremacy. Parliament made
law; the government executed law. Of course the prime minister and the Foreign
Office conducted foreign policy, but it was policy, not law—changeable at will, not
enforceable in courts.
Nor was the Declaration a contract under British domestic law. Even if one
makes the precarious assumption that private contract law can apply to statements
of policy by government ministers, the Balfour Declaration lacks the elements of
a contract.
13
British common law, then and now, generally defined a contract as a
promise given in exchange for “consideration” (a return promise or performance),
expressed through offer and acceptance or some other process indicating intent to
be bound. Lord Balfour’s promise (if it was a promise) is not given in exchange for
any explicit “consideration” on the part of Lord Rothschild or the Zionists. Even
if the British harbored fantasies that the Zionists would somehow reciprocate by
helping them in the war effort, those hopes were not expressed in any agreement, as
is required of consideration doctrine.
14
In sum, there is a somewhat plausible argument that the Balfour Declaration
was legally binding as a matter of international law between 1917 and 1923. It was
not a treaty, but it might be regarded as a unilateral promise by a state, made in
good faith and intended to be legally binding—depending on whether one finds a
concrete promise in the document. If there is a continuum of legal obligation, one
running from full obligation to soft obligation to zero obligation, then the Balfour
Declaration might be somewhere in the soft middle. Even if it had some binding
character, it was in tension with British undertakings in the Hussein-McMahon
correspondence, which has a more treaty-like nature than the Balfour Declaration.
Finally, whether or not the Balfour Declaration was binding in international law, it
had little if any binding force in British domestic law.
Did the Declaration become binding once it was embedded in the Mandate?
The next section takes up that question.
Journal of Levantine Studies
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The Legal Character of the Declaration during the Mandate, 1923–1948
In its preamble, the Mandate for Palestine recites that the Allied Powers had agreed
that Britain “should be responsible for putting into effect” the Balfour Declaration.
This language alone might not connote legal obligation: “should” is traditionally
regarded as the hortatory version of “shall.” But in Article 2, the Mandate imposes
legal obligations on Britain. It declares that Britain “shall be responsible for placing
the country under such political, administrative and economic conditions as will
secure” the objectives of the Declaration, including establishment of the Jewish
national home, creation of self-governing institutions, and safeguarding the rights of
“all the inhabitants of Palestine, irrespective of race and religion.”
15
That said, the Mandate did not incorporate the Declaration verbatim. For
example the Mandate replaced “view with favour” with “shall be responsible,” language
more clearly indicating legal obligation. The Mandate also elaborated considerably
on Britain’s obligations to Jews and non-Jews alike. Article 4, for example, calls for
a Jewish Agency for Palestine, and Article 6 calls on Britain to “facilitate Jewish
immigration” and to encourage “close settlement by Jews on the land.” Article 9
protects the “rights” of “natives” and the “religious interests” of all peoples, and Article
13 seeks to safeguard Muslim places of worship and other holy places.
In a sense, then, it is a category error to ask whether the Mandate transformed
the Balfour Declaration into a legally-binding document, because the Mandate did
not incorporate the Declaration word-for-word. Rather, the Mandate was a treaty-like
instrument unto itself, as it was founded on a series of agreements, including the
League Covenant, the San Remo Conference, the Treaty of Sèvres, and the actions of
the League Council confirming the Mandate. There is little doubt that the Mandate
had a binding character. The main legal question here is whether the Mandate
violated higher norms of international law, in particular the emerging right of
self-determination of peoples.
Under modern international law, a treaty-like instrument such as the Mandate
is invalid if it violates peremptory norms of international law.
16
In today’s law these
norms are thought of as a sort of super-constitutional law of the international order,
founded on natural law. These peremptory norms are known as jus cogens. While
there is no agreement on the exact content of jus cogens, there is broad agreement
that states cannot enter into treaties to commit genocide, torture, slavery, crimes
against humanity, and other gross violations of human rights, and probably piracy
and other serious international crimes. Some sources specifically identify the right of
self-determination as a jus cogens norm.
17
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The Balfour Declaration in International Law
Do these modern notions of jus cogens imply that, at the time of their promulgation,
the Mandate and the Balfour Declaration were null and void as violating Arab rights
of self-determination? The doctrine of intertemporal law dictates that we evaluate a
legal instrument in light of the law prevailing at the time of its adoption, not in light
of modern law.
18
In 1923 the doctrine of jus cogens was not nearly as well embedded
in international law as it is today. To be sure, the notion of natural law is as old as
law itself: it features in sources as diverse as Sophocles’s Antigone, Thomas Jefferson’s
Declaration of Independence, and Justice Clarence Thomas’s jurisprudence. Hugo
Grotius explicitly grounded international law in natural law.
19
But the specific notion
that a treaty might be invalid for violation of a jus cogens norm did not enter positive
law until the 1969 Vienna Convention on the Law of Treaties, and it was not actually
applied by international courts until decades later.
20
Moreover, the right of self-determination was not as well developed in 1923 as it is
today. The Treaty of Versailles and the League of Nations Covenant contain provisions
calling for some form of self-determination for some peoples—usually European
peoples. Article 22 of the Covenant in particular envisions that the Mandatory powers
would help some peoples develop their own governing institutions. But after World
War I the international community rejected President Wilson’s calls for a more robust
treaty-based right of self-determination.
21
During this period, self-determination was
a “political principle, but not a right under international law,” and it was “subject
to many limitations.”
22
Certainly the British understood it as a principle rather
than a right. In 1919, Balfour wrote to Lloyd George that “in the case of Palestine,
we deliberately and rightly decline to accept the principle of self-determination,”
since the present inhabitants would surely deliver an “anti-Jewish verdict,” but he
felt Palestine was “absolutely exceptional” because the Jewish national home was of
“world importance,” provided it could be obtained without either “dispossessing or
oppressing the current inhabitants.”
23
A “right” of self-determination did evolve as
decolonization accelerated through the twentieth century, and self-determination was
eventually enshrined in the 1945 UN Charter and subsequent instruments to protect
human rights. But even today, the precise content of the right of self-determination
remains uncertain. It does not, for example, include an absolute right to secede.
Even if some right of self-determination had emerged by 1923, it seems unlikely it
had achieved the status of a jus cogens norm, which has to be “accepted and recognized
by the international community of states as a whole.”
24
Given the resistance to Wilson’s
proposed right of self-determination, it is hard to conclude that the post–World War
I community of states “as a whole” had agreed upon such a right. International law
would not take on an anti-imperialist cast until after World War II.
25
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109
But that is not to say the right of self-determination is irrelevant to interpretation
of the Mandate or Balfour Declaration. In interpretation of treaties and other
international instruments, the plain text is the first port of call.
26
Lord Balfour may
have believed his Declaration excluded a Palestinian right of self-determination,
but the plain text of the Declaration endorses “civil and religious rights” for
Palestinians—a phrase broad enough to embrace some form of self-determination.
Nowhere does the Declaration disclaim Palestinian rights to self-determination.
True, the law of treaty interpretation also permits recourse to the context of
the instrument. In particular, treaty law requires that one read an instrument in
light of any “relevant rules of international law.”
27
This rule again suggests that the
Declaration’s proviso should be construed as protecting some form of Palestinian
self-determination. Admittedly, in 1917 there was, at most, an emerging norm
of self-determination. By 1923, however, the international community had
begun to recognize such a norm; the Mandates themselves reflect a certain level
of commitment to the principle of self-determination. In any case, if the Balfour
Declaration is still in force today, it is a modern instrument that must be read in
light of modern international law, which most certainly does include a jus cogens
norm of self-determination. The most important human-rights treaty defining “civil
rights,” the International Covenant on Civil and Political Rights, states the following
in Article I: “All peoples have the right of self-determination.”
28
If Britain wishes to
avoid responsibility for ensuring “civil rights” for Palestinians, including this right of
self-determination, it can renounce the Declaration and declare that it has no further
legal effect. But Britain has not done so.
As a last resort, treaty law does permit recourse to the travaux préparatoires
(“preparatory works,” or negotiating history) of an instrument, but only if the
natural reading of the text is “ambiguous or obscure” or leads to an “absurd result.”
29
Opponents of Palestinian self-determination might argue that the term “civil rights”
is ambiguous and thus that it should be interpreted by examining the drafting history
of the Declaration (though not postpromulgation comments by Balfour and others).
This argument would point to evidence that the men who drafted the Declaration
and Mandate intended to exclude Palestinian rights of self-determination, even if
they did not say so in the text.
Commentators have long asserted that international law disfavors “negotiating
history,” though that view has recently been challenged.
30
(This controversy
is analogous to the controversy over the use of “original intent” in American
constitutional law.) A good case can be made for caution in the use of drafting
history; identifying bureaucratic intent is challenging even when a bureaucracy is
110
The Balfour Declaration in International Law
unified. In the case of the Declaration, whose drafting process was chaotic, and the
Mandate, it seems advisable to consult drafting history with caution. At any rate, the
law says one should consult negotiating history only if the phrase “civil and religious
rights” is “ambiguous,” “obscure,” or “absurd.”
The phrase “civil rights” certainly isn’t “obscure,” and interpreting it as including
at least a weak form of self-determination—such as limited autonomy—hardly
seems absurd. Is the phrase “civil rights” ambiguous? It might be vague, but it is not
necessarily ambiguous. Vagueness refers to a term whose general meaning is agreed
upon but whose outer boundaries are uncertain, such as the word “equality” or the
color red. Ambiguity refers to a term that might have two starkly different meanings,
like the word “light,” which can refer to illumination or weight. Vagueness is an
inevitable part of all agreements, contracts and treaties alike; ambiguity should be
avoided by any competent drafter. The Vienna Convention on the law of treaties
does not support resort to drafting history for mere vagueness.
But even if one concludes that some resort to drafting history is appropriate,
it is still not possible to read the term “civil rights” as entirely excluding some right
of Arab self-determination. The drafting history of the Declaration and Mandate
may or may not reflect consensus that there would be no Arab state or “national
home,” but it certainly does not rule out lesser forms of Arab self-determination
in Palestine, such as autonomy, local self-rule, or participation in a federal system.
And the intention of the Allied powers as to the future of the Arabs in Palestine was
far from clear in 1923. The British had already made conflicting promises to the
Arabs and Jews, suggesting that the British government might have envisioned that
“civil and religious rights” could amount to a “national home” for Arabs. At the very
least, “civil and religious rights” would seem to mean much more than the rights
Palestinian Arabs enjoyed throughout the term of the Mandate and thereafter.
31
There is nothing radical about reading the term “civil rights” as including a right of
self-determination. The right of self-determination does not necessarily mean a right
to full statehood, secession, or even a “national home.” What is more, the right attaches
only to “peoples,” not to small groups or individuals. In practice self-determination
implies some right to participate in decisions about how a people will be governed.
State practice, the foundation of customary international law, reflects a mixed attitude
toward aspirations for national homes and statehood. While states acquiesced in many
decolonization and independence movements in the twentieth century, they have
also often opposed national liberation movements that seek independence, secession,
statehood, or other robust forms of self-determination.
32
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111
In sum the Mandate for Palestine was a legally binding document, at least for as
long as the Mandate existed. For that period of time, at least, it mooted the question of
whether the Balfour Declaration standing alone was legally binding, since the Mandate
restated and then enlarged upon the undertakings in the Balfour Declaration. The
Mandate probably did not violate a jus cogens norm of self-determination, because
the notion of jus cogens had not been accepted as positive law in 1923, and the right
of self-determination was still emerging. But modern norms of self-determination
should inform modern interpretation of the Declaration. Those norms imply that
the Balfour Declaration, if still in force, might have legal implications for Britain’s
current policy toward the Arab residents of Palestine. In particular Britain may have
a continuing obligation to promote Arab self-determination in Palestine, though
self-determination does not always take the form of full statehood.
The next section considers the legal status of the Balfour Declaration after the
British terminated the Mandate in 1948.
The Balfour Declaration from 1948 to the Present
When the British announced that they were terminating the Mandate for Palestine,
effective in 1948, did the Balfour Declaration disappear from the legal landscape?
This section argues that it did not.
A threshold question is whether the British, acting pursuant to General Assembly
Resolution 181(II), actually terminated the Mandate at all. Some jurists have suggested
that the Mandate was not validly terminated, or was only partly terminated.
33
The
Mandate had the character of a multilateral treaty, as it reflected the decisions taken
at San Remo and Sèvres, as well as the votes of the states in the League of Nations
Council. Unless the treaty provides for one state to terminate it, one state cannot
unilaterally end a multilateral treaty; all the parties have to consent.
34
In this case the
treaty terms are ambiguous about the process of termination: Article 28 of the Mandate
does recognize the possibility of termination of the Mandate, but it does not make
clear who could terminate it and how. Article 27 says modification requires consent of
the League Council, the successor to which is the Security Council, not the General
Assembly.
Assembly Resolution 181(II) did reflect the views of a majority of the international
community. That resolution was not unanimous, however; all the Arab states voted
against it, and the United Kingdom, China, and eight other states abstained. Moreover,
a General Assembly resolution ordinarily is not legally binding.
35
The Resolution also
seems to disregard the trusteeship process of the UN Charter. Article 77(1)(a) of the
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The Balfour Declaration in International Law
Charter envisioned trusteeship agreements to place existing Mandates under the new
Charter trusteeship system.
36
For that matter, some modern jurists argue that the
entire Mandate system was an invalid exercise in imperialism.
37
On the other hand,
state practice since 1948 suggests that many states have acquiesced in the termination
of the Mandate: no state is clamoring for Britain to reassert its Mandatory authority.
Moreover, Article 85 of the Charter empowered the General Assembly to oversee the
new Trusteeship Council, suggesting that the Assembly possessed some competence
to terminate the Mandate.
Assuming the Mandate did terminate in 1948, its demise did not necessarily
terminate the Balfour Declaration. The British government may have renounced
the Mandate, but it did not renounce the Declaration itself. Since 1917 the law
has gradually become more inclined to enforce unilateral declarations. At the time
Lord Balfour issued his declaration, there was doubt about whether a unilateral
statement made in good faith could be binding. But, as we saw earlier, the World
Court held such declarations enforceable in Eastern Greenland (1933) and Nuclear
Tests (1974). Insofar as the British government has renewed its commitment to the
Declaration, it might be said to have issued new unilateral statements; even oral
declarations (such as the one in Eastern Greenland) can be legally binding. Recently,
the British government has said it is “proud” of the Declaration; it invited Israeli
Prime Minister Benjamin Netanyahu to London to celebrate the one hundredth
anniversary of the Declaration, and it has refused Palestinian demands that Britain
apologize for the Declaration. One could interpret such statements as reaffirmations
of the Balfour Declaration.
Reaffirmation is relevant not because of the main undertaking of the Declaration,
which has been fulfilled by the creation of the State of Israel, but because of the
proviso. The proviso is an unconditional promise: “it being clearly understood that
nothing shall be done which may prejudice the civil and religious rights of existing
non-Jewish communities in Palestine, or the rights and political status enjoyed by
Jews in any other country.” This language is absolute. It has none of the weasel words
of the main clause (“view with favour,” “best endeavours,” and so forth). The proviso
is the sort of promise that might constitute a legally-binding commitment under the
Eastern Greenland/Nuclear Tests doctrine. Indeed, its unconditional nature makes it
a better candidate for enforcement than the main undertaking in the Declaration.
Even if the Balfour Declaration has never had any binding force of its own,
and even if the Mandate terminated validly, it is still possible that the civil rights
proviso might have some residual legal effect today. When announcing its termination
of the Mandate, Britain interpreted the Mandate as imposing three obligations:
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(1) to promote the “well-being and development of the people of Palestine,” (2) to
facilitate the Jewish “national home,” and (3) “to prepare the people of Palestine for
self-government.”
38
His Majesty’s Government gave itself high marks on the first two
obligations, trumpeting the development of civic institutions, law and order, economic
development, and growth of not only the Jewish but also the Arab population, and of
course the establishment of the national home itself—all the while acknowledging that
Britain was unable to prevent violence and civil strife. But the British government had
to admit that it was “unable to make comparable progress towards the accomplishment
of their third task, the preparation of the people for self-government, owing to the
mutual hostility of Arabs and Jews.”
39
That could be taken as an admission that Britain
did not fulfill all its obligations under the Mandate—in particular, its obligation under
Article 2: “safeguarding the civil and religious rights of all the inhabitants of Palestine,
irrespective of race and religion.” Even if that statement is not an admission of failure
to meet its obligations, the facts on the ground in 1948 suggest that Britain did less
than a fulsome job of protecting Palestinian “civil rights.”
By no means does this imply that Britain is legally responsible for all the ills of the
Arab-Israeli conflict. The law of state responsibility exempts Britain for force majeure
and other acts not attributable to that state, such as the decision of Arab states to
make war on the new state of Israel.
40
International law holds Britain accountable
only to an extent proportionate to Britain’s failure to abide by its own obligations,
not the wrongdoing of others.
41
Nor does the law of responsibility imply that Britain
owes Palestinians enormous reparations. Rather, that body of law recognizes that
when compensation is not adequate to redress a wrong, satisfaction is an appropriate
remedy. Thus Article 37 of the International Law Commission’s Articles on State
Responsibility provides this: “Satisfaction may consist in an acknowledgement of the
breach, an expression of regret, a formal apology or another appropriate modality.”
42
An apology or expression of regret would be a start, but “another appropriate
modality” could also imply a foreign policy that aims to safeguard the “civil and
religious rights” of “non-Jewish inhabitants in Palestine.” At a minimum this might
entail promoting Palestinian voting and other civil rights, as well as access to holy
places. Or it might mean a commitment to a stronger form of Palestinian governance
than exists now, or confederation with another Arab state, or a demilitarized
Palestinian state in the West Bank and Gaza Strip, or British recognition of a fully
independent Palestinian state. Of course, Britain’s pursuit of any of these aims must
be through peaceful means.
43
A guiding principle for all of this is the norm of good
faith that permeates modern international law.
44
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Insofar as Britain may have reaffirmed the proviso to the Balfour Declaration, a
broad interpretation of “civil and religious rights” would be consistent with modern
human rights law. Today there is a stronger right of self-determination than was the
case a century ago. Again, modern international law also obliges states to respect the
sovereignty, security, and territorial integrity of the State of Israel, and in particular
to oppose terrorism and other forms of violence.
45
Perhaps British and Palestinian diplomats might consider adjusting their talking
points. The Palestinian Authority regularly denounces the Balfour Declaration as
an unlawful violation of the right of self-determination. It has called for the British
government to apologize for the Declaration and has threatened to sue Britain for
damages ensuing from the Declaration.
46
Palestinian anger about the Declaration is
understandable. But it is not clear what court would have jurisdiction over a lawsuit, or
what relief could be obtained.
47
More important, the Palestinian Arabs might still have
something to gain from the Balfour Declaration. They could insist that the proviso of
the Declaration is valid and enforceable, and use it to press Britain to help ensure “civil
and religious rights” for the Palestinian Arab people. Rhetorically, they could pivot
from their traditional criticism of the Balfour Declaration to speak more favorably of
the “Balfour Proviso,” the unconditional promise to protect Palestinian rights.
For its part, the British government has defended the Declaration but also
admitted that the Declaration “should have called for the protection of political
rights of the non-Jewish communities in Palestine, particularly their right to
self-determination.”
48
Britain is right that the Declaration should have protected
the Palestinian right to self-determination explicitly, but Britain might do better
to emphasize that the Declaration did call for the protection of “civil and religious
rights” of non-Jewish communities in Palestine, and to interpret those rights as
including a right to self-determination. Britain should take the opportunity of the
one hundredth anniversary of the Balfour Proviso to redouble its efforts to facilitate
a durable and just peace.
Conclusion
The Balfour Declaration may have continuing legal relevance—not as a promise
of a Jewish national home, which has already been fulfilled, but as a promise for
Palestinian rights. The Declaration’s proviso is part of the pre-existing legal framework
upon which any future peace agreement will be constructed. Britain may have an
ongoing legal obligation to ensure its promise is kept, or at least to make some form
of diplomatic satisfaction to the Palestinian people in the form of an apology or
“other modality.”
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But even if Britain is free from any such residual legal obligation, it still has a
moral obligation to help correct a state of affairs that it played a role in bringing
about. Britain is not powerless to carry out this obligation. The British government
has involved itself in attempts to construct a peace agreement, for example through
its participation in the Middle East “Quartet” (the United Nations, the United
States, Russia, and the European Union). Indeed, former British Prime Minister
Tony Blair served as the Quartet’s chief diplomatic envoy from 2007 to 2015.
In current diplomatic practice, when drafting agreements or UN resolutions
about the Arab-Israeli conflict, the authors begin by reciting a canonical list of
sacred legal texts. At a minimum these lists usually include UN Security Council
Resolutions 242 and 338, but sometimes they also mention the UN Charter, the
Camp David Accords, the Oslo Accords, human rights treaties, or other planks
in the legal framework. These “recitals” help lawyers draft and interpret the new
instrument by providing a clearer sense of its context and purpose. Recitals also add
an air of formality to a legal agreement, perhaps enhancing its “pull to compliance.”
49
In the current climate, it is probably too much to hope that the drafters might add
the Balfour Declaration to the canonical list of recitals. That is unfortunate because
the Declaration has something to offer to both sides: security for the Israelis and
an unfulfilled promise of “civil and religious rights” to the Palestinians. Eventually
the two sides might see that it is in their interests to acknowledge the continuing
relevance of the Declaration. In the meantime drafters should at least include recitals
of human rights instruments that restate and enlarge upon the “civil and religious
rights” first stated in the Balfour Proviso. Arab-Israeli peace agreements have not
always done so.
50
Nonlawyers may be skeptical that pre-existing legal norms can influence the
course of a negotiation. But good lawyers always survey the background law before
they start drafting, and in treaty negotiations, the lawyers do the drafting. They draft
in legal language, using a legal vocabulary and drawing on legal history. The Balfour
Proviso establishes a human rights “floor” for future agreements: any such agreement
must, at minimum, safeguard the “civil and religious rights” of the Palestinian Arabs.
Of course later instruments—human rights treaties, UN resolutions—say roughly
the same thing. But the Balfour Proviso was the first to say it in this specific context.
It deserves a place at the table.
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The Balfour Declaration in International Law
Notes
1 See Declaration of Principles on Interim Self-Government Arrangements, Sept. 13, 1993
(Isr.-PLO), Art. 1, accessed May 9, 2018, http://avalon.law.yale.edu/20th_century/isrplo.asp; The
Camp David Accords: Framework for Peace in the Middle East, Preamble, paras. 2, 6, and 9,
accessed May 9, 2018, http://avalon.law.yale.edu/20th_century/campdav.asp. The Camp David
Accords also attached the full texts of Resolutions 242 and 338 as appendices.
2 Jonathan Schneer, The Balfour Declaration (New York: Random House, 2010), 341.
3 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, Art. 2(1)(a)
(requiring an “an international agreement concluded between States in written form and governed
by international law”), accessed May 9, 2018, https://treaties.un.org/doc/publication/unts/
volume%201155/volume-1155-i-18232-english.pdf.
4 See Convention on Rights and Duties of States, Dec. 26, 1933, 49 Stat. 3097, T.S. 881, Art. 1,
accessed May 9, 2018, http://avalon.law.yale.edu/20th_century/intam03.asp.
5 See Elie Kedourie, In the Anglo-Arab Labyrinth: The McMahon-Husayn Correspondence and Its
Interpreters 1913–1949 (Cambridge: Cambridge University Press, 1976), 246, 249.
6 See Geoffrey R. Watson, The Oslo Accords (New York: Oxford University Press, 2000), 91–102.
7 For an excellent discussion of the final drafting process, see Schneer, Balfour Declaration, 333–342.
8 Legal Status of Eastern Greenland (Den. v. Nor.), 1933 P.C.I.J. (ser. A/B) No. 53 (Apr. 5).
9 Nuclear Tests (Aus. v. Fr.), 1974 I.C.J. Reports 253, 269–70 (Judgment of Dec. 20).
10 See Island of Palmas Case, 2 Hague Case Reports 83, at 100, 2 U.N. Rep. Intl. Arb. Awards 829
(Perm. Court of Arbitration, 1928).
11 See, e.g., Hughes v. Metropolitan Railway, [1877] 2 A.C. 439 (House of Lords); Ricketts v. Scothorn.
57 Neb. 51, 77 N.W. 365 (Sup. Ct. Neb., 1898).
12 See Victor Kattan, From Coexistence to Conquest: International Law and the Origins of the Conflict,
1891-1949 (London: Pluto Press, 2009), 58.
13 For a variety of reasons, promissory estoppel suits against the government are unusual in common
law jurisdictions. See Phuong N. Pham, “The Waning of Promissory Estoppel,” Cornell Law
Review 79, no. 5 (1994): 1282: “Absent unusual circumstances, promissory estoppel cannot be
used against government agencies or municipalities that act within their statutory authority, even
if such action is in breach of a prior promise.”
14 See, e.g., Currie v. Misa (1875) LR 10 Ex 153; (1875-76) LR 1 App Cas 554 (requiring
consideration for enforcement of promises in English law).
15 Mandate for Palestine, League of Nations Doc. C.529 M.314 1922 VI (1922), accessed May 9,
2018, http://avalon.law.yale.edu/20th_century/palmanda.asp.
16 See Vienna Convention on the Law of Treaties, Art. 53, 64 (providing that treaties that violate
jus cogens are null and void).
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17 See, e.g., Report of the International Law Commission, 66th Session, A/69/10, Annex, 274–279
(2014) (summarizing the ILC’s understanding of the content of jus cogens); ibid., 276 n10
(identifying the right of self-determination as one example of jus cogens), accessed May 9, 2018,
http://legal.un.org/docs/?path=../ilc/reports/2014/english/annex.pdf&lang=EFSRAC.
18 See Island of Palmas Case, 2 Hague Case Reports 83, at 100, 2 U.N. Rep. Intl. Arb. Awards 829
(Perm. Court of Arbitration, 1928).
19 Hugo Grotius, De jure belli ac pacis [On the Law of War and Peace] (1625), bk. 1, chap. 1, para. 10.
20 See, e.g., Prosecutor v. Furundžija, International Criminal Tribunal for the Former Yugoslavia,
Case No. IT–95–17/1–T, Judgement, paras. 153-57 (Dec. 10, 1998), accessed May 9, 2018,
http://www.icty.org/x/cases/furundzija/tjug/en/fur-tj981210e.pdf. Compare with Dinah Shelton,
“Sherlock Holmes and the Mystery of Jus Cogens,” Netherlands Yearbook of International Law 2015
(The Hague: T.M.C. Asser Press, 2016), 48: “Like the tourists who flock to Baker Street convinced
of the reality of Sherlock Holmes, adherents of jus cogens may continue [to] look for it to have an
impact in the real world.”
21 See Hurst Hannum, “Rethinking Self-Determination,” Virginia Journal of International Law 34,
no. 1 (1993): 7.
22 Hurst Hannum, “The Right of Self-Determination in the Twenty-First Century,” Washington and
Lee Law Review 55, no. 3 (1998): 774.
23 F.O. 371/4179/2117, Balfour to the Prime Minister, 19 February 1919, quoted in Isaiah Friedman,
The Question of Palestine: British-Jewish-Arab Relations, 1914-1918, 2nd ed. (New Brunswick,
NJ: Transaction, 1992), 325.
24 Vienna Convention on the Law of Treaties, Art. 53.
25 For an excellent discussion of the relationship between colonialism and the development of
modern international legal institutions, see Anthony Anghie, Imperialism, Sovereignty, and the
Making of International Law (Cambridge: Cambridge University Press, 2004). Perhaps the most
radical transformation of international law in history took place from the 1920s through the
1950s, as the law moved from the embrace of colonialism to the rejection of it.
26 See Vienna Convention on the Law of Treaties, Art. 31(1): “A treaty shall be interpreted in good
faith in accordance with the ordinary meaning to be given to the terms of the treaty in their
context and in the light of its object and purpose.”
27 See Vienna Convention on the Law of Treaties, Art. 31(3)(c).
28 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171, Art. 1,
accessed May 9, 2018, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.
29 See Vienna Convention on the Law of Treaties, Art. 32.
30 Compare Julian Davis Mortenson, “The Travaux of Travaux: Is the Vienna Convention Hostile to
Drafting History?,” American Journal of International Law 107, no. 4 (2013): 780, 782n3 (arguing
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The Balfour Declaration in International Law
that treaty law permits recourse to negotiating history) with Georges Abi-Saab, “The Appellate
Body and Treaty Interpretation,” in Treaty Interpretation and the Vienna Convention on the Law
of Treaties: 30 Years On, ed. Malgosia Fitzmaurice, Olufemi Elias, and Panos Merkouris (Leiden:
Martinus Nijhoff Publishers, 2010), 99, 104–105 (arguing that international law disfavors the
use of negotiating history).
31 See Kattan, From Coexistence to Conquest, 129 (arguing that the Balfour Declaration protected
Arab as well as Jewish rights of self-determination in Palestine).
32 See Hannum, “Right of Self-Determination,” 774.
33 See, e.g., Eugene V. Rostow, “‘Palestinian Self-Determination’: Possible Futures for the Unallocated
Territories of the Palestine Mandate,” Yale Studies in World Public Order 5, no. 2 (1980): 158–159.
See also Memorandum by the [US] Legal Adviser (Gross) to the Under Secretary of State
(Lovett), May 11, 1948, 867N.01/5–1048, in Foreign Relations of the United States, 1948, Near
East, South Asia and Africa, vol. 5, pt. 2, doc. 247, accessed April 14, 2018, https://history.state.
gov/historicaldocuments/frus1948v05p2/d247: “British abandonment of the mandate may be a
breach of Great Britain’s international obligations; but as a practical matter the mandate would
nevertheless be terminated.”
34 See Vienna Convention on the Law of Treaties, Art. 54(b).
35 See UN Charter, June 26, 1945, Art. 10, accessed May 10, 2018, http://www.un.org/en/
charter-united-nations/ (providing that General Assembly resolutions generally constitute
“recommendations” rather than legally binding obligations). Compare with Kattan, From
Coexistence to Conquest, 153–155, (arguing that Resolution 181(II) was not legally binding).
36 See UN Charter, Art. 77(1)(a) (providing that “the trusteeship system shall apply” to such existing
Mandates “as may be placed thereunder by means of trusteeship agreements”). Also compare with
Susan M. Akram and Terry Rempel, “Temporary Protection as an Instrument for Implementing
the Right of Return for Palestinian Refugees,” Boston University International Law Journal 22,
no. 1 (2004): 29 n136: “A majority of the General Assembly rejected established procedures set
forth in article 77(1)(a) of UN Charter chapter 12 concerning the termination of mandate regimes
set up under the League of Nations.” See also Kattan, From Coexistence to Conquest, 144.
37 See, e.g., Kattan, From Coexistence to Conquest, 138. For more on the transformation of international
law from imperialism to anti-imperialism, see Anghie, Imperialism.
38 “Palestine; termination of the mandate 15th May, 1948,” Statement prepared for public
information by the Colonial Office and Foreign Office, May 15, 1948, accessed April 14, 2018,
http://cojs.org/wp-content/uploads/TerminationOfTheMandate.pdf.
39 Ibid.
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40 International Law Commission, Responsibility of States for Internationally Wrongful Acts, 2001,
accessed April 14, 2018, http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.
pdf, Art. 8 (on attribution to states generally); Art. 23 (imposing no responsibility on states for
force majeure).
41 See, e.g., ibid., Art. 37(3): “Satisfaction shall not be out of proportion to the injury and may not
take a form humiliating to the responsible State.”
42 Ibid., Art. 37(2). Satisfaction does not require that the injured party be a state. The classical law of
state responsibility was so limited, but the modern rules envision that responsibility might extend
to “other subjects of international law,” presumably including Palestine, which is now classified as a
non-member observer state at the United Nations. See International Law Commission, Draft articles
on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001, accessed
April 20, 2018, http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf,
Art. 1, comment 5 (stating that the rules of state responsibility extend to an injured state and
possibly “also to other States or indeed to other subjects of international law”). The UN General
Assembly accorded Palestine non-member observer state status in 2012. See UNGA Res. 67/19
(Dec. 4, 2012).
43 Compare with UN Charter, Art. 2(4) (obliging states to refrain from the use of force).
44 See, e.g., UN Charter, Art. 2(2): “All Members, in order to ensure to all of them the rights and
benefits resulting from membership, shall fulfill in good faith the obligations assumed by them
in accordance with the present Charter”; Vienna Convention on the Law of Treaties, Art. 31
(obliging states to interpret treaties in “good faith”). See Elizabeth Zoller, La Bonne Foie en Droit
International Public (Paris: Editions A. Pedone, 1977).
45 See, e.g., UN Security Council Resolution 1373, UN Doc. S/RES/1373 (Sept. 21, 2001),
accessed May 20, 2018, http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1373%20
%282001%29.
46 See Yadam Rasgon and Tovah Lazaroff, “Palestinians Seeking to Sue Britain over 1917 Balfour
Declaration,” Jerusalem Post, July 26, 2016, accessed August 28, 2017, http://www.jpost.com/
Arab-Israeli-Conflict/Palestinians-seeking-to-sue-Britain-over-Balfour-Declaration-462379.
47 The International Court of Justice (that is, the World Court) would not have jurisdiction over a
contentious suit by Palestine. Even if Palestine can be considered a state for this purpose, it has not
accepted the ICJ’s jurisdiction under the “optional clause.” The United Kingdom has accepted the
Court’s jurisdiction, but only as to matters arising after 1987, and only as to other states accepting
the Court’s jurisdiction. See U.K. Decl. Recognizing the Jurisdiction of the Court as Compulsory,
Feb. 22, 2017, accessed August 28, 2017, http://www.icj-cij.org/en/declarations/gb.
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48 Lizzie Dearden, “UK Refuses to Apologise to Palestinians for Balfour Declaration and Says It Is
‘Proud of Role in Creating Israel,’” The Independent, April 26, 2017, accessed August 28, 2017,
http://www.independent.co.uk/news/world/middle-east/palestinian-authority-uk-balfour-
declaration-israel-sue-israel-zionism-refuse-apologise-lawsuit-a7702866.html.
49 Thomas M. Franck, “Legitimacy in the International System,” American Journal of International
Law 82, no. 4 (1988): 705, 708.
50 For example, Oslo I (the “Declaration of Principles”) mentions Resolutions 242 and 338 but not
much other pre-existing law. See Declaration of Principles, Art. I.
