The Legal Veracity of the Balfour Declaration

Amb. Alan Baker

Copy of the Balfour Declaration sent to Lord Walter Rothschild, November 2, 1917

With the 2017 centenary of the 1917 Balfour Declaration,1 which acknowledged the right of the Jewish people to their national homeland in Palestine, the international community is witnessing a highly orchestrated attempt by the Arab League and the Palestinian leadership to question its legal veracity.

This campaign is one of the means of manipulation of the international community used by the Palestinian leadership to cast doubt and undermine the historic and legal basis and rights of the Jews in the area.

Sadly, and completely at odds with history and international law, this campaign appears to be receiving support from other countries.

In the context of the Balfour Declaration centenary, the Palestinian leadership called on the Arab League at its September 2016 summit meeting in Nouakchott, Mauritania, to institute “an international criminal case for the crime committed against our nation by the UK for issuing the Balfour Declaration.”2

The Palestinian leadership launched a “Balfour Apology Campaign” with a disturbing statement to the UN General Assembly on September 22, 2016, in which Mahmoud Abbas stated:

100 years have passed since the notorious Balfour Declaration, by which Britain gave, without any right, authority or consent from anyone, the land of Palestine to another people.3

Abbas went on to formally demand an apology from the UK for issuing the Balfour Declaration.4

In October 2016, the UK-based “Palestinian Return Centre,” a group affiliated with the Hamas terror organization and acknowledged by the UN as an official NGO (non-government organization), hosted a public seminar in the British House of Lords, condemning the Balfour Declaration and reiterating the call for a British apology.

Was the Declaration Legal?

This campaign has given rise to a number of questions regarding the legal veracity of the Balfour Declaration and its continued relevance and status today in the context of the Israel-Palestinian dispute.

Perhaps the basic question is the legally binding nature of the document, since it was clearly not, in and of itself, an international agreement, but a letter acknowledging and declaring a national commitment by the British government, issued by the British Foreign Secretary to the Jewish leadership of the day in Palestine.

The following points sum up the international legal status of the document:

  1. International law and practice have consistently recognized and accepted unilateral declarations officially issued, considered binding as far as the government is concerned.
  2. This practice was recently codified by the International Law Commission in its 2006 “Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations.”5
  3. Citing several examples of unilateral declarations issued over the years by heads of state and foreign ministers as indicative of their authors’ intention to commit themselves internationally. The International Law Commission determined that such public declarations create legal obligations to be respected by other states.
  4. The legal effect of a declaration is determined by its content, the factual circumstances in which it was made and the reactions to which it gave rise. The historic circumstances prevalent in 1917, the clear intention of Britain in issuing the Declaration, as well as the subject-matter of the Declaration – establishing a national homeland for the Jews in Palestine – are all indicative of the intention that the Declaration would be considered binding.

On March 28, 1921, British Colonial Secretary Winston Churchill was challenged over the Balfour Declaration by a former mayor of Jerusalem, Mousa Kazim el Husseini. Churchill responded:

Our position in this country is based upon the events of the war, ratified, as they have been, by the treaties signed by the victorious Powers. I thought, when listening to your statements, that it seemed that the Arabs of Palestine had overthrown the Turkish Government. That is the reverse of the true facts. It has been the armies of Britain which have liberated these regions.

Winston Churchill in doorway receiving Mousa Kasim Pasha el Husseini at reception at Government House, Jerusalem. Emir Abdullah of Jordan stands on the left behind Mrs. Churchill. (Library of Congress)

5. The fourth principle states “a unilateral declaration binds the State internationally only if it is made by authority vested with the power to do so. By virtue of their functions, heads of State, heads of Government and ministers for foreign affairs are competent to formulate such declarations.” As such, the Balfour Declaration, issued by the British Foreign Secretary, clearly represents the formal and official authority of the British government and voiced a very precise intention of the British government as to the character and governance of Palestine.

6. The International Law Commission principles endorse the obligatory nature of unilateral declaration once accepted by other states. Since the Balfour Declaration was subsequently incorporated by the international community into binding international treaties, and as such accepted by states, its obligatory character became all the more evident. By the same token, having created legal obligations, such a declaration cannot be arbitrarily revoked.
The subsequent incorporation of the Balfour Declaration into international multilateral instruments further solidified its internationally binding nature. This is evidenced in the following instruments:

  1. In the San Remo Declaration, dated April 25, 1920,6 the Allied Powers – Great Britain, France, Italy, and Japan, together with the United States as a neutral observer and the Jewish leadership in Palestine – confirmed the pledge contained in the Balfour Declaration concerning the establishment of a Jewish national home in Palestine.

It was agreed to include in the League of Nations mandate the following provision:

The Mandatory will be responsible for putting into effect the declaration originally made on November 8, 1917, by the British Government, and adopted by the other Allied Powers, in favour of the establishment in Palestine of a national home for the Jewish people, 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. The League of Nations Mandate, dated July 24, 1922, entrusted to Great Britain the powers of Mandatory over the territory of Palestine.7

The Council of the League of Nations, composed of Great Britain, France, Italy, and Japan as permanent members, and Belgium, Brazil, Greece, and Spain as non-permanent members, stated in the preambular provisions:

Whereas the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers, in favor of the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might 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; and

Whereas recognition has thereby been given to the historical connection of the Jewish people with Palestine and to the grounds for reconstituting their national home in that country.

The Mandate was subsequently approved by all 52 members of the League of Nations.

3. UN Charter, Article 80

Recognizing the need to ensure the continuation of the rights derived from the Mandate, even after the expiry of the League of Nations in 1946, Article 80 of the UN Charter, often referred to as the “Palestine Clause,” states in the context of the International Trusteeship System:

…nothing in this Chapter shall be construed in or of itself to alter in any manner the rights whatsoever of any states or any peoples or the terms of existing international instruments to which Members of the United Nations may respectively be parties.8

This article was drafted further to representations by the Jewish leadership at the San Francisco conference, in order to protect both the existing rights of states, as well as those of “any peoples or the terms of existing international instruments to which members of the United Nations may respectively be parties.”

In light of the above, there can be absolutely no doubt that the 1917 Balfour Declaration was a legally binding document, properly issued by the authorized representative of the British government, conveying a clear intention regarding the rights of the Jewish People to territory of Palestine, and subsequently accepted and adopted by the international community in the framework of international treaties.

* * *

Notes

1 http://www.jewishvirtuallibrary.org/jsource/History/balfour.html

2 https://www.algemeiner.com/2016/07/26/mahmoud-abbas-seeks-to-sue-uk-over-balfour-declaration-calls-on-arab-league-for-help/

https://unispal.un.org/DPA/DPR/UNISPAL.NSF/47D4E277B48D9D3685256DDC00612265/ABF18E1D5FEF29278525803600658A0C

4 http://www.reuters.com/article/us-un-assembly-israel-palestinians-idUSKCN11S2CZ

5 http://legal.un.org/ilc/texts/instruments/english/commentaries/9_9_2006.pdf

6 http://www.cfr.org/israel/san-remo-resolution/p15248

7 http://avalon.law.yale.edu/20th_century/palmanda.asp

8 http://www.un.org/en/sections/un-charter/chapter-xii/index.html

Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.


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