International Law and the Balfour Decision

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. 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. 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