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The Balfour Declaration in International Law

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Geoffrey R. Watson

Was the Balfour Declaration legally binding, or was it merely an unenforceable political undertaking? The question matters not so much because of possible British liability for breach of the Declaration, but more because the Declaration is part of the pre-existing legal framework upon which any peace treaty will be constructed. Peace treaties are negotiated by politicians but drafted by lawyers, and any good lawyer should take full account of the legal landscape before drafting. There is a weak legal argument that the Declaration was binding in and of itself on the date it was issued. In any case, the terms of the Declaration clearly did acquire legal force during the period of the Mandate for Palestine, even though the Declaration was not “incorporated” into the Mandate word-for-word. Moreover, the Declaration did not disappear from the legal landscape after Britain terminated the Mandate. Even assuming Britain had the authority to terminate the Mandate, it could not unilaterally absolve itself of responsibility for failing to achieve the obligations imposed by the Mandate. For while Britain did make good on its promise to facilitate a Jewish “national home,” it failed to make good on the “Balfour Proviso”—the phrase promising “civil and religious rights” for non-Jewish residents of Palestine. Britain’s responsibility for this failure continues to this day. Satisfaction of this responsibility might entail an “acknowledgement of the breach, an expression of regret, a formal apology, or another appropriate modality.” Most likely it should take the form of diplomatic engagement to pursue some form of Palestinian self-determination. Palestinian leaders, for their part, should reconsider their relentless attacks on the Balfour Declaration. The Declaration’s proviso promises Palestinians civil and religious rights. Rather than pillory the Declaration, the Palestinians should embrace it.