Is the Balfour Declaration a Legally Binding Document?

, November 6, 2017

This brief paper will discuss a major legal issue related to the Balfour Declaration. Scholars and politicians have devoted much attention the following questions: Is it a binding declaration? Does it contradict the MacMahon-Hussein correspondence of 1915-1916, which promised independence to the Arabs? What is the meaning of the term, “National Home”? What is the meaning of the term “in Palestine”? Does it mean in all of Palestine? While the above are interesting questions, I prefer to address an issue which does not appear to have been a topic of intensive study, namely, is the Balfour Declaration a text which is legally binding?

We shall begin by answering the question as to what constitutes a “binding unilateral declaration” according to international law. There is a special convention with regard to treaties called the Vienna Convention on the Law of Treaties which deals with treaties. However, there is no similar convention concerning unilateral declarations. The only text regarding such matters was adopted as late as 2006 by the International Law Commission, the law commission of the UN General Assembly that deals with the development of international law. It published a list of guiding principles for unilateral declarations. There are two famous cases where unilateral declarations were considered to be legally binding. In the dispute between Norway and Denmark in the early 1930s, the Foreign Minister of Norway presented a declaration to the Ambassador of Denmark, and the Permanent International Court of Justice regarded it as a legally binding unilateral declaration. Similarly, France gave an oral promise that it would not undertake further nuclear tests in the Far East in the waters near New Zealand and Australia, and again the Court decided that this unilateral declaration was binding.

When is a unilateral declaration binding? Does this apply in the case of the Balfour Declaration? A declaration of this type must be given with the intention that it should be binding. But how does one know whether the intention was to make it binding? It depends upon the text and the context. Furthermore, the circumstances must be taken into consideration. The text is important especially in order to ascertain whether it was really a legally binding document or only some kind of a political promise. To repeat, a unilateral declaration must be given with the intention that it should be binding. This may be determined by examining three factors, which we shall describe below.

First, the text must be precise and clear. A text which is not precise and clear will not be considered binding as a unilateral declaration. The Court will reject it. Nevertheless, it may be binding in a political sense. Second, such a declaration must be given by someone who is authorized to do so. Indeed, Lord Balfour was the British Foreign Minister. Therefore, he had the authority to make such a declaration. Furthermore, the declaration should be given in public. At present, some declarations are not made in public, but nevertheless are binding. For example, in the case of Norway and Denmark mentioned above, the declaration was not public; it took place between a foreign minister and a diplomat.

An interesting question concerns the revocation of a multilateral declaration. A revocation should not be arbitrary, and its legality depends upon on the circumstances. Fortunately we do not have to study this question in more detail since Britain has not revoked the Balfour Declaration.

As to the legal effect of the Balfour Declaration, we must ask whether England intended that it be binding. First, the text, the context and the circumstances show that the British intended that it be binding. They included it in the text of the San Remo Treaty (1920) and in the Terms of the British Mandate for Palestine (1922). Therefore, in my opinion, the intention was that the Balfour Declaration be binding. Second, as we have noted, it was given by someone who was authorized to do so. Lord Balfour was the foreign minister. Third, there may be some doubt as to whether the Declaration was precise and clear. It did not define what it meant by a “national home” or stipulate where “Palestine” is. However, the statement by Winston Churchill at the Peel Commission, whose report was published in 1937, explained the meaning of those terms. Therefore, the Balfour Declaration fulfills all of the conditions of a text which is legally binding. Some say that if it were not originally binding, it became so when it was included in the terms of the British Mandate for Palestine. These “terms” constituted an agreement, – a treaty between Britain and the Council of the League of Nations. Others may question the legal status of the Declaration since Britain was not yet in control of Palestine. Britain had not conquered Palestine completely on November 2, 1917. These problems were solved effectively by the inclusion of the Balfour Declaration in the terms of the British Mandate for Palestine. Hence, to this day, the Balfour Declaration is a legally binding document.

About Prof. Ruth Lapidoth

Ruth Lapidoth is a Professor Emeritus of International Law at the Hebrew University of Jerusalem, and Professor at the Law School of the College of Management. She is a recipient of the 2006 Israel Prize in Legal Research and of the 2000 Prominent Woman in International Law Award from the American Society of International Law.She served in the Israeli delegation to the UN in 1976, and in 1979 was appointed Legal Advisor to the Israel Ministry of Foreign Affairs