How Britain broke International Law to stop Palestinian independence 100 years ago

In his speech before the UN General Assembly last week, Palestinian Authority President Mahmoud Abbas called for “reparations…in accordance with international law” against the UK for the “fateful Balfour declaration.” That declaration was made by British Foreign Secretary Arthur Balfour in 1917, pledging to establish a “national home for the Jewish people” in Palestine, despite Palestine already being inhabited by mostly non-Jewish Palestinians. Is there a legal basis for reparations for something that happened when global norms were different from how they are now? Based on new research, we argue that there is, and the key to this is a legal agreement adopted one hundred years ago today.

The Balfour pledge itself is merely a political statement. It is of dubious legal standing as a binding commitment made when the UK had no authority over Palestine. What makes it significant politically, practically, and legally is something else with a different date.

At the end of the First World War, the victorious allies took over the colonies of the defeated powers. The UK became the power in Palestine, displacing the Ottoman Empire. These arrangements were placed under the authority of the League of Nations in the Mandates system, subject to the rules of the League Covenant, part of the Versailles Treaty.

The administration of each Mandate was set out in a “Mandate Agreement,” itself a legally-binding instrument adopted by the governing Council of the League.

The Palestine Mandate Agreement incorporated the Balfour commitment and expanded it into a detailed set of objectives for colonial rule. This then formed the ostensible legal basis for how the UK implemented these objectives in practice: holding on to the territory for a quarter of a century and enabling Jewish migration, Jewish land and property ownership, and the creation of Jewish institutions of self-government. This paved the way for the proclamation of Israeli independence in part of Palestine in 1948. Thus, as a matter of international law, it is the Mandate Agreement, not the Balfour Declaration as such, that is the key legal instrument. That Agreement entered into force on September 29, 1923 — one hundred years ago today.

The legal conundrum is that there is a fundamental contradiction between the Balfour plan in the Agreement and Article 22 of the League Covenant, which required that the Mandates of the former Ottoman Empire, such as Palestine, be “provisionally recognized” as “independent nations.”

New research reveals a factor hitherto ignored when this contradiction has been assessed by experts — whether or not the League Council had the legal power to seemingly bypass the requirement of the Covenant to provisionally recognize statehood through the 1923 Agreement. The Council had no such power, and so those parts of the Agreement that purported to bypass the Covenant requirement were null and void. In consequence, the UK had no legal cover through the Agreement for failing to implement Palestinian statehood in the 1920s. Thus, this failure was a violation of international law. The proclamation of an Israeli state in 1948 necessarily involved a violation of the collective legal right of the Palestinian people in the Covenant.

The 1923 Agreement is also the pathway to an international remedy. It provides that any League member state can bring a case to the League Permanent Court of International Justice if it has a complaint about how the Mandatory state is complying with its obligations with respect to the Mandate. Whereas the League and its Permanent Court are no more, the successor United Nations International Court of Justice in the Hague inherited its predecessor Court’s jurisdiction. Indeed, the International Court has already affirmed, in a different context, that the obligations under the Covenant concerning the Mandates did not come to an end with the extinction of the League.

In consequence, any state that was a member of the League of Nations would have standing today to bring a case against the UK to the International Court of Justice in the Hague, to ask the Court to provide the reparations sought by the Palestinian people.

The past is present.  It is commonly appreciated that the ongoing denial of self-determination of the Palestinian people is due to the 1948 creation of Israel, and to the occupation of the remaining parts of Palestine by Israel since 1967 — and that both of these things give rise to violations of international law by Israel. But what also needs to be understood is how all of the foregoing has its origins in the acts and omissions of the UK in the Mandate period. Moreover, it must be understood that these acts and omissions were illegal, and that an international remedy for this illegality exists today.