Hersch Lauterpacht wrote that “the legal position” of Palestine as a “mandated territory” was “governed” both by the mandate document and by “the general principles of Article 22.” The implication of League Covenant Article 22 was that if a state chose to exercise a mandate, it would do so in a fashion that comported with the requirements for a mandate as elaborated in Article 22. In its mandate document for Palestine, Britain purported to respect the Covenant. The mandate text recited that the Principal Allied Powers had decided that a mandatory should take on Palestine “for the purpose of giving effect to the provisions of Article 22 of the Covenant of the League of Nations.” Here the British Government was saying that the document provided for the governance of Palestine in a manner consistent with Article 22.

The next line, however, recited that “the Principal Allied Powers have also agreed that the Mandatory should be responsible for putting into effect the declaration originally made on November 2nd, 1917, by the Government of His Britannic Majesty, and adopted by the said Powers.” This provision was problematic, because Article 22 called for protecting “the well-being and development” of the “peoples” of a mandate territory as “a sacred trust of civilization.” It was presumably the peoples inhabiting the territory whose well-being and development were to be fostered, not peoples brought in from outside. Even a belligerent occupant was precluded by law from flooding a territory with an outside population.

There was also a factual problem with the statement that the Principal Allied Powers had adopted the Balfour Declaration. At the San Remo meeting, as we saw, Curzon was assailed when he tried to tell the Allies that they had adopted the Balfour Declaration. Curzon had to pull teeth to gain even half-hearted consent to letting Britain include mention of the Balfour Declaration in the anticipated peace treaty with Turkey. And even so, their consent was saddled with the understanding that the traditional rights of Palestine's existing population would be respected. The recitation in the mandate document of “adoption” by the Principal Allied Powers was fiction.