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Home Sources of International Law Customary International Law The Consequence of the UN Resolution on Israeli Settlements for the EU:  Stop Trade with Settlements

The Consequence of the UN Resolution on Israeli Settlements for the EU:  Stop Trade with Settlements

Published on April 4, 2017        Author: 

The recent UN Security Council Resolution 2334 (2016) reaffirmed that the establishment of Israeli settlements in the occupied Palestinian territory has no legal validity and that Israel’s settlement enterprise is a flagrant violation of international law. The resolution also calls upon all States “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967”. This part of the resolution is of great significance with regard to the question of trading with settlements.

While the content of the resolution might seem novel, Secretary of State John Kerry was right to remind us in his landmark speech on the Israeli-Palestinian conflict at the end of 2016 that:

this resolution simply reaffirms statements made by the Security Council on the legality of settlements over several decades. It does not break new ground”. In 1980 UN Security Council Resolution 465 had called upon all States “not to provide Israel with any assistance to be used specifically in connection with settlements in occupied territories.

Trading with settlements offers an economic lifeline that allows the settlement enterprise to survive and develop. This reality and the aforementioned UN Security Council Resolutions make a good case not to trade with settlements. But is the withholding of such settlement trade truly an obligation under international law?

In an earlier piece I argued that there is indeed such an obligation, and the lack of state compliance does not seriously shake the legal foundations of this argument. Just last year in an open letter, 40 legal experts (myself included) called upon the European Parliament, and the office of the High Representative and the Trade Commissioner to stop trade with settlements in compliance with the EU’s international legal obligations. Signatories included two former UN rapporteurs, a former President of the International Law Commission, a former judge on the ICTY, and dozens of professors in international law.

Our main argument was that the EU has the obligation to end trade with Israeli settlements based on the duties of non-recognition and non-assistance. This post will describe the legal argumentation underlying these duties. As this obligation is mainly triggered by a violation of jus cogens norms, I will assess whether Israel’s settlement enterprise violates any peremptory norms. I will then assess what the duties of non-recognition and non-assistance entail specifically.

Israel’s violation of jus cogens and the duty of non-recognition

According to the International Law Commission’s Articles on State Responsibility (Art 41.2), the duty not to recognize a situation as lawful nor aid or assist in maintaining that situation arises for third states when there is a jus cogens violation. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice concluded (Para. 159) that third states had the duties of non-recognition and non-assistance:

Given the character and the importance of the rights and obligations involved, the Court is of the view that all States are under an obligation not to recognize the illegal situation resulting from the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem. They are also under an obligation not to render aid or assistance in maintaining the situation created by such construction.

This was only the second time in its history that the ICJ explicitly concluded that states had the duty not to recognize and not aid or assist in maintaining a situation. Whereas the ICJ did not go as far as calling specific violations jus cogens violations, its conclusion that the duties of non-recognition and non-assistance apply to third states seems to ipso facto confirm that either individual violations or their cumulative impact indeed constituted a violation of jus cogens.

Another interpretation can be that the duties of non-recognition and non-assistance can apply to non-jus cogens breaches as well. In his Separate Opinion in the Wall Advisory Opinion, Judge Kooijmans argued that the consequences of the breach are identical – whether or not violations are of a jus cogens nature. In its Wall Opinion, the Court emphasized the erga omnes character of the obligation involved (Para. 155-157), the intransgressible (a term not used lightly) principles of international customary law (Para. 157) and the nature of the Israeli-Palestinian conflict as a threat to international peace and security (Para. 161). It might be that this together is sufficient for the Court to affirm the existence of the duties of non-recognition and non-assistance. However, this combination of findings suggests that it is politically and legally relevant to assess whether Israeli violations in Palestine are jus cogens violations or not. That the ICJ did not draw this conclusion explicitly was probably for reasons of judicial economy (read: political carefulness).

Israeli settlements and specific jus cogens violations?

Three key considerations are of significance in arguing for the existence of Israeli jus cogens violations. The first two are considerations developed by the ICJ in its Wall Opinion, prior to affirming the duty of non-recognition. First, there is the obstruction of Palestinians’ right to self-determination, among others by the de facto acquisition of territory by the use of force (emphasized again in the recent UNSC Resolution on settlements). The peremptory character of these norms was suggested by some states in the International Law Commission’s development of the ILC Articles on the Law of Treaties (p248) and affirmed by the ILC when drafting the Articles on State Responsibility (P85, 112, 113, 114, 115). In its discussion, the Commission emphasized the essence (p115) of this principle for contemporary international law, a similar assessment provided by Judge Elaraby in his separate Wall opinion (Para. 31).

Second, the ILC Articles on State Responsibility also refer to fundamental norms of international humanitarian law as potential jus cogens. To do so, they rely on the ICJ’s use of the term ‘intransgressible’ (p113), which some scholars believe is a way to avoid using jus cogens. Fundamental norms are argued (among others by Judge Nieto-Navia (P24) and Hannikainen (P605-606)) to include the Fourth Geneva Convention. The applicability of the Convention to Israel’s occupation and its settlements – including the transfer of population to occupied territories as a flagrant violation of the Fourth Geneva Convention – is referred to in numerous UNSC Resolutions (including UNSC Resolutions 446, 465, 469, 471, and the recent 2334) by the ICRC and in the ICJ Wall Opinion (Para. 75, 120, 126, 135).

On several occasions, including in the Wall Opinion, the ICJ confirmed that fundamental humanitarian norms had an erga omnes character and were to “be observed by all States” because “they constitute intransgressible principles of international customary law”, and are “fundamental to the respect of humanity” and “elementary considerations of humanity”. Like the ILC, many legal scholars including Cassese and Chetail, as well as ICJ judges such as Judge Bedjaoui, Judge Weeramantry and Judge Koroma have explicitly concluded these norms are either jus cogens in statu nascendi or jus cogens.

Third, in the European Journal of International Law, Dugard and Reynolds scrupulously set forward the argumentation and legal evidence that the situation in the West Bank, including Israel’s settlement enterprise, constitutes Apartheid. Again, the draft ILC Articles on State Responsibility have noted the widespread agreement that the prohibition of Apartheid constitutes a jus cogens norm (p112). Recently, Professors Falk and Tilley also concluded that Israeli practices constitute Apartheid in a report commissioned by the UN Economic and Social Commission for West Asia (ESCWA). Upon release, however, Israel and the U.S. pushed for its censorship, which ultimately lead to the resignation of the head of ESCWA and the subsequent withdrawal of the report, all without any discussion of its substantial content.

The three violations taken individually (1. right to self determination and prohibition on the acquisition of territory by force; 2. the violation of core humanitarian norms; 3. the prohibition on apartheid) seem to constitute jus cogens violations in the case of Israel’s settlement enterprise in Palestine, even if this remains untested. However, that in itself is not of primary importance here. The key consideration, however, is that the combined violations represented a sufficient breach that the ICJ concluded on the applicability of the duties of non-recognition and non-assistance.

Trade as part of the Duties of Non-Recognition and Non-Assistance

The duties of non-recognition and non-assistance (laid out in Art. 41(2) of the ILC Article on State Responsibility) require that states shall neither recognize as lawful a situation created by a serious breach of a peremptory norm of international law, nor render aid or assistance in maintaining the situation created by the breach. What exactly the duties entail is widely debated, but it is generally understood that it does not require positive obligations on third states. Stopping trade with settlements, however, should not be considered a positive obligation (for example a sanction), but a negative one: states should withhold from trading with settlements, as this type of trade should have not existed in the first place and represents, in a consistent reading of international public law, an error in international economic relations.

Trading with settlements is a violation of both duties, which complement each other despite having different substance. On the side of non-assistance, the agreement establishing the World Trade Organization explicitly refers to the economic benefits of liberalized trade: “raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services”. Trading with legally invalid settlements gives those settlements economic support. This seems to constitute concrete help to the maintenance of the unlawful situation, as discussed by Aust (p339). Indicative of the fact that trade helps to maintain Israeli violations is for example UN Office of the High Commission for Human Rights’ recognition of the encouragement of economic activity in settlements as a reason for settlement expansion (p3). This was also confirmed in the Human Right Council (Para. 20), which even decided to gather a list of companies operating in settlements. More detailed assessments of how settlement businesses and trade assist the maintaining and developing of settlements are provided by NGOs such as ‘Who Profits’ and Human Rights Watch.

Trading with settlements also breaches the duty of non-recognition. The only legal text directly addressing the content of the duty of non-recognition is the ICJ Advisory Opinion on Namibia in which the ICJ indicates that non-recognition “should not result in depriving the people of Namibia of any advantages derived from international co-operation” (Para. 125). This, however, is no ground to exclude settlement trade from the duties of non-recognition and non-assistance.

The Hague Convention and the Fourth Geneva Convention confirm that the fundamental prohibition of the transfer of civilian population ipso facto implies an equally strong prohibition on the economic activity of transferred civilians for the benefit of the occupying state. This prohibition is not only recognized in international law, but also in Israeli domestic law. In the Beth El Case, the Israeli Supreme Court argued that Settlements were acceptable if they were temporary and served the military and security needs of the Israeli State. In the Elon Moreh and Cooperative Society Case, the Supreme Court ruled that the security needs of the army in occupation (the main legitimization for the existence of settlements) could never include national, economic or social interests.

The ICJ Namibia Opinion (Para. 124) also addresses economic relations, when it argues that:

the restraints which are implicit in the non-recognition of South Africa’s presence in Namibia […] impose upon member States the obligation to abstain from entering into economic and other forms of relationship or dealings with South Africa on behalf of or concerning Namibia which may entrench its authority over the Territory?

Can trade between two private parties of which one is a settlement enterprise be considered as an economic dealing between the third party and Israel? From one side, economic activity and enterprises in settlements are regulated by Israeli economic law.  Exportation of products represents a claim of Israel on the territory of Palestine. From another side, the custom authorities of a third party validate trade entries. Even if no preferential access is given, the act of importation remains a legal act, which requires the stamp of approval from the importing state, which holds a sovereign power over its trade policy. Having the knowledge that settlements, among others through trade, make a claim on the territory of Palestine, makes such an act of importation implicit recognition.

Conclusion

The EU’s settlement trade policy is inconsistent. The EU explicitly does not grant preferential access to settlement produce because “it does not consider them to be part of Israel’s territory, irrespective of their status under domestic Israeli law”. It recognizes that settlements, in their trading activity, are regulated by domestic Israeli law, and it does not give them preferential access because they do not agree with this unlawful claim. This is exactly what constitutes implicit recognition.

The duty of non-recognition is a customary obligation, which does not require UN action to trigger it. Moreover, if the EU violates international law by not complying with its duty of non-recognition, it is the international obligation of EU Member States to make sure they do comply as individual, sovereign states.

In another context, the EU has acted on its obligations of non-recognition. In June 2014, the European Union formally decided to prohibit imports from Crimea or Sevastopol. The Council Decision and Regulation formally stated that an import ban is an integral part of the EU’s non-recognition policy. In this case, non-recognition was related to the illegal annexation of these territories by Russia. The legal basis for this import ban was the European Council Conclusions of 20/21 March, which explicitly condemned the illegal annexation and confirmed the EU’s obligation of non-recognition.

Banning trade with Israeli settlements is simply too controversial, hence the EU’s non-compliance. Trade measures were an important tool in bringing down Apartheid South Africa. Like the Apartheid regime, Israel realizes the potential of trade measures and tries to undermine them before they materialize. As such, they have enacted a controversial law blocking freedom of speech to call for boycotts. Just a few weeks ago, about 200 legal experts confirmed that there was no question of the legality of settlement boycott calls.  The EU has also confirmed the inalienable right to freedom of expression with regards to boycotts.

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17 Responses

  1. Many thanks for the interesting and well researched blogpost. I will certainly be recommending it to my students.

    Reference could also be made to the Committee on the Elimination of Racial Discrimination, Eightieth session (13 February-9 March 2012) where the Committee on the Elimination of Racial Discrimination urged Israel to prohibit and eradicate all policies of racial segregation and apartheid which severely and disproportionally affected the Palestinian population in the Occupied Palestinian Territory and which violated the provisions of Article 3 of International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)(UN Doc A/67/18, p. 20).

  2. Thank you for your post, Tom.

    To continue the discussion on non-recognition, a starting point might be that UNSCR 2334 of course does not ascribe any direct or indirect consequences as such, since it is not a Chapter VII resolution. States may rely on this call to act to distinguish Israeli and non-Israeli territory in line with their existing international law duties, but as Zimmermann notes it does not oblige states to act accordingly (https://www.ejiltalk.org/security-council-resolution-2334-2016-and-its-legal-repercussions-revisited/).

    Non-recognition as a duty or obligation is also, one might say, of a sui generis character. That is, the state practice of the duty — as you mention — does not measure up to what appear to us to be the mandates of non-recognition (positive or negative). The ILA’s reports (http://www.ila-hq.org/en/committees/index.cfm/cid/1032) and rigorous scholarship such as Talmon’s work (http://users.ox.ac.uk/~sann2029/6.%20Talmon%2099-126.pdf) have argued that the duty offers more room for interpretivism than for hard-rule based compliance.

    While there’s no room here to elaborate on what this poor track record of state practice might mean for the ‘duty’ as codified by the ILC, suffice it to say this is certainly not the end of the non-recognition story. Non-recognition is a secondary rule of international law — and law more generally (Hart) — and therefore is widely internalised by ‘law-abiding’ states (perhaps not unlike the perception of normative hierarchies in international law denoted by jus cogens).

    I have made note of the domestic law-based coordinates of non-recognition in a short analysis of the signals of SCR 2334 (here: http://www.jurist.org/forum/2017/02/valentina-azarova-resolution-2234.php). A 2015 ECFR report (http://www.ecfr.eu/publications/summary/eu_differentiation_and_israeli_settlements3076) and some academic literature (http://onlinelibrary.wiley.com/doi/10.1111/jcms.12509/full and http://bdi.mfa.government.bg/pdf/DJ_11_2014.pdf) also take on these processes. In the EU legal order, for instance, recent measures related to Israel and the settlements are driven by the deeply-engrained imperative to ensure consistency between EU positions and commitments in international law and its legal practice – in the implementation of EU law including any instruments structuring its interstate dealings.

    The end game here is similar to your point: third parties — states, international actors (e.g. EU) and private entities – are under an obligation to review and revise their dealings with entities based or indeed operating in settlements (since most current dealings with settlements are undertaken indirectly through Israel-based exporters). The way we call upon these duty-bearing actors to act matters, for it can and usually does have an effect on the political environment, which may be nutritive and conducive to the activation of non-recognition measures, or could hamper or at least delay their implementation.

  3. Jordan Paust

    On a related matter, readers might be interested in an article addressing ICC jurisdiction over alleged Israeli and Palestinian crimes, which includes attention to the illegality of annexation of occupied territory and the illegality of transfers to occupied territory — http://ssrn.com/abstract=2658784
    There are footnotes with many citations to UN S.C. and G.A. resolutions.

  4. Nick Notan

    Dear Mr. Moerenhout,

    With regard to “In another context, the EU has acted on its obligations of non-recognition. In June 2014, the European Union formally decided to prohibit imports from Crimea or Sevastopol.”:

    Actually, it should be noted the EU has acted against its obligations in the context of Ukrainian crisis.

    In particular, the EU has violated international law when they assisted the putschists and recognized them as the government of Ukraine.

    For example, this is how Andrzej Szeptycki, Assistant Professor of International Relations at the University of Warsaw, on February 26, 2014, was trying to justify the recognition:

    “The Charter of the United Nations of 1945 and, later, the norms of the Organisation for Security and Cooperation in Europe prohibit only the intervention in the internal matters of other states. Thus it is not permitted to overthrow governing authorities in a third state, replace it with new people and next recognise them as a government. The Russian Federation could use this argument by presenting the new Ukrainian authorities as puppets of the West.

    … The criterion of the legality … is important. Viktor Yanukovych gained power in democratic elections… In the current situation, only … impeachment, comes into play. In accordance with the Constitution, its execution requires the formation of a temporary court of inquiry and the recognition of the case by the Constitutional Court and the Supreme Court (Article 110). The Parliament’s decision to recall Yanukovych does not fulfil these criteria; it says it does not recognise it.

    However, one should differentiate the question of the legality of the new Ukrainian authorities from that of their legitimacy. …”

    Yet another time, the EU has acted against its obligations when it annexed Ukraine to the Ukraine-EU Association on 21 March 2014 (of course, thus the EU has recognized this annexation). This agreement, imposed on Ukraine (without Crimea) by the EU, is modeled after the Protectorate of Bohemia and Moravia Agreement, imposed on Czechoslovakia (without Zaolzie and Slovakia) by Germany and allies in 1939.

    In this context, the former German chancellor Helmut Schmidt has correctly blamed the megalomania of EU bureaucrats for sparking the crisis: “The latest example is the attempt of the European Commission to annex Ukraine, … .”

    Of course, when the EU leaders were signing the agreement, they knew that Turchynov regime was illegal (even despite most Western professors preferred to keep silence). Also, these leaders knew that putschists killed at least some protesters in Kiev. Further, they knew that putschists violated the Constitution by amending it without observing the procedure. Furthermore, they knew that putschists illegally fired the Constitutional Court judges. Most importantly, the EU leaders knew that millions of Ukrainian citizens in Crimea, Donbass, Odessa, Kharkiv and other localities did not consider the Western puppet putschist regime as legitimate.

    (The latter point is obvious even to some young American lawyers: see “Ukraine: Analyzing the Revolution and NATO Action in Light of the U.N. Charter and Nicaragua” by Matthew Emery in the Emory International Law Review vol. 30, issue 3, 2016).

    Hence, Mr. Moerenhout, please do not pretend that the EU leaders cared or care about the tricky issue of legality or illegality of the re-unification of Russia and Crimea when they chose to pursue their “non-recognition policy”. What the EU leaders really care about, is that their aggressions have been finally met with resistance they cannot overcome so easily as in Serbia, Iraq, Libya etc. Also, the EU leaders are really sad that they have not used their chance to annex Crimea and subjugate Russian people (many of whom are former Ukrainian citizens) there.

  5. Harry Melkman

    Dear Tom,

    As Valentina already correctly perviewed the baseline argument is rather flimsy to say the least.
    Unfortunately though you rather do not enhance your credentials when taking into account it is no more than BDS nonsense cloaked in terms of post modern discriminatory qualifications.

    Harry Melkman

  6. Marko Milanovic Marko Milanovic

    Dear Nick,

    I am writing in my capacity as one of the editors of EJIL Talk. Our rules for contributing to the blog (https://www.ejiltalk.org/rules-for-contribution-to-the-blog/) are clear: this is a forum for scholarly discussion, not for furthering alternative agendas. We also strongly discourage anonymous or pseudonymous commenting, absent sufficient justification: https://www.ejiltalk.org/house-keeping-anonymity/ .

    It has been clear for some time that your comments on the blog are almost exclusively focused on Russia/Ukraine issues, in which you pursue an effectively ‘pro-Russian’ stance, exposing Western hypocrisy etc, etc, etc. That’s fine for what it’s worth, even if unremitting contrarianism can be tiresome. There’s plenty of space for different opinions on this blog. The way you do this, however, especially under what I can only assume is an alias, is not conducive to a scholarly debate, to put this mildly. To say that the Ukraine/EU association agreement was politically unwise or that it provoked Russia is one thing. To say that this agreement is tantamount to an annexation of Ukraine by the EU is just silly. To say however that it was tantamount to a Nazi protectorate is not only alt-truth, but the kind of insulting, corrosive alt-truth that frankly has no place on this blog.

    I would thus advise you to mind your tone, bearing in mind that this is forum for scholars who (likely) have vastly greater knowledge and expertise on issues of international law than you do, and that this is not a forum for general politics of whatever kind, in which any kind of opinion is equally valid or acceptable. What you are doing now is not conducive to the kind of debate our commenting function is for. Your comments from now on may be subject to moderation, especially if they are made under an alias.

    If you have a problem with what I have just said or require any clarification of our commenting policies, please feel free to email me. Any public comments of such kind will however promptly be deleted. I reiterate that this is a moderated forum with a specific purpose subject to editorial scrutiny.

  7. Dr. Jeff Handmaker

    Dear Tom,

    Thank you for this timely and well-argued piece, which builds upon your own, Reynolds, Dugard, Azarov and others’ scholarly work in this important and still under-researched area.

    Evidently, there still seems to be sensitivities within the international legal scholarly community, an unfortunate number of which (see Mr. Melkman above) prefer to make ad hominem insults rather than critically engage with scholarly argumentation. For what it’s worth, I read Dr. Azarova’s insightful reflections as agreeing with your line of argument. Indeed, your position on state obligations of non-recognition is very much consistent with the current state of international law at the moment, though some may wish it was otherwise.

    This important academic debate would, I would hope, trigger a larger debate on the policy implications of states towards corporations that are directly or indirectly implicated in serious violations of international law, and hopefully pieces like this will help such a debate move in this direction.

    It is good in any event that such issues reach the attention of esteemed fora such as EJIL Talk.

    Mr. Moerenhout, I feel you have made a compelling academic argument here and I will most certainly recommend this piece as an accompaniment to your earlier articles in the IHLS Journal to my students as part of the ongoing debate in this ground-breaking area of international law.

    Sincerely, Jeff Handmaker.

  8. Luigi Daniele

    Dear Tom,
    thanks for this dense and insightful reflection. I hope your post will trigger more attention and debate about this crucial issue.

    Expanding on your last points, I indulge in forwarding an attempt to deal with the other side of this issue (to me, one of the most paradoxical, in particular in terms of collision between legal orders): the domestic legislations passed against BDS. My (alarmed) impression is that, even while sharing and commenting your post, we adopt an order of discourse which could be outlawed/criminalised if we were civil society activists demanding (with similar arguments) compliance with IL.

    Despite the EU statements, in several European countries seems still possible to prohibit the struggles for international legality.
    https://www.opendemocracy.net/luigi-daniele/penal-populism-and-bds-movement-after-security-council-res-2334

  9. Harry Melkman

    Dear Mr. Handmaker,

    I do not see ad hominem in my reaction. Your reaction is a rather awkward one bearing in mind you belong to the 40 legal “experts” quoted at the start of his contribution to legal scholarly debate exerting BDS.

    Harry Melkman

  10. Valentina Azarova

    Thank you Professor Handmaker for your kind words and for your generous interpretation. My foremost intention, Harry Melkman, was indeed to provide additional, more granular insight on the nature of non-recognition; as opposed to challenging the accuracy of Tom’s argument. In fact, I should have made clear that I too am a signatory to the letter (despite a typo in my surname; Azarova and not Azarov), and am very appreciative of Tom’s dedicated work and discussion in that context.

    As you note, Professor Handmaker, the very fact that many states attempt to ‘hide behind’ the sparse practice and arguably unclear or at least vitiating mandates of non-recognition – indicates to me that the nature and scope of non-recognition is in flux.

    Professor Crawford’s expert opinion reaffirms these doubts and suggests that alike Common Article 1, non recognition is likelier to be a duty of due diligence and care, particularly when it comes to regulating private actors such as importers (https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf). This of course does not take away from the customary status of obligations of abstention, which is authoritatively affirmed by their inclusion in ILC’s ARSIWA.

    In all cases, as you say, it deserves our sustained attention and discussion with relevant stakeholders, not least given the significance of the function of obligations of abstention – non-recognition and non-assistance – as forms of enforcement of international law in situations of armed conflict (on this Professor Heike Krieger’s recent discussion is instructive https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2888989) .

    Since third state responsibility is increasingly relevant beyond the Palestine context (see for instance discussions by Chatham House re non assistance (https://www.chathamhouse.org/publication/aiding-and-assisting-challenges-armed-conflict-and-counterterrorism) , the nature and coordinates of the duty of non-recognition need to be considered more carefully as an imperative of the participation of states in the observance of international law.

    Luigi Daniele – two brief points on anti boycott legislation: 1) Professor Sassoli and Dr Boutruche maintain in a recent expert opinion that such legislation is a breach of states obligations ‘to ensure respect’ under Common Article 1 to the Geneva Conventions (https://www.nrc.no/globalassets/pdf/legal-opinions/eo-common-article-1-ihl—boutruche—sassoli—8-nov-2016.pdf). 2) while calls for boycott are protected, acts of boycott are not, in either domestic or international law, given states’ monopoly on interstate coercion (www.jurist.org/forum/2016/04/valentina-azarova-uk-note.php).

  11. H.Melkman

    Dear Tom, Jeff and Valerie,

    With all due respect why your rhetorica is not directed towards Russia in respect of war crises committed in Syria currently if Third party state responsibility is taking seriously.
    If not, it is sheet post modern anti-….

  12. Harry Melkman

    I meant sheer postmodern antisemitism rather than sheet etc.

    The ghost in the machine unfortunately.

    Harry Melkman

  13. Luigi Daniele

    Dear Valentina,
    many thanks for forwarding the Sassoli and Boutruche opinion, which I am reading with great interest.
    Thanks also for your excellent reflection on Jurist, although I am doubtful about different points. Question: if we frame boycotts as you initially do in the post, don’t we risk to equate ‘boycott’ to ‘State sanction’? Particularly, don’t we risk to indirectly accept (as it is happening from years now) the adoption of legislations treating also ‘secondary’ boycotts – that is free consumers’ or companies’ choices of abstention from buying/trading certain products – as something that can be discretionarily banned by Governments? Is this acceptable in a liberal legal order?
    As Sassoli and Boutrouche underline, law (they refer to WTO law, but I would say law in general) “never requires a State to prohibit private persons under its jurisdiction to induce consumers to engage in practices, which would be discriminatory if they were adopted by the State party”. Citizens and civil society organisations, in this limited sense, can possibly do more than States.
    I do not think that any secondary boycott (be it against environmental, workers rights, or IHL violations) to induce compliance with IL can reasonably be deemed to be discriminatory (simply because there is no Government policy of sanctions against another State). Nor I think makes sense to protect the “calls”, and then punish the “acts” (better, punish the abstention from an act of purchase).
    I still find dangerous the reasoning of the French Court of Cassation in 2015 (https://www.legifrance.gouv.fr/affichJuriJudi.do?oldAction=rechJuriJudi&idTexte=JURITEXT000031374384&fastReqId=1289935287&fastPos=1), treating citizens’ calls not to buy certain products as incitement to discrimination, in absence of any racial or xenophobic motive whatsoever (see Medard https://revdh.revues.org/1750).
    In any case, strangely enough, public bodies motions passed in different states to exclude from contracts companies adhering to “boycotts for political reasons” did not trigger the same debate… In other words, I still see the same paradox when it comes to Israel and Palestine: it is domestically easier to outlaw/prohibit/criminalise the struggles for international legality than to protect the freedoms of the actors demanding it.

  14. Marko Milanovic Marko Milanovic

    Dear Mr Melkman,

    I am writing (again in this thread) in my capacity as one of the co-editors of EJIL: Talk, and would refer you to our commenting guidelines linked to above. You are free to disagree on substance with the original post or any comments thereto. You are however not free to simply label anyone contributing to this comment thread as engaging in antisemitism, postmodern (whatever that might mean) or otherwise. Please keep your disagreement civil, and please focus on the substance of any argument that you wish to make. If you fail to abide by our commenting guidelines in the future, your comments will be subject to moderation.

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