The trade debate is once again on top of the agenda, and will soon return as a subject of discussion for governments around the world. Only a few weeks after South Africa and Denmark announced they would stop labeling settlement produce as coming from Israel, Switzerland’s largest supermarket chain ‘Migros’ decided last week to introduce similar labeling requirements in the near future. In addition, the European Parliament is set to vote on a protocol to its free-trade treaty with Israel, which would strengthen mutual market accessibility. 

Migros was quick to add that the decision was made only in favor of greater transparency for its consumers. Its spokesperson mentioned immediately that the chain does not support the call for boycotts from pro-Palestinian organizations, mainly referring to the fast-growing international Boycott, Divestment and Sanctions movement (BDS). Framed after the successful network organization that helped bring down Apartheid in South-Africa, BDS supporters try to reach public and private actors to reconsider their trade ties with Israeli settlements.

The announcement was received with mixed feelings in the ‘pro-Palestinian’ camp. From one side, it is about as far as large corporations can go and ‘already brave in itself’. Some proponents even complimented Migros for their ‘corporate social responsibility’ and ‘human rights commitment’. From the other side, there was disappointment that the company did not support a settlement boycott - even when the Swiss government called the “…colonization of the occupied Palestinian territory […] illegal and […] a violation of international law.”

It is because of this illegality, that the ‘international law’ camp is not very impressed - and even slightly embittered - by last week’s events. To us, the issue is not about being ‘pro-Palestinian’ or ‘pro-Israeli’, but rather about honoring and implementing fundamental norms of international law. Our study is not focused on politics and lobbying, but on the realities related to international humanitarian law such as the 1907 Hague Convention and the 1949 Fourth Geneva Convention.

After numerous wars, colonization, ghettoization, apartheid, the Holocaust and other war crimes, inter-state politics made its arguably most clever decisions ever: to withdraw the safeguarding of humanity from the unreliable and corruptible realm of short-term politics. Fundamental norms of international law were codified to prevent territorial conflicts and guarantee international peace and stability. Even an International Court of Justice was created to guide countries in the implementation of more proper state behavior.

By now, international lawyers realize all too well that these precious norms cannot beat power-politics, historical guilt, economic incentives or wealthy lobby groups in, for example, Washington D.C. and Brussels. What irony... We also have to note that the debate on trade and human rights is entirely politicized. While trade sanctions are definitely a political choice, occupation-related trade measures are often implicitly obliged under international law, but simply remain unimplemented in state behavior. What bitter fruit...

Why ceasing trade with settlements is an obligation, and not a sanction: International law 1.0.1

Not only the occupation, but permitting trade with settlements violates the carefully built-up fragile international legal system. The occupation has been recognized as illegal and the right to Palestinian self-determination has been consistently affirmed by the International Court of Justice (ICJ), the Red Cross and the United Nations. In spite of the Fourth Geneva Convention, Israel has re-located part of its own population and encouraged migration to permanent Israeli civilian constructions. Like the occupation, these settlements are illegal.

The ICJ itself has recognized that the Israeli occupation is violating the most fundamental norms of humanity. Also, the General Assembly of the UN has called settlement activity a threat to international peace and security. Public international law provides for self-executing obligations in response to such a breach of the fundamental norms of humanity. This means that states have to do everything they can to not recognize or assist illegal state behaviour, even in the absence of a UN Security Council mandate under Chapter VII.

Allowing trade with settlements is an implicit recognition of annexation of Palestinian land to the state of Israel. Even more, reaping economic benefits from occupation through trade is a core prohibition in international humanitarian law, applicable to all states and conflicts. The prohibition was implemented after World War I and reaffirmed after World War II, to avoid conflict and bring territorial stability in international relations. Under the self-executing duty of non-recognition, states thus have the obligation to cease trade with Israeli settlements.

When being challenged on their non-action, state actors often point to the World Trade Organization (WTO), which is the body that regulates free trade. However, international trade law is part of the wider system of public international law and does not prohibit affirmative action. A legal analysis of its treaty provisions on applicability and its main negotiation history even indicates that the rights and obligations within the WTO agreements are not extended to entities like a member’s settlements in illegally occupied territories.

Even if a WTO court would err and decide otherwise, ceasing trade would still be permitted either by accepting the self-executing duty of non-recognition as an independent defense, or by using it in the interpretation of public moral and security exceptions under the famous Articles XX and XXI. These articles state that free-trade obligations can be violated to safeguard public moral or international peace and security. The language used by the ICJ and UN Security Council and General Assembly show that these exceptions are indeed applicable.

Reframe the trade debate: Attack hypocrisy with the rule of law

For well-known political reasons, Western states do not implement the legally uncontroversial measure of ceasing trade. In the US, a financially powerful lobby effectively manipulates public opinion and public policy. In the EU, a troubling history, a lack of leadership, a tradition to use carrots instead of sticks and the strong position of certain member states preclude a serious debate. In addition, individuals, companies and organizations fear that they would be labeled as ‘anti-Semitic’ if they openly supported a trade boycott.

World leaders often hold settlement activity and consistent expansion responsible for failures in peace negotiations. It is unquestionable that settlement economics have been an important factor in the promotion and expansion of settlement activity. Nevertheless, despite being the self-proclaimed defenders of human rights and the rule of law - and after having seen the power of trade in ending apartheid - both the United States and the European Union have accepted trade with settlements ever since their instalment.

This is what simple lawyers would label as short-sighted hypocrisy, and fear for its precedent-setting potential. In its constituting treaties, the EU mandates that its external policy is obliged to respect international law. In reality, the rule of law rhetoric is not converted into actual policies. EU trade relations violate their own charter, and the most fundamental public international law. This is not only the case in trade with Israeli settlements in Palestinian territories, but also for the Moroccan occupation of Western Sahara.

As it seems that many dishonorable elected or appointed officials have lost the ability to choose fundamental norms of humanity over political or economic pressure, it is up to a few honorable politicians and civil society to protect them. In this regard, it would be useful if any uncivilized anti-Israeli sentiment and rhetoric is dropped. It is not about targeting one country or society:  it is about targeting the violation of fundamental norms by all actors involved - but in particular by those within our own jurisdictions. 

(Opinions voiced by Global Minds do not necessarily reflect the opinions of The Global Journal.)