Eugene Kontorovich: New federal law fights European boycotts of Israel

In plain English, this means U.S. courts cannot enforce judgements that doing business in or being based in the West Bank or Golan Heights violates international law, or particular European rules. There are not as of yet any such foreign judgements to speak of; indeed, legal challenges to business activities across the Green Line have consistently been rejected by European national courts. The real importance of the foreign judgements provision is establishing and strengthening U.S. state practice on this international legal issue.

That is, one underlying purpose behind the series of relatively minor EU restrictions on business across the Green Line is to establish an entirely novel principle of international law (applicable only to Israel): that these areas are for completely off limits for Israelis. The Europeans claim the mere presence (forget habitation) of Israelis in these areas can be a crime under international law. The new law rejects this contention, event to point that it will not recognize foreign judgements arising from it. This would include, for example, the purchase of property in the West Bank by Americans.

Finally, another under-appreciated provision states that boycotts and divestment of Israel by governments violates the General Agreement on Trade and Tariffs, the cornerstone of international trade law. Such a finding by a major third-parrty state should make the EU quite worried about the possibility of Israel challenging their impending restrictions in the World Trade Organization’s dispute resolution mechanism.

More broadly, the law – and the state laws it will spawn – represents a major refutation of the conventional wisdom that boycott pressure on Israel is growing irreversibly and ineluctably. In this account, it is Israel’s policies, rather than the single-minded animosity of its opponents, that fuels boycott efforts, and nothing short and changing those policies will help. In short, in this view, the boycott pressure is at least in part legitimate. This view was championed by the left-wing J-Street group, which opposed the Roskam Amendment. They did not manage to convince a single congressman. Despite the efforts of such ostensibly pro-Israel groups, Americans understand that the movement to single out Israel for economic punishment is unreasonable, discriminatory, dangerous to Israel’s security, and contrary to long-standing U.S. policy.

State Department backs away from anti-BDS law’s language

The US State Department backed away Tuesday from controversial language included in the anti-BDS (boycott, divestment and sanctions) legislation signed into law by President Barack Obama a day earlier, indicating official discomfort with a clause that critics say intentionally blurs the lines between Israel and the West Bank.

“By conflating Israel and “Israeli-controlled territories,” a provision of the Trade Promotion Authority legislation runs counter to longstanding US policy towards the occupied territories, including with regard to settlement activity,” State Department Spokesman Jack Kirby wrote in a statement issued Tuesday afternoon. “Every US administration since 1967 – Democrat and Republican alike – has opposed Israeli settlement activity beyond the 1967 lines. This administration is no different. The US government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them.”

Kirby’s comments referred to the part of the Trade Promotion Authority law which sponsors said were designed to discourage European governments from participating in BDS activities by leveraging the incentive of free trade with the US.

The provisions require US trade negotiators to make rejection of BDS a principal trade objective in Transatlantic Trade and Investment Partnership negotiations with the European Union, instructing them to discourage “politically motivated actions to boycott, divest from or sanction Israel and to seek the elimination of politically motivated non-tariff barriers on Israeli goods, services, or other commerce imposed on the State of Israel.”

Lawless Administration Won’t Enforce Law Against Israel Boycotts

Kirby is right that the U.S. government has never formally recognized the right of Jews to live in Jerusalem or the West Bank. But he’s wrong to assert that President Obama’s policies are entirely consistent with that of his predecessors. This administration has made an issue of the existence of 40-year-old neighborhoods in Jerusalem in a way that is unprecedented since it treats the presence of Jews in parts of Israel’s capital as being just as illegitimate as the most remote West Bank settlement. Moreover, no previous administration has ever considered boycotts of Israel, whether of the entire country or of the half million Jews who live on the other side of the 1967 lines as legitimate. Kirby’s statement is an implicit endorsement of some Israel boycotts while opposing others.

Nor does the focus on settlements aid the cause of peace as the administration claims. Israel has already made far-reaching offers of withdrawal from the West Bank including statehood that has been repeatedly rejected by the Palestinians. The refusal to recognize the legitimacy of a Jewish state no matter where its borders are drawn is the obstacle to peace, not the presence of Jews in Jerusalem or the West Bank.

As I have written previously, the notion that it is okay to boycott some Jews but not others is one that sends a dangerous signal to Israel’s enemies. Once it is deemed lawful to anathematize parts of the Israeli economy, it is a slippery slope to treating all such boycotts as legitimate. Since the original Arab boycott that sought to strangle the Israeli economy was only broken by U.S. efforts to ban trade with those who enforced the boycott, a Congressional effort to move against BDS now was entirely in keeping with longstanding U.S. policy. But since this administration is obsessed with the idea of banning settlements, it is prepared to let a Europe in which a rising tide of anti-Semitism has fueled support for BDS activity get away with such boycotts.

This is a disgrace, but any thought of a legal challenge to the decision is a waste of time. Since the U.S. Supreme Court gave President Obama the right to invalidate laws about Israeli rights to Jerusalem in a decision handed down earlier this month, he can be confident that he will be granted similar latitude to ignore anti-BDS law.
But it isn’t just friends of Israel who should be outraged about this decision. This is an administration that views law enforcement as an option, not an imperative. Just as he did on immigration, where he ignored the will of Congress and used executive orders to effectively annul legislation by not enforcing those concerning illegal immigrants, President Obama regards his personal opinion as being above the law. That is a dangerous tendency to substitute his preferences for the rule of law ought to scare all Americans, regardless of their views about trade or Israel.

State Department Lashes Out Against Anti-BDS Law

People who support boycotts tend to fall into one of two categories. There are those want a two-state solution and believe that a targeted boycott of the West Bank will pressure the government to change policies. There are also those who wish to see Israel replaced with a Palestinian state who support an all-out boycott of Israel. The main BDS leadership falls mainly in the second category.

But both groups have been co-opted by the BDS movement and both help advance the goals of the BDS leaders seeking Israel’s destruction. By implying that boycotts of the West Bank should not fall under the anti-BDS legislation, the State Department statement may lead to more boycotts of the West Bank and a stronger BDS movement.

As Northwestern University Law Professor Eugene Kontorovich wrote in the Washington Post, application of the law depends on the agreement of the President.

The trade negotiation provision is, to be sure, almost impossible to enforce in the face of presidential recalcitrance. While it establishes “negotiating objectives,” ultimately the President conducts the negotiations. Nonetheless, while the provision does not constrain the ultimate parameters of a trade deal, it does require the U.S. Trade Representative to make this an issue.

While the statement may not be a shift in policy from the State Department, it sharpens the distinction between Israel and the West Bank. The State Department, afraid that the new law would legitimize settlements, went out of its way to assert its stance that they lack legitimacy.

The statement, however, does not change the language of the law, which extends the same anti-BDS protection to Israeli-controlled territories as the rest of Israel. It remains to be seen if the State Department or the White House will find a legal way bypass the provision.

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