Postscript on the legality of banning settlement goods
Last Monday we published a legal opinion by Professor James Crawford stating that it would be legal for the UK and the EU to ban goods from the illegal Israeli settlements in the Occupied Palestinian Territories. A dense 60-page legal text could easily sink without a trace but thankfully it’s spread across the internet, provoking all types of debate.
Tom Moerenhout, writing over on Open Democracy thinks that Crawford is wrong in stating that state can, rather than must, ban the settlement trade under international law. Tom argues that in Crawford’s view:
…the duty of non-recognition does not create positive obligations. I agree. However, withholding trade is not to be seen as a sanction (which would be a positive action) but rather as a rectification of an error in international trade relations: trading with internationally recognized illegal settlements.
He also helpfully clarifies and strengthens Crawford’s argument that a ban is compatible with WTO law. So while the General Agreement on Tariffs and Trade (GATT) – the key WTO treaty – does extend member state application to “other territories for which it has international responsibility”, (a point Crawford doesn’t address) this does not: “apply to civilian or military settlements of a WTO member state that illegally occupies the territory of another state or people of whom the right to self-determination has been recognized”.
Encouragingly the Opinion got a bit of media over in Israel itself including in Ha’aretz and the Jerusalem Post, which contrasted sharply with the release of Netanyahu’s Levy Commission report which concluded that Israel is not an occupying power and therefore the settlements are legal. This is an absurd position. As an article in Ha’aretz states that:
In reaching this conclusion the report totally ignores both the position that the governments of Israel have taken before the Supreme Court for 45 years and the hundreds of judgments of the Court on this very question.
And that’s to say nothing of the position in international law which Crawford draws on and pretty much the entire international community supports.
Samira Shackle over at Middle East Monitor provides another helpful summary of the opinion. And Asa Winstanely also links the Legal Opinion to comments made by Foreign Minister Alistair Burt that beyond the labelling of settlement goods, “further consideration of the issue of settlement produce and financing is under active consideration in London and in Brussels”. So watch this space.
And finally, I’ve just got a call offering to translate the Opinion into French… pourquoi pas.