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Eugene Kontorovich - One of the best experts on this subject based on the ideXlab platform.
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Some state practice regarding trade with Occupied Territories : From the GATT to today
The Legality of Economic Activities in Occupied Territories, 2020Co-Authors: Eugene KontorovichAbstract:This paper sheds light on the overall international legality of trade with Territories under military occupation, in the light of previously unstudied state practice. Much of the discussion of this question is based on deduction from abstract principles of international law, or from soft law sources. Moreover, much of the analysis often focuses on legality with respect to a particular territory. This paper seeks to illuminate the question by examining several aspects of formal state practice with regard to a wide range of Occupied Territories. Taken together, state practice - both in the early years of the GATT system and in more recent developments – strongly supports a permissive view about business in Occupied Territories by third-party companies. GATT Articles XXIV and XXVI:5(b) provide that the treaty applies not just to the metropolitan territory of contracting parties, but potentially also to “Territories for which it has international responsibility.” Whether such Territories include Territories under military occupation has been a matter of some debate. The answer to this question sheds light not just on the applicability of the GATT trading regime itself to such Territories, but to the broader question of the legality of international trade with such Territories. The actual practice of states and the GATT Secretariat with regard to Occupied Territories has not been previously been explored. However, GATT documents show that when GATT came into force, the state parties did in fact apply it to Occupied Territories – most prominently, the French-Occupied Saar region. Moreover, its applicability to numerous other Territories under military occupation (Occupied from Italy, Germany, and Japan) was discussed and met with general acceptance. The practice under the GATT is still relevant today. The second part of the paper examines several developing aspects of contemporary aspect of state practice with regards to business in Occupied Territories. It is well known that in reality, many states do not restrict their domestic companies from doing business in such Territories. Recently, numerous European countries have issued “advisories” warning their domestic companies about legal “risks” associated with business in Israeli-Occupied Territories. What has not received attention is analogous advisories about other Occupied Territories. This paper examines government advisories about business in Western Sahara, North Cyprus, as well as Israeli-controlled Territories, and shows that they represent a permissive view by states of the legality of such activities. It also highlights the under-appreciated state practice reflected by recent U.S. legislation dealing with boycotts of Israel. Known popularly as a “anti-BDS laws,” these laws take measures against those boycotting Israel and Territories under its control. These laws are premised on the assumption that business activities with such Territories are internationally lawful.
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Unsettled: A Global Study of Settlements in Occupied Territories
SSRN Electronic Journal, 2016Co-Authors: Eugene KontorovichAbstract:This Article provides the first comprehensive, global examination of state and international practice bearing on Article 49(6) of the Fourth Geneva Convention, which provides that an “Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” This provision is a staple of legal and diplomatic international discussions of the Arab-Israeli conflict, and serves as the basis for criticism of Israeli settlement policy. Despite its frequent invocation in the Israeli context, scholars have never examined – or even considered – how the norm has been interpreted and applied in any other occupation context in the post-WWII era. For example, the International Committee of the Red Cross’s (ICRC) influential Study on Customary International Humanitarian Law lists 107 instances of national practice and UN practice applying or interpreting the prohibition, and all but two relate to Israel. Many questions exist about the scope and application of Art. 49(6)’s prohibition on “transfer,” but they have generally been answered on purely theoretically. To better understand what Art. 49(6) does in fact demand, this Article closely examines its application in all other cases in which it could apply. Many of the settlement enterprises studied in this Article have never been discussed or documented. All of these situations involved the movement of settlers into the Occupied territory, in numbers ranging from thousands to hundreds of thousands. Indeed, perhaps every prolonged occupation of contiguous habitable territory has resulted in significant settlement activity.Clear patterns emerge from this systematic study of state practice. Strikingly, the state practice paints a picture that is significantly inconsistent with the prior conventional wisdom concerning Art. 49(6). First, the migration of people into Occupied territory is a near-ubiquitous feature of extended belligerent occupations. Second, no occupying power has ever taken any measures to discourage or prevent such settlement activity, nor has any occupying power ever expressed opinio juris suggesting that it is bound to do so. Third, and perhaps most strikingly, in none of these situations have the international community or international organizations described the migration of persons into the Occupied territory as a violation of Art. 49(6). Even in the rare cases in which such policies have met with international criticism, it has not been in legal terms. This suggests that the level of direct state involvement in “transfer” required to constitute an Art. 49(6) violation may be significantly greater than previously thought. Finally, neither international political bodies nor the new governments of previously Occupied Territories have ever embraced the removal of illegally transferred civilian settlers as an appropriate remedy.The deeper understanding – based on a systematic survey of all available state practice – of the prohibition on settlements should inform legal discussions of the Arab-Israeli conflict, including potential investigations into such activity by the International Criminal Court. More broadly, the new understanding of Art. 49(6) developed here can also shed significant light on the proper treatment of several ongoing occupations, from Western Sahara and Northern Cyprus, to the Russian occupations of Ukraine and Georgia, whose settlement policies this Article is the first to document.
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Economic dealings with Occupied Territories
SSRN Electronic Journal, 2014Co-Authors: Eugene KontorovichAbstract:In recent years, the international legality of economic activity in Occupied Territories has emerged as matter of significant debate, largely focused on Israeli-controlled Territories. Some European officials, supported by prominent scholars and a wide range of NGOs, claim that international law requires limiting or prohibiting economic relations involving the Israeli-controlled West Bank and Golan Heights. Claims are increasingly being heard that international law requires a boycott of Israeli settlements, or at least the clear labeling of goods produced there.The question of the lawfulness of such activity has even greater salience and urgency with Russia’s annexation of Crimea and belligerent occupation of Eastern Ukraine. These areas have a significantly greater economic potential than most currently Occupied Territories, and Moscow is actively seeking foreign investment there.Discussions of these legal issues have proceeded largely along theoretical lines, ignoring the rich trove of relevant state practice from other Occupied Territories such as Western Sahara, Northern Cyprus, Nagorno-Karabakh and Abkhazia. The EU, the U.S. and other states have adopted a variety of formal positions regarding activities in these Territories. Moreover, recent years have seen a proliferation of state practice and, for the first time, judicial decisions, involving these very questions.This article conducts a comprehensive survey of the relevant current state practice and judicial precedent regarding Occupied Territories, aside from the well-examined case of Israel. Much of this practice has never been considered by scholars, let alone examined holistically. Clear patterns emerge when state practice is examined globally, and the principles they suggest are in turn reaffirmed by recent path-breaking decisions of European national courts.State practice and decisions of important national courts support a fully permissive approach to economic dealings by third-party states or nationals in Territories under prolonged occupation or illegal annexation. There is no obligation on third-party states to block such activity, or to insist on particular language on product labels, or to ensure that their foreign aid funds do not cross into Occupied territory. That does not mean that third countries are prohibited from taking such actions for diplomatic, rather than legal, reasons – though given in the absence of a public law prohibition, WTO and other trade rules may actively bar third-country restrictions on such activity. Practice is most varied on the question of trade treaties extending to Occupied territory, as this seems to depend more on the interpretation of the particular instruments, rather than general principles.
Juval Portugali - One of the best experts on this subject based on the ideXlab platform.
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Jewish Settlement in the Occupied Territories
Political Geography Quarterly, 1991Co-Authors: Juval PortugaliAbstract:While previous discussions focused mostly on the question of Palestinian labour, the present chapter attempts to examine some of the implications of Israeli settlement processes in the Occupied Territories. The significance of these settlement activities stems from the fact that during the last 20 years they have attracted the bulk of Israel’s development efforts, and as such have considerably affected not only the Occupied Territories and their inhabitants, but also Israel’s social geography as a whole. While several aspects of these settlement activities have been analysed (for a survey of the literature, see chapter two), their net effect on the Israeli settlement system and society as a whole is only now beginning to be considered. An assessment of this wider effect is the first aim of the discussion below. The second is to relate the settlement process to our previous studies concerning Palestinian workers in the Israeli labour market. A third and interrelated aim is to apply, and further elaborate, the theoretical framework for the analysis of Israeli- Palestinian relations.
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Jewish settlement in the Occupied Territories: Israel's settlement structure and the Palestinians
Political Geography Quarterly, 1991Co-Authors: Juval PortugaliAbstract:Abstract Post 1967 Jewish settlement activities in the Occupied Territories are described in the light of the historical development of the Zionist settlement process, and in the light of data from a field survey conducted in August 1985. The paper considers the implications of these settlement activities for Israel's settlement structure as a whole, for the social geography of Israeli—Palestinian relations, and for previous attempts to build a theoretical framework for a study on the Israeli—Palestinian issue.
Y. Arai - One of the best experts on this subject based on the ideXlab platform.
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Chapter 15. IHL-based rights of women and children in Occupied Territories
The Law of Occupation, 2009Co-Authors: Y. AraiAbstract:This chapter focuses on the rights of women and children in Occupied Territories, which are specifically derived from international humanitarian law (IHL) treaty-based rules. The bulk of their rights relates to economic, social and cultural rights (ESC rights) and hence entails specific positive duties incumbent on occupying powers. While some of their rights deal with conduct of hostilities, they remain of marked significance in Occupied Territories. The chapter briefly appraises the rights of women under IHL, which have evolved from a paternalistic concept of family honour to rights based on the individual dignity of women. It presents a preliminary discussion on the current gendered rubrics of IHL to highlight the inadequacy of the existing legal framework to meet the special needs of women in Occupied Territories. In relation to rights of children, progress remains unsatisfactory with regard to the war crimes of using children to take active part in hostilities.Keywords: children's rights; economic, social and cultural rights (ESC rights); international humanitarian law (IHL) treaty-based rules; Occupied Territories; womens rights
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Chapter 24. Identifying customary IHL in Occupied Territories on the basis of its interplay with customary international human rights law
The Law of Occupation, 2009Co-Authors: Y. AraiAbstract:This chapter sets out a proposed structure of arguments that can explain the mechanism of identifying customary international humanitarian law (IHL) rules, which are applicable in Occupied territory, on the basis of corresponding standards of international human rights law (IHRL). It proposes to rely on the Martens clause as a normative vehicle for transplanting customary IHRL into the sphere of IHL. Along the theoretical line suggested by Anthea Roberts, the proposed structure assumes that the process of ascertaining customary IHL can be given cogent rationalisation by Kirgis sliding scale theory and reflective methodology underlying Rawls work. The interaction of human rights standards and IHL through the normative channel of the Martens Clause in the context of Occupied Territories, as proposed in the chapter, is a dynamic process. This requires circumspection and meticulousness in extrapolating those customary human rights rules that are applicable in extraordinary circumstances of armed conflict and occupation.Keywords: customary international humanitarian law (IHL); international human rights law (IHRL); law of occupation; Martens clause; Occupied Territories
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Chapter 5. The administrative and judicial structures in Occupied territory
The Law of Occupation, 2009Co-Authors: Y. AraiAbstract:This chapter deals with the specific implication of the conservationist premises of the laws of occupation on administrative and judicial structures in Occupied Territories. It discusses the occupants authority to effectuate change in administrative institutions in Occupied Territories. The chapter reviews a detailed analysis of so-called occupation courts. The authority for belligerent occupation derives less from an international legal institution than from the sheer fact that they exert military power sufficient to control the territory. The occupying power is generally required to maintain local courts and must not alter the status of judges. There have been numerous examples of state practice effectuating the alterations in the administrative and judicial machineries on the basis of necessity exceptions. The introduction of a democratic political system is increasingly recognised as an indispensable requirement on the basis of the principle of self-determination of peoples.Keywords: administrative structures; belligerent occupation; democratic political system; judicial structures; occupation courts; Occupied territory
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Chapter 14. Economic, social and cultural rights in Occupied territory
The Law of Occupation, 2009Co-Authors: Y. AraiAbstract:This chapter begins with analysing a limited set of economic, social and cultural (ESC) rights embodied in International humanitarian law (IHL) treaty-based rules, which deal specifically with the protection of civilian population in Occupied Territories. It explores the significance and applicability, in Occupied Territories, of ESC rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and other human rights treaties. The chapter examines the question of derogability of the ICESCR on the basis of its travaux preparatoires and publicists opinions. The rules governing the requirement to respect and protect humanitarian relief personnel, civil defence organisations, medical personnel, civilian hospitals and medical units are applicable in any Territories affected by armed conflict. In collaboration with national and local authorities, the occupying powers must ensure and maintain the medical and hospital establishments and services, public health and hygiene in the Occupied territory.Keywords: civil defence organisations; economic, social and cultural (ESC) rights; humanitarian relief; international covenant on economic, social and cultural rights (ICESCR); international humanitarian law (IHL) treaty-based rules; Occupied territory
Eva Kassoti - One of the best experts on this subject based on the ideXlab platform.
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Between Sollen and Sein: The CJEU’s reliance on international law in the interpretation of economic agreements covering Occupied Territories
Leiden Journal of International Law, 2020Co-Authors: Eva KassotiAbstract:AbstractThis contribution focuses on the Court of Justice of the European Union (Court or CJEU) reliance on international law in cases involving economic agreements covering Occupied Territories. In its earlier case law, the Court adopted a formalistic approach by ignoring the broader international legal framework of the dispute in an effort to achieve conformity with international law, while at the same time avoiding being drawn into political storms. The article continues by identifying an even more worrisome trend in the Court’s latest judgments in the Front Polisario and Western Sahara Campaign UK cases. In these two cases the Court showed its willingness to stretch the international rules of treaty interpretation to a breaking point in order to avoid pronouncing on the politically sensitive question of the de facto application of the EU’s agreements with Morocco in the territory of Western Sahara. The article concludes by asserting that the Court’s line of argumentation brings another dimension to the Völkerrechtsfreundlichkeit debate. The classical, binary understanding of the Court’s approach as ‘open/hostile’ to international law only provides us with a partial picture of how international law was actually used in these cases. The Court’s apparent willingness to rely on international law as a heuristic device to reinforce an outcome that radically departs from the logic and structure of international law and international legal argumentation requires a more in-depth engagement with both the content of the international law rules invoked in those judgments and with the Court’s use of such rules.
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Doing business right? Private actors and the international legality of economic activities in Occupied Territories
Cambridge International Law Journal, 2018Co-Authors: Eva KassotiAbstract:In recent years the question of the lawfulness of economic activities in Occupied Territories has emerged as a matter of significant debate in international law. A number of non-governmental organizations and scholars maintain that international law prohibits economic relations with occupying states and this extends to Territories under their control. Still, the legal framework governing the lawfulness of such relations remains unclear. In light of this, the present contribution aims to explore the lawfulness, under international law, of economic dealings by third party private actors in Territories under prolonged occupation. It is argued that, since corporations are not direct holders of international law obligations, the duties of non-recognition and non-assistance do not extend to their activities. Similarly, it is shown that the development of a law of individual criminal responsibility in international law has not yet been accompanied by a regime of corporate criminal responsibility, thereby affirming the absence of any formal international normative dimension of transnational corporate activity. In the light of the inadequacy of traditional legal instruments to regulate corporate activity in Occupied Territories, the article finally turns to one of the main soft-law instruments governing such activity, namely the 2011 UN Guiding Principles on Business and Human Rights (UNGPs). The article provides some concrete examples of how the UNGPs have been successful in dissuading companies from carrying out economic activities in the Occupied Palestinian Territories and in the Occupied Western Sahara. The main argument advanced here is that, in the absence of a hard regulatory framework governing corporate activities, soft-law instruments, such as the UNGPs, show great potential in bringing about a change of corporate conduct towards Occupied Territories. More fundamentally, this practice will hopefully lead to the adoption of a hard instrument on the topic.
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Between völkerrechtsfreundlichkeit and realpolitik: the EU and trade agreements covering Occupied Territories
The Italian Yearbook of International Law Online, 2017Co-Authors: Eva KassotiAbstract:The EU’s identity as a global actor is firmly anchored in a distinct normative and political agenda; it has consistently portrayed itself as a normative power committed to the strict observance of international law. However, more recently, the EU’s practice in relation to the conclusion of trade agreements covering Occupied Territories has increasingly challenged the narrative of “normative power Europe”. In this light, the present article attempts a survey of the relevant EU practice by focusing on two case studies: Palestine and Western Sahara. The article argues that, in both cases, the EU has fallen foul of the obligation to promote the right to self-determination and of the corollary obligation of non-recognition. Furthermore, it argues that the EU has adopted a largely inconsistent approach when it comes to the labelling of products originating from Occupied Territories – something that severely undermines the international credibility and legitimacy of its external action. Overall, this contribution asserts that there is a growing gap between EU identity rhetoric as a promoter of global fundamental values, on the one hand, and realpolitik, on the other.
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Trading with Settlements: The International Obligations of the European Union with Regard to Economic Dealings with Occupied Territories
2017Co-Authors: Eva KassotiAbstract:This Policy Brief examines the EU’s practice in relation to trade agreements involving Occupied Territories by focusing on the case-studies of Palestine and Western Sahara with a view to ascertaining its legality and coherence. It is shown that several aspects of the agreements are highly problematic in the light of the EU’s international law obligations of non-recognition and non-assistance and that the Union has largely adopted an inconsistent approach in its economic dealings with the Occupied Territories in question. In conclusion, concrete policy recommendations are offered in order to ensure the legality and coherence of the EU’s trade policy in situations of occupation.
Tom Moerenhout - One of the best experts on this subject based on the ideXlab platform.
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just trade and foreign policy a case study of the legal permissibility and political feasibility of ceasing trade with israeli settlements in Occupied Territories
2012Co-Authors: Tom MoerenhoutAbstract:This study treats settlement boycotts as a question on legal trade and foreign policy. On the legal side, it concludes that ceasing trade with Israeli settlements is not only permitted before the World Trade Organization (WTO) but also obliged under public international law in general. It is found that GATT does not apply to settlements and that Israel cannot refer successfully to the WTO courts to rebuke settlement boycotts. However, in case a WTO panel would decide differently, settlement boycotts would still be permitted in WTO litigation using specific exceptions in WTO law. On the foreign policy side, this study investigates the political feasibility in the United States and European Union of trade embargoes toward Israeli settlements in Occupied Territories. It starts off with the construction of a dynamic conceptual and theoretical framework in which seven variables that determine political feasibility are set out: legal, economic, diplomatic, political culture, civil society, perceived gravity of the breach and knowledge, and level of leadership. This framework is subsequently applied to the United States and Europe. Findings are that there is currently not sufficient political feasibility to enact trade measures toward settlements. In the US, this is mainly due to diplomatic ties and leadership by a powerful lobby. In the EU, this is because of its history, lack of leadership and strong position of certain member states.
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The Obligation to Withhold from Trading in Order Not to Recognize and Assist Settlements and their Economic Activity in Occupied Territories
Journal of International Humanitarian Legal Studies, 2012Co-Authors: Tom MoerenhoutAbstract:This article argues that trade embargoes toward illegal settlements in Occupied Territories are an obligation under general public international law, when such trade primarily benefits the occupant. In this case, the self-executing duty of non-recognition applies. There is no need for an explicit trade embargo imposed by the United Nations Security Council. For, transferring parts of an occupant’s civilian population to Occupied Territories, and gaining economic benefits from occupation, both violate peremptory norms of public international law. Equally, withholding trade is also permitted under the law of the World Trade Organization (WTO). This article shows that according to Article XXVI.5.(a) of the General Agreement on Tariffs and Trade (GATT), the GATT does not apply to illegal settlements. A WTO panel could reach this conclusion, either by denying jurisdiction through finding that the occupying State has no legal standing or by scrutinizing Article XXVI.5.(a) on its merits. However, if a panel would, erroneously, decide the GATT does apply to settlements; trade sanctions could still be allowed in a dispute settlement. This can be done by either accepting the relevant rules of public international law as an independent defense, or by using it in the interpretation of public moral and security exceptions under GATT Article XX and XXI.