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EU Labeling Guidelines Stir Global Controversy, Rest on Shaky Legal Foundations


Michael Kleinman, Brandeis Blog

December 31, 2015
 

The new EU labeling policy calling for special labelling for Israeli goods related to “settlements,” as well as other restrictions and outright exclusions on some such products, has stirred up a global controversy and left many in the Jewish and international community greatly concerned.

On November 29, the Guardian reported that Israel had suspended contact with EU bodies over the policy, while on December 7, the Jerusalem Post reported that German Chancellor Angela Merkel’s government supported the EU’s labeling policy.

However, many governments worldwide have rejected the policy. On November 16, the Times of Israel reported that Hungary had become the first EU country to reject the labeling guidelines, calling them “irrational” and “harmful to peace efforts.” On December 2, The Tower Magazine reported that Greece had rejected the policy and would refuse to abide by it, and on December 18, the World Jewish Congress reported that Czech lawmakers had similarly rejected the EU labeling guidelines as “political positioning against Israel.” On December 17, the Times of Israel reported that a US bipartisan resolution condemned the EU labeling policy as further encouraging boycotts of Israel and “setting back prospects for peace.”

Just recently, The Simon Wiesenthal Center, in its December 28 report “2015 Top Ten Worst Anti-Semitic/Anti-Israel incidents,” listed the EU’s new policy of labeling of products from the Golan heights and the disputed terrorities of the West Bank only after hatred of Jews inspiring the San Berdino terrorist’s hate and ISIS’s announcing a “war against the Jews.”

While many government leaders, policymakers, and analysts agree that the EU labeling guidelines are flatly anti-Semitic or at least counterproductive, the future of the guidelines may depend on their legality. In October of 2015, Professor Avi Bell of San Diego School of Law and Professor Eugene Kontorovich of Northwestern University School of Law published a report entitled “Challenging the EU’s Illegal Restrictions on Israeli Products in the World Trade Organization” which called the legality of the labeling guidelines into serious doubt. According to the Executive Summary, “EU’s proposed measures restrict Israeli trade in violation of international trade law found in numerous multilateral treaties, including articles 2.1 and 2.2 of the World Trade Organization Agreement on Technical Barriers to Trade; Articles IX, X and XIII of the General Agreement on Trade and Tariffs and Article 2.3 and 5.6 of the Agreement on the Applications Sanitary and Phytosanitary Measures, among others.”

The key finding in the report, however, states the following:

“[A]ny justifications the EU could adduce for its policies are undermined by their admittedly discriminatory application. The EU does not have a general set of rules for dealing with occupied territories, settlements or territorial administrations whose legality is not recognized by the EU. Rather, the EU has special restrictions aimed at Israel. This violates the fundamental rules of the GATT/WTO system, under which even otherwise valid trade restrictions are void if not applied uniformly to WTO members… EU arguments that these territories are not part of Israel are irrelevant in this context. The scope of the WTO agreements explicitly extend beyond a country’s sovereign territory, and include territories under its ‘international responsibility.’ The drafting history and subsequent application of the GATT make clear that this involves territories under military occupation.”

Given that the EU labeling guidelines are likely illegal under international law, Israel may have a recourse. According to the report, “The WTO [World Trade Organization] has a dispute resolution process that provides Israel with a relatively attractive forum to challenge the European restrictions. The process does not involve recourse to a permanent international court likely to be influenced by hostile attitudes towards Israel.”

So far, Israel has not taken this recourse, but on December 11, Arutz Sheva reported that Professor Bell had participated in a delegation from Israel that attended a special symposium held at the European Parliament to call attention to the recent European Commission notice ordering EU states to demand the special labels. At the symposium, Professor Bell explained why the move was illegal under international law, in that “[t]he move discriminates against the products of only one country, namely Israel, and is therefore considered illegal by the rules set down in the World Trade Organization treaties.” Whether anyone will bring this case to the WTO is still unknown, but it seems a case can be made in favor of Israel and against the new policy.

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Irwin Cotler
Irwin Cotler is a Canadian Member of Parliament, a former Minister of Justice and Attorney General of Canada, and a Professor of Law at McGill University, Canada (on leave).
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