Update 14 November 2019 See for the European legal context the CJEU earlier in this week in C-363/18 Organisation juive européenne holding that foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, the indication of that provenance.
The Belgian Government has published its ‘notice to retailers concerning origin labelling of products from Israeli occupied territories’. The initiative got a lot of press, in Belgium at least, the past few days. It was announced as the culmination of lengthy preparation in light of the existing difficulties in particular with the EU-Israel and EU-Palestine association agreements. Good summary of those difficulties is provided here by DEFRA. (Compiled in 2009 but the issues have remained more or less the same. Note that the Belgian notice refers as far as the exiting origin obligations are concerned, essentially revisits the DEFRA compilation).
Generally, initiatives like these are problematic at three levels.
Firstly, purely legally, specifically international trade law. Countries introducing these types of regimes (including the UK, Denmark, and now also Belgium) allege that all that is envisaged is consumer information, without any signal or pressure from government to boycott said products. That is cosmetic at best. One cannot seriously argue that given the current context, the ‘informative notice’ is not related to a political signal by the Belgian Government. Any consequences of the notice therefore in my view without doubt are sponsored by the Government and hence fall under WTO discipline. (Note that Palestine is not a WTO Member but Israel is).
That same context feeds the argument that the introduction of a label of origin for the occupied Palestine territories serves to make all Israeli produce suspicious in the eyes of the Belgian consumer. That is a highly relevant angle for international trade law.
Secondly, the practical angle. A label of origin requirement is not new. The very existence of different agreements between Palestine, Israel and the EU requires it. Yet controlling those labels has proved impossible so far. Suggestions of lengthy preparation made me curious about the regime the Belgian Government would have devised. The answer is simply that is has devised none. The notice simply says
In order to clarify that these products originate from an Israeli settlement, the following labels are recommended: – ‘Product from the Golan Heights (Israeli settlement)’ – ‘Product from the West Bank (Israeli settlement)’. For products from the West Bank that do not originate from settlements, the label ‘product from the West Bank (Palestinian product)’ is recommended.
There are no indications of who is supposed to attach the labels (‘the retail industry’), who will inspect them, what rules of origin percentages apply. etc.
I am not an economist and hence not in a position to advice whether boycotts such as these actually reach those against whom they are intended. (Which is the third level of problems). Neither am I a public international lawyer who sees clear in the myriad of territorial and other claims which sadly dog Israel-Palestine relations. I am however a litigator and in that capacity I have always preferred doing things with blazing guns once it comes down to boycotts, consumer driven or not: state your case and do not beat around the bush. This notice is disappointing in view of the noise created around it in recent days and it pussyfoots around the real Government intention.
Geert.
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gavc law - geert van calster 