The Anti-Israeli Boycott as Discrimination against Jewish Groups and Israeli Persons
This research paper was prepared to ensure thriving Jewish personal and
communal life, free from all forms of discrimination with strong and legitimate
connection to Israel
During the recent decade, supported and inspired by an anti-Israeli boycott movement, some organizations, companies, student councils and academic associations across countries in Europe and the Americas, have instated a boycott of Israeli products, universities and persons. This paper presents legal aspects of the boycott and counter-boycott movements. For this purpose relevant aspects of international law will be analyzed, including:
• The argument employed by the delegitimization movement is that third parties are under an international law-based obligation to cease their relations with the Israeli settlements. This argument has been contradicted by recent national courts' interpretation of international law and by the legal opinions of others.
• Countering the boycott via international human rights law principles. Calls to boycott Israel in U.N. forums and the anti-Israeli boycott movement's singling out of Israel may violate international human rights principles, including the U.N. Charter mandated "equal treatment of all nations" and the International Convention on Combating Racial Discrimination.
• The boycott may also be in violation of international trade agreements' principle of non-discrimination.
This paper also examines European Union law, specifically:
• Consumer protection and funding regulations. The E.U. does not have a policy for handling its relations with disputed territories, nor does it consistently apply its laws upon these territories.
• The European Court of Human Rights, in determining the lawfulness of calls to boycott Israel in France, has emphasized the difference between expressing a political opinion and calling for a boycott; whereby expressing a political opinion was deemed protected under the right to free speech, whereas calling for a boycott, conversely, could be deemed a discriminatory action. The European Court also emphasized the importance of whether the entity calling for a boycott was acting ultra vires (beyond the scope of one's vested powers), concluding that the mayor of a French city calling for a boycott was not entitled to take the place of the government in calling for a boycott of a foreign country. That is, an individual person has the autonomy to decide for oneself whether to buy or not buy a certain product. A sovereign state also has the right to decide to sever economic ties with another state (provided this does not violate trade agreements, as we shall see below). Entities situated, however, between a state and an individual person – town councils, companies, municipalities, persons in official capacities (including representatives of state universities) – do not have an automatic right to call for a boycott, and the lawfulness of any such call must be examined via the applicable domestic framework.
Indeed, the anti-Israeli boycott's prevalence in recent years has induced national states to decide on the legal status of anti-Israeli boycotts within their jurisdictions, via court rulings, the enactment of new laws (so called "anti-boycott" laws), or by issuing governmental notices or statements:
• Some countries have unequivocally declared that boycotting of Israeli products is against the law. The basis for justifying these pronouncements, however, differs in each country based on its own legal framework and culture:
- France, for example, bases its prohibition of the boycott against Israel on its discrimination law, declaring in effect that the boycott of Israelis "economic discrimination" and inciting to discrimination of a national group. (Spain employs a similar argument.)
- The United Kingdom, while emphasizing the detrimental effect of the boycott on "fueling antisemitism and undermining community relations", takes on a different approach, i.e. that boycotting Israeli companies is in violation of trade agreements, and clarifies that only the government is authorized to call for a boycott of another country.
- Similarly to the U.K., the United States has enacted a federal law that supports the individual states' anti-boycott laws, and declares that boycotts, divestments and sanctions against Israel violate world trade agreements' principles of non-discrimination,
• On the contrary, however, other countries like The Netherlands and Sweden have announced via governmental statements that the activities of the antiIsraeli boycott campaigns are protected under the constitutional right to freedom of expression.
• Apart from anti-boycott laws, some European banks have recently begun to shut down BDS campaign accounts; some as part of the declared illegality of the boycott (e.g., France), other banks close down these accounts simply by exercising the discretion afforded to them under domestic banking law (e.g., Germany).