On Saturday 3 October 2015, the Conservative party issued a press release announcing plans to introduce “new rules to stop politically-motivated boycott and divestment campaigns by town halls against UK defence companies and against Israel.”
It is apparent from the substance of the press release that the government’s proposed action is targeted at the Boycott, Divestment, and Sanctions (BDS) movement against Israel. LPHR does not take a policy on BDS in relation to Israel proper, but we do take a considered policy position that the UK government should withhold incoming and outgoing trade with illegal Israeli settlements as a matter of compliance with their fundamental legal obligations.
We are seriously concerned that the press release does not properly distinguish between local government boycott and divestment initiatives with Israel proper, and those that specifically relate to illegal Israeli settlements in the occupied Palestinian territory (OPT). This apparent conflation is noted by the examples cited to justify the plans, including reference to Leicester City Council passing a policy last year to boycott goods produced in illegal settlements in the occupied West Bank.
Accordingly, our initial view is that these plans do raise very important questions concerning their compatibility with the UK government’s long-standing and unequivocal policy recognising the illegality of Israeli settlements in the OPT, and the current guidance issued to UK businesses which clearly discourages trade with them.
UK government’s existing position on UK businesses operating with illegal settlements
The Foreign and Commonwealth Office (FCO) has published guidance which discourages UK businesses from operating with illegal settlements. The Overseas Business Risk advice for Israel states:
“The UK has a clear position on Israeli settlements: The West Bank, including East Jerusalem, Gaza and the Golan Heights are territories which have been occupied by Israel since 1967. Settlements are illegal under international law, constitute an obstacle to peace and threaten to make a two-state solution to the Israeli-Palestinian conflict impossible.”
Set against this clear legal context, the guidance states:
“There are therefore clear risks related to economic and financial activities in the settlements, and we do not encourage or offer support to such activity.”
In addition to this significant advice to UK businesses operating with illegal settlements, the guidance adds that UK government ‘strongly opposes boycotts’. This indicates that the FCO does not equate non-recognition of settlements with boycotting Israel. Any failure to distinguish between these two policies represents a new and deeply worrying departure.
Legal consequences flowing from the illegality of settlements
It is important to be aware that there are legal consequences flowing from the illegal status of settlements. The establishment of illegal settlements and their related infrastructure obstructs the Palestinian right of self-determination. The right to self-determination is recognised by the International Law Commission as a norm of such importance – called a ‘peremptory norm’ – that it includes a separate and additional legal obligation on all states, including the United Kingdom, to respect and promote this specific right.
The International Law Commission (ILC) Articles on State Responsibility for Internationally Wrongful Acts, clarify that the duty on states consists of an obligation not to recognise as lawful, or act in a manner that implies recognition for, a situation resulting from a violation of a peremptory norm, even if committed by another state. Nor may they render aid or assistance in maintaining that situation. The International Court of Justice has confirmed, in the context of the construction of the illegal Wall in the occupied West Bank, that the duty on all states of non-recognition and non-assistance applies to the obstruction of the right of self-determination for Palestinians.
Initiatives to refrain from trade or investment with internationally recognised illegal settlements, as reflected in the FCO guidance to UK businesses operating with illegal settlements, entirely aligns with the above fundamental legal obligation on all states to respect and promote the vitally important Palestinian right to self-determination.
Need for UK government clarification
Our initial view outlined above on the government’s plans does not take into account whether the plans are consistent with other relevant areas of law, for example, trade law and procurement law. It also does not address the very important issue of what impact these plans may have for local council’s ethical investment policies more generally. LPHR will be examining these issues going forward.
For now, it is essential that the UK government clarifies the apparent disjunction of the recently announced plans with their coherent existing policy and guidance in relation to illegal settlements. If the government’s plans are found to be incompatible with their current policy and guidance on illegal settlements, it is imperative from a rule of law perspective that they should be withdrawn.
Dearbhla Katharine Minogue; Tareq Shrourou; Claire Jeffery