Products from the colonies: Labeling or prohibition?

migros
Swiss food giant Migros to differentiate between products made in Israel and made in Israeli settlements in occupied Palestine. (Photo: Keystone)

The Netherlands are about to ask Dutch commercial distributors to implement labelling measures for the identification of products from Israeli colonies. England and Denmark have already taken similar measures. Like those two countries, the Dutch authorities do not intend to institute any sanctions to compel distribution networks to observe these “recommendations”. Announcing these measures, it made this important point: “the import of products from the colonies is not illegal.”

These measures to label products from the colonies have stirred up a debate. For some, they are a step in the right direction. They tend to show that European institutions and governments, considering the Israeli colonies to be illegal and an obstacle to peace, have finally taken the decision to act by implementing the law. This is seen as a first step.

Others see labelling products from the colonies as a red herring. Such measures are a diversion the consequences of which would be disastrous for the Palestinians. They are primarily aimed at providing a cheap fix for European public opinion, which is concerned about Palestinian rights, and which largely condemns the violations of law committed by Israel. In this matter of labelling, its advocates are not seeking the observance of international and EU law. On the contrary, these “soft” legal measures aim to deconstruct and delegitimise the status of that law, as an essential primary source of reference for a just settlement of the question.

In order to form an opinion, it is certainly necessary to listen to the primary interested party: the Palestinians. It is they who are confronted with the colonial businesses, the production and marketing of whose products represents major harm. It is noteworthy that the Palestinians, their civil society resistance networks no less than the farmers and their unions, are not demanding the labelling of these products in Europe, but that their marketing be prohibited. This explicit demand was reaffirmed on 4 February 2013, in the appeal “Farming Injustice: End all Trade with Israeli Agricultural Companies” on the occasion of a worldwide day of action against the Israeli agri-food industry. All the Palestinian farmers’ organisations signed that appeal within the framework of the BDS (Boycott, Disinvestment, Sanctions) campaign.

We should also examine the legal situation on the question of products from the colonies. This examination will enable consideration and assessment, from a legal point of view, of how well-grounded are the Palestinian demand for prohibition and the labelling measures proposed by certain European governments.

I – Products from the colonies: what does international law say?

From the legal point of view, the situation of the Palestinian Territories is extremely clear. Since the war launched by Israel in 1967, and during the occupation that continues to this day, the Palestinian Territories are occupied territories governed by international humanitarian law. The 4th Geneva convention of 1949 and the 1907 Hague Convention are the two fundamental, applicable texts, supplemented since 1995 by the Treaty of Rome which instituted the International criminal Court.

The fallacious arguments set out by the Supreme Court of the State of Israel, seeking to deny the legal reality of occupied territories and, consequently, asserting the non-applicability of international humanitarian law, were swept aside by the International Court of Justice [1], as well as by the Conference of States Parties to the 4th Geneva Convention (1999) [2]. The reminders, by the UN General Assembly and by the Security Council, of the Convention’s applicability to the case of Palestine also remain unchanged [3].

1) Hague Regulations

The 1907 Hague Regulations set out the definition of an occupied territory [4], they specify the occupier’s duties [5], what it may and may not do. Requisitions in kind are allowed, but only for the needs of the army of occupation [6]. On the other hand, private property must be respected and may not be confiscated [7]. The occupier is only an administrator and usufructuary, of public buildings, real estate, forests and agricultural estates [8].

With regard to the Hague Regulations, the establishment of colonies, whether agricultural, industrial or residential, does not stem from any military requirement [9]; indeed, it involves the destruction of real property and public buildings as well as major violations of private property.

2) Fourth Geneva Convention

This Geneva Convention regulates the treatment of civilian populations in the event of armed conflict and occupation. It expressly prohibits forced transfers, whether collective or individual, as well as deportations from the occupied territory. Similarly, the Convention prohibits the occupying power from either transferring part of its own civil population into the territory that it occupies [10], or destroying property and real estate belonging collectively or individually to private persons or public bodies [11].

These “serious violations” of the 4th Geneva Convention are the very basis of Israel’s colonisation and occupation policies that European governments constantly and repeatedly condemn without, however, attempting to put an end to them. Nonetheless, these same States have undertaken [12] “… to respect and to ensure respect for the present Convention in all circumstances”.

This undertaking, set out in the Article 1 of the 4th Geneva Convention, as in all the Geneva conventions is not just a figure of speech. The purpose of the Convention is so much loftier, it is so universally recognised as a necessity for civilisation, that we feel the need to proclaim it as much, if not more so, for the sake of the respect it commands as for that we can expect the opposing side to afford it. The lack of will on the part of the European states to respect this undertaking by applying measures that could put an end to the colonisation of the Palestinian territories by Israel, in itself constitutes a violation of the 4th Geneva Convention.

3) Statute of the International Criminal Court

The latest advances with regard to international law render this European apathy the more surprising. Indeed, the statute of the International Criminal Court that came into force in 2002 reclassified certain requirements of international humanitarian law. Thus, forced transfers of populations and deportations, destruction of goods and the transfer of its own population by the occupying power, defined by the 4th Geneva Convention as “serious violations” of the laws of war, have been reclassified and designated as “war crimes” by the Statute of the International Criminal Court [13].

4) Products of the colonies

Products of the colonies and, consequently, their labelling, are not questions explicitly dealt with by international humanitarian law or international criminal law. However, these define and proscribe the actions and processes that make them possible. These products from the colonies are the direct consequence of these illegal acts and processes. The general legal principle Fraus omnia corrumpit” (fraud corrupts everything) applied to this particular case elicits an unequivocal response: the illegality of the colonisation renders fraudulent or null and void all activities and claims based upon it, in particular the production and marketing of merchandise arising from it. Labelling seems, at the very least, a problematic response. How can one use a marketing arrangement to respond to a war crime?

5) Complicity

Furthermore, the question of facilitating or contributing to the crime is another factor, introduced into international criminal law by the Statute of the ICC, which must be taken into account. Indeed, production of merchandise in the colonies constitutes a war crime and this raises the question of the criminal liability of those who fail to oppose its production and marketing [14]. It is justifiable to consider labelling that does not prohibit the crime but that accommodates it, as falling within this concept of complicity.

From the point of view of international humanitarian law, it is clear that the products of the colonies are illegal and, on this point of legal scrutiny, it is unchallengeable that the Palestinians’ demand, that marketing of these products be prohibited, appears to be well-grounded.

However, before drawing a definitive conclusion, it is as well to look at EU law. This might contradict international humanitarian law.

II – What does EU law say about products of the colonies?

1) General context

The Treaty of Lisbon holds that: “The Union is founded on the values of respect for human dignity,  freedom,  democracy, equality, the rule of law and respect for  human rights, including the rights of persons belonging to minorities. These  values  are  common to the Member States in a society in which pluralism,  non-discrimination, tolerance, justice, solidarity and equality between women  and men prevail.” (Article 1 a)

The CFSP (EU Common Foreign and Security Policy) reaffirms these values and principles in the context of external action. This rests upon “respect for the principles of the United Nations Charter and international law”[15].

Even if this is obvious, we note that Israeli colonial actions (forced movements of population, deportations, theft of land and water, settling its own population in the occupied territories, unlawful exploitation) do not meet the norms and values that the EU member states have established for themselves.

2) Association agreement

In 1995, within the framework of the Barcelona Process [16], the EU committed itself to the development of partnerships with other countries in the Mediterranean basin (Algeria, Cyprus, Egypt, Israel, Jordan, Lebanon, Malta, Morocco, Syria, Tunisia, Turkey and the Palestinian Authority).

The EU-Israel Association Agreement, which was concluded in November 1995 [17] and which came into effect in June 2000, exempted imports and exports between the EU and Israel from customs duties. Only products entirely sourced in Israel, or of different provenance but having been sufficiently transformed in Israel, are covered by the Agreement. The latter applies only in the context of Israel’s internationally recognised borders, those of 1949. Products originating in colonies in the Occupied Territories administered by Israel should not benefit from the preferential customs treatment. A similar agreement was signed by the EU with the PLO (Palestine Liberation Organisation) acting for the Palestinian Authority [18]. The West Bank and the Gaza Strip are the sole territories where this Agreement applies.

The duration of these Association Agreements is subject to compliance with the EU’s founding and governing values and principles [19]. The European Parliament voted the suspension of these Association Agreements in April 2002 on the basis of Israel’s non-compliance with these values. The Commission and the Council failed to act on this, on the pretext that the Parliament’s vote was not binding.

3) A continuing fraud

Since the entry into force of the Association Agreement, the State of Israel has not complied with its terms and has made fraudulent declarations of origin, exporting products originating from the Occupied Palestinian Territories (both colonies and Palestinian), under Israeli certificates.

On a number of occasions, the European authorities have communicated their doubts over the validity of certificates issued by Israel, in particular in 1997, 1998 and 2001. In the face of the massive and repeated nature of these frauds, the Commission promulgated a technical arrangement (Notice No. 2005/C 20/02) [20]. This Notice required that, from 1 February 2005, all product transport certificates should bear “the name of the town, village or industrial area, or the place of production conferring originating status”. In spite of this new regulation, the fraud continued to be systematic, due to the lack of joint, on-site inspection of certificates of origin issued by Israel.

4) Labelling to avoid imposing sanctions

In the 2008, the British Government conducted an enquiry into agricultural products exported by Israel to the United Kingdom. Customs inspections revealed the ineffectiveness of the 2005 technical arrangement. The enquiry report concluded that it was impossible to guarantee that the products really came from the area shown on the certificate of origin. The investigators noted numerous false declarations [21]. One might have expected that the British government would punish these frauds according to EU law. However, it did nothing but, in the name of the protection of consumers’ rights, in December 2009 it published a non-binding code of conduct asking distributors to differentiate the labelling of products from Israeli colonies [22].

Four years after its publication, it is noteworthy that the main result of this measure has been the intensification of Israeli fraudulent practices. Products from the colonies are now exported under cover of places of origin located within Israel. The fraud is not difficult to commit. In the absence of any joint, on-site inspection, it is sufficient for Israel not to apply the 2005 technical notice; a simple amendment of entries on packaging and certification documents is all that is needed. Dawood Hammoudeh, Executive Manager of the Palestinian Farmers Union, UAWC, quite rightly declared, at the beginning of 2013, ”Accurate labelling of products from settlements becomes almost impossible in the context of outright deception by Israeli suppliers, especially when it is Israeli companies themselves managing the import of products from the colonies …[23] .»

5) The BRITA Ruling

This 2010 [24] ruling by the European Court of Justice caused much commotion. For the first time, the highest legal authority of the EU made a legal ruling on the question of products from the colonies.

The affair goes back to 2002. The German company Brita was importing drinks makers and syrups made, by Soda-Club, in Mishor Adumim, the industrial park of the West Bank colony of Ma’ale Adumim. The German customs service refused to apply the preferential customs duty demanded by Brita because of the geographic location of Soda-Club.Questioned by German customs on the precise origin of the merchandise, the Israeli authorities replied that they originated from an “area subject to Israeli customs authority”. Taking issue with the vagueness of this reply, the German customs upheld their original decision. Brita challenged this before the Hamburg Finance Court, which asked the European Court of Justice to issue an interlocutory ruling on a specific question:

- whether goods manufactured in the Occupied Palestinian Territories could benefit from preferential treatment under the EU-Israel Agreement.

- In the event that the response to this question was negative, could the State of Israel use the EU-PLO Agreement to certify products manufactured in the Occupied Palestinian Territories?

- Are certificates issued by Israel for those products that originate in the Occupied Territories enforceable against EU countries?

The European Court of Justice replied in the negative to these three questions. However, the BRITA Ruling has further repercussions, as the legal arguments used by the judge in response to the questions posed are, legally, as important as the actual conclusions. What did the judge say with regard to the Notice?

First, the EU concluded two distinct association agreements, one with Israel and the other with the PLO acting on behalf of the Palestinian Authority.

Second, each of those Association Agreements applied to a particular territorial area. The UE-Israel Association Agreement provides that it applies to the “territory of the State of Israel” (Article 83). The EU-PLO Association Agreement states that it applies to the “territory of the West Bank and the Gaza Strip” (Article 73).

Finally, Israel and the PLO each have exclusive authority to issue certificates of origin for merchandise or to grant approval to exporters located within the territory under their administration.

Therefore: only the Palestinian Authority is qualified to issue a certification document for merchandise originating in the West Bank and Gaza and this is the case whoever the producer may be, whether Palestinian, Israeli colonist or national of any other state. This certifying power is exclusive. The state of Israel has no power to certify for the West Bank or the Gaza Strip and, therefore, certification documents that it issues for the products of West Bank Israeli colonies are worthless and are null and void. The regulation states that merchandise without a certification document is prohibited from entering the territory of the European Union.

In fact, the BRITA Ruling gives a definitive answer to the question of labelling. That question is irrelevant and cannot be posed, as one cannot label merchandise that is prohibited from entering the territory of the EU because it lacks the necessary certification documents. Merely applying the decision of the European Court of Justice should, purely and simply, entail the prohibiting of entry of products from the colonies.

6) Labelling as a means of not applying the Brita Ruling

One can easily understand the reluctance of European leaders to acknowledge the BRITA Ruling when they talk about the problem of products from the colonies, because this decision clearly shows them how it should be legally resolved: prohibition of entry to EU territory.

Just recently, the reply by Laurent Fabius, Minister of Foreign Affairs, to the written question from Patrice Carvalho, [25] Deputy for Oise, perfectly illustrates this refusal to apply the ruling of the European Court of Justice which would entail sanctions against Israel.

Presenting the most recent Israeli violations of Palestinian rights, the Deputy for Oise recalled that these should incur the suspension of the Association Agreement. While waiting for such a measure to be taken by the EU, he asked Laurent Fabius whether France ” … could not prohibit the entry of products coming from the colonies, since it does not recognise the legitimacy of these colonies in the light of the 4th Geneva Convention?”

In his response, the Minister of Foreign Affairs, completely stonewalling on the BRITA Ruling, indicated that “France complies with the C-20 Notice to importers, of 25 January 2005, published in the official Journal of the European Union.” As we saw previously, this 2005 technical notice has shown itself to be ineffective because there is no joint inspection of Israeli certification practices. But, more seriously, this just refers to a technical notice, which has no legal standing compared to the BRITA Ruling of the European Court of Justice. Why should Laurent Fabius commit such an omission? The rest of his reply sheds light on this: ”France is currently investigating, together with several of its European partners, the possibility of promulgating a code of conduct on distinctive labelling of products from the colonies, such as currently exists in the United Kingdom and Denmark.” This project contradicts the BRITA Ruling.

Conclusion

Both international and EU law are inclined to support the position of the Palestinians who, justly, demand that the products of the colonies be prohibited from being marketed in Europe. The refusal of the European authorities to apply the law and to impose sanctions in response to the violations committed by Israel, allows the injustice to continue with complete impunity. Laurent Fabius’ concern and that of his peers is that public opinion, which supports the Palestinians, should not see them as being the promoters and sworn protectors of that impunity. Thus, they have to continually renew the argument and invent stratagems that have the trappings of legality, but that carefully avoid implementing the law, labelling products from the colonies being the latest manifestation of this

We have seen that these labelling measures are not about applying the law but about denying it. They negate international humanitarian and EU law.

Moreover, regardless of the opinion that one might have on the two-state option supported by the EU states, it is clear that these labelling measures totally destroy the credibility of the political position of the EU Member States with regard to Palestine. Can the leaders of these European states seriously pretend to support the establishment of a viable Palestinian state, when they trample on the tiny amount of sovereignty they have granted it up until now? For, in the context of the EU-PLO Agreement, the Europeans accorded to the Palestinians the exclusive right to certify merchandise produced on their territory. Yet, implementing labelling of products from the Palestinian territory, but which has been certified by another state negates that right. This is certainly a negation of Palestinian sovereignty.

Translation : Barbara Fink

Notes

1 ICJ 9/72004 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory

2  The States Parties to the 4th Geneva Convention adopted the application of the text to the Occupied Territories, at their conference of 15 July 1999. In the final statement, they “reaffirmed the applicability of the 4th Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem.” Then, on 5 December 2001, the High Contracting Parties having regard, in particular, to Article 1 of the 4th Geneva Convention of 1949, reaffirmed once more “the applicability of the Convention to the Occupied Palestinian Territory, including East Jerusalem”. Furthermore, they recalled “the respective obligations under the Convention of all High Contracting Parties (para. 4-7), of the parties to the conflict (para. 8-11) and of the State of Israel as the Occupying Power.”

3  General Assembly, Resolutions 56/60 of 10 December 2001 and 58/97 of 9 December 2003. 
Security Council Resolution 237 (1967);  
Security Council Resolution 271 (1969);  
Security Council Resolution 446 (1979);  
Security Council Resolution 681 (1990);  
Security Council Resolutions 799 (1992) and 904 of 18 December 1992.

4  Article 42. “Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

5  Article 43 imposes upon the occupier the duty to “take all the measures in his  power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”

6  Article 52. “Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the inhabitants in the obligation of taking part in military operations against their own country.”

7  Article 46. “Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated.”

8  Art. 55. The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

9  The International Court of Justice holds that the principle of distinction between military and civil property is one of the “intransgressible principles of international customary law”.

10 GC IV Art. 49.  Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive. The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

11 GC IV Art. 53. “Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”

12 GC IV Art. 1. – “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”

13 ICC Statute, Art. 8. 2.a.iv. and Art. 8. 2.b.viii.

14 ICC Statute Art. 25. 3.c-d: “In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: … 
c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose.

15 CFSP Art. 21.   
“1. The Union’s action on the international scene is guided by the principles which have inspired its own creation, development and enlargement, the principles it seeks to advance in the wider world:  democracy the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the Charter of United Nations and international law.  
 
“2. The Union shall seek to develop relations and build partnerships with third countries and with international organizations, regional or global organizations which share the principles referred to in the first paragraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.” 
 
“3. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations in order to: …   
 
“c.  to preserve peace, prevent conflicts and strengthen international security, in accordance with the principles of the UN Charter and the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those relating to external borders;”

16 Euro-Mediterranean Ministerial Conference, Barcelona, 27 and 28 November 1995.

17 Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States of the one part, and the State of Israel, of the other part, signed in Brussels on 20 November 1995 (OJ 2000,  147, p.3).

18 Euro-Mediterranean Interim Association Agreement on trade and cooperation  between the European Community, of the one part, and the Palestine Liberation Organization (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip, of the other part, signed in Brussels on 24 February 1997 (OJ 1997, L 187, p. 3).

19 EU/Israel Agreement, Art. 2. “Relations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect for human rights and democratic principles, which guides their internal and international policy and constitutes an essential element of this Agreement”.

20 Notice to Importers, Imports from Israel into the Community (2005/C 20/02).

21 House of Commons debate, 27 January 2010, Column 313 WH EU-Israel Trade Agreement.

22 Technical advice: labelling of produce grown in the Occupied Palestinian Territories – Department for Environment, Food and Rural Affairs 10/12/2009.

23 BDS: Farming Injustice – International trade with Israeli agricultural companies and the destruction of Palestinian farming 9/2/2013.

24 Judgment of 25 February 2010, C-386/08 Brita GmbH / Hauptzollamt Hamburg-Hafen.

25 French 14th National Assembly, Question No. 15233 – published in the OJ of 08/01/2013, page  120. Reply published in the OJ of 19/02/2013, page 1812.

About Christophe Perrin

Christophe Perrin is a member of BDS France. He also organises the Legal Coalition, an offshoot of the Coalition against Agrexco. He is a specialist at the Cimade [French organisation for the defence of migrants' rights], on questions of xenophobia, racism and discrimination.
Posted in Activism, BDS, Israel/Palestine, Israeli Government, Occupation

{ 17 comments... read them below or add one }

  1. HarryLaw says:

    A wonderful tour de force Christopher, I am in communication with HMCE on some of your arguments here is the first draft of a letter I am about to send.
    Dear Sir/Madam,
    Under the terms of the EC-Israel Association Agreement [Protocol 4] the Israeli customs authorities use of the EUR.I and Invoice declaration preference certificates for non-originating products emanating from the occupied West Bank/Gaza and Golan Heights and which attract no preferential duty treatment when imported into the UK, is unlawful.
    Under Article 17 of protocol 4 of that agreement the issuing of a preference document is set out here… [1] Originating products within the meaning of this protocol shall on importation into one of the parties, benefit from the agreement upon submission of either:
    [a] a movement certificate EUR.I. a specimen of which appears in Annex III: or
    [b] in the cases specified in article 22[1], a declaration, the text of which appears in annex IV, given by the exporter on an invoice, delivery note or any other commercial document which describes the products concerned in sufficient detail to enable them to be identified [hereinafter referred to as the invoice declaration].
    The EUR.I at section 2 , states Certificate used in preferential trade between…Israel and European Union.
    In the case of an Invoice declaration, Annex IV Declaration referred to in article 22[4]… I the undersigned exporter of the goods covered by this document declare that except where otherwise indicated the goods meet the conditions to obtain originating status in preferential trade with….The European Community/Israel, and that the country of origin of the goods is : The European Community/Israel.
    Both documents may be made out if the products concerned can be considered as products originating in one of the parties [Israel or European Union] and fulfill all the other requirements of that protocol, there are also no cumulation arrangements with either the West Bank/Gaza or the Golan Heights Syria.

    Clearly products from Israeli settlements in the West Bank/Gaza and Golan Heights do not originate in Israel and are therefore outside the scope of the EC-Israel Association Agreement this is consistent with World Trade Organization rules European Community rules and our own Trade Descriptions Act 1968 section 36 which describe a products origins as place of last substantial transformation see also Brita GmbH v Hauptzollamt Hamburg –Hafen European Court of Justice, case No C-386/08, that verdict was goods produced in the West Bank cannot described as origin of Israel, that being the case, I have been informed by one of your officers that the correct document to use for these products is the Single Administrative Document or C88.
    For your information, the Israel Tax Authority published a paper some time ago, in it, they instructed their exporters to use the EUR.I and Invoice declaration preference certificates when exporting non originating products from the West Bank/Gaza and Golan Heights, this instruction breaches the EC-Israel Agreement see 7[1][b] EUR.I certificates and 7[2][b] Invoice declarations in the paper “Regulations Technical issues in the implementation of protocol 4 of the Association Agreement for the purpose of indicating the location conferring originating status in preference documents in exportation from Israel to the European Union”.
    The instruction by the Israel Tax Authority to Israeli exporters to use EUR.I and Invoice declarations preference certificates is a breach of the Association Agreement, the acceptance of them by HMCE also breaches that Association Agreement and the Communities custom code as set out in European Union Regulation 2454/93 and several offences as described in the Customs and Excise Management Act 1979.
    It should also be noted that the practice of Israeli customs exporters to insert the word “Israel” after the location and postal code on these non originating documents, see Israel Tax paper above, is at variance with article 47 of regulation 2454/93 here… “ When the origin of a product is or has to be proved on importation by the production of a certificate of origin, that certificate shall fulfill the following, inter alia, [c] It shall certify unambiguously that the product to which it relates originated in a specific country”. The use of the false country of origin “Israel” after the location and postal code was not part of the “Technical Arrangements” agreed between the Commission and Israel.
    Because of all the legal and administrative discrepancies I have outlined, it is your duty to ensure that any incorrect documentation issued by Israeli exporters for non – originating products emanating from the West Bank/Gaza and Golan Heights is rejected and that HMCE comply with all the European and National laws concerning these matters and demand that only the Single Administrative Document is used for any future transactions.

    Yours Sincerely
    Harry Law.

  2. pabelmont says:

    Beautiful article, facts, research, argument.

    All that is missing now — the legal brief above being sufficient to halt this trade — is the willingness of the EU states to stop the (illegal) trade. Perhaps a lawsuit may be brought against an importing state, but who would be able (successfully) to bring such a lawsuit? PLO complaining about false certificates of origin issued by Israel? Who is harmed enough to have (what in the USA is called) “standing” to bring a suit? If only the PLO, then can Abbas be counted upon to oppose Israel to such a degree?

    Palestinians desperately need a [1] really representative PLO [2] located outside Israel-controlled territory. Such a PLO could to the ICC thing and this EU trade thing.

  3. Gart Valenc says:

    Does anybody know whether there has been any attempt anywhere to create a “certification/denomination of origin” seal for Palestinian products? Is something akin to FairTrade possible/desirable?

    Gart Valenc
    Twitter: @gartvalenc

  4. HarryLaw says:

    There is so much to say on the issue of Labeling many European Regulations already make it compulsory to put country of origin on the label, others require that the average person’s transactional decisions must be affected, but these are not optional extras as some people make out, the advice governments give out on labeling are done so that businesses will not be in breach of the many laws in place both Nationally and on a European wide basis, Many of these laws require the local Authorities and other Government agencies to prosecute, and as I have found out they are most reluctant to prosecute, fortunately the power to prosecute is not the exclusive preserve of those agencies. Just as a thought, now that Palestine is a state, how about products from Palestine being named as such on all labeling, after all there is no such state as “The West Bank” the settlers would not label their products ” Palestine” for ideological reasons

  5. Mike_Konrad says:

    A good lawyer could make a case for Israel.

    They would start with the San Remo declaration of 1922 and declare all the area east of the Jordan to be Israel. Britain, France, and Italy signed off on San Remo and that could cause havoc in those countries and the rest of the EU – over the issue of labeling – if Israel tried to litigate the matter.

    It may not hold up, but it would provide years of litigatory delay.

    Now, I think San Remo is overused. It is a very flawed document; particularly if one is a Zionist, as it makes the Jewish homeland conditional on equal treatment for the Arabs on it. Hardcore Zionists overlook that provision. San Remo is full of escape clauses.

    The British used one such escape clause to stop Jewish immigration in 1939 with the White Paper.

    White Paper 1939

    His Majesty’s Government believe that the framers of the Mandate in which the Balfour Declaration was embodied could not have intended that Palestine should be converted into a Jewish State against the will of the Arab population of the country.

    The White Paper was referring to this escape clause in the Balfour/San Remo Documents

    … it being clearly understood that nothing shall be done which may prejudice the civil and religious rights of existing non-Jewish communities in Palestine …

    That was a loophole that you could have driven a truck through.

    The White Paper of 1939 was grossly immoral, as it stranded millions of Jews in Europe during WWII, and consigned them to the Holocaust.

    However, the White Paper was legal. There was that escape clause.

    San Remo would give Israel enough standing in court over the labeling issue to litigate for years, even if an eventual defeat was expected in the courts.

    The just solution is for Israel to start to absorb and enfranchise the Arabs in Judea and Samaria; and give them equal rights and permits.

    As for the refugees outside Israel, Israel will never accept them. Either the Muslim world will accept them, or the West will have to.

    I do not say this is just or unjust. It is what it is.

    Israel will not dissolve itself willingly; nor should it have to.

    • well, if it isn’t mike ‘move ‘em out/ship them off to south america‘ konrad, back to grace us with your wisdom?

      • Mike_Konrad says:

        Annie Robbins says:

        well, if it isn’t mike ‘move ‘em out/ship them off to south america‘ konrad, back to grace us with your wisdom?

        And your answer is working?!

        Politics is the art of the possible – Bismarck

        NOT the art of the impossible.

        Israel will not dissolve itself as a Jewish state. Right or wrong, that is what you are dealing with.

        Your solution involves Israel dissolving itself …. and you call me crazy?!

    • Ah, the good old San Remo ruse.

    • Hostage says:

      A good lawyer could make a case for Israel.

      Some of the very best lawyers and jurists have already heard Israel’s case and disposed of its arguments, like the ones presented in the Brita case. Here is an advisory opinion written by the Whewell Professor of International Law at Cambridge University and the Special Rapporteur for the International Law Commission on the International Criminal Court. He has concluded that nothing in international law, EC, or WTO regulations prohibits the adoption of sanctions against Israel; a boycott; or an import ban on products from Israeli settlements. The report can be downloaded here: link to tuc.org.uk

      San Remo declaration of 1922 … It may not hold up, but it would provide years of litigatory delay. Now, I think San Remo is overused.

      The San Remo resolution only granted Great Britain and France some limited rights to draft and administer the mandates (which have long-since been terminated).

      For its own part, the Israeli Supreme Court has dismissed arguments based on the San Remo resolution and the British Mandate. Subsequent cases shouldn’t require lengthy litigation:
      * CApp 41/49 Simshon Palestine Portland Cement Factory LTD. v. Attorney-General (1950), link to elyon1.court.gov.il
      *HCJ 1661/05 The Gaza Coast Regional Council v. The Knesset et al. (cited in HCJ 7957/04 Mara’abe v. The Prime Minister of Israel; and HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel) link to elyon1.court.gov.il & link to elyon1.court.gov.il

      The San Remo resolution didn’t even grant Palestinian products any trade protections during the Mandate era. Hersh Lauterpacht advised the Jewish Agency on the ineligibility of Palestine’s products for Imperial trade preferences in the 1930s based upon Palestine’s status as “a third independent state”. The District Courts in the United States noted that the Executive branch of our own government had recognized Palestine as “a separate foreign state” (ineligible for the MFN preference accorded to Great Britain) since 1932 in accordance with our own treaties of commerce. See:
      * Hersh Lauterpacht: Collected Papers, Cambridge University, 1977, page 100 link to books.google.com

      * Kletter v. Dulles (1950) link to dc.findacase.com

    • MK_Ultra says:

      Israel will not dissolve itself willingly; nor should it have to.

      Hmmm…I beg to differ. Isreal deligimitizes itself with its actions each and every single day. Just like empires implode from within so will Israel. It’s just a matter of time.

  6. HarryLaw says:

    Gart Valene @ “Does anybody know whether there has been any attempt anywhere to create a “certification/denomination of origin” seal for Palestinian products? Is something akin to FairTrade possible/desirable?” In a judgement at the European Court of Justice, referred to it by the House of Lords’ UK, in the Queen v Minister of Agriculture, Fisheries and Food, ex parte S.P. Anastasiou [Pissouri] and others,European Court of Justice, Case C-432/92 This case involved the Turkish Republic of Northern Cyprus who were attempting to export their products to the European Union, the EU tried to assist them in doing so, The legitimate government of Cyprus objected saying quite rightly that they were the only recognized government and that the TRNC was recognized only by Turkey. The Republic of Cyprus said they were the only competent authority to issue these documents, they won. This case is so similar to the Palestinian issue and important to the Palestinian legal effort, when they get their act together.

    • Erasmus says:

      Re : Harry Law, 05Apr13 – 3:02pm
      ….” to create a “certification/denomination of origin” seal for Palestinian products?”…
      Re: Harry Law, 05Apr13 – 1:30pm
      …”now that Palestine is a state, how about products from Palestine being named as such on all labeling,…”

      I trust a separate label a la “Made in Palestine” would not solve the problem either.
      After all, we shall not forget, that any and all exports from the oPt or the new state of Palestine can only be “exported” through the corridor of Israel proper!!

      Iow, for the time being and as things still stand now – such strategy is likely not to solve the problem of fraudulent export declarations by the GoI + Israeli exporters.

      Here, my conclusion would be, that ALL Israel Exports would have to be refused import tax privileges, because no importing EU-Member Country is in the position to positively asceertain beyond doubt, whether or not the Israeli Declaration of Origin is genuine or fraudulent.

      However, pabelmont’s comment above raises the question:
      ..”Perhaps a lawsuit may be brought against an i m p o r t i n g s t a t e, but who would be able (successfully) to bring such a lawsuit?….”
      that appears to me to be a more promising thought.

      Who could file such an lawsuit?
      Perhaps even the European Parliament against the European Commission?????
      For reasons of neglect and inactivity, and ignoring the principles of the EU-Israel Association Agreement.
      Any legal experts here to enlighten the laymen????

  7. Dutch says:

    This (great) piece bij BDS France leans heavily on the January Al-Haq report ‘Feasting on the Occupation’.

    Report: link to alhaq.org
    Introduction: link to alhaq.org

  8. Les says:

    Where do products produced in occupied East Jerusalem fit into this?

  9. Dutch says:

    So, okay, Dutch supermarkets will start labeling products from the settlements as ‘Made in Palestine/OT/West Bank’ or anything like it. Does this end products from the settlements being labeled as ‘Made in Israel’? No. Does this forbid dealing in illegal fare? No. Will contacts with the illegal settlements be closed down? No.

    That’s why we are not celebrating this step. Shir Hever: “The increased focus in Europe on proper labeling of products from the settlements is an attempt by EU states to shift the discussion into a legal framework, to avoid the more controversial political issue of EU responsibilities in the region.”
    See link to newleftproject.org

  10. HarryLaw says:

    Gart Valene @ “Does anybody know whether there has been any attempt anywhere to create a “certification/denomination of origin” seal for Palestinian products? Is something akin to FairTrade possible/desirable?” In a judgement at the European Court of Justice, referred to it by the House of Lords’ UK, in the Queen v Minister of Agriculture, Fisheries and Food, ex parte S.P. Anastasiou [Pissouri] and others,European Court of Justice, Case C-432/92 This case involved the Turkish Republic of Northern Cyprus who were attempting to export their products to the European Union, the EU tried to assist them in doing so, The legitimate government of Cyprus objected saying quite rightly that they were the only recognized government and that the TRNC was recognized only by Turkey. The Republic of Cyprus said they were the only competent authority to issue these documents, they won. This case is so similar to the Palestinian issue and important to the Palestinian legal effort, when they get their act together.

  11. HarryLaw says:

    Erasmus, @ ” I trust a separate label a la “Made in Palestine” would not solve the problem either.
    After all, we shall not forget, that any and all exports from the oPt or the new state of Palestine can only be “exported” through the corridor of Israel proper!!” That’s true, does that mean the Israelis will refuse passage to Palestinian products with a “Made in Palestine” label on it? I don’t think that would happen, under the rules of the EC-PLO Association Agreement this free passage of trade could not be stopped. Whereas now Israeli settlers mark their products “made in West Bank” [well some do] many EU regulations make it mandatory for country of origin labeling, at least those products that did not comply could be excluded, and consumers then could make a more definite distinction between products from settlements and Palestinian farmers in all occupied territory. I do appreciate the problems you have mentioned about the fraudulent export of goods from OPT with a “made in Israel” label sometimes with a Head Office in Israel masquerading as place of production, it should not be forgotten that most supermarkets have the ability to identify each particular farm they buy from, this together with the correct export documentation could help stop this very extensive fraudulent activity. This is without the question of which export authority has the competence to issue preference documents[for the occupied West Bank now Palestine and the Golan Heights] being determined, but even here I think the European Court of Justice decision in one of my comments above on the question of the Turkish Republic of Northern Cyprus and the Republic of Cyprus above, is instructive.