Drawing on months of research and consultations with lawyers, trade experts and former and current EU officials, we propose a regulation under the EU’s Common Commercial Policy. Such regulation should aim at ensuring that EU trade complies with international law and does not help sustain the illegal settlements economically.
Martin Konečný
After months of foot-dragging, the European Commission on Thursday (10 July) finally put out options to restrict EU trade with Israel’s illegal settlements. EU foreign ministers will discuss them on Monday (13 July).
The move responds to repeated requests from a growing majority of member states.
But by offering a menu of inconclusive options, EU Commission president Ursula von der Leyen and trade commissoner Maroš Šefčovič have once again postponed the key step: to table a proper legislative proposal.
Of the three options floated by the commission – an import-licensing regime, higher tariffs, and a trade ban – only the last one makes legal and practical sense.
The EU’s long-standing position is that Israel’s expanding settlements are illegal in their entirety and undermine peace. If that is the case, their products should not be allowed into the EU market, full stop.
On Thursday, we at the European Middle East Project at the published a detailed proposal showing how such a measure could be designed and implemented.
Drawing on months of research and consultations with lawyers, trade experts and former and current EU officials, we propose a regulation under the EU’s Common Commercial Policy (Article 207 TFEU). Such regulation should aim at ensuring that EU trade complies with international law and does not help sustain the illegal settlements economically.
This is neither a foreign policy sanction designed to punish Israel, nor a symbolic political gesture.
Rather, it follows the logic of the International Court of Justice – the world’s top judicial body – which made clear two years ago that preventing trade that helps maintain the settlements is an obligation under international law.
The EU is bound by its treaties to respect international law in its external policies, includig trade. Therefore, stopping imports from settlements is not just an option but a legal requirement.
The case is also justified in economic terms.
By available estimates, the volume of EU imports from the Israeli settlements in the occupied Palestinian territory is 15 times larger than imports from Palestinians themselves – while illegally using their land and natural resources without their consent.
Berlaymont ‘patently misleading’
As the leading external market for settlement exporters, the EU plays a major role in the settlements’ economic viability. The claim that trade with settlements is too small to address – still being casually made by the commission – is thus patently misleading.
Banning trade with the settlements is also practically enforceable.
Under the existing EU policy, products from Israel are entitled to preferential tariffs while settlement products are “only” entitled to the standard Most Favoured Nation tariffs.
A recent report by the NGO Global Echo documents how Israeli exporters and customs authorities continue to declare settlement goods as products of Israel, sometimes using false addresses or mixing produce from settlements and Israel.
It is important to understand that these obfuscation practices are inherent to the current policy allowing trade with settlements.
An import ban will, on the contrary, significantly reduce the incentive for such mis-designation. Businesses that try to bypass the prohibition will risk having their goods returned, seized or destroyed, while facing stricter penalties for breaching an actual trade ban.
Even with imperfect controls, shipping such goods into the EU with incorrect origin will become far less commercially attractive.
An import ban would thus allow tackling circumvention more effectively than the current policy. Additional technical measures, some already adopted or proposed by Spain and the Netherlands in their national-level legislation to stop trade with settlements, would further reduce opportunities for circumvention.
In sum, an Article 207 regulation banning settlement trade is legally warranted, economically justified, and operationally feasible.
On Monday, foreign ministers should ask the commission to move from discussing options to preparing a single, coherent legislative proposal that ends EU trade with the settlements.
Momentum in Europe is clearly moving in one direction.
Just this week, British prime minister-in-waiting Andy Burnham strongly indicated that the UK may ban settlement imports soon.
Rather than continuing to delay, von der Leyen should recognise that direction of travel and instruct the commission to act.
