As Israel faces repeated rocket fire from Islamic jihadists, the EU engages in its own battle to delegitimize the Jewish state in its latest ruling condoning discriminatory labeling practices for Jewish goods produced in contested areas of Israel.
Yesterday, the EU’s Court of Justice (ECJ), the highest court in the EU, ruled that Jewish products made in contested areas of Israel must bear consumer warning labels. Prior to the ruling, U.S. lawmakers in Congress fired warning shots, cautioning the EU that such a move would prompt the enforcement of American anti-boycott laws, thus endangering the EU’s trade with the United States.
Now, according to reporting by Adam Kredo of the Washington Free Beacon, the Trump administration is ready to go to battle over the ruling. Currently, the United States is the EU’s largest trading partner.
The origins of the legal dispute stretch back several years to when the EU issued a mandate in 2015 declaring that products produced in the West Bank and Golan Heights be labeled as coming from an Israeli settlement, facially for the purpose of promoting “consumer protection,” although it’s unclear if that is actually achieved here. In late 2016, France became the first EU member state to attempt to enforce the mandate, resulting in the Israeli winery Psagot filing a lawsuit claiming that such a mandate violated the EU’s anti-discrimination laws.
Under the new rule, goods produced by Jews will be labeled as having been produced in an Israeli settlement, while goods produced by Muslims may be labeled as made in “Palestine,” indicating blatant discriminatory treatment. Unsurprisingly, Israel’s presence in the West Bank and the Golan Heights are the only contested areas in the world to be the focus of the labeling ire of the EU.
“No other territory, occupied, disputed, or otherwise is subject to such requirements,” noted Eugene Kontorovich, director of the Center for International Law in the Middle East at George Mason University. Kontorovich emphasized the peculiarity of the ruling. “In no other case does any ‘origin labeling’ require any kind of statement about the political circumstances in the area. This is a special Yellow Star for Jewish products only.”
Indeed, there are a multitude of contested areas throughout the world that produce goods for which the EU has deemed politicized labeling requirements unnecessary. Despite Russia’s occupation of parts of Georgia or Morocco’s occupation of Western Sahara, nothing in EU law or greater international law requires labeling goods produced by Russia in occupied parts of Georgia as “Made in Georgia” or goods produced by Morocco in Western Sahara as “Made in Western Sahara.”
As Kontorovich explained on Twitter, “Products around the world are made in many situations that raise ‘ethical’ and legal questions, from Chinese prison labor factories to Moroccan drilling Sahrawi oil. Only such concern that requires labeling in EU is Jews living in neighborhoods where they are not ‘supposed’ to be.”
Sen. Ted Cruz (R-TX), who has led the fight against antisemitism on a federal level, echoed those thoughts: “This labeling singles out Jews who live in communities where Europeans don’t think they should be allowed to live and identifies them for boycotts.” The senator elaborated on the somber gravity of the EU ruling, declaring the decision to be “reminiscent of the darkest moments in Europe’s history.”
Cruz alluded to the fact that he and Sen. Tim Kaine (D-Va.) previously spearheaded a bipartisan resolution “condemning and committing to combat anti-Semitism in all its forms, including campaigns to boycott Jewish businesses.” As a sign of the dichotomy between the United States’s position and that of the EU, Cruz asserted, “The Europeans should note that [the resolution] passed the Senate unanimously.”
Yohan Benizri, the lawyer representing the winery, indicated the potential for such a ruling to foment a bureaucratic nightmare. “One doesn’t need legal training to recognize the unintended consequences of the EU adopting a policy of politicized labeling,” Benizri noted. “If the EU Court rules that geographic location is not enough, and that EU law mandates every product coming from either a ‘disputed territory’ or a country with ‘objectionable social policies’ be labeled as such, then EU markets will be thrown into chaos.”
Indeed, the EU’s treatment of Israeli goods violates the core norm of non-discrimination present in the General Agreement on Tariffs and Trade (GATT) and in its institutionalized successor, the World Trade Organization (WTO), of which the EU is a member. Eventually, the EU will likely be forced to justify its harsh measures against Israeli “settlement” products and detail why similar measures have not been imposed on goods produced by other WTO members from other supposedly occupied territories.
Before Wednesday’s ruling, U.S. Sen. Bob Menendez (D-NY) sent a letter to the EU Ambassador to the United States Stavros Lambrinidis, detailing his concerns over the anticipated ruling and its potential to cause “tensions” with the United States. “The regulation in question is problematic for a number of reasons, including because it targets specific businesses based on the ethnicity and national origin of their owners,” Menendez wrote.
Menendez also identified the slippery slope of engaging in ethnic favoritism via such labeling requirements, warning that such practices could “potentially lead to discrimination on the basis of ethnicity, religion and nationality, contrary to existing EU policies and laws against BDS campaigns, Israel boycotts and discrimination.”
As Menendez noted, many states (29, to be exact) have enacted robust anti-boycott laws that harshly penalize companies that engage in boycotts or economic pressure campaigns against Israel. Such EU maneuvers, Menendez warned, would likely jeopardize America’s trade relations with the EU, resulting in “serious and far-reaching implications and unintended consequences.”
Following the ruling, senior officials who briefed the Washington Free Beacon revealed that the Trump administration was ready to confront the EU over the decision, emphasizing that the ruling indicated EU support for the BDS movement and could thwart the administration’s ability to facilitate peace talks between the Palestinians and the Israelis.
“This is BDS, plain and simple,” the official stated on background to Adam Kredo of the Washington Free Beacon. “The administration strongly opposes the decision. It will not have the the intended effect. These efforts have never brought peace, only more divisions.”
The official continued on background by noting that the administration believes BDS (the political movement boycott, divestment, sanctions) to be antisemitic and finds the timing of the EU’s latest ruling particularly abhorrent: “The decision to announce this as Israel is defending a civilian population against hundreds of rockets is particularly tone deaf and demonstrates how poorly the E.U. understands the ramifications of these actions.”
Like Menendez, the official warned of the probable triggering of anti-boycott laws, a result that inevitably will heighten tension between the two otherwise relatively amicable trade partners. Given the Trump administration’s investment in crafting and forwarding a cohesive policy in the Middle East, it would make sense that such EU measures would come across as highly meddlesome at best and supportive of antisemitic economic warfare at worst.
As the administrative official asserted, “This administration has been perfectly clear, we think Israel is what’s right with the Middle East, not wrong with it. To do this kind of punitive action at this moment doesn’t recognize this reality.”
Indeed, given that contested areas in Israel are the only regions of the world subjected to these types of labeling requirements, it is hard to see how the EU’s decision isn’t simply evidence of more anti-Israel bias. As terrorists rain down hundreds of rockets on Israeli citizens in acts of jihadist warfare, the highest court of the European Union engages in its own economic warfare against the Jewish state.
Erielle Davidson is a Staff Writer at the Federalist and a law student at Georgetown University Law Center. Find her on Twitter at @politicalelle.