The Volokh Conspiracy
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This week the Columbia Journal of Transnational Law published my new research paper, "Economic Dealings With Occupied Territories."
The gist (from the abstract):
This Article conducts a comprehensive survey of the relevant current state practice and judicial precedent regarding occupied territories, aside from the well-examined case of Israel. Much of this practice has never been considered by scholars, let alone examined holistically. Clear patterns emerge when state practice is examined globally, and the principles they suggest are in turn reaffirmed by recent path-breaking decisions of European national courts.
State practice and decisions of important national courts support a fully permissive approach to economic dealings by third-party states or nationals in territories under prolonged occupation or illegal annexation. There is no obligation on third-party states to block such activity, or to insist on particular language on product labels, or to ensure that their foreign aid funds do not cross into occupied territory.
The paper is published at an opportune time. On Wednesday the CEO of the French telecom firm Orange announced that he sought to "drop" his business in Israel, done through an Israeli subsidiary. Speaking at a meeting in Cairo, he emphasized that this was action was mostly to win the "trust" of Arab countries. But there was also a suggestion that this is because the Israeli affiliate has some cellular antennae across the Green Line.
The French Ambassador to the U.S., (and formerly Israel), defended the Orange CEO's statement on Twitter:'
"4th Geneva convention : settlement policy in occupied territories is illegal. It is illegal to contribute to it in any way."
That statement is entirely baseless. Even if settlements are illegal, there is no ban on business in the territories, or with settlers. Certainly there is no tertiary obligation to not do business with businesses that have some tangential business in such territory. All this is demonstrated extensively in my new paper, some of which I tried to share with Amb. Araud.
Perhaps the most instructive aspect of this was the reaction of Amb. Araud, when I pointed out to him that his legal claim is baseless, and squarely contradicted by France's own courts in recent decisions involving Israel, which held the Geneva Conventions flatly inapplicable to private companies. It is also contradicted by the opinions the U.N. Security Council Legal Advisor, the EU Parliament's legal advisor, and the U.K. Supreme Court, and more. (All these are described at length in my new paper.)
The Orange incident, and the Ambassador's legal claim, are also bad news for a number of French companies, like the oil giant Total, which is active in Moroccan-occupied Western Sahara against the vociferous protests of the indigenous Sawahari people. (There are many other examples, like Michelin in Turkish-occupied Cyprus.) The French government has never criticized any of these controversial activities in any way. But if the Ambassador's legal claim is right, he has provided the basis for war crimes prosecutions of France's leading executives.
Amb. Araud responded to my question by revealing that he had no idea one of his country's largest companies was engaged in an major project that, by his account, is a war crime.
The Ambassador, after blocking me, revealed that his international law claims are not really about international law:
I speak of one occupied territory. I am answered on other territories. I conclude that everybody agrees on what I say on the former.
In other words, no fairs to cite precedents and practice. But of course, if you are talking about international law, "other territories" are entirely relevant. First, for something to be law, it has to be a rule that applies to similar situations. And for it to be international, well, those situations will involve different countries.
What the French apparently want is, to paraphrase Stalin, international law for one country. Ok. But don't call it international. And don't call it law.
Orange's legal advice has been bad not just on the international legal front. The CEO apparently is unaware that his statement could make it impossible for at least one major state's pension funds to have holdings in his firm. Illinois' pensions have recently had about $1.3 million in Orange shares (it sold them in June for unrelated reasons), and as more states pass anti-BDS laws, Orange will have to seek more of its capital in the places it has built up "trust."