The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Friday, I had an op-ed in the New York Times, "Europe Mislabels Israel," about the European Commission's new guidance on marking Israeli products. Here is an extract:
What has largely escaped notice is that the labeling policy violates the European Union's own express policy on such issues. The commission primarily justifies labeling as a necessary tool to provide consumers with the information that it does not regard the territories "as part of Israel." However, European Union and national authorities that have addressed the issue have clearly ruled that special labeling is not required in such situations—neither for consumer protection nor to reflect the European Union's view of the underlying sovereign status of territories.
The problem is not that the European Union fails to live up to its standards in some cases, like that of Morocco. Rather, in these other cases the union explicitly denies the existence of these standards. Such inconsistency is not just hypocrisy. It is a legal violation in its own right. The European Union's foundational treaties require regulatory "consistency." And discrimination against trading partners represents a core violation of the General Agreement on Tariffs and Trade and other treaties of the World Trade Organization, as the law professor Avi Bell and I have shown in detail in a recent paper. The union's labeling guidelines are manifestly discriminatory, as they apply only to Israel.
These are technical guidelines delineating the origin of products. Consumers will then be aware of the origin of a product when purchasing it, as they are made aware for products across the globe.
This reflects a common view: If these areas are not regarded part of Israel, how bad is it to require this to be on origin labels? It also reflects a common mistake: The new E.U. policy is not about geographical/territorial accuracy. It is neither about the "origin of products," nor is it anything like any rule for any other "products across the globe."
To be sure, the European Union claims the rules are merely "an application of existing Union legislation on indication of origin of products." It claims "Made in Israel" labeling is misleading about the "country of origin" or "place of provenance," as it is variously called in E.U. law.
Yet the E.U. is not merely seeking a different geographical designation. Surprisingly, according to the E.U. rules, if "Made in Israel" is the problem, then "Made in the West Bank" or even "Made in Palestine," or "Made in Occupied Palestinian Territories" is not the answer. (The policy does not specify what acceptable labeling would include, but specifically rules out these options.)
Indeed, the E.U. notice specifically says that such alternative geographic indications are not acceptable, though they entirely address the objection about geographic/territorial mislabeling. Instead, the E.U. notice also requires such products also be labeled "Israeli settlement" products. This is an extraordinary and unique step. "True origin" requirements for labeling are about the country or territory goods comes from. These are are all about place names—proper nouns.
"Israeli settlement" labeling is not about the geographic area. "Israeli settlement" is not a place on the map. The E.U. has replaced geographic indications—labels about where something was made—to something closer to nationality indication, to labels about who or how goods were made. Maybe such labels are a good idea, but they are the kind of special good idea that is only implemented regarding Israel. In no other context do geographic indications go beyond place names to describe the people, legal regime, or alleged wrongdoings involved in making the product. It would be like labeling goods "Made in China (coerced labor product)."
For example, despite Russia's annexation of Crimea, goods from there are, when imported to the United States, simply labeled "Made in Ukraine," rather than "Crimea (Russian annexation products). Western Sahara products are not labeled "Moroccan settlements" despite Moroccan settlers being the majority of the population in that occupied territory. (Of course, the E.U. allows "Made in Morocco" labeling for occupied Western Sahara, concluding that it does not mislead consumers.)
In other words, the E.U. has transformed "origin" rules that are universally interpreted as being about place to being about people. This goes far beyond correcting any alleged confusion about whether the Golan Heights is in Israel, to providing a uniquely discriminatory interpretation of "true origin" in origin-labeling requirements.
One might add the guidelines appear internally inconsistent as well. The test to apply is whether an area is "part of the … territory" of the labeling state. Yet they approve "Palestine" labels while not suggesting that Palestine is a state at all, and thus has no territory. Moreover, it seems to exclude West Jerusalem from the scope of the guidelines, though clearly the E.U. position is that is not part of the territory of Israel. All this is bound to be very confusing to consumers.
To be sure, many people who oppose Israel's presence in the West Bank may not care about the singularity of this rule; they will be happy with measures intended to discourage Israel's presence. But just as the policy is not really about geographic labeling, it is also not about the peace process or a Palestinian state. The rule applies in full to the Golan Heights. So Israel is presumably also being pushed to return this area to one of the competing Syrian regimes—the al-Nusra Front, the Islamic State or the Assad regime. The absurdity of such a policy suggests that the E.U. move is motivated more out of generalized hostility to Israel than concrete policy disagreements.
Any sympathy the European Union may have generated among most dovish Israelis with its West Bank labeling is lost by its extension of these rules to the Golan.