This week the United States officially put on notice its trade partners that it will not countenance boycotts or other economic warfare against Israel.
After signing the relevant trade legislation into law, however, the White House signaled to all its trade partners that they are still free to boycott goods made in the disputed territories, despite the clear language of the legislation the president signed.
This week the Trade Promotion Authority bill was passed by Congress and signed into law by President Barack Obama.
The TPA is primarily focused on international trade between the U.S. and Europe. It also included a section which addresses trade between the U.S. and Israel.
That part of the legislation, the U.S.-Israel Trade and Commercial Enhancement Act, bans boycotts and other means of economic warfare against Israel or the “Israeli-controlled territories.” This amendment, introduced by Rep. Peter Roskam (R-Ill-6) with bi-partisan co-sponsorship, was unanimously adopted into the PTA in April.
The passage of the TPA, including the anti-BDS section, should sound a death knell for the BDS (Boycott of, Divestment from and Sanctions against Israel) Movement. It should.
However, as pro-Israel Americans and Israelis learned only a few weeks ago in the Jerusalem passport case (Zivotofsky v. Kerry), there are certain spheres of international decision making over which the president has exclusive, or at least primary and controlling, control. Obama claims that international trade is one of those areas, even though Article 1, Section 8, clause 3, expressly gives Congress the power to regulate foreign commerce.
So even though the TPA is intended to act as a strong deterrent to European and other countries to pass and enforce boycotts of Israeli products, the White House has already signaled that it will not extend its protection to any goods produced in the disputed territories.
The anti boycott of Israel language in the TPA is: “actions by states, nonmember states of the United Nations, international organizations or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.” [emphasis added.]
In a statement which Matt Lee of the Associated Press attributed to State Dept. spokesperson John Kirby, the administration made clear that despite signing the TPA, the position of the White House remains, as it has been, that the U.S. opposes boycotts of the State of Israel, but it also opposes the presence of Jews in the disputed territories of Judea and Samaria and the Golan Heights.
In the statement the administration argues that by “conflating Israel and ‘Israeli-controlled territories’ a provision of the Trade Promotion Authority legislation runs counter to longstanding U.S. policy towards the occupied territories, including with regard to settlement activity,” and says that every U.S. administration has opposed “settlement activity.”
It goes on to point out that the “U.S. government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them.”
The U.S. administration announced that it will not jeopardize the holy grail of the two-state solution by enforcing the U.S. law as written and which its leader signed. In the statement it claims that “both parties have long recognized that settlement activity and efforts to change facts on the ground undermine the goal of a two-state solution to the conflict and only make it harder to negotiate a sustainable and equitable peace deal in good faith.” It is on this basis, ostensibly to promote a peaceful solution to the Arab-Israeli conflict, that this administration
Professor Eugene Kontorovich of the Northwestern University School of Law analyzes several other provisions of the U.S-Israel trade aspect of the TPA which have been largely overlooked. In particular, Kontorovich points out, U.S. courts cannot recognize or enforce the judgment of any foreign court “that doing business in or being based in the West Bank or Golan Heights violates international law or particular European rules.”
Lori Lowenthal Marcus