Photo Credit: WhiteHouse.Gov screen capture
U.S. President Barack Obama

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.

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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.”

 

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Lori Lowenthal Marcus is a contributor to the JewishPress.com. A graduate of Harvard Law School, she previously practiced First Amendment law and taught in Philadelphia-area graduate and law schools. You can reach her by email: Lori@JewishPressOnline.com

70 COMMENTS

  1. U.S. presidents have long issued "signing statements" that declare their belief that certain provisions of a newly-signed law are invalid and should not be enforced. George W. Bush did this many times. Obama is not unique in this action. Further, as the article mentions, a recent Supreme Court decision reaffirmed that the president has broad powers in foreign policy. So, the anti-boycott amendment was meaningless, at least until Obama leaves office in January 2017. After that, a new president may or may not choose to enforce it.

  2. They got took, is all, by Cardin and friends. The only value of Amendment 20 is that it might come up in a lawsuit at some point, then go all the way up to the Supremes and, likely, die like the Jerusalem registration law. Still, it was very funny to watch.

  3. The "settements" are in no way illegal, that's all bull. And "the rest of the world" has no problem with Morocco occupying (this time, indeed, illegally) the Western Schara. Europe gladly buys goods produced by Morocco on the occupied territory and has no intention whatever to boycott them. I wonder, why.

  4. Lol, the indoctrinated, hypocritical, disappointed, hateful faux progressive frauds are trolling as usual. Go take your BDS and your disguised calls for annhialating Israel elsewhere, have a coke and a smile and go F yourselves losers!

  5. Perhaps he feels v. powerful. But he is not G-d. Judea and Samaria are given to bni Israel / Jacob by G-d, see Deuteronomy 34 and in many places in Genesis etc. So BHO doesn't matter in the end. And we read in tnach that many nations will break themselves against Jersusalem. So we can take note, but don't have to break our heads and hearts over Obama. He can cause trouble for a time only.

  6. There was no explicit division mentioned in the signed legislation, so regardless of how some may inter pit the legislation, the directive is clearly spelled out, and the next administration can enforce the law to the fullest extent.
    Thank GD this mans administration has a expiry date. Obama the FUBAR Adminstration on America , not one good legislation advancement in eight long years.

  7. Ah yes, the libero-fascists are celebrating over this! What a surprise! Trying to misapply international law has never succeeded in cowing Israel to bend to their will. Face it, your racist, exceptionalist, oppressive anti-Semitism is failing and you don't know what to do about it. You should try to look for some other obsession to occupy your twisted minds. It's doubtful that you will eventually learn to respect the only country in the Middle East that respects human rights – Israel.

  8. Uh I think you are on the wrong web site. Did you have trouble spelling "neo nazi" or" the Protocols of the Elders of Zion"? Next you'll be saying how everyone knows we have "all the power" and "own all the banks and Hollywood too". Please! Get an education! Keep trying to demoralize us and try to get rid of us. It hasn't worked in over 3,000 years and it wont work now!

  9. Mr Prez, given the vast intelligence at yr. disposal, you must know that MANY Arab Palestinians derive their income from these ILi factories in Samaria and Judea; why are you so against their making a living? How many factories of Tibet-oppressor China do you boycott against?

  10. Mr Prez, given the vast intelligence at yr. disposal, you must know that MANY Arab Palestinians derive their income from these ILi factories in Samaria and Judea; why are you so against their making a living? How many factories of Tibet-oppressor China do you boycott against?

  11. It's sick how USA is controlled like a dog by Israel. Making up tailor made laws to suite Israel Interests and pushing USA further into conflicts with the Arab world while Israel is watching from the back !

    Wake up USA!

  12. I'm relieved that President Obama has clarified his stand pertaining to the enforcement of the ban of the BDC. Not that the U.S. can do to stop the BDC activity due to worldwide support of the organization. I willfully support the BDS activities until those NAZI Israelis accept the fact that the U.N. has declared that the occupied Palestinian state is an independent state.

  13. What are you an idiot! I don't see Israel launching hundreds of rockets into Palestinian territory! I see the Palestinians launching hundreds/thousands of rockets into Israel using children as shields. They are cowards and hopefully one day Israel will exterminate them all.

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