RUTHFULLY YOURS

• The EU alleges that the “Interpretive Notice” has nothing to do with a boycott of Israel, and the U.S. has officially concurred in that assessment. The EU says the Interpretive Notice merely responds to “a demand for clarity from consumers, economic operators and national authorities.” But this is disingenuous.
• There is a long list of separatist movements in the EU, some demanding independence, others demanding greater autonomy. It is easy to imagine that some Jews in Israel have corresponding sympathies with such movements and “demands for clarity” about the products of the respective European states. Surely some Israeli Jews would like to buy Scotch Whisky only from the few firms that are still in Scottish hands. How can Israelis’ right to know fairly be denied? Israel is entitled to request that Europeans label their products accordingly.
• What has happened is another manifestation of the infuriating zeal of the European Commission to issue endless directives to all member states in order to impose uniformity in cases where most Europeans never imagined that uniformity was necessary,

On November 11, 2015, the Commission of the European Union (EU) issued the “final” version of its “Interpretative Notice on indication of origin of goods from the territories occupied by Israel since June 1967” (which can be read here and here). It recommends the labeling of all such goods as originating in an “Israeli settlement.” The decision aroused dismay and anger not just in the parties constituting the current Israeli government but also in most of the parliamentary opposition in the Knesset.

After all, the original settlement program in all those areas was the Allon Plan. This plan was adopted shortly after 1967 by the then Labor Alignment, which was the direct ancestor of the chief current opposition party. So the European Commission has succeeded in alienating also those whom it would like to replace the Netanyahu government.

One current Knesset member, Michael Oren, reacted to the “Interpretative Notice” by getting himself photographed in an Israeli supermarket where he was sticking homemade “Made in Europe” labels on the appropriate products. His evident aim was to dissuade Israelis from buying them.

Superficially, Oren’s reaction conforms with one of the four anti-boycott strategies that we ourselves recently defined, namely, to organize boycotts of boycotters. But Oren’s hasty reaction, if it should succeed, would achieve the opposite of his aim.

Oren is correct in his perception that Israel has little power to influence decisions of the European Commission, but every power to impose its own labeling requirements. But he overlooked the basic fact that, currently, only three members of the EU require such labeling: Belgium, Denmark and the United Kingdom.

What has happened is another manifestation of the infuriating zeal of the European Commission to issue endless directives to all member states in order to impose uniformity in cases where most Europeans never imagined that uniformity was necessary. This behavior, together with the propensity of European courts to overrule UK law, is what mainly propels the increasing desire of Britons to leave the EU. We should not rush, as Oren did, to punish all the EU states for the follies of the Commission.

Consequently, the Israeli reaction should be directed only toward EU states that implement the “Interpretive Notice,” thus encouraging the other member states to ignore it. Indeed, the “Interpretive Notice” itself states that “enforcement of the relevant rules remains the primary responsibility of Member States.”

A “senior European official” has admitted that the European Commission restricted itself to giving advice. As for the member states, he remarked: “If they don’t do it, most likely not much will happen. But 16 member states did ask for clarification so I assume this will be partly implemented.” Already, implementation of the “Interpretive Notice” has been rejected by the Hungarian minister for foreign affairs and trade and by the ruling CDU faction in the German parliament. So Israel is entitled to draw up its own labeling requirements, but to apply them only to imports from states that make demands on Israel.

Oren himself could introduce appropriately targeted Israeli regulations by submitting a private member’s bill in the Knesset. (Obviously, this path is more tactful than legislation initiated by the government itself.) If that is more trouble than Oren needs, there are up to a hundred other members who could do it. To that end, let us first examine the provisions of the “Interpretive Notice” and then employ them as a precedent for the Israeli response.

Rights and Wrongs of the “Interpretive Notice”

The Notice begins by noting that the EU “does not recognise Israel’s sovereignty over the territories occupied by Israel since June 1967, namely the Golan Heights, the Gaza Strip and the West Bank, including East Jerusalem.” Indeed, all the trade agreements between the EU and Israel were made on that assumption, which Israel respects. Consequently, Israel agreed a decade ago that goods produced in those areas should not enjoy, for instance, the same tax exemptions as goods produced in pre-1967 Israel.

Thus far the Commission is within its rights, also when it notes that EU legislation requires goods to show their “country of origin” or at any rate their “place of provenance.” Where the Commission goes astray is in its attempt to define the implications of that requirement in the present case. The “Interpretive Notice” states (Section 10):

For products from the West Bank or the Golan Heights that originate from settlements, an indication limited to ‘product from the Golan Heights’ or ‘product from the West Bank’ would not be acceptable. Even if they would designate the wider area or territory from which the product originates, the omission of the additional geographical information that the product comes from Israeli settlements would mislead the consumer as to the true origin of the product. In such cases the expression ‘Israeli settlement’ or equivalent needs to be added, in brackets, for example. Therefore, expressions such as ‘product from the Golan Heights (Israeli settlement)’ or ‘product from the West Bank (Israeli settlement)’ could be used.

Consider the case of Inon Rosenblum, which was recently featured in the Times of Israel. Rosenblum was told by his Palestinian neighbors in the Jordan Valley that nothing could grow in the intensely salty soil. Undeterred, he spent decades improving the soil, which now produces “dates, grapes and ten kinds of fresh herbs, all for export.” Apart from himself and his son, everyone else working there is Palestinian. He also gave Palestinians date plants so that they could start their own production. Result: the circa 7,000 Israelis and 10,000 Palestinians living in the Jordan Valley now “account for 40% of the medjool dates around the world.”

Next consider whisky production in Scotland. According to the Distillery Owners Guide, the distilleries are today overwhelmingly owned by non-Scots. The biggest owner is Diageo, with headquarters in London, but other owners include megafirms whose headquarters are in India, Thailand and Japan, not to mention Trinidad and other countries. Typically, most of the workers in the distilleries are Scots, but the top management may come from outside Scotland.

The European Commission wants to distinguish between Rosenblum and the Palestinian neighbors whom he helped, by labeling his dates “Israeli settlement.” By the same token, those distilleries and the residences of their managers constitute English settlements, Indian settlements, Thai settlements, etc. For that matter, if an Indian company purchased Rosenblum’s plantations and installed an Indian manager, they would then also become an Indian settlement.

On the Golan Heights, the situation is somewhat simpler. The area belonged to the sovereign state of Syria, as defined by the boundary between the former French and British Mandates, except for where the Syrian regime had encroached beyond that boundary in the years before 1967. There is a clear distinction between Syrian citizens, who live in the four Druze villages, and Israeli citizens.

Not so in the West Bank. Before 1967, the Palestinians living there were Jordanian citizens. They and their offspring mostly continue to hold Jordanian passports. So if Rosenblum’s dates are to be labeled “Israeli settlement,” the dates grown from the plants that he gave his neighbors should be labeled “Jordanian settlement.” This is no joke: the Jordanian regime has formally renounced claims to the territory, but it continues to seek influence there. In particular, it is proud that Jordan, not the Palestinian Authority, officially administers the Temple Mount in Jerusalem.

In so-called “East Jerusalem,” the situation is even more complicated. A considerable number of Israeli Arabs, especially from Galilee, have taken up residence there. So any business of theirs is an “Israeli settlement,” according to the European Commission. The Jordanian citizens that Israel found there in 1967 were all given Israeli identity cards. In the meantime, thousands of them have taken out Israeli citizenship, which required renouncing their Jordanian passports, and thousands more have submitted applications. Thus, according to the European Commission, any business of theirs instantly becomes an “Israeli settlement” when their application is accepted, and they must relabel their products accordingly. (The same applies to those Golan Druze who have taken out Israeli citizenship, but they are numbered in hundreds rather than thousands.)

This is so ridiculous that the European Commission would be advised quietly to forget about “East Jerusalem” in promoting its “Interpretive Notice.” The geographic term itself has become ridiculous. Jerusalem is located on a mountain ridge running from north to south, so since 1967 the Jewish population has expanded in those directions, not to the east. Because the European bureaucrats repeat their archaic vocabulary rather than consult the map, they imagine that such neighborhoods as Ramot (Northwest Jerusalem) and Gilo (Southwest Jerusalem) lie in a mythical pre-1967 “East Jerusalem.”

Potential Israeli Regulations

The “Interpretive Notice” of the European bureaucrats, seeking to clarify regulations, has ensnared itself in absurdities. Precisely those absurdities provide a precedent for ingenuity in formulating corresponding Israeli regulations.

The European Commission alleges that the “Interpretive Notice” has nothing to do with a boycott of Israel, and the U.S. Administration has officially concurred in that assessment. It merely responds, says the “Interpretive Notice” to “a demand for clarity from consumers, economic operators and national authorities.” But this is disingenuous. The Commission has indicated (although this is not stated in the “Interpretive Notice” itself) that the first products to be labeled will be fresh food and cosmetics. It can hardly be a coincidence that Jordan Valley dates and an Israeli cosmetic firm have been favorite targets of boycotters. These were exactly the consumers who demanded such clarity and the Commission is satisfying their wishes.

There is a long list of separatist movements in the EU, some demanding greater autonomy. others demanding independence. As many Jews in Israel have European connections, it is easy to imagine that some of these Jews have corresponding sympathies and “demands for clarity” about the products of the respective European states. Surely one can imagine Israeli Jews who would like to buy Scotch whisky only from the few firms that are still in Scottish hands. How can Israelis’ right to know fairly be denied? Israel is entitled to request that Europeans label their products accordingly, both in this case and in innumerable other like cases.

The countries whose separatist movements are most conspicuous are Spain and France. But – as indicated above – they should be left out for the moment, since they have not yet adopted regulations of the kind called for by the European Commission.

A bill in the Knesset would therefore have to formulate three main requirements for action by the appropriate Israeli government ministry. First, to draw up for each EU member state a list of the relevant regions. This is relatively easy. Second, to formulate detailed regulations for the three states that already label “settlement products.” Third, a statutory duty to formulate like regulations for any other EU state, but only if and when it decides to adopt the “Interpretive Notice.”

Even Denmark has separatist movements in Greenland, the Faroe Islands and Bornholm. The cases of Belgium and the UK hardly need explaining, except that Belgium has its German minority and the UK has a separatist movement in Cornwall, which should therefore be added to England, Wales, Scotland and Northern Ireland.

It may seem rather silly to label many Scottish distilleries as “English settlements,” although one can probably find Scots who feel that way about them. This author is on record as not favoring separatism in the UK, but only (as a Welsh speaker) due provision for regional cultural differences. But the silliness merely reflects the silliness of the European bureaucrats and their “Interpretive Notice.” In practical terms, imitating the silliness has a sensible effect: it imposes a counter-burden upon the original sillies for the burden that they impose upon Israel.

A Possible Compromise?

To be precise, the “Interpretive Notice, as quoted above, asserts that “the expression ‘Israeli settlement’ or equivalent needs to be added.” That is, it does not absolutely require that particular expression, so is there some alternative mutually acceptable to the European Commission and Israel?

For instance, replacing “Israeli settlement” with “Israeli product” would be less offensive to Israelis. Only, it would be anathema to Scots to label any whisky as an “English product.”

Perhaps the European Commission and Israel could settle for “Israeli-owned enterprise” on Rosenblum’s dates and “English-owned enterprise” on Scotch whisky, respectively. This form of description is accurate; it should satisfy the Commission’s desire not to “mislead the consumer as to the true origin of the product.” The remaining problem is that – whatever formula is used – this is an unnecessary expense imposed by bureaucrats on business. But since the Commission has decided to go down that path, the Israeli Knesset may have no choice but to follow with its own parallel legislation.