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Our initiative demands a law that prohibits trade with all illegal settlements, present and future. This general rule would of course also apply to trade with illegal Israeli settlements. The violations of Israel in Occupied Palestine and the Golan Heights have been extensively discussed by the International Court of Justice, the United Nations and legal experts across the world. This makes illegal Israeli settlements the perfect example to explain why trading with settlements is illegal.
Israeli settlements in occupied territories violate some of the highest norms under international law (the so called ‘jus cogens’). This includes rules that are, in the words of the International Court of Justice, intransgressible principles that are fundamental to the respect of humanity. These rules are not abstract, but very recognizable. Specifically, arguments have been made that settlements violate the following highest norms:
| Breach of Jus Cogens by Israeli Settlements | Legal sources |
| 1) Obstruction of right to self-determination and acquisition of territory by use of force | ICJ (Wall); ICJ Judges (e.g. Elaraby); UNSC Res. 2334; ILC Articles on State Responsibility |
| 2) Violation of fundamental norms of international humanitarian law ◊ Transfer of population to occupied territories (4th Geneva Convention) | ICJ (Wall – ‘intransgressible’); ICJ Judges (e.g. Nietonavia, Hannikainen, Bediaoui, Weeramantry, Koroma); SC Res. 271, 15 September 1969; SC Res. 446, 22 March 1979; SC Res. 465, 01 March 1980; SC Res. 469, 20 May 1980; SC Res. 471, 05 June 1980; SC Res 476, 30 June 1980; SC Res. 478, 20 August 1980; SC Res. 484, 19 December 1980; SC Res. 592, 08 December 1986; SC Res. 605, 22 December 1987; SC Res. 607, 08 January 1988; SC Res. 636 of 06 July 1989, SC Res. 641, 30 August 1989; SC Res. 672, 12 October 1990; SC Res. 681, 20 December 1990; SC Res. 694, 24 May 1991; SC Res. 726, 06 January 1992; SC Res. 799, 18 December 1992; SC Res. 904, 18 March 1994; SC Res. 1322, 07 October 2000; SC Res. 1435, 24 September 2002; SC 2334, 2016 |
| 3) Violation of prohibition on Apartheid | ILC Articles on State Responsibility; Dugard & Reynolds (EJIL); Falk & Tilley (censored ESCWA report) |
As a result of these breaches, all states and the United Nations have continuously emphasized that settlements are illegal. Because of the seriousness of their illegality, international law mandates other states to not recognize or assist these violations. In this case that means that states cannot recognize or assist settlements and other grave breaches of those highest norms by Israel. This was confirmed by the International Court of Justice in its Wall Opinion and by the United Nations Security Council as early as 1980 when it “called upon all States not to provide Israel with any assistance to be used specifically in connection with settlements in the occupied territories”.
Unfortunately, even if they recognize that settlements are illegal and a grave threat to international peace and stability, many countries have not complied with their obligations under international law not to recognize or assist Israel’s settlements. In the European Union, the obligation to stop trade with settlements is shared between both the Member States and the European Commission. This is because Member States are sovereign states that have the competence to limit importation, whereas the European Commission has the exclusive competence for trade.
Importantly, stopping trade with settlements should not be considered as a sanction. Sanctions are ‘positive’ obligations that explicitly target a specific country and are withdrawn when a violation is stopped. They are optional or obligatory in response to a UN Security Council resolution. Stopping trade with settlements, however, is a ‘negative’ obligation that requires countries not do something that can recognize or assist illegal settlements. This includes trading with them. While the European Commission often refers to the fact that settlements do not receive preferential access to the European market, this is not the key point. They key point is that this type of trade between the EU and illegal settlements should not exist in the first place.
The obligation not to recognize or assist settlements is irrespective of the country and time, until of course a peace agreement is made. These obligations of non-recognition and non-assistance are also automatic and self-executing, which means that they do not need action from the UN Security Council or the European Council. This is exactly because there may be states that would use their veto out of short-term political considerations, while these obligations are intended to protect the highest norms of international law, that are far more important than short-term politics.
