The Obligation to Withhold from Trading in Order Not to Recognize and Assist Settlements and their Economic Activity in Occupied Territories

in Journal of International Humanitarian Legal Studies
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This article argues that trade embargoes toward illegal settlements in occupied territories are an obligation under general public international law, when such trade primarily benefits the occupant. In this case, the self-executing duty of non-recognition applies. There is no need for an explicit trade embargo imposed by the United Nations Security Council. For, transferring parts of an occupant’s civilian population to occupied territories, and gaining economic benefits from occupation, both violate peremptory norms of public international law. Equally, withholding trade is also permitted under the law of the World Trade Organization (WTO). This article shows that according to Article XXVI.5.(a) of the General Agreement on Tariffs and Trade (GATT), the GATT does not apply to illegal settlements. A WTO panel could reach this conclusion, either by denying jurisdiction through finding that the occupying State has no legal standing or by scrutinizing Article XXVI.5.(a) on its merits. However, if a panel would, erroneously, decide the GATT does apply to settlements; trade sanctions could still be allowed in a dispute settlement. This can be done by either accepting the relevant rules of public international law as an independent defense, or by using it in the interpretation of public moral and security exceptions under GATT Article XX and XXI.

The Obligation to Withhold from Trading in Order Not to Recognize and Assist Settlements and their Economic Activity in Occupied Territories

in Journal of International Humanitarian Legal Studies

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References

2

GA Res. 337 30 November 1950.

8

SC Res. 380 6 November 1975.

24

GC (IV)supra note 17 Art. 49.

27

GC (IV)supra note 17 Art. 46(2).

28

Hague Regulationsupra note 20 Art. 43: The authority of the legitimate power having in fact passed into the hands of the occupant the latter shall take all the measures in his power to restore and ensure as far as possible public order and safety while respecting unless absolutely prevented the laws in force in the country.

32

GC (IV)supra note 17. Art. 51(4): “In no case shall requisition of labour lead to a mobilization of workers in an organization of a military or semi-military character.”

33

SC Res. 465 1 March 1980.

37

South West Africasupra note 31 para 114.

40

UNSC Res. 465 1 March 1980para 7.

52

Cassesesupra note 11 at 203.

62

GA Res. 3314 (XXIX) 14 December 1974at Art. 5.

64

GA Res. 42/22 18 November 1987.

69

Weeramantrysupra note 65 p. 135.

70

Kourysupra note 19 at 186.

73

Kourysupra note 19 at 69.

75

Weeramantrysupra note 65 at p. 130.

81

GC (IV)supra note 17 Art. 49(5).

83

L. Bartels‘EU Denies Preferences to Products from Israeli settlements’EJIL2 March 2010 http://www.ejiltalk.org/eu-denies-preferences-to-products-from-israeli-settlements/ (last accessed 7 April 2013).

97

Zunessupra note 4 at 169–190.

98

UNSCsupra note 36. (not sure which footnote this is referring to)

101

Paris Protocolsupra note 99 Art. 1(4); 1995 Israeli-Palestinian interim agreement on the West Bank and the Gaza Strip (The Oslo Interim Agreement).

115

Articles on State Responsibilitysupra note 53.

117

Articles on State Responsibilitysupra note 53 Art. 42.

118

Marceausupra note 104.

123

GATTsupra note 80 at Art. XX.

133

 See: Zunessupra note 4.

136

Appellate Bodysupra note 130 at 1527.

138

Appellate Bodysupra note 76 at 28.

140

GATTsupra note 80 Art. XXI.

141

UNGAsupra note 5. (not sure which footnote this is referencing).

144

Marrakesh Agreementsupra note 34 at Arts. IX.3 and IX.3.2.

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