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.

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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 Regulation, supra 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 Africa, supra note 31, para 114.

40

UNSC Res. 465, 1 March 1980, para 7.

52

Cassese, supra note 11, at 203.

62

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

64

GA Res. 42/22, 18 November 1987.

69

Weeramantry, supra note 65, p. 135.

70

Koury, supra note 19, at 186.

73

Koury, supra note 19, at 69.

75

Weeramantry, supra 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’, EJIL, 2 March 2010, http://www.ejiltalk.org/eu-denies-preferences-to-products-from-israeli-settlements/ (last accessed 7 April 2013).

97

Zunes, supra note 4, at 169–190.

98

UNSC, supra note 36. (not sure which footnote this is referring to)

101

Paris Protocol, supra 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 Responsibility, supra note 53.

117

Articles on State Responsibility, supra note 53, Art. 42.

118

Marceau, supra note 104.

123

GATT, supra note 80, at Art. XX.

133

 See: Zunes, supra note 4.

136

Appellate Body, supra note 130, at 1527.

138

Appellate Body, supra note 76, at 28.

140

GATT, supra note 80, Art. XXI.

141

UNGA, supra note 5. (not sure which footnote this is referencing).

144

Marrakesh Agreement, supra note 34, at Arts. IX.3 and IX.3.2.

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