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Did Britain Just Ban Boycotts of Israel? Not Quite.

Contrary to what you may have heard, the UK government did not pass a law barring BDS. But they did strengthen legal arguments against it.

Eylon Aslan-Levy
February 23, 2016

There has been much ado internationally this week over claims that the British Government has “banned boycotts of Israel.” Indeed, the move has been both praised and condemned for allegedly prohibiting publicly funded bodies, including local councils and student unions, from boycotting or sanctioning Israel. But the British Government has not banned boycotts of Israel. That is a myth. The truth is substantially more mundane and less draconian than many (including yours truly) were led to believe, thanks in large part to misleading media coverage on this issue, stating that “Britain Bans Public-Sector Boycotts of Israeli Suppliers,” as one Reuters headline read.

So what did the British government assert? On February 17, the UK Cabinet Office published a Policy Procurement Note on the seemingly bland matter of “ensuring compliance with wider international obligations when letting public contracts.” Moshe Kantor, president of the European Jewish Congress, praised a proposed measure—a “bill,” he called it—but there is no actual legislation, only a guidance note that clarifies the existing criteria for the awarding of public contracts.

Strictly speaking, the Policy Procurement Note does not introduce a ban on boycotting anything. Instead, it clarifies that, in the British government’s reading of its own existing rules, public authorities are not allowed to discriminate against foreign suppliers on the basis of national origin. They may not boycott Israeli products, for example, simply because they come from Israel, nor may they do so with respect to any country (Israel is not even mentioned).

This British government made these clarifications for two reasons. First, it argues that a boycott of certain foreign states, including but not limited to Israel, would be a violation of international law. Britain and Israel are both signatories to the World Trade Organization Government Procurement Agreement. This binding international treaty prohibits trade discrimination between signatories on the basis of national origin. In this controversial note, the British Government is stressing that the legal prohibition on discrimination applies not only to the central government in Westminster, but to subsidiary public authorities too. National origin is only a relevant criterion where the UK Government has already imposed formal legal sanctions, embargoes, and restrictions, which, in the case of Israel, it has not.

Secondly, the note reaffirms that Britain’s own internal regulations require public contracts to be awarded primarily on the basis of “value for money.” Wider policy considerations are permissible only insofar as they are relevant to the “subject-matter” of the contract; the desire to effect geopolitical change in the Middle East, for example, is not relevant to the subject-matter of most contracts awarded by English county councils. Insofar as the national origin of a product has nothing to do with its value for money, it is irrelevant. Crucially, this would appear to suggest that even if settlement products are not considered Made in Israel—the Kohelet Forum published a report arguing that international trade law suggests otherwise—a boycott against them would still be illegitimate on value-for-money grounds.

Contrary to initial reports, boycotts have not become a “criminal” offense. The Government has stated, with typical British reserve, that such boycotts would be “inappropriate.” Publicly funded bodies “should not” participate in them lest they find themselves subject to legal proceedings, resulting in fines or damages, for violating Britain’s international trade laws.

This announcement by the British Government does not constitute a new legal tool, in and of itself, against BDS. But, as an official statement by a major power interpreting international law, it could support future legal action against boycott efforts.

“The UK action shows that economic warfare against Israel is not an unstoppable juggernaut,” said Eugene Kontorovich, a professor of international law at Northwestern University, arguing that international trade law is on Israel’s side in the battle over boycotts and labeling. “It shows that the government of Israel may have underplayed its hand by not pushing WTO claims against the EU labeling policy. The UK action shows such claims can be powerful tools against boycotts.”

Eylon Aslan-Levy is an Israeli news anchor and political commentator. He is a graduate of Oxford, Cambridge and the IDF.

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