The Tide Rises the Tide FallsMonday 28/12/2020

Two occurrences in the sphere of international relations between Israel and the EU caused confusion and consternation to many who follow this field.

On the one hand, on Tuesday morning, December 3^rd, The European Union Court of Justice ruled that products made in Israel must be labelled as such and may not be marketed as products made in Israel. “Foodstuffs originating in the territories occupied by the State of Israel must bear the indication of their territory of origin, accompanied, where those foodstuffs come from an Israeli settlement within that territory, by the indication of that provenance”, the court (the EU’s highest legal authority) announced in a press release[1].

The decision was widely condemned by Israel and pro-Israel figures and advocacy groups, with Israel’s Foreign Ministry rejecting the ruling, Israel’s Foreign Ministry rejected the ruling, saying it set a “double standard” that unfairly singles out Israel when there are dozens of territorial disputes worldwide. “The European Court of Justice’s ruling is unacceptable both morally and in principle,” said Foreign Minister Israel Katz. “I intend to work with European foreign ministers to prevent the implementation of this gravely flawed policy.” The pro-settler Yesha Council also denounced the court ruling, as did Eugene Kontorovich, a professor of international law and the director of International Law at the Jerusalem-based Kohelet Policy Forum, and Gerald Steinberg, a political science professor and the head of NGO Monitor, a Jerusalem-based watchdog group critical of pro-Palestinian nonprofits.

Meanwhile, the Palestinian Authority and pro-Palestine groups welcomed the ruling, with Saeb Erekat releasing an official statement[2] welcoming the ruling. Hanan Ashrawi, a senior Palestinian official, welcomed the ruling as a “first step” and encouraged Europe to ban settlement products altogether. “If they do not allow these illegal products to enter European soil, then that would really serve the cause of justice,” she said. Human Rights Watch and Oxfam released similar sentiments.

Experts and diplomats started wondering on the possible effect this might have on EU-Palestinian Authority relations, and EU-Israel relations, with some seeing this as pushback against The United States’ recent declaration that Israeli settlements on the West Bank are “not inconsistent with” international law.

But mere hours later, a different tune was heard, as over a dozen countries abruptly changed their voting pattern at the United Nations in Israel’s favor, opposing an annual resolution that has passed every year since 1977 mandating a special “Division for Palestinian Rights” inside the UN Secretariat traditionally critical of the Jewish state. Of the 13 countries that changed their voting habits, 11 were from the EU – specifically Germany, the Czech Republic, Austria, Bulgaria, Denmark, Estonia, Greece, Lithuania, the Netherlands, Romania and Slovakia. 2 more EU countries (Malta and Cyprus) voted for the resolution, with 14 (among them France, the UK, Spain and Italy) continuing to abstain, as per the status quo until now.

Suddenly, Israel’s Foreign Ministry was congratulating its EU allies and itself, Foreign Minister Israel Katz stating that: “I am pleased that a significant group of countries has decided today to make heard a clear moral stance against discrimination toward Israel at the UN. This is an important step in the long struggle against the bias toward Israel at the UN. What particularly stands out is the change in the position of several European Union states, and I hope that the remaining EU members will adopt this position soon.” Yinam Cohen, the director of the UN Political Affairs Department at the Foreign Ministry, said that the voting “marks a significant first step in the long way to change the bias against Israel in the UN.”

So what is going on here? How is it that in the morning, the EU was anti-Israel and pro-Palestine, and by evening, it was pro-Israel and anti-Palestine?

The key is differentiating between the formal legal proceedings invoked by the EU Court of Justice and the diplomatic efforts of the EU attaches. If one reads the Court’s decision, it seems to be a fair legal decision based on honest interpretation of existing rules and resolutions. It’s a legal Decision based on legal standards, not necessarily affected by recent politics (specifically, it seems to depend on a notice from 2015). As such, even if all the judges were pro-Israel, they could not have come to a different legal decision. What matters, however, is how the ruling will be enforced. The real origin of the produce is not always easy to identify, experts say, and the European Commission said it is up to individual EU countries to ensure that labels are correct and that the origin of settlement produce made known in a way that is “not misleading to the consumer.” Furthermore, EU Commission Spokeswoman Mina Andreeva explicitly stated that Israel has a special trading relationship with the EU, with products originating in its internationally recognized borders benefiting from preferential tariff treatment. “This situation will remain unchanged,” she said. “The EU does not support any form of boycott or sanctions against Israel.”

In contrast, countries in the EU recognizing the implicit bias of the UN against Israel and changing their voting habits in consequence of this is diplomatically significant. Indeed, it may indicate a sea change in terms of Israel’s foreign policy. Germany’s decision in May to fight the anti-Israel bias at the UN, announced by Heiko Maas, and The Czech’s Republic working hard inside the EU forums to generate change regarding voting patterns on Israel at the UN were cited as developments leading to the change by Yinam Cohen. Furthermore, the effect of the recent decisions by the United States, both regarding West Bank Settlements and the Golan Heights cannot be discounted. It may be that the tide is beginning to turn in favor of Israel in international relations.

[1] https://curia.europa.eu/jcms/upload/docs/application/pdf/2019-11/cp190140en.pdf

[2] https://www.nad.ps/en/media-room/press-releases/dr-saeb-erekat-ruling-european-court-justice-labeling-israeli-settlement