24 November '15..
The European Commission's labeling is not about promoting "the two state solution" and it's not about "consumer protection." It is about a single-minded demonization of Israel.
The EU claims that "Made in Israel" labels mislead consumers about products' "country of origin." Yet the EU is not merely seeking a different geographical designation. Surprisingly, according to the EU rules, if "Made in Israel" is the problem, then "Made in the West Bank" or even "Made in Occupied Palestinian Territories" is not an acceptable answer.
Indeed, the EU notice specifically says that such alternative geographic indications cannot be used, though they entirely address the objection about geographic/territorial mislabeling. Instead, the EU notice also requires such products also be labeled "Israeli settlement" products. This is an extraordinary and unique step. "True origin" requirements for labeling are always and only about the country or territory goods comes from.
"Israeli settlement" labeling, however, is not about the geographic area. "Israeli settlement" is not a place on the map. The EU has replaced geographic indications -- labels about where something was made -- to something labels about who or how goods were made.
The rules leave room for creativity and challenge by Israel exporters. Nothing in the EU rule proscribes a "Judea and Samaria" label. Such a designation satisfies all the EU's objections: It does not say "Israel," and is a geographic place name. Of course, the EU does not like "Judea" and "Samaria," because that is what "settlers" call them. But then it is also the best way to accurately inform consumers that the products are from settlements.
The labeling is another step in a series of escalating European punitive measures. Europe has issued guidelines barring a single euro being spent on academic or other projects in Judea and Samaria or the Golan; barred the import of some agricultural products; issued vague warnings to businesses about having any connection with "settlements," and now, imposed labeling. That is just the past two years.
The EU is literally working down a list, one that ends in ruinous sanctions. Indeed, Europe uses Israel's failure to lodge formal legal protests to the act measure as a precedent for taking the next step.
Happily, Israeli political parties inside and outside the government have united in their sharp criticism of labeling. Nevertheless, criticism alone has not been and will not be enough to stop labeling or further steps.
However, the EU's inconsistent and discriminatory application of its rules gives Israel unique leverage to fight back. The labeling rules contradict not just the EU's treatment of other areas where they do not recognize a country's sovereignty; they contradict official EU statements of policy and European court rulings. For example, while the EU does not recognize Western Sahara as part of Morocco, it still labels goods from that occupied territory "Made in Morocco." This is not an oversight: The Polisario is currently suing the EU and various countries insisting on changing the labeling. But the EU has formally taken the position that the labeling is not misleading or in any way inconsistent with existing EU rules.
Israel can use the European hypocrisy, rather than merely complain about it, by bringing the matter to various tribunals, such as the World Trade Organization, a body that hears disputes about technical trade issues, like labeling. The key sin in the WTO system is treating discriminatory, and the EU rules are manifestly discriminatory.
Some fear that this will lead Arab states to challenge Israel in the WTO about the status of the territories. But that assumes that Arab states have the ability to do so and simply refrained from doing so to be nice. That is implausible. Nor is the fear of losing such a case a reason to avoid it: That would simply leave Israel in the same place it is now, with the labeling in place. Nor would such a case give the WTO an opportunity to rule on the legal status of the settlements, as this would not be a point in debate: The only question is, given the EU's views on sovereignty, is their treatment discriminatory?
However, if Israel makes clear it will not assert its rights, the outcome is certain: more and worsening sanctions. Fortunately, Israel has tools to fight the labeling -- it is time to use them.
Professor Eugene Kontorovich is an international law expert, teaches at Northwestern University, and is a senior fellow at the Kohelet Policy Forum.
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