The UN “blacklist” of Israeli commercial enterprises: Should It be taken seriously?
By Amb. Alan Baker
With the February 2020 publication by the UN High Commissioner for Human Rights of a “blacklist” of Israeli and other commercial enterprises functioning in the territories, several questions have arisen as to whether such a blacklist has any legal basis, and if it is not incompatible with accepted norms and principles of international law.
What is familiarly termed “the UN blacklist of Israeli companies” is more fully defined in formal UN terminology as a “database of all business enterprises involved in certain specified activities related to the Israeli settlements in the Occupied Palestinian Territory, to be updated annually.”
Background â€“ UN Human Rights Council
The database originated in a series of documents generated by the UN Human Rights Council, an intergovernmental body made up of 47 member states, including such “paragons of international humanitarian virtue” as Libya, Mauritania, Sudan, Indonesia, Qatar, Somalia, Togo, Angola, Senegal, Bahrain, Pakistan, Afghanistan, Bangladesh, Venezuela, and Cameroon.
The few democratic countries in the Council â€“ a small minority â€“ are Germany, Netherlands, Austria, Denmark, Italy, Australia, Spain, Brazil, Argentina, Mexico, Poland, Bulgaria, Czech Republic, and Slovakia.
The Council was established in 2006 following the failure and dissolution of its predecessor, the UN Human Rights Commission, which became discredited due to its ineffectiveness, its politicization, and the inclusion of human rights violators among its membership.
Regrettably, the present Human Rights Council appears to be following in the same politicized footsteps of its predecessor, after having resolved, upon its establishment in 2006, to devote a specific agenda item to only Israel as a permanent feature of every Council session, entitled “Human rights situation in Palestine and other occupied Arab territories.”
One might have expected that such a potentially vital and central UN organ would function according to the aims set out in its constitutive General Assembly resolution 60/251 of April 3, 2006:
One might also have expected that the precise instructions set out in paragraph 4 of this constitutive resolution as to how the Council should function, would have served as a beacon for its performance:
Regrettably, and based on the motley collection of non-democratic states comprising the main bulk of its membership, this UN organ, despite its declared and noble aim, as proclaimed on its internet home page of being “responsible for the promotion and protection of all human rights around the globe,” has become utterly compromised politically.
This places in question its very credibility and integrity as the leading human rights agency in the UN system of organizations. In fact, such politicization prejudices its capability of genuinely protecting human rights anywhere.
The HRC’s evident political fixations with singling out Israel and minimizing and even ignoring real human rights issues throughout the world are major factors in rendering the Council as a defective and ineffective body, lacking any credibility or professional integrity.
Development of the Database/Blacklist
The 2012 UN Fact-Finding Mission to Investigate Implications of Settlements
By its resolution 19/17 dated March 19, 2012, the Human Rights Council decided to dispatch an “Independent International Fact-Finding Mission to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian people throughout the Occupied Palestinian Territory, including East Jerusalem.” The resolution was sponsored by a curious and motley group of “democratic” and “humanitarian-conscious” states including the “Plurinational State of Bolivia,” Cuba, Palestine, Mauritania (on behalf of the Arab Group), Pakistan (on behalf of the Organization of Islamic Cooperation) and the “Bolivarian Republic of Venezuela.”
Thirty-six states supported the resolution, including Austria, Belgium, Chile, China, India, Jordan, Mexico, Norway, Nigeria, Peru, Philippines, Russia, Switzerland, and Thailand. Ten states abstained, including Hungary, Italy, Poland, Czech Republic, Cameroon, Costa Rica, Moldova, Romania, and Spain.
Only the United States voted against it.
The fact-finding commission’s report was subsequently published on February 7, 2013, and sets out in its paragraph 96 a list of activities carried out by business enterprises in the territories that it considers “have, directly and indirectly, enabled, facilitated and profited from the construction and growth of the settlements,” and that “raise particular human rights concerns.”
This list refers to enterprises dealing in the following fields:
The concept of publishing a database emanates from a recommendation in paragraph 117 of the report:
2011 Report of Special Representative of the Secretary-General on Guiding Principles on Business and Human Rights
The ideological basis for the database emanates from a 2011 UN report urging commercial enterprises to adhere to human rights norms as set out in a non-obligatory “Guiding Principles” document presented to the Human Rights Council by Prof. John Ruggie. Ruggie is a Professor in Human Rights and International Affairs at Harvard’s Kennedy School of Government and serves as Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises.
These Guiding Principles are based on an expectation, set out in the introduction that states should
However, as to the legal nature of the Guiding Principles, the introductory paragraphs state:
Interestingly, during the initial attempts to draft “norms for transnational corporations and other business enterprises,” there was considerable debate and controversy as to whether it was legally possible, or advisable, to impose on commercial companies, directly under international law, the same range of human rights duties that states have accepted for themselves under treaties they have ratified “to promote, secure the fulfillment of, respect, ensure respect of and protect human rights.”
Ultimately the Human Rights Council preferred to draft the above non-binding “guiding principles.”
The Database Itself
Based on the recommendations of the fact-finding mission and the abovementioned “Guiding Principles on Business and Human Rights,” the Human Rights Council, in its resolution 31/36 of March 24, 2016, entitled “Israeli settlements in the Occupied Palestinian Territory, including East Jerusalem, and in the occupied Syrian Golan,” requested the UN High Commissioner for Human Rights to produce the database.
In the resolution’s operative paragraph, the Council requested:
The listed co-sponsors on the resolution creating the blacklist were virtually all tyrannies or other non-democracies with egregious records on human rights, who oppose any positive human rights mechanisms at the UN. These countries include Kuwait on behalf of the 22-member Arab Group, Pakistan on behalf of the 56-nation Organization of Islamic Cooperation, Sudan, Venezuela, Algeria, Bahrain, Bolivia, Chad, Cuba, Djibouti, Ecuador, Egypt, and Libya.
Fifteen UNHRC members refused to support the blacklist, including Belgium, France, Germany, Netherlands, and United Kingdom.
The European Union opposed the blacklist provision and attempted unsuccessfully to persuade the Palestinians to remove that paragraph in return for EU support of the rest of the resolution.
Likewise, most of the 32 countries who voted for the resolution were also non-democracies, including Algeria, Bangladesh, Bolivia, Burundi, China, Congo, CĂ´te d’Ivoire, Cuba, Ecuador, El Salvador, Ethiopia, Indonesia, Kyrgyzstan, Maldives, Morocco, Qatar, Russia, Saudi Arabia, United Arab Emirates, Venezuela, and Viet Nam.
After considerable delays in devising the list, the former UN High Commissioner for Human Rights, Jordanian Prince Zeid Ra’ad Al Hussein, an avowed opponent of Israel, completed the actual database, which was submitted by his successor, Dr. Michelle Bachelet Jeria, former president of Chile, to the UN Human Rights Council on February 12, 2020.
In its press release announcing the publication of the database, the UN human rights office stated very clearly:
The database identifies 112 business enterprises, including such companies as Airbnb; Angel Bakeries; banking institutions including Hapoalim, Leumi, Mizrachi-Tfachot and Israel Discount Bank; Bezeq telecommunications corporation; the CafĂ©-CafĂ© restaurant chain; Delek fuel group; the Egged bus company; Hot and Yes telecommunications; Israel Railways; Mekorot water company; Motorola; Paz oil company; Rami Levy supermarkets; and others.
Legal Aspects of the Database
Such authorization can only be exercised in the event of a Security Council resolution pursuant to Chapter VII of the UN Charter dealing with threats to the peace, breaches of the peace, and acts of aggression. This chapter has never been invoked regarding Israel.
As such, the creation of the blacklist calling for economic sanctions against commercial enterprises functioning in the territories, specifically designed to pressure Israel economically, is beyond the authority and jurisdiction of the Human Rights Council, being a UN body.
In its 32-page verdict, the court held that a company doing business or establishing infrastructure (a light railway) in east Jerusalem in no way violates international law. The court affirmed that while an occupying power is bound by certain restrictions, private entities are not, even when they are in contractual arrangements with occupation authorities. The court found that the international agreements in question create obligations between states, and could not be used to hold two private companies liable.
The study asserts that “policies are selective and often reveal biases that underscore deeper problems in the international system.” “Such standards not only create confusion and reveal biases, but also constitute a business and legal risk. “
The 1993 Declaration of Principles on Interim Self-Government Arrangements (Oslo 1), in its third annex â€“ the Protocol on Israeli-Palestinian Cooperation in Economic and Development Programs â€“ calls for cooperation in fields of finance, transport, trade, industrial development, and regional development programs.
These fields of cooperation were encapsulated into reciprocal commitments in the 1995 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo 2), and specifically in its sixth annex â€“ the Protocol concerning Israeli-Palestinian Cooperation Programs. The Annex includes principles for economic cooperation in fields of environment, science and technology, tourism, energy, transport, and industry.
This agreement also includes an article, inspired by the Norwegian government, devoted to “People-to-People Programs” aimed at enhancing dialogue, interchange, and interaction between the two peoples.
Clearly, the UN blacklist advocating boycott and economic sanctions is the very antithesis of the signed agreements and peace negotiation process between the Palestinians and Israel. It serves to undermine that process and, in effect, renders the United Nations as a destructive and damaging factor in the process, rather than as the uniting and constructive framework that it was intended to be.
Above all, it runs contrary to the fact that the UN, the EU, and other states and leaders all signed the Oslo Accords as witnesses and also supported UN resolutions endorsing the peace negotiation process.
While, as stated above, the UN blacklist has no legal teeth, nevertheless, by publicizing a listing of companies maintaining commercial relations in the territories and in calling to boycott such companies, it is blatantly attempting to harm such companies, and in so doing, to harm Israel.
Each company listed is urged to examine its business relationships with companies in the EU and other countries, especially those member-states of the UN Human Rights Council that supported the blacklist, with a view to checking if the blacklist is being activated against them.
Since, in many instances, acts of commercial boycott are prohibited by national law in the respective countries, those companies listed should check local legislation to see if the blacklist violates local anti-boycott legislation. (In the United States, there exists such legislation.) The companies might wish to seek appropriate local legal advice as to possible legal remedies and actions that may be taken against any state or company that implements the blacklist and cancels transactions or other financial relationships.
On the national level, the government of Israel should directly appeal to state members of the UN Human Rights Council and other UN bodies with a view to prevent activation of the blacklist by companies registered in their territory.
Such an appeal should reflect and stress the politicized nature and ulterior political motivation behind the blacklist, as well as the damage that an organized boycott against Israel could do, both to the peace process as well as to individual bilateral relations between Israel and the states concerned.
Amb. Alan Baker is Director of the Institute for Contemporary Affairs at the Jerusalem Center and the head of the Global Law Forum. He participated in the negotiation and drafting of the Oslo Accords with the Palestinians, as well as agreements and peace treaties with Egypt, Jordan, and Lebanon. He served as legal adviser and deputy director-general of Israel’s Ministry of Foreign Affairs and as Israel’s ambassador to Canada.