The Israeli Settlements Debate: Is the Creation and Enforcement of the International Norms a Multilateral or Bilateral Issue?

[Solon Solomon is a Lecturer in the Division of Public and International Law at Brunel University London School of Law.]

The last few days have seen a renewed legal interest in both sides of the Atlantic concerning the legality of the Israeli settlements. On November 12, the European Union’s court, the ECJ, held that products coming from these settlements must be labelled accordingly. This judicial decision raised concerns that such labelling policy if enforced only against Israel, would bring the European Union in open collision with the U.S. where the Congress has held that any BDS initiatives aimed to boycott Israel contravene U.S. law.

In fact, the U.S. reaction turned out to be more dramatic. In a twist of the American position so far, the U.S. Secretary of State, Mike Pompeo, annulled a legal opinion dating back from 1978 and declared that Israeli settlements do not violate international law. The European Union tried to fight back. The EU External Affairs Commissioner, Federica Mogherini, issued a statement saying that the EU’s position on the illegality of the settlements remained unchanged. Yet Mogherini represents EU institutions, not the individual EU States. When the latter were asked to take themselves a similar position and reiterate Mogherini’s stance through a common communique, Hungary explicitly refused to do so.

Regardless of how plausible it is to assume that also other EU States might be equally reluctant to align with Mogherini’s statement, Hungary’s explicit objection underlined the fact that what seems to shape today the international agenda are not necessarily the decisions and statements of multilateral collective bodies but the bilateral agreements and understandings. The conclusion has implications in all fields of international law. For example, what shaped the Syrian refugee crisis in Europe was not the multilateral UN Refugee Convention but the bilateral EU-Turkey declaration, even if it was deemed as contravening the Refugee Convention. In that sense, the U.S. settlements position poses a general problematic on the role bilateralism plays in the formation of international norms. In other words, the question is whether such norms are created through multilateral conventions and decisions adopted by multilateral organizations or States can re-establish norms on a different direction from that previously taken by the international bodies themselves.

In fact, the recent Israeli settlements debate stresses the need to start discussing more in earnest the role of bilateral considerations in international law formation, not only regarding the emergence of international norms but also regarding their enforceability. For years, there has been a coherent approach in multilateral bodies such as the UN, that the Israeli settlements are illegal. The UN’s principal judicial body, the International Court of Justice, has held (see here, para.120) that settlements are in breach of international law, and this has been the position also of the UN General Assembly and the UN Security Council which in a number of Resolutions have held either contextually or verbatim that the Israeli settlements have no legal validity (see here and here).  In light of Pompeo’s statement and the inability of the EU to put forth a common communique, individual States like France, the United Kingdom and Spain proceeded to issue separate statements in which they reiterated their position that the Israeli settlements negate international law. The European Court drew from this consensus when it declared last week that products coming from Israeli settlements should be labelled accordingly.  

Yet, in the context of this judgement’s multilateral consensus on the illegality of the Israeli settlements as forming prohibited residential units in an occupied territory, if products coming from there are to be labelled as such, the EU must follow the same policy with products coming from all occupied or disputed territories if it is not to be accused of bias. It is questionable whether the EU will want to put into peril its potential bilateral trade agreements with China, India or Russia, all of which exert authority on territories which are either disputed or occupied. The bilateral pragmatic considerations may ultimately prove stronger as policy determinants.

But more importantly, the latest developments in the case of the Israeli settlements take the bilateral considerations component one step further, relating not only to how on a bilateral level States can enforce an international norm, but also to how they can dispute that such norm exists in the first place. The latest U.S. position seems to advocate and imply that no matter what UN organs have claimed so far, even in cases of cut-clear norms established by multilateral bodies, if States decide to hold otherwise in the realms of their bilateral relations, it is this pronouncement that should ultimately bear importance. In that sense, the U.S. position seems to suggest what also legal scholars have proposed in the past, namely that the law produced by multilateral bodies, most notably the UN organs, should not be seen as necessary coinciding with international law but should be taken as it is: the U.N. law, one facet of the international legal world. It would be erroneous to imagine thus multilateral bodies as authoritative creators of international law, transmitting a simple message that does not have encrypted in it different interpretations, tensions and contrasts. In that sense, the U.S. Israeli settlements position is not just the case of a State contravening international law and pretending it is not doing so, but something more complicate, namely a case of a State which genuinely believes that it reshapes on a bilateral level the law that has wrongfully been shaped as such in multilateral bodies.

The ability of bilateralism to ultimately impact upon multilateralism should not be underestimated. If, for example, in the case of the Israeli settlements or the other issues around the Israeli-Palestinian conflict, States started to deviate in the realms of their bilateral relations with Israel from the framework set by the UN or other bodies, it would be an open question whether these States breach or reshape international legality.

Nevertheless, States must be cognizant that the bilateralism path comes with a caveat. No red lines of international legality should be passed as these are most notably marked by jus cogens norms. Moreover, States should be aware that the bilateralism path is slippery and can ultimately undermine humanity’s efforts to establish law and order in the international scene, having wider implications on the incentives of States to obey rules and decisions promoted by international multilateral bodies. To the extent that States know that, irrespective of what is decided in international fora, governments can get out of the loop simply due to the bilateral alliances they forge, the whole incentive to abide by the decisions of international bodies falls apart and together with it also the credibility of these bodies themselves. This presents a big challenge that international scholars and policy makers must address.

An excellent example comes from the field of international criminal justice. As a multilateral institution, the International Criminal Court might have issued an arrest warrant for Sudan’s ex- President, Omar Bashir, but the cynical viewer of international law will point out to the fact that when it comes to the bilateral level and Sudan’s relations with other countries, even States signatories to the Rome Statute, like Kenya and South Africa, refused to see Bashir’s visits to them as an opportunity to arrest him and hand him to the Court. The Bashir case established such a bad precedent that someone may wonder why countries nowadays cannot rest assured that it is totally legitimate to rely on their bilateral alliances in order to evade the prospects of their nationals sitting at the Court’s docket.

Returning to the Israeli settlements, in order to be deemed as a legal position rather than just a political statement, it has to be seen whether Pompeo’s Israeli settlements statement will survive the Trump administration and whether in all cases more States will opt to align with it. Yet, irrespective of what will happen on a political level, for the international law interpreter the U.S. declaration holds its own semantic value. The State emerged as the principal player in the post-Westphalia era of modern international law and whereas the second half of the 20^th century seemed to signal the State leaving room for other entities like international organizations or individuals to equally shape international norm-making and enforcement, the last few years with the rise of populism, Brexit and international isolationism witness efforts of the State to gain back the ‘lost space’.

Along these lines, whereas international law was built post WWII under the premises that all important decisions would be taken in the realms of a multilateral body such as the UN by the international community as a collective, the U.S. Israeli settlements declaration with its emphasis on bilateralism, swings the pendulum back to national capitals. In an era of populism and doubt towards international institutions, that is not something to celebrate.