The groundbreaking Advisory Opinion of 19 July 2024 on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem by the International Court of Justice (Court or ICJ) has serious implications for third countries. The Court dedicated a full section of its Opinion to international obligations for third countries flowing from Israel’s internationally wrongful acts in Palestine. The EU High Representative for Foreign Affairs, Joseph Borrell, sought to assuage concerns about a possible conflict between EU policy and international law by stating that the conclusions of the Advisory Opinion are “largely consistent with EU positions.” In the same statement, however, Borrell added that he will need to analyze the Opinion more thoroughly, “including in view of its implications for EU policy.” This is in line with recent developments at the level of EU foreign policy, where several EU Member States have called for sanctions against Israel and for revising the Association Agreement between the EU and Israel. This resulted, in June, in the EU Foreign Ministers calling for a meeting of the EU-Israel Association Council (a body composed of the foreign ministers of EU Member States and Israel) to discuss Israel’s compliance with its human rights obligations under the Association Agreement. However, this request to meet was rejected by Israel, which, as per Foreign Minister Katz, wanted to negotiate the agenda for the meeting and preferred to wait for the upcoming (now commenced) Hungarian presidency of the EU. Borrell recently reiterated that the Hungarian EU presidency will not change things and cautioned that this meeting “cannot be an Association Council business as usual.” With the Advisory Opinion of the ICJ, EU Member States now also have the conclusions of the highest international judicial body to consider. [...]

The Court subsequently identifies for each of the violations the implications for third countries. With regard to the right of the Palestinian people to self-determination, the Court notes that “all States must co-operate with the United Nations to put those modalities [required by the General Assembly and the Security Council to ensure an end to Israel’s presence in OPT and realization of Palestinian self-determination] into effect” (para. 275). [...]

With regard to the prohibition of the acquisition of territory by force, the Court holds that all States are under an obligation “to distinguish in their dealings with Israel between the territory of the State of Israel and the Palestinian territory occupied since 1967” (para. 278). This obligation encompasses a number of different sub-obligations:

“the obligation to abstain from treaty relations with Israel in all cases in which it purports to act on behalf of the Occupied Palestinian Territory or a part thereof on matters concerning the Occupied Palestinian Territory or a part of its territory”;

“to abstain from entering into economic or trade dealings with Israel concerning the Occupied Palestinian Territory or parts thereof which may entrench its unlawful presence in the territory”;

“to abstain, in the establishment and maintenance of diplomatic missions in Israel, from any recognition of its illegal presence in the Occupied Palestinian Territory”; and

“to take steps to prevent trade or investment relations that assist in the maintenance of the illegal situation created by Israel in the Occupied Palestinian Territory.”

These obligations have major implications for future trade and investment relations with Israel. Below, I will discuss the consequences concerning the economic relations between the EU and Israel. [...]

The EU Association Agreement with Israel

Economic relations between the European Union and Israel are governed by a free trade area as part of the EU-Israel Association Agreement, which entered into force in 2000. It forms the basis for relations between the EU and Israel, governing the trade and investment relationships and establishing a framework for participation in EU programmes such as Horizon Europe. Article 2 of the Agreement, also called the human rights clause or essential element clause, establishes respect for human rights as an essential element of the Agreement and the relations between the EU and Israel. Article 2 provides:

“Relations between the Parties, as well as all the provisions of the Agreement itself, shall be based on respect for human rights and democratic principles, which guides their internal and international policy and constitutes an essential element of this Agreement.”

This provision is to be read alongside the preamble, which refers expressly to the observance of the UN Charter:

“Considering the importance which the Parties attach to the principle of economic freedom and to the principles of the United Nations Charter, particularly the observance of human rights and democracy, which form the very basis of the Association;” [...]

Implications for EU Member States

The unequivocal legal findings and consequences established by the ICJ create a renewed necessity and special urgency to review trade relations with Israel. [...]

The measures on labelling under the current Association Agreement have not been enough to curb illegal trade. Revising the Agreement to include an appropriate tracking system and a punitive mechanism for violations is necessary to halt activities that entrench unlawful Israeli presence in Palestine. [...]

Trade and investment relations that assist the maintenance of the illegal situation: Another aspect of the ICJ Opinion requiring action by EU Member States is preventing trade and investment relations that assist in maintaining the occupation. Separating legal trade relations with Israeli businesses from links to the illegal occupation is difficult, and sometimes impossible. [...]

Recent official documents obtained by a Dutch rights group through a freedom of information act request show Dutch Foreign Ministry officials expressing doubts that any trade with Israeli businesses can be entirely ‘settlement-free’: “Almost every Israeli business has a connection to settlements somewhere.” The legal consequences of the illegality of the Israeli occupation place before the EU Member States the task of making clear-cut rules about the origin of Israeli products and services, and prohibit economic relations where ‘settlement-free’ origin is not guaranteed or transparency cannot be achieved.

Conclusion

The European Union must construct and implement its external relations in accordance with the requirements of general international law, including the provisions of international law that contribute to the protection of human rights. In addition, Article 2 of the EU-Israel Association Agreement commits the EU and its Member States to base their relations, and the provisions of the agreements themselves, on respect for human rights. Moreover, in their dealings with states engaged in armed conflict or belligerent occupation, such as Israel, all EU Member States are bound by the duty established in Article 1 common to the Geneva Conventions to “respect and ensure respect for [those] Conventions in all circumstances.” Yet, what has generally characterized EU policy is “a pattern of deference, bordering on legal acquiescence, to Israel’s violations of its agreements with the EU.” The Advisory Opinion of the ICJ demands an end to European deference. For Borrell’s words that the EU’s next meeting with Israel “cannot be an Association Council business as usual” to have meaning, the EU must take a unified stance in denouncing Israel’s systematic human rights violations, IHL violations, and violations of CERD, as well as Israel’s persistent disregard for EU human rights concerns. Furthermore, the EU should undertake a comprehensive review of EU-Israel bilateral relations to ensure consistency with the EU’s obligations under international law and take measures to ensure the EU’s dealings are not contributing to facilitating the occupation, racial segregation and apartheid, and other violations of international law.