By Joshua Sharf/JNS.org
President Barack Obama last Thursday reluctantly agreed to sign into law the Trade Facilitation and Trade Enforcement Act of 2015 (H.R. 644). As is often the case, the White House issued a signing statement along with the action, highlighting areas of disagreement with the new law. In this instance, the statement mentioned only one section in the 160-page bill.
“As with any bipartisan compromise legislation, there are provisions in this bill that we do not support, including a provision that contravenes longstanding U.S. policy towards Israel and the occupied territories, including with regard to Israeli settlement activity,” the White House said.
The section in question, Section 909, deals with Israel—taking a strong stand against the Boycott, Divestment and Sanctions (BDS) movement, which seeks to economically isolate the Jewish state through trade sanctions.
Most importantly, for the purposes of BDS, the legislation erases the distinction between Israel’s pre-1967 borders—also known as the “Green Line”—and the Jewish state’s undisputed territory.
Notably, the White House signing statement did not say that the administration would decline to enforce this section of the new law, perhaps because there are no Constitutional grounds for doing so.
The section lays out a policy statement regarding American trade with Israel, sets out a negotiating objective of discouraging and eliminating boycotts of Israel, requires the executive branch to report annually on BDS activities here and abroad, and prevents U.S. courts from enforcing judgments based on other countries’ BDS laws.
The critical element is that identical treatment (for business purposes) of Israel and the territories beyond the Green Line is included twice. One inclusion is in the policy section 909(b)(7), which states the measure “supports efforts to prevent investigations or prosecutions by governments or international organizations of United States persons solely on the basis of such persons doing business with Israel, with Israeli entities, or in any territory controlled by Israel.” Another is in the definitions 909(f)(1) section, stating, “The term ‘boycott of, divestment from, and sanctions against Israel’ means actions by states, nonmember states of the United Nations, international organizations, or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in any territory controlled by Israel.”
It is the law’s failure to distinguish between sides of the Green Line for purposes of trade that the Obama administration equates with contradicting policy with regard to disputed territories.
This isn’t the first time that the Obama administration and this Congress have faced off over how to handle BDS. Very similar language was included in last year’s bill granting Trade Promotion Authority [Section 102(b)(20)] for the Trans-Pacific Partnership (TPP). At the time, the State Department objected to the language, claiming that it hampered the negotiating authority in the bill.
“[B]y conflating Israel and ‘Israeli-controlled territories,’ a provision of the Trade Promotion Authority legislation runs counter to longstanding U.S. policy towards the occupied territories, including with regard to settlement activity. Every U.S. administration since 1967—Democrat and Republican alike—has opposed Israeli settlement activity beyond the 1967 lines. This Administration is no different. The U.S. government has never defended or supported Israeli settlements and activity associated with them and, by extension, does not pursue policies or activities that would legitimize them,” said the State Department.
Section 102 of that measure dealt with trade negotiating objectives, and by issuing this statement, the State Department indicated a potential unwillingness to pursue this objective in TPP negotiations.
In response, the latest language on Israel was included in the most recently signed trade bill, which is unrelated to the TPP. This is separate, but related to, the administration’s recent decision to implement a 20-year-old Customs rule that requires separate labeling for products from the West Bank and Gaza. That rule was initially adopted in 1995, after the adoption of the Oslo Accords, and was intended to encourage economic activity in the areas that would soon be under the control of the Palestinian Authority.
The sudden enforcement of the Customs rule is widely seen as punitive against Israel, discouraging Israeli economic activity in the West Bank area. (There is no current Israeli presence in Gaza.)
That decision came several months after the announcement that the European Union (EU) would begin special labeling of products from across the Green Line. The State Department’s reaction to that labeling is recorded in one of the most remarkable extended efforts at evasion under questioning by Matt Lee of the Associated Press.
In that exchange, the State Department steadfastly insisted that the Obama administration opposed BDS, insisted that the EU was aware of the administration’s position on its forthcoming labeling rules, and refused to disclose what that position was. He did eventually admit that the EU’s labeling of goods from across the Green Line “could be seen as a step on the way to a boycott.”
Even though H.R. 644 does not directly address the issue of labeling, its reporting requirement could still put the Obama administration in a tough spot. The administration might have to include itself and its own labeling actions in the report, which could lead to some contentious and embarrassing Congressional testimony when the report is delivered.
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Correction: This article initially stated that President Barack Obama last week signed H.R. 644 into law. In fact, Obama has agreed to sign the measure into law, but has not yet signed it.