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AL-HAQ WELCOMES CANADIAN COURT DECISION ON “CORRECT” LABELLING OF SETTLEMENT-PRODUCED WINES, CALLS ON CANADA TO BAN SETTLEMENT PRODUCTS AND SERVICES ENTIRELY

Wednesday, 31 July 2019 13:55
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AL-HAQ WELCOMES CANADIAN COURT DECISION ON “CORRECT” LABELLING OF SETTLEMENT-PRODUCED WINES, CALLS ON CANADA TO BAN SETTLEMENT PRODUCTS AND SERVICES ENTIRELY

Date: 31 July 2019

Al-Haq welcomes the decision of the Federal Court of Canada, issued on 29 July 2019, determining that wines produced in illegal settlements in the Occupied Palestinian Territory (OPT) cannot be labelled as “Made in Israel”. This decision further confirms that individuals and consumers have the right to “express their political views through their purchasing decisions”, which requires accurate information with regards to the source of the product. In light of this Court decision, Al-Haq calls on the Canadian Government and Parliament to take a stance against Israel’s illegal settlement enterprise, in line with Canada’s obligations under international law including not to recognise, give effect or assist an unlawful situation, by banning trade in settlement products and services entirely.

The Decision: Correct Labelling Necessary to Protect Freedom of Expression and Right to an Informed Choice

The case (brought by Jewish-Canadian human rights activist David Kattenburg) challenged the decision-making of the Canadian Food Inspection Agency and its Complaints and Appeals Office (represented by the Attorney-General on behalf of the Government). The Court held these bodies’ decisions allowing settlement-made wines to be labelled “Made in Israel” were “unreasonable in law”. As both parties acknowledged that the settlements were not within the territorial boundaries of the State of Israel, the Court did not make any formal finding on the legality or status of the settlements.[1]

Importantly, the Court rejected the Canadian Government’s argument that a free trade deal between Canada and Israel, in which the settlements were included within the territory in which Israeli customs law applied, should determine whether products from that area could be considered “from Israel”. The Court found labelling settlement-made wine as products of Israel was “false, misleading and deceptive”, regardless of the terms of the trade deal.[2] The Government’s technical argument would have allowed the terms of a private agreement between two states to be determinative of the status and legal definition of an area, despite the Canadian Government’s acknowledgment that the area in question was not part of the legal territory of Israel. The rejection of this argument reinforces Israel’s inability to unilaterally and illegally re-define the scope of its territory to include the illegal settlements in the OPT, pre-empting the Palestinian right to self-determination, among other basic rights.

The Court also found that labelling the wines as products of Israel “interferes with the ability of Canadian consumers to make “well informed decisions and well informed and rational choices” in order to be able to “buy conscientiously”. The misleading labelling stopped consumers exercising their freedom of expression by demonstrating their political views through purchasing decisions.[3]

The Context: International Law is Clear on the Illegality of Settlements and Exploitation of Natural Resources

Israel has occupied the OPT since 1967 and since then has systematically designed and maintained policies that allowed for and facilitated the development of Israeli settlements inside the OPT. These settlements are flatly illegal under international law, as they involve the acquisition of territory by force, the prohibition on which is a basic norm of international law, as well as being prohibited under the Fourth Geneva Convention. The settlements involve the transfer of civilians of the occupying power into occupied territories, prohibited under Article 49(6) of the Fourth Geneva Convention, and require the confiscation, appropriation and exploitation of Palestinian land and resources for the benefit of the occupying power.

The illegality of Israeli settlements in the OPT has been consistently recognised by the international community, including by the United Nations’ Security Council,[4] and as recently as February 2019 by the UN Secretary-General.[5] Specifically, UN Security Council Resolution 2334 (2016) called on third party states like Canada to “distinguish in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967 because of the illegal nature of settlement.”[6] Canada itself has also recognised the illegality of the settlements and their position as a barrier to the ongoing peace process.[7]

Settlements also facilitate human rights breaches in the OPT, notably through the unlawful exploitation and diversion of essential natural resources (such as water) to the settlements in preference to Palestinian towns and villages.[8] Businesses operating within settlements, like these vineyards, benefit directly from the denial of these rights to Palestinians and from the use of Palestinian property and resources. Moreover, the exploitation of natural resources by Israel and Israeli settlements, and the businesses associated with the settlements, is contrary to the duties of an occupying power under international humanitarian law, which allows only restricted uses of the natural resources of an occupied territory.[9] The settlements and businesses operating within them, such as Psagot winery, use Palestinian land and natural resources to support and sustain themselves. Such exploitation is unlawful and further undermines the Palestinian right to self-determination, which includes a right to permanent sovereignty over natural resources.[10] The Palestinian right to self-determination has been recognised internationally, including by Canada.[11]

As a third party state, Canada is bound by international law to take no steps toward the recognition of the illegal activities of Israel in occupied territories, nor to help or aid to maintain the illegal situation.[12] This clearly extends to support of settlements through supporting their business enterprises. Not only does importation and sale of settlement products as Israeli products support the businesses operating in these illegal settlements, but it also normalises and legitimises the settlements as part of Israel, contrary to international law. The Court’s decision that settlements’ products cannot be marketed as “made in Israel” is therefore an important part of ensuring the settlements, and the ongoing expansion of the settlement enterprise, are not passively accepted by the international community.

The Court’s decision reflects Al-Haq’s clear stances on the status of Israeli wineries operating in settlements in the West Bank of the OPT, including specifically the Psagot winery, whose wine labels were directly challenged in this proceeding. Al-Haq has previously highlighted the illegality of the Psagot settlement, and the related wineries, as well as the links between supporting these products and facilitating the ongoing occupation in the OPT.[13]

The Implications: States Must Go Beyond Condemning Settlements

While accurate labelling is an important first step, and is in line with European practice,[14] it is only the start of meeting Canada’s obligation to not help or aid in the maintenance of the illegal settlements. Al-Haq calls on Canada to fulfil its obligations under international law and to prohibit the import of settlement goods and services entirely, as Ireland is in the process of doing.[15]

Such a ban is all the more pressing in light of the increasingly flagrant statements made by the Israeli government toward annexing the settlements in the OPT .[16] These statements have in turn been supported by the United States Government’s recent change of policy toward the illegally annexed Syrian Golan and Jerusalem.[17] The suggested annexation of the illegal settlements, which remain legally part of the OPT, is in direct contravention to international law, and highlights Israel’s continued denial of basic international law standards. Without accountability, including bans on the products from these settlements, Israel’s policies and practices will continue at the expense of the most basic human rights of Palestinians, including the right to self-determination. The profitability of the occupation, including the settlement enterprise, is a core reason why such violations are sustained. Only international action directly rejecting the products of illegal settlements can counteract Israel’s economic incentives to continue facilitating the existence and expansion of settlements inside the OPT.

Al Haq calls on the Government of Canada:

  • To accept the Federal Court’s ruling, and for the Canadian Food Inspection Agency to adopt labels for settlement-made products which accurately allow consumers to exercise their right to buy conscientiously and make informed decisions;
  • To build on the Court decision by taking positive measures toward respecting international law, including by banning illegal settlement products and services;
  • To take all necessary measures to ensure full respect for and compliance with international law norms, including the Geneva Conventions, relevant resolutions of the UN Security Council, General Assembly and the Human Rights Council regarding third state obligations toward the OPT;
  • Support the release of the UN database of businesses engaged in activities related to Israeli settlements, as per UN Human Rights Council resolution 31/36 of 2016; and
  • To abide by their obligations as third States and as High Contracting Parties to the Geneva Conventions of 1949, notably under Common Article 1, to respect and to ensure respect for international humanitarian law in the OPT in all circumstances.

[1]        At [70].

[2]        At [101].

[3]        At [101] and [126].

[4]        See UNSC Res 2334 (23 December 2016) UN Doc S/RED/2334, [1].

[5]        “Settlements Deepen Sense of Mistrust, Undermine Two-State Solution, Secretary-General Tells Palestinian Rights Committee” (United Nations, 15 February 2019), https://www.un.org/press/en/2019/sgsm19461.doc.htm, accessed 30 July 2019.

[6]        UNSC Res 2334 (23 December 2016) UN Doc S/RED/2334, at 5.

[7]        “Canadian policy on key issues in the Israeli-Palestinian conflict” (Government of Canada, 19 March 2019), https://www.international.gc.ca/world-monde/international_relations-relations_internationales/mena-moan/israeli-palistinian_policy-politique_israelo-palestinien.aspx?lang=eng#a06, accessed 30 July 2019.

[8]        See Mercedes Melon, Settling Area C: The Jordan Valley Exposed (Al-Haq, 2018) amongst other analyses.

[9]        See Article 55 of the Hague Regulations and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) (2005) ICJ Rep 168.

[10]       See UNGA Res 1803 (XVII) (14 December 1962) "Permanent sovereignty over natural resources", amongst other sources of this norm.

[11]       “Canadian policy on key issues in the Israeli-Palestinian conflict” (Government of Canada, 19 March 2019), https://www.international.gc.ca/world-monde/international_relations-relations_internationales/mena-moan/israeli-palistinian_policy-politique_israelo-palestinien.aspx?lang=eng#a06, accessed 30 July 2019.

[12]       International Law Commission Draft Articles on State Responsibility, Article 41.

[13]       See “Al-Haq Communicates with World Finance Regarding 'Grapewashing'” (Al-Haq, 18 May 2018), <http://www.alhaq.org/advocacy/topics/business-and-human-rights-focus/1229-al-haq-communicates-with-world-finance-regarding-grapewashing>, accessed 30 July 2019.

[14]       “PHROC Welcomes EU Labelling of Settlement Products as a First Step Towards a Ban” (Al-Haq, 12 November 2015), http://www.alhaq.org/advocacy/targets/european-union/991-phroc-welcomes-eu-labeling-of-settlement-products-as-a-first-step-towards-a-ban, accessed 30 July 2019 and “Al-Haq welcomes France’s move to label settlement products, but calls for stronger action” (Al-Haq, 1 December 2016) <http://www.alhaq.org/advocacy/targets/european-union/1088-al-haq-welcomes-frances-move-to-label-settlement-products-but-calls-for-stronger-action>, accessed 30 July 2019.

[15]       “Al-Haq Welcomes Ireland’s Seanad Vote in Support of Banning the Import of Unlawful Israeli Settlement Products” (Al-Haq, 11 July 2019), http://www.alhaq.org/advocacy/targets/third-party-states/1281-al-haq-welcomes-irelands-seanad-vote-in-support-of-banning-the-import-of-unlawful-israeli-settlement-products, accessed 30 July 2019.

[16]       See, for example, David M. Halfbinger “Netanyahu Vows to Start Annexing West Bank, in Bid to Rally the Right” (New York Times, 6 April 2019).

[17]       “Al-Haq Condemns US Decision to Unlawfully Recognise Israeli Sovereignty over the Occupied Syrian Golan” (Al-Haq, 28 March 2019), http://www.alhaq.org/advocacy/targets/third-party-states/1380-al-haq-condemns-us-decision-to-unlawfully-recognise-israeli-sovereignty-over-the-occupied-syrian-golan, accessed 30 July 2019.

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