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The EU's New Approach To the Two-State Solution in the Israeli-Palestinian Conflict: A Paradigm Shift or PR Exercise?

Abstract
Abstract

The EU's consistent policy towards the Israeli-Palestinian conflict has been that Israel's presence in the West Bank, East Jerusalem, the Gaza Strip (prior to the 2005 disengagement) and the Golan Heights is subject to the laws of belligerent occupation, that any purported Israeli annexation is illegal and null and void, that Israel's settlements in the Territories are in breach of public international law and constitute a serious obstacle to peace, and that Israel and Palestine should settle their conflict on the basis of public international law and through the two-state solution. In recent years the EU attempted to concretize this policy through its trade and trade-related agreements with Israel, withholding the benefits of EU-Israeli co-operation from companies and research institutions based in the Territories or operating therein, as well as from products produced therein (the New Approach). Thus, from the EU perception, the New Approach towards the long-standing conflict and its reliance on international law may be seen as an instrument to reinforce internal and external legitimacy, buttress identity cohesiveness and as a manifestation of its more robust effectiveness. But this article seeks to conduct a more careful and balanced analysis of the New Approach and in doing so to reveal that the EU's (almost) exclusive focus on non-governmental entities, such as corporations situated in the Territories, and on Territories’ products, is misplaced in terms of public international law and effectiveness. The New Approach's deficiencies, in abstracto and in concreto, as evaluated in this article, are likely to prevent it from serving as a paradigm shift in EU-Israel relations.

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1 For analysis see Aoun E., ‘European Foreign Policy and the Arab-Israeli Dispute: Much Ado About Nothing?’, (2003) 8 European Foreign Affairs Review 289 ; Tocci N., ‘Firm in Rhetoric, Compromising in Reality: The EU in the Israeli–Palestinian Conflict’, (2009) 8 Ethnopolitics 387 .

2 Guidelines on the eligibility of Israeli entities and their activities in the territories occupied by Israel since June 1967 for grants, prizes and financial instruments funded by the EU from 2014 onwards, OJ C 205, 19.7.2013, at 9, Section A, para. 1.

3 Persson A., ‘EU's New Settlements Guidelines Are Already Biting’, The Huffington Post, 10 September 2013 , available at www.huffingtonpost.com/anders-persson/eus-new-settlements-guide_b_4061740.html.

4 Ibid.

5 Bouris D. and Schumacher T., ‘The EU Becomes Assertive in the Middle East Peace Process’, Open Democracy, 25 July 2013 , available at www.opendemocracy.net/can-europe-make-it/dimitris-bouris-tobias-schumacher/eu-becomes-assertive-in-middle-east-peace-proce.

6 Ibid., referring to a phrase used by Israel's Foreign Ministry spokesman Yigal Palmor in 2012.

7 Ibid.

8 Kerry warned that the Israeli-Palestinian status quo is unsustainable and that Israel's economic prosperity is illusionary and bound to change if peace negotiations fail: ‘People are talking about boycott. That will intensify in the case of failure. We all have a strong interest in this conflict resolution.’ Beck E., ‘Kerry: Israel's security is “illusionary”, boycott around the corner’, ynet, 1 February 2014 , available at www.ynetnews.com/articles/0,7340,L-4483446,00.html.

9 Friedman referred to the EU-led, Third Intifada (uprising). Friedman T., ‘The Third Intifada’, New York Times, 4 February 2014 .

10 Bouris and Schumacher, supra note 5.

11 Persson, supra note 3.

12 For analysis, see Opinion of Professor J. Crawford, ‘Third Party Obligations with respect to Israeli Settlements in the Occupied Palestinian Territories’, 24 January 2012, paras. 125, 133 and 136, available at www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf.

13 Ibid., paras. 100–101.

14 See Richardson and another (Appellants) v. Director of Public Prosecutions (Respondents) [2014] UKSC 8, 5 February 2014, para. 17: ‘If . . . a person, including the shopkeeper company, had aided and abetted the transfer of Israeli civilians into the [Territories], it might have committed an offence against [sections 51–2 of the International Criminal Court Act 2001]’. For an extended treatment of that verdict, infra note 94.

15 See European Parliament, Directorate-General for External Policies of the Union, Directorate B, Policy Department, The European Parliament's Role in Relation to Human Rights in Trade and Investment Agreements, Study, EXPO/B/DROI/2012-09, February 2014, at 15: ‘Particularly in the context of treaties containing investment obligations, the European Parliament has frequently called for the inclusion of provisions on corporate social responsibility (CSR), based, inter alia, on the UN Guiding Principles on Business and Human Rights’. CSR clauses are also to be found in some of the EU's trade agreements, such as the EU-Korea trade.

19 Bouris and Schumacher, supra note 5.

20 Aoun, supra note 1.

21 Harpaz G., ‘The Dispute over the Treatment of Products Exported to the European Union from the Golan Heights, East Jerusalem, the West Bank and the Gaza Strip - The Limits of Power and the Limits of the Law’, (2004) 38 (6) Journal of World Trade 1049 .

22 Harpaz G. and Rubinson E., ‘The Interface between Trade, Law and Politics and the Erosion of Normative Power Europe: Comment on Brita (C-386/08)’ (2010) 35 European L. Rev. 551 .

23 Council of the EU, Council Conclusion on the Middle East Process, 3209 Foreign Affairs Council Meeting, 10 December 2010, para. 4, available at www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/134140.pdf#sthash.gqXKkWAb.pdf.

24 Guidelines, supra note 2, para. 1.

25 Ibid., at para. 9. The Guidelines apply to Israeli regional or local authorities and other public bodies, public or private companies or corporations and other private legal persons, including non-governmental not-for-profit organizations, but not to Israeli public authorities at the national level (ministries and government agencies or authorities), nor (at least directly) to natural persons, ibid., para. 11.

26 Ibid., para. 12.

27 Horizon 2020 is to be applied during the years 2014–2020 with a budget of close to €80 billion. The terms of the agreement were not yet disclosed, a theme discussed below.

28 Israel's participation in the EU's Research Framework is long-standing and unique. It joined it in 1996 and since then it has remained the only non-European participant. The fact that a highly disproportionate number of Israeli corporations and researchers have been awarded grants and scholarship indicates the meaningful contribution of the scheme in integrating Israel's advanced research into the European research area. See Zimmerman E., Glänzel W. and Bar-Ilan J., ‘Scholarly Collaboration between Europe and Israel: a Scientometric Examination of a Changing Landscape’, (2009) 78 (3) Scientometrics 427 . Hence, the EU's insistence on the application of the Guidelines to Israel's participation in Horizon 2020 caused an EU-Israel diplomatic crisis. Following strong internal lobbying on the part of the Israeli academia for securing a compromise with the EU, and three emergency sessions of high-ranking Israeli ministers together with Prime Minister Netanyahu, it was reported that a formula had been reached between Israel's former Justice Minister Tzipi Livni and EU former High Representative Catherine Ashton (see Ravid B., ‘Horizon 2020 Crisis // Israel and EU Compromise on Terms of Joint Initiative, Following Rift Over Settlement Funding Ban’, Haaretz, 26 November 2013 , available at www.haaretz.com/news/diplomacy-defense/.premium-1.560292). Under that compromise, the EU attached an appendix to the agreement, in terms of which the agreement would not prevent the EU from applying the Guidelines to Horizon 2020, whereas Israel attached an appendix in which it declared that it objects to the Guidelines from both a legal and a political perspective. As for indirect funding and loans to Israeli entities based in Israel that also operate in the settlements or have extensions or branches therein, the two sides were reported to have agreed that any such entity may apply for European loans, and both sides would examine ways to make sure that the money would not be allocated to entities or activities in the settlements in any form; Haaretz, ibid.

30 For analysis, see Hirsch M., ‘Rules of Origin as Foreign Policy Instruments?’, (2003) 26 Fordham International Law Journal 572 , at 578–9.

31 Supra note 22.

32 Ibid., at 461.

33 Ibid.

34 See Tocci, supra note 1. In Tocci's opinion, EU schemes such as the Research Framework and the EU-Israel Association Agreement have benefitted settlement activities. The EU's willingness to turn a blind eye to Israel's illegal practices, or rely on politically non-confrontational deals couched in technical terms, signals that EU law and EU rhetoric should not be taken too seriously. According to her analysis (ibid., at 388–95), in the service of other political goals and interests, the EU ‘has been uncharacteristically compromising’ in practice, granting Israel little incentive to modify its behaviour in line with European norms and with its declared commitment to a two-state solution and the respect for human rights and international law. Ibid., at 396: ‘Under the EU's 5th and 6th Framework Programmes of research, several settlement companies benefited from EU funding . . . . Under the 7th Framework Programme, no legal measures were taken to ensure that this would not reoccur. Moreover, the [European Neighbourhood Policy], which is specifically tailored to border regions, does not include adequate safeguard mechanisms to ensure that funds will not be directed to support actors or actions that contravene international law.’

35 de Burca G., ‘The European Court of Justice and the international Legal Order after Kadi’, (2009) 51 Harv. Intl. L. J. 1 .

36 2007 Consolidated Version of the Treaty on the European Union, 2008/C 115/01 (2008), Arts. 3 and 21.

37 Nicolaïdis K. and Howse R., ‘“This is my EUtopia . . .”: Narrative as Power’, (2002) 40 Journal of Common Market Studies 767 , at 768.

38 Manners I., ‘Normative Power Europe: A Contradiction in Terms?’, (2002) 40 Journal of Common Market Studies 235 ; R. Whitman, From Civilian Power to Superpower? The International Identity of the European Union (1998).

39 L. Gardner-Feldman, ‘Reconciliation and Legitimacy: Foreign Relations and Enlargement of the European Union’, in T. Banchoff and M.P. Smith (eds.), Legitimacy and the European Union: The Contested Polity (1999), 77.

40 Harpaz G., ‘The Dispute over the Sovereignty of Jerusalem: EU Policies and the Search for Internal Legal Coherence and Consistency with International Law’, (2012) 17 (3) European Foreign Affairs Review 451 , at 468–70.

41 Ibid.

42 Speech by Catherine Ashton, at the League of Arab States, ‘A Commitment to Peace, the European Union and the Middle East’, Cairo, 15 March 2010, European Union A36/10,available at www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/113352.pdf.

43 Supra note 36, Art. 2.

44 Ibid., Art. 3(2).

45 Ibid., Art. 21(1).

46 Ibid., Art. 21(1).

47 Ibid., Art. 8.

48 Ibid., Art. 21(2)–(3).

49 Bartels L., ‘The EU's Human Rights Obligations in Relation to Policies with Extraterritorial Effects’, (2014) 25 EJIL 1071 , at 1074, 1090.

50 Bartels L., ‘A Model Human Rights Clause for the EU's International Trade Agreements’, Study, German Institute for Human Rights, February 2014 , available at www.institut-fuer-menschenrechte.de/uploads/tx_commerce/Studie_A_Model_Human_Rights_Clause.pdf, analyzing Arts. 3(5) and 21(2)–(3) of the Treaty on European Union.

51 Case C-366/10, Air Transport Association of America [2011] ECR I-nyr (21 December 2011), paras. 101, 123.

52 Supra note 15, at 5.

53 Art. 2 of the two respective Association Agreements. For analysis, see Harpaz and Rubinson, supra note 22.

54 Bartels, supra note 49, at 10.

55 Ibid.

56 See Legal Consequences of the Construction of the Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2014 [2014] ICJ Rep. 136, para.78. For analysis, see Gross A., ‘The Construction of a Wall between the Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure of Occupation’, (2006) 26 Leiden Journal of International Law 393 .

57 Ibid., para. 101.

58 Ibid., paras. 118–22.

59 For analysis see A. Cassese, International Law (2005), 65.

60 Article 1 of the Covenant.

61 Resolution adopted by the General Assembly 2625 (XXV), Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc. A/RES/25/2625 (1970). The Declaration requires that when peoples are faced with actions denying their right to self-determination, they are entitled ‘to seek and to receive support in accordance with the purposes and principles of the Charter’, while every state ‘has the duty to promote, through joint and separate action, realization of the principle of equal rights and self-determination of peoples, in accordance with the provisions of the Charter’.

62 Case C-104/16 P Council of the European Union v. Front Polisario (21 December 2016), available at curia.europa.eu/juris/document/document.jsf?text=&docid=186489&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=397652, particularly para. 92.

63 R.G. Teitel, Humanity's Law (2011).

64 See, for example, the Venice Declaration, supra note 16.

65 N. Tocci, ‘The EU as a Global Conflict Manager’, in S. Wolff and C. Yakinthou (eds.), Conflict Management in Divided Societies: Theories and Practice (2011), 135.

66 See Aoun, supra note 1, at 293; Tocci, supra note 1, at 395.

67 Supra note 56, para. 122.

68 Polisario, supra note 62, paras. 123–4.

69 UN Doc. A/RES/ES-9/1 (1982). See also UN Doc. A/RES/38/180A(1983).

70 Supra note 56, para. 163(d) and (e).

71 Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967, Richard Falk, UN Doc. A/HRC/23/21 (2013); Report of the 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, A/HRC/22/63 (2013).

72 UN Doc. S/RES/2334 (2016), para. 11.

73 For analysis, see G. Gorenberg, The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 (2007); I. Zertal and A. Eldar, Lords of the Land: The Settlers and the State of Israel, 1967–2004 (2004) (in Hebrew).

74 ILC Articles on Responsibility of States for Internationally Wrongful Acts, 2001 YILC, Vol. II (Part Two), Art. 8: ‘The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of that State in carrying out the conduct.’

75 Supra note 56, para.120; HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel 2004 PD 58(5) 807, para. 21.

76 See Falk Report, supra note 71, para. 37. See also the Report of the fact-finding mission, supra note 71, which established that the State of Israel has had ‘full control of the settlements in the Occupied Palestinian Territory since 1967 and continues to promote and sustain them through infrastructure and security measures’.

77 Y. Shenhav, The Time of the Green Line: A Jewish Political Essay (2010), at 44–5 (own translation from Hebrew).

78 See the Statement by the Delegation of the European Union to the State of Israel on the European Commission Notice, 16 July 2013: ‘These guidelines were prepared as a follow up to the political decision taken by the foreign ministers of the EU Member States at the EU Foreign Affairs Council of 10 December 2012’, available at eeas.europa.eu/delegations/israel/press_corner/all_news/news/2013/20131607_02_en.htm.

79 See the statement of the former President of the European Parliament Martin Schulz, in his address delivered on 12 February 2014 to the Israeli Parliament: ‘Let me seize this opportunity and make a clarification: the EU has no intention to boycott Israel. I am of the conviction that what we need is more cooperation, not division’, available at www.europarl.europa.eu/the-president/en/press/press_release_speeches/speeches/sp-2014/sp-2014-february/html/speech-to-the-knesset-12-february-2014-by-martin-schulz-president-of-the-european-parliament.

80 See, for example, Zemach A., ‘Fairness and Moral Judgments in International Criminal Law: The Settlement Provision in the Rome Statute’, (2003) 41 Columbia Journal of Transnational Law 123 .

81 Crawford, supra note 12, para. 106: ‘a US court could conceivably find that a corporation operating in the West Bank from the jurisdiction of a third State was aiding and abetting Israel in its ongoing denial of the Palestinian people's right to self-determination; and that such a right constitutes a “specific, universal, and obligatory” norm of international law, actionable under the Alien Tort Statute’.

82 See, for example, Vazquez C.M., ‘Direct vs. Indirect Obligations of Corporations under International Law’, (2005) 43 (3) Columbia Journal of Transnaional Law 927 ; Kinley D. and Tadaki J., ‘From Talk to Walk: The Emergence of Human Rights Responsibilities for Corporations at International Law’, (2004) 44 (4) Virginia Journal of International Law 931 . See also D. Augenstein and D. Kinley, ‘When Human Rights “Responsibilities” become “Duties”: The Extra-Territorial Obligations of States that Bind Corporations’, in S. Deva and D. Bilchitz (eds.), Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (2014).

83 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287.

84 For analysis see Kretzmer D., ‘The Laws of Belligerent Occupation in the Supreme Court of Israel’, (2012) 94 International Review of the Red Cross 207 .

85 Supra note 56, para. 120.

86 Supra note 72, para. 1.

87 1998 Rome Statute of the International Criminal Court 2187 UNTS 3.

88 Under Section 52 of the UK International Criminal Court Act 2001, it is an offence for a person to engage in conduct ancillary to a war crime, even where that ancillary act is committed outside the United Kingdom. See Crawford, supra note 12, para. 68; Richardson case, supra note 14.

89 According to Art. 25 of the Rome Statute, supra note 87, non-governmental individuals may also be responsible.

90 See, for example, re South African Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y. 2004); In Sosa v. Alvarez-Machain, 542 U.S. at 728, 124 S. Ct. at 2764 (2004), the US Supreme Court directed federal courts to exercise ‘great caution’ in adapting the law of nations to private rights. See also Cynthia Corrie and Craig Corrie, et al. v. Caterpillar, Inc., Case No. CV-05192-FDB and paragraph 317 of 500-17-044030-081 Bil'in et al. v. Green Park international Inc. et al. 2009 QCCS 4151 (Justice Louis-Paul Cullen).

91 See Falk Report, supra note 71, para. 54: ‘The case for action against businesses profiting from the Israeli occupation has been strengthened’; para. 55(h): ‘The international community should investigate the activities of businesses that profit from Israel's settlements, and take appropriate action to end any activities in occupied Palestine and ensure appropriate reparation for affected Palestinians.’ See also the Report of the fact-finding mission, supra note 71, paras. 96–7: ‘Information gathered by the Mission shows that business enterprises have enabled, facilitated and profited, directly and indirectly, from the construction and growth of the settlements . . .[thereby] contributing to their maintenance, development and consolidation.’

92 See Report of the fact-finding mission, supra note 71, para. 117: ‘Private companies must assess the human rights impact of their activities and take all necessary steps – including by terminating their business interests in the settlements – to ensure they are not have an adverse impact on the human rights of the Palestinian People, in conformity with international law as well as the Guiding Principles on Business and Human Rights. The Mission calls upon all Member States to take appropriate measures to ensure that business enterprises domiciled in their territory and/or under their jurisdiction, including those owned or controlled by them, that conduct activities in or related to the settlements respect human rights throughout their operations. The Mission recommends that the [Human Rights Council] Working Group on Business and Human Rights be seized of this matter.’

93 Ibid., paras. 104, 112, 114, 116.

94 Richardson case, supra note 14: In that case the Defendants trespassed in a shop and immobilized themselves in it. The shop, situated in Covent Garden, London, sold beauty products extracted from Dead Sea mineral material by the Israeli corporation Ahava. They were convicted of the offence of aggravated trespass contrary to Section 68 of the Criminal Justice and Public Order Act 1994. The offence refers to a situation in which a person trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that land, does anything on it which is intended to have the effect of intimidating, obstructing or disrupting the said activity. In an appeal to the Supreme Court the Defendants argued that the shop and its sellers were engaged in criminal activity and hence they themselves should not bear legal responsibility for the obstruction of that activity. First, they alleged that the labelling of the products as ‘Made by Dead Sea Laboratories Ltd, Dead Sea, Israel’ was false or misleading and hence a criminal offence under UK consumer laws. Second, the products sold were produced by an Israeli corporation situated in an Israeli settlement in the Territories and staffed by Israelis who had been encouraged by the Government of Israel to settle there. Thus, the corporation running the shop was guilty of aiding and abetting the transfer by the Israeli authorities of Israeli citizens to the Territories, contrary to Art. 49 of the Fourth Geneva Convention. Such aiding and abetting constitutes an act ancillary to a war crime, criminal offence in England and Wales under Sections 51–2 of the International Criminal Court Act 2001. The Supreme Court dismissed the appeal on the following grounds: For an act of the occupant of the premises to be considered unlawful for the purpose of exemption from criminal responsibility, the offence must be integral to the core activity carried on by the occupant and not collateral to or remote from it. As to the first contention, the alleged misleading acts were antecedent to, and remote from, the retail selling. As to the second, the Court underscored that it is doubtful whether the employment of Israelis by the corporation ‘could amount to counselling or procuring or aiding or abetting the Government of Israel in any unlawful transfer of population’ (Section 17). The corporation might be blamed for ‘taking advantage of such a transfer, but that is not the same as encouraging or assisting it’ (Section 17). The Court further found that even if that corporation could have been aiding and abetting such transfer, ‘that cannot amount to an offence by the separate retailing company, whatever the corporate links between the two companies’ (Section 17). Consequently, the offences postulated ‘were either not demonstrated to have been committed by the occupants of the shop at the time of the defendants’ trespass or were at most collateral to the core activity of selling rather than integral to that activity. The occupants of the shop were, accordingly, engaged in the lawful activity of retail selling at the time and Section 68(2) provided ‘no defence to the defendants’ (Section 24).

96 The occupying power uses the occupied resources in order to advance its own national strategic interests. For analysis of Israel's record under the laws of belligerent occupation see Harpaz G. and Shany Y., ‘The Israel Supreme Court and the Incremental Expansion of the Scope of Discretion under Belligerent Occupation Law’, (2010) 43 (3) Israel Law Review 514 .

97 HCJ 6168/12 The Hebrew University of Jerusalem and others v. The Higher Education Council for Judea and Samaria and others (24 December 2013), for the Hebrew Text see elyon1.court.gov.il/files/12/680/061/s20/12061680.s20.htm.

98 E. Kontorovich, ‘State Practice on Economic Dealings with Occupied Territories’, a Paper delivered at the meeting of the International Law Forum, Law Faculty, Hebrew University of Jerusalem, 13 May 2014.

99 Schimmelfennig F. and Sedelmeier U., ‘Governance by Conditionality: EU Rule Transfer to the Candidate Countries of Central and Eastern Europe’, (2004) 11 (4) Journal of European Public Policy 661 , at 664–5. For further analysis of the concept, see Hille P. and Knil C., ‘“It's the Bureaucracy, Stupid” The Implementation of the Acquis Communautaire in EU Candidate Countries, 1999–2003’, (2006) 7 (4) European Union Politics 531 , at 536–7, who rely on the seminal work of G. Tsebelis, Veto Players: How Political Institutions Work (2002).

100 Indeed it was reported that when the EU applied its policy of non-recognition of settlement products as Israeli products, the state actually devised a scheme of indemnification. Similarly, when the EU insisted that Horizon 2020 would not benefit researchers in the Territories, the former Minister of Economy, responsible for trade and industry, N. Bennett, was quoted as reassuring them that they would be indemnified; see Verter Y., ‘Horizon 2020 // Israel-EU Settlement Compromise: When Funding at Stake, Heaven and Earth Can Be Moved’, Haaretz, 29 November 2013 , available at www.haaretz.com/weekend/week-s-end/.premium-1.560881. The settlers, of course, will be compensated by the state.

101 Pardo S. and Touval Y., ‘The EU and Israel: Much Ado About Love’, The Jerusalem Post, 19 December 2013 , available at www.jpost.com/Opinion/Op-Ed-Contributors/The-EU-and-Israel-Much-ado-about-love-335610.

102 Kupman E., The Research and Information Centre, the Knesset, Analysis of the Potential Implications of an Economic Embargo against Israel, 31 December 2014 , at 12, available at www.knesset.gov.il/mmm/data/pdf/m03501.pdf (in Hebrew).

103 Ibid.

104 Elis N. and Lazaroff T., ‘Lapid: EU Considering Striking Central Treaty with Israel if Peace Talks Fail’, The Jerusalem Post, 29 January 2014 , available at www.jpost.com/Diplomacy-and-Politics/WATCH-LIVE-Lapid-addresses-the-INSS-conference-339760: ‘Just canceling the Association Agreement with the EU, which we know is already on the table now as far as they're concerned, would reduce exports by NIS 3.5 billion, harming the GDP by NIS 1.5billion and causing 1,400 layoffs.’

105 Eran O. and Klein L., ‘The Effectiveness of Sanctions against Israel: Past, Present and Future’, (2014) 16 (4) Strategic Newsletter, 57 , at 57–67 (in Hebrew).

106 Ibid., at 67.

107 Thus, for example, the former Minister of Economy reacted to the Guidelines by treating them as nothing less than ‘economic terrorism’, see Benari E., ‘Bennett: EU Boycott is “Economic Terrorism”’, Arutz Sheva, 17 July 2013 , available at www.israelnationalnews.com/News/News.aspx/169988#.UsPNGptDGM8. The former Minister of Defence Moshe Ya'alon asserted that EU boycott is preferable to rockets on Ben-Gurion Airport (Israel's main international airport situated near the Territories), concluding ‘that we have to explain to Europe why they are wrong’, Bob Y.J., ‘Ya'alon: EU Boycott Preferable to Rockets on Ben-Gurion Airport’, The Jerusalem Post, 30 December 2013 , available at www.jpost.com/Defense/Yaalon-EU-boycott-preferable-over-rockets-on-Ben-Gurion-Airport-336553.

108 Sanchez R., ‘Israel approves 2,500 West Bank settler homes in post-Trump building surge’, The Telegraph, 24 January 2017 , available at www.telegraph.co.uk/news/2017/01/24/israel-approves-2500-west-bank-settler-homes-post-trump-building/.

109 Persson, supra note 3.

110 See, for example, the recent Israel-Colombia Free Trade Agreement that is applicable to Israel's ‘territory’ without excluding the Territories, available at http://economy.gov.il/English/InternationalAffairs/ForeignTradeAdministration/TradePolicyAgreements/BilateralAgreements/Pages/Colombia.aspx

111 Supra note 72, Art. 5.

112 Bouris and Schumacher, supra note 5.

113 Statement by Catherine Ashton, High Representative for Foreign Affairs and Security, Policy of the European Union, on the Middle East peace talks, A190/10, Brussels, 27 September 2010.

114 For analysis see Magen A., ‘The Shadow of Enlargement: Can the European Neighbourhood Policy Achieve Compliance?’, (2006) 12 Columbia Journal of European Law 383 ; R. Balfour, ‘Changes and Continuities in EU-Mediterranean Relations after the Arab Spring’, in S. Biscop, R. Balfour and M. Emerson (eds.), An Arab Springboard for the EU Foreign Policy (2012), 27.

115 Eighth Meeting of the EU–Israel Association Council, Statement of the EU, Luxembourg, 16 June 2008, available at www.europarl.europa.eu/meetdocs/2004_2009/documents/dv/association_counc/association_council.pdf; Communication to the European Parliament and the Council, Implementation of the ENP 2008, COM (2009) 188/3, at 4, available at ec.europa.eu/world/enp/pdf/progress2009/com09_188_en.pdf.

116 Communication to the European Parliament, ibid.

117 S. Pardo and J. Peters, Uneasy Neighbors: Israel and the EU (2010); European Commission and High Representative of the EU for Foreign Affairs and Security Policy, Joint Staff Working Document, Implementation of the European Neighbourhood Policy in Israel: Progress in 2012 and recommendations for action, Brussels, 20.3.2013, SWD (2013) 91 final, 2.

118 Tocci, supra note 1, at 390–1.

119 Ibid., at 395.

121 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971 [1970] ICJ Rep. 16, para. 111.

122 Bouris and Schumacher, supra note 5.

123 Harpaz G. and Shamis A., ‘Normative Europe and the State of Israel: An Illegitimate Eurotopia?’, (2010) 48 (3) Journal of Common Market Studies 579 ; Aggestam L., ‘Introduction: Ethical Power Europe?’, (2008) 84 International Affairs 1 .

124 See M. Cremona, ‘Values in the EU Foreign Policy’, in M. Evans and P. Koutrakos (eds.), Beyond the Established Orders: Policy Interconnections between the EU and the Rest of the World (2011) 275, at 275–6, 313.

125 B. de Witte, ‘The EU and the International Legal Order: The Case of Human Rights’, in M. Evans and P. Koutrakos (eds.), Beyond the Established Orders: Policy Interconnections between the EU and the Rest of the World (2011) 127, at 128.

126 Cremona, supra note 124, at 307.

* Arnold Brecht Chair in European Law, Law Faculty and the Department of International Relations, Faculty of Social Sciences, Hebrew University of Jerusalem []. I am most grateful for the helpful comments of Lorand Bartels, Tomer Broude, Yuval Shany, James Crawford, Arie Kacowitz, Yael Ronen, Pini Miritzki, Michal Luft, Nathalie Tocci, Dimitris Bouris, Anders Persson, Miri Gur-Arie, Anne Hetrzberg, Rotem Giladi and the anonymous reviewers. All internet sources referenced were accessed on 5 February 2017. The usual caveat applies.

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