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How I learned to stop worrying and love the EU ruling on truthful labeling of settlement products

There's no reason a label stating a product comes from 'occupied territory' can't also explain legitimate Jewish claims to that territory
Israeli workers inspects barrels in a winery in the West Bank settlement of Psagot. Feb. 11, 2014. (AP Photo/Dan Balilty)
Israeli workers inspects barrels in a winery in the West Bank settlement of Psagot. Feb. 11, 2014. (AP Photo/Dan Balilty)

As has been widely reported, on November 12, 2019, the European Court of Justice (ECJ) ruled that Article 9(1)(i) of Regulation (EU) No. 1169/2011 must be interpreted to mean that “foodstuffs originating in a territory occupied by the State of Israel must bear not only the indication of that territory but also, where those foodstuffs come from a locality or a group of localities constituting an Israeli settlement within that territory, the indication of that provenance.”

The lawsuit that ended up before the ECJ was brought by the Psagot winery, which is located in territories occupied by Israel since June 1967 and whose products are distributed in France. Psagot challenged a notice published by France’s Ministry of the Economy requiring that goods originating from Israeli-occupied territories be labeled in accordance with Regulation 1169/2011 as interpreted by the European Commission (which distinguished between those goods that were produced in an Israeli settlement and those that were not). France’s Supreme Court for Administrative Justice (Conseil d’État) sought preliminary guidance from the ECJ.

Regulation No. 1169/2011 is essentially a consumer protection rule regarding foodstuffs. In pertinent part, the Regulation requires that food information not be “misleading”, including as to a food’s “country of origin or place of provenance”. The ECJ determined that foodstuffs produced in an Israeli settlement within territory occupied by the State of Israel in 1967 must so state – otherwise, European consumers might be misled as to the “place of provenance” of the product. Alternatively stated, if a product produced in an Israeli settlement only identified the State of Israel as the “country of origin”, such labeling “would be liable to deceive consumers.”

As a result of the ECJ ruling, much hand-wringing, rending of garments and wearing of sackcloth and ashes has ensued.

Prime Minister Benjamin Netanyahu called the decision “unbelievable.” The Israeli foreign ministry said the ruling would serve as a “tool in the political campaign against Israel” and accused the ECJ of singling out and discriminating against Israel. Foreign Minister Israel Katz called the EU policy “gravely flawed.” Another Israeli diplomat indicated that if European countries implemented the ruling, it would be “damaging” to the EU-Israel relationship.

The US State Department issued a statement expressing “deep concern” over the decision and asserted that the “circumstances surrounding the labeling requirement” are “suggestive of anti-Israel bias.” The statement further asserted that the ruling would serve to “encourage, facilitate, and promote boycotts, divestments, and sanctions (BDS) against Israel.”

Similarly, the World Jewish Congress found the ECJ ruling “worrying” because it: (a) “sets the ground” for delegitimization of Israel; (b) could “set a precedent” for implementation, or stricter implementation, of Regulation 1169/2011’s labeling requirements; and (c) encourages BDS against Israel.

Neither Israel nor the producers of foodstuffs located in Israeli-occupied territories should fear the ECJ’s decision. Instead, they should welcome the ruling as a “teachable moment.”

All the ECJ decision mandates is that foodstuffs indicate that they are the product of an Israeli settlement within territory occupied by the State of Israel in 1967. This is a baseline requirement, and not a limitation. In other words, nothing in the ruling stops producers from expounding on how it came to be that their products are being produced in territory occupied by the State of Israel in 1967.

For example, a truthful, non-deceptive and non-misleading label could legitimately state:

From approximately 1300 B.C.E. until approximately 70 C.E., the Jewish people consistently maintained an independent nation-state in territory known as Judea, which is bordered by the Mediterranean Sea (to the West), Mount Hermon (to the North), the Jordan River (to the East) and the Negev desert (to the South). The spiritual and political center of Judea was always the city of Jerusalem.

After Roman imperialists conquered Judea, the native, indigenous Jewish inhabitants were subjected to mass murder and forced expulsion. The Roman Empire attempted to quash any Jewish connection to the land by renaming it “Palastina” and by colonizing and renaming its capital “Aelia Capitolina”.

Subsequent colonial conquerors followed the Romans, including Sassanids, Byzantine Christians, Umayyad (Arab) Muslims, Crusaders, Mamluks and Ottoman Turks. After the dissolution of the Ottoman Empire, the British were awarded a “mandate” over “Palestine”, which included the obligation to establish a national home for the Jewish people. In 1922, Britain broke off from Mandate Palestine a vast territory located east of the Jordan River, excluded Jews from settling in that territory and, thereafter, administered the only western part of the Mandate as “Palestine”, while calling the eastern part “Transjordan”. The Arab inhabitants of the western part of Mandatory Palestine, who remained there after centuries of imperialist colonization, objected to any independent Jewish state.

In 1947, the British government announced its intention to terminate the Mandate. In November of 1947, the United Nations General Assembly voted to partition Palestine into separate independent Arab and Jewish states. The Arabs rejected the Partition Plan. The Jews accepted it and, in May of 1948, declared an independent State of Israel. The Arab inhabitants of the former Mandate, joined by the combined armed forces of several nearby Arab countries, immediately attacked the nascent State of Israel. Israel not only fended off the attackers, but also acquired territory in excess of that granted to it under the Partition Plan. The pre-existing Jewish communities – some of which were centuries old – in those portions of Palestine illegally occupied by Arab states (Syria, Jordan and Egypt) as a result of their belligerent war of aggression were destroyed, and their inhabitants expelled, including from the eastern portion of Jerusalem. Like the Romans, Jordan renamed the territory it occupied, historically known as Judea and Samaria, as the “West Bank”. Syria occupied the Golan Heights. Egypt occupied the Gaza Strip.

The Arabs did not give up their quest to eliminate the State of Israel. In June of 1967, Arab armies again prepared to attack Israel and were again rebuffed. In that defensive war, Israel came to occupy those territories previously illegally occupied by Syria (Golan Heights), Egypt (Gaza Strip) and Jordan (“West Bank”). Because there was no prior legitimate sovereign state in control of those territories, the Fourth Geneva Convention – including its prohibition against the forcible transfer of civilians to territory of an occupied state – did not, and does not, apply in these territories.

In November of 1967, the United Nations Security Council passed Resolution 242, which, in pertinent part, affirmed that a just and lasting peace in the Middle East should include: (a) withdrawal of Israeli armed forces from territories occupied in the Six Day War; and (b) termination of all claims or states of belligerency and respect for and acknowledgement of the sovereignty, territorial integrity and political independence of every State in the area and their right to live in peace within secure and recognized boundaries free from threats or acts of force. Resolution 242 makes no mention of civilian habitations in territories occupied by Israel in 1967. Israel’s peace negotiations with all neighboring Arab states – and with the Arab inhabitants of those territories occupied by Israel in 1967 (through the PLO and the Palestinian Authority) – have always been premised on Resolution 242.

Pending a peace agreement pursuant to which the Arab inhabitants of those territories occupied by Israel in 1967 agree to terminate their claims and acknowledge Israel’s sovereignty, territorial integrity and political independence, Israel has exercised its legal right to use non-private land and property in territories it occupies, including for civilian habitation. Voluntary Jewish settlement on land acquired in a defensive war, which did not belong to a previous lawful sovereign and which was designated as part of the Jewish State under the British Mandate, is not illegal. The European Union denominates these civilian Jewish habitations as “Israeli settlements”.

Accordingly, this wine is a PRODUCT OF AN ISRAELI SETTLEMENT WITHIN TERRITORY OCCUPIED BY THE STATE OF ISRAEL IN 1967

While lengthy, such a label would undoubtedly comply with the EU Regulation No. 1169/2011 and any national implementation of it. The above is, of course, only an example. Producers subject to Regulation No. 1169/2011 could come up with their own (truthful, non-deceptive and non-misleading) descriptions, so long as they contain the ECJ’s “magic formula” regarding country of origin or place of provenance.

Historical truth simply cannot be deemed “misleading” or “deceptive.” Europe’s Christians certainly understand that “the truth will set you free” (John 8:32). It’s now time for Jews in “Israeli settlements” to set themselves free as well.

About the Author
Ory Sandel is Senior Counsel in the litigation group of Dickenson Peatman & Fogarty, P.C., a California law firm catering to the wine industry.
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