EUs Israel
Grants Guidelines:
A Legal and Policy Analysis
A Legal and Policy Analysis
PROF. AVI BELL & PROF. EUGENE KONTOROVICH
A Kohelet Policy Forum Research Paper
October 2013
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
KOHELET POLICY FORUM
KOHELET POLICY FORUM
The Kohelet Policy Forum strives to secure the future
of Israel as
the nation-state of the Jewish People, to strengthen Israeli democracy,
expand individual liberty, and deepen free market principles in Israel .
The Forum was established by Prof. Moshe Koppel together
with leading Israeli academics, public intellectuals and activists.
The Forum is a non-partisan entity. It relies on private
donations and does not accept, directly or indirectly, public funds from
any government, domestic or foreign. e Forum’s legislative
research, policy papers, and other research-based products are o ered to
Israeli decision-makers free of charge.
KOHELET POLICY FORUM (RA) • 8
Am V’olamo St. , Jerusalem , Israel
AVI BELL
Professor Avi Bell is a member of the Faculty of Law
at Bar Ilan University
EUGENE KONTOROVICH
Professor Eugene Kontorovich teaches at Northwestern
University School of Law and is a Senior Fellow at the Kohelet Policy
Forum. During the 2013-14 academic year, he is also a Lady Davis
Visiting Professor at Hebrew University
Kontorovich’s scholarship has been published in leading
academic journals and he is often cited by news organizations such as The
New York Times and Wall Street Journal. He is one of the world’s leading
experts on international jurisdiction and criminal law and has been called on
to advise lawyers in historic piracy trials around the world. He is a
widely-sought out lecturer on international law and the Arab-Israeli conflict
and has spoken at scores of leading universities. He has also briefed
American and European parliamentarians and served as a consultant to the
United States Department of Defense. He has been honored with a fellowship at
the Institute for Advanced Study in Princeton and
with the Federalist Society’s prestigious Bator Award.
Kontorovich attended the University of Chicago
The authors thank Katja Knoechelmann for her indispensable
research assistance.
PAGE 2
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
EXECUTIVE SUMMARY
EXECUTIVE SUMMARY
•
The Israel Grants Guidelines adopted by the European
Commission are singularly discriminatory against Israel .
They contradict international law as established in U.N. documents and leading court
cases, as well as the European Union’s own interpretations of international
law.
•
The EU provides aid and financial cooperation to
numerous countries that maintain settlements in what Europe considers
occupied territory, such as Morocco , Turkey ,
and Russia .
In none of these cases has the Commission imposed limitations on the aid akin
to the Guidelines for Israel .
•
The Commission’s position that the Guidelines are
mandated by international law are further belied by EU programs that
provide grants specifically for settlers in belligerently occupied territory,
such as the EU’s programs in Turkish-occupied Northern Cyprus.
•
Under international law, there are no prohibitions
regarding organizations engaging in “activities” in occupied territories,
yet the Guidelines bar funding solely on the basis of such “activities.”
•
In pretending that the Guidelines fulfill the
requirements of international law, the Commission exposes the EU to legal
challenge for EU funding of parallel activity in belligerently
occupied territories around the world, such as Northern
Cyprus , Abkhazia and Western Sahara ,
and exposes its businesses operating in such places to liability.
•
The Guidelines have no precedent in similar
arrangements between the U.S. and Israel .
•
The Guidelines seek to undermine territorial
arrangements that are established by existing Israeli-
PLO agreements and foreclose issues that are preserved for negotiations.
•
The Guidelines do not advance the EU position on
sovereignty because they do not relate to
activities that legally establish sovereignty or constitute recognition of sovereignty.
activities that legally establish sovereignty or constitute recognition of sovereignty.
•
The Guidelines are unlikely to be accepted by Israel in
their present form. Non-discriminatory
alternatives include borrowing language from scientific cooperation agreements with theU.S. and extending
the Guidelines to all occupied territories with funding relationships with the
EU.
alternatives include borrowing language from scientific cooperation agreements with the
PAGE 3
TABLE OF CONTENTS
Background of the Guidelines. .
...................................................................... .
. 6
The Guidelines discriminate against Israel .
. .......................................... . . 9
Case Study: EU funding in Northern Cyprus .
. ........................................... . . . 13
The Guidelines undermine the peace process . .
................................ . . . 16
Recommended alternatives . .
............................................................................ .19
Executive Summary (Hebrew) . .
................................................................. . .
. 21
BACKGROUND
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
BACKGROUND
On June 30, 2013, the European Commission adopted (and
officially published on July 19, 2013) a notice with Guidelines forbidding
the allocation of European Union grants, prizes and financial instruments to
any Israeli “entity” that has an address in the West Bank, Golan Heights, “east
Jerusalem” or Gaza Strip.1 The Guidelines also prohibit giving such
grants, prizes and financial instruments to any activity carried out by an
Israeli “entity” in those areas unless the activity is “aim[ed] at benefiting
protected persons under the terms of international humanitarian law who
live in these territories” or “aim[ed] at ... promoting the Middle East
peace process in line with EU policy.”
The Guidelines apply to:
• EU monies granted after December 31, 2013 .
• EU money, and not to money granted by individual EU
states.
• Israeli organizations (including local governments)
but not to the national government of Israel and not
to individual people.
• Israelis and not Palestinians.
The Guidelines appear to have been the work of Catherine
Ashton, the High Representative of the
Union for Foreign Affairs and Security Policy,
produced within the European External Action Service, without indication
of a broader European consensus. For instance, on the day the Guidelines
were published, a spokesperson for the German Foreign Ministry stated that
the European Commission “developed the guidelines on their own
prerogative.” At the same time, Ashton expressed her pleasure with the
Guidelines and promised new unilateral EU steps against Israel (in
the form of discriminatory labeling requirements for goods imported
from Israel )
to follow up on the Guidelines.2
Proponents of the Guidelines claim that they are mandated by
international law. Supporters of the measure have uniformly echoed this
justification: because the EU regards the territories as occupied by
Israel, international law obligates it to ensure its monies do not support
Israeli activities there.3 (At the same time, the Guidelines openly
offer money to Israelis to undertake activities in the territories if they promote
European foreign policy, suggesting that the European interpretation of
international law leaves room for funding, depending on how the activities
relate to EU foreign policy.)
Reactions within Israel have
been almost uniformly negative. Supporters of a negotiated peace with the
Palestinians have noted that the Guidelines will undermine the peace process.
The Guidelines both contradict the existing agreements between Israel
and the Palestinians, and grant the Palestinians an additional incentive
for continuing to attack Israel ’s
legitimacy while bypassing talks and ignoring their prior solemn
commitments.
2 Letter dated July 8, 2013 to European Commission President
Jose Manuel Barroso.
3 See MEP Elmer
Costello, EU’s moment of truth on
Israeli settlements, http://euobserver.com/
opinion/121415; Barak Ravid, Former EU leaders to Ashton: Stand firm on settlement guidelines, avaialble at
http://www.haaretz.com/news/diplomacy-defense/.premium-1.547188
opinion/121415; Barak Ravid, Former EU leaders to Ashton: Stand firm on settlement guidelines, avaialble at
http://www.haaretz.com/news/diplomacy-defense/.premium-1.547188
PAGE 6
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
BACKGROUND
Other Israeli critics of the EU action have observed that
the Guidelines impose upon the Jewish state of Israel a
uniquely restrictive interpretation of international law, and that this
interpretation has the functional aim of rendering large areas of disputed
territory empty of all Jewish residents. These critics note that, in so
doing, the Guidelines fall within the European Union’s own definition of
antisemitism.
The ill-considered Guidelines expose the European Union to
considerable legal risk. The legal theory underlying the Guidelines, as
promoted by European officials, is that Israeli “settlements” are illegal and
that the EU must cut off grants that “support” settlement activity lest the EU
be implicated in the illegality.4 However, the EU currently and
openly supports similar “settlement” activity elsewhere in the world. For
instance, the EU has a grant program specifically aimed at funding Turkish
“settlers” of Northern Cyprus . If the EU is
serious about the legal theory it is using to promote the Guidelines, it
means that the EU violates international law with its grant programs in Northern
Cyprus . Future challengers to EU policy in Northern
Cyprus , as well as other occupied territories like Western
Sahara , will use EU arguments regarding the Guidelines to
convince courts to rule that EU policy violates international law.
4 See, for example, http://www.haaretz.co.il/st/inter/Hheb/images/2013-09-16%20EEPG%20Letter%20
on%20EU%20funding%20guidelines. pdf.
PAGE 7
THE GUIDELINES
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
THE GUIDELINES DISCRIMINATE AGAINST ISRAEL
The Guidelines discriminate against Israel and
contradict international law and the EU’s interpretation of such law.
There are roughly 200 territorial disputes worldwide, many
involving countries exerting control or occupying territory over which
they have no sovereignty. In many of these cases, the EU does not
accept sovereignty claims of the states which administer the territory in
question. For instance, the EU does not recognize Morocco ’s
claim to sovereignty over the belligerently occupied Western
Sahara . Similarly, the EU does not recognize the sovereignty
claim of the Turkish puppet state Northern Cyprus ,
which is a belligerently occupied part of an EU member state, Cyprus .
But while the EU directly acknowledges the existence of many other
belligerent occupations, the Commission does not impose rules similar to the
Guidelines on the EU’s funding relationships with any of these other occupying
powers. The Commission sets such restrictions on EU grant-giving on only
one country in the world: Israel .
In other words, in adopting the Guidelines, the Commission has set a
double standard: it has one rule for the Jewish state, and a different one for
the rest of the world.
Israeli entities do not have a monopoly on conducting
activities in what the EU regards as occupied territory. For instance,
numerous European businesses and universities maintain considerable
operations in Western Sahara and Northern
Cyprus . In no other case but Israel has
the Commission adopted guidelines that adversely affect funding based on
the status of the territory. Nor has the Commission conditioned EU aid to
any EU member states or European businesses and organizations on their vownot
to undertake activities in the territories.
1. The EU does not claim in any other place in the world
that it is forbidden to provide grants
to “settlements” in “occupied territory.” Indeed, inNorthern Cyprus and elsewhere it is
EU
policy to provide grants specifically for settlers of such territory.
to “settlements” in “occupied territory.” Indeed, in
policy to provide grants specifically for settlers of such territory.
The Guidelines forbid grantees to engage in activities - or
be located in - the disputed areas. EU officials falsely argue that this
is required by international law, a policy which falls in line with its
opposition to potential Israeli claims of sovereignty in the disputed
areas. Yet, in Turkish occupied Northern Cyprus , the
EU operates a grant program aimed at Turkish Cypriot settlers who were
transferred there by the Turkish government. (See the “Case Study” below
for more detail on this program). The existence of such programs makes it
clear that even according to the EU’s view of the law, such Guidelines are
not actually mandated by international law, and that the EU does not generally
believe them to be required by international law.
The North Cyprus program is
only the most blatant of numerous EU programs that provide funds to
occupation and settler regimes. In another example, in a recent fisheries agreement withMorocco ,
the EU pledged financial grants to develop the Moroccan fishery industry
as compensation for access to
occupation and settler regimes. In another example, in a recent fisheries agreement with
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
THE GUIDELINES DISCRIMINATE AGAINST ISRAEL
Moroccan waters.5 Yet the Agreement defined the
“Moroccan” fishery and waters as including Western Sahara .
Thus the EU directly funds Morocco ’s
exploitation of resources in the occupied territory, and it recognizes the
application of EU-Morocco treaties to territory occupied by Morocco .
All of this is in addition to direct aid to Morocco ,
none of which requires recipients to make declarations akin to the Israel
Grant directive. Similarly, the EU provides direct aid to the Russian-occupied
Abkhazia region of Georgia ,
and is indeed the largest donor there. The funding documents note that funding
programs require “a pragmatic and flexible program approach” given
the occupied status of the region.6
The double standard further carries over when it comes to
the obligation of all Israeli grantees to sign a declaration that they are
located within the Green line, and none of their activities take place over the
line, simply by virtue of their nationality. Needless to say, this policy is
applied towards Israel only
and not to any other countries with EU- recognized disputed territories.
The uniquely restrictive standard the Guidelines apply to
Israel is notable in light of the working EU definition of anti-Semitism,
as adopted by the EU Monitoring Centre on Racism and Xenophobia in 2004,
which includes among its examples of anti-Semitism “applying double standards
[to Israel] by requiring of it a behavior not expected or demanded of any other
democratic nation.”
2. Under international law, there is no prohibition on
organizations engaging in “activities”
in occupied territories, yet the Guidelines bar funding precisely on the basis of such
“activities.”
in occupied territories, yet the Guidelines bar funding precisely on the basis of such
“activities.”
The international law of belligerent occupation regulates
the exercise of sovereign power by an occupying state. It does not
regulate activities of private entities conducting business or academic
programs in occupied territories. This is amply demonstrated in both
formal sources of international law (legal texts and opinions) and
extensive state practice, including the EU’s own official activities. It is
interesting to note that the EU directly funds the activities of the
Turkish and Moroccan occupiers of NorthernCyprus and Western
Sahara . In fact, the EU maintains an entire office devoted to the
supporting the Turkish settlers in occupied Northern Cyprus .
The legality of foreign companies conducting business in
occupied territory was recently strongly reaffirmed by the 2013 ruling of
the Court of Appeal of Versailles in France in the Alstom
case.7 The Court held that a company doing business or establishing
infrastructure in East Jerusalem in no way violates international law (the case
concerned a firm that worked on the Jerusalem light rail system). The Court
affirmed that an occupying power is bound by certain restrictions, but private
entities are not, even when they are in contractual arrangements with
occupation authorities.
5 Morocco-EU fishing accord signed after
18-month hiatus (July 24, 2013 ).
The agreements were opposed
by representatives of the Western Saharan population. See Western Saharan Resource Watch, New EU-
Morocco Fisheries Protocol signed today, http://www.wsrw.org/a105x2631.
by representatives of the Western Saharan population. See Western Saharan Resource Watch, New EU-
Morocco Fisheries Protocol signed today, http://www.wsrw.org/a105x2631.
6 EURAID 2011 Georgia Annual Action
Program, Annex 1: Action Fiche, pg. 44.
7 France-Palestine Solidarite v.
Alstom, (Cour d’Appel de Versailles , March 22, 2013 ), R.G. N° 11/05331.
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
THE GUIDELINES DISCRIMINATE AGAINST ISRAEL
Similarly, in a 2002 legal opinion, the U.N. Security
Council’s Legal Advisor concluded that foreign companies taking Moroccan
contracts to do business in Western Sahara do not violate international law,
even when such plans are opposed by the “protected persons” (i.e., people
who are not citizens of the occupying country), so long as the business in
question does not “disregard” the interests of those protected
persons.8 The opinion considered the fact that the contracts create
economic opportunity for Moroccans and Western Saharans, and it concluded
that this is sufficient “regard” for the interests of protected persons. The EU
has relied on this opinion in allowing its business to operate in Western
Sahara .
The matter of the Moroccan-EU agreements generated a fair
amount of controversy in the European
Parliament and elsewhere, with some claiming that an extension of such agreements toWestern Sahara
would violate the duty of non-recognition, or otherwise be inconsistent with international law. The EU continues to reject these views; just last year, the EU renewed a trade agreement withMorocco ,
and this summer it renewed a fisheries agreement. In each case, the EU has
relied in its reasoning on the Security Council opinion above.
Parliament and elsewhere, with some claiming that an extension of such agreements to
would violate the duty of non-recognition, or otherwise be inconsistent with international law. The EU continues to reject these views; just last year, the EU renewed a trade agreement with
Further evidence that the Guidelines are not motivated by
international law is provided by the broad exemption contained in article
15 for Israeli organizations that operate across the Green Line but happen
to promote EU foreign policy. Obviously international law does not contain a
rule forbidding activities except where they concord with EU foreign
policy interests. The exception underscores that the directives are a
purely discretionary — and discriminatory — foreign policy exercise.
3. The Guidelines do not advance the EU position on
sovereignty because they do not relate
to activities that legally establish sovereignty or constitute recognition of sovereignty.
to activities that legally establish sovereignty or constitute recognition of sovereignty.
In international law, only national governments can assert
legal claims of sovereignty, and they can do so only through sovereign acts
such as formal claims of annexation or through the extension of domestic
law to territory. Yet, the Guidelines explicitly exclude the national
government of Israel from the
scope of the Guidelines. The Guidelines concern the addresses of organizations
and non-national governments, and commercial, residential and other
activities by those actors. None of these can possibly constitute potential
sovereign acts. The Commission recognizes this in its dealings with the
authorities in Turkish-occupied and Russian-occupied territories. For example,
the funding program for Abkhazia simply notes that “it should not be considered
a form of recognition.”9
There is no way that any of the grants excluded by the
Guidelines, or that would be permitted in the absence of the Guidelines,
can have anything to do with a potential claim of sovereignty by Israel . Moreover,
it is clear, as noted above, that there is no connection between giving grants
and recognizing sovereignty. Finally, Israel has
not even claimed sovereignty over much of the territory in question, and thus
it is not clear what sovereignty claims the Guidelines seek to not recognize.
8 Letter dated 29 January 2002 from the
Under-Secretary-General for Legal Affairs, the Legal Counsel, addressed to
the President of the Security Council, S/2002/161.
9 See Action Fiche, supra, pg. 32 n. 26.
PAGE 11
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
THE GUIDELINES DISCRIMINATE AGAINST ISRAEL
4. The Guidelines’ capacious definition of settlements to
include all “activity” by Israeli entities
has no basis in international law and contradicts the EU’s own theory on the “illegality” of
settlements.
has no basis in international law and contradicts the EU’s own theory on the “illegality” of
settlements.
The argument that “Israeli settlements are illegal,” as
endorsed by the EU and by the ICJ, posits that although no international
treaty talks about “settlements” per se, article 49 of the Fourth
Geneva Convention forbids an occupying power to “deport or transfer” parts
of its “civilian population” to occupied territory, and Israel illegally
“transfers” civilians when it permits Israeli citizens to move to
the disputed areas. However, although EU officials justify the
Guidelines as being related to settlements, the Guidelines themselves have
nothing to do with any Israeli transfer of civilian population. The Guidelines
explicitly blacklist only organizations that have no legal responsibility for
“transfer.” The Guidelines disqualify organizations simply for being
located in or engaging in “activities” in the disputed territories. Thus,
the Guidelines act only against actions that have nothing to do with any
state “transfer” of civilian population.
5. The EU Directive finds no precedent in U.S. Grant
Guidelines.
Some apologists for the Grant Directive claim it is little
different than the requirements of the U.S.-Israel Bi-national Science
Foundation (BSF).10 Yet the European Directive goes far beyond the U.S.
regulations, and is indeed notable in how much further it reaches.
For one, the BSF rules were reached through an “agreement”
with the Israeli government, while the EU effort is unilateral.
More substantively, the BSF rules apply to projects, not
entities, and thus would permit funding for entities based across the
Green Line. It would also not bar funding to entities simply because some
of their activities are across the Green Line. The EU Directive, by
contrast blacklists any organization with a “bad” address, regardless of
the project involved, and any organization that “operates” across the
Green Line. Finally, the BSF rules do not have self-serving exceptions for
groups involved in foreign policy activities sympathetic to the U.S. ;
indeed, they tend to rule out political projects. The EU Directive gives a free
pass to projects designed to undermine Israeli policy interests.
6. The EU exposes itself and its business to legal action.
The Guidelines propose what is in effect a new rule of
international law inconsistent with much current EU practice. The
Guidelines can thus be invoked by litigants challenging EU direct funding or
suing EU companies either in national courts or the European
Court for Human Rights. The targets of such
suits could be EU funding for Moroccan activities in Western
Sahara and for Turkish activities in Northern
Cyprus , as well as activities by EU companies doing business in those
areas.
10 Applicants for grants from the Foundation are informed
that “According to the agreement between the U.S. and
Israeli governments, projects sponsored by the Foundation may not be conducted
in geographic areas which came under the administration of the Government
of Israel after June 5, 1967 and
may not relate to subjects primarily pertinent to such areas.”
PAGE 12
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
THE GUIDELINES DISCRIMINATE AGAINST ISRAEL
Case Study: The EU directly and indirectly funds
Turkish occupation of Northern Cyprus , despite
regarding it as illegal.
The EU knowingly and purposefully gives direct grants,
funding, etc. to Turkish-occupied Northern Cyprus .
The EU does so even though the EU regards Northern Cyprus as
occupied (indeed, it is an occupation of an EU member state). The EU’s
official policy is that Turkey must
end its occupation, and the Turkish invasion was condemned by every
international institution from the Security Council on down. Nonetheless,
the EU maintains an entire program to direct funds to Turks in Northern
Cyprus . They even put out a nice colorful brochure last year.11
The grants are pursuant to a 2006 Regulation adopted by the
EU to “end the isolation of the Turkish Cypriot community,” and allocated
259 million Euros over five years.12 The program now operates on a 28
million Euro a year allocation (even this small sum is roughly 0.8 percent
of Northern Cyprus’s GDP).13
EU-funded projects include study abroad scholarships; grants
to small and medium-sized businesses for the purpose of developing and
diversifying the private sector; various kinds of
infrastructure improvements (iterate and telecom improvements, traffic
safety, waste disposal, technical assistance to farmers); “community
development grants”; funding to upgrade “cultural heritage” sites, etc. The
EU program even puts on a musical concert.
Importantly, the vast majority of the Northern
Cyprus inhabitants are Turkish settlers who
arrived subsequent to the invasion in 1974 and who do not have EU
citizenship. Yet, none of the Commission’s grant or contracting documents limit
eligibility or participation to EU citizens.
Can one imagine a similar EU project in the West
Bank funding Israeli traffic safety, or providing grants to
Jewish West Bank residents for study abroad and grants to Jewish-owned small
and medium-sized businesses. Could one imagine one funding Jewish cultural
events in the West Bank ?
The relevant EU resolutions and reports on the EU’s Northern
Cyprus program make no mention of the international legal
issues arising from this policy, though they do note the “difficult” or
“unique” political context.14 One reason the EU gives for the funding
is that it is preparing for reunification of an island that is technically in
the EU. Yet, it is important to note that funding goes far
beyond particular reunification projects, and gives grants to Turkish
private business entities, and builds the infrastructure of the occupying
government.
The EU’s own reports make clear that preparing for possible
reunification is only one goal of the
11 http://ec.europa.eu/cyprus/documents/2012/eu_assistance_to_tcc_brochure.pdf. 12
Council Reg. (EC) No 389/2006 of 27
February 2006 .
13 Aid Program for the Turkish Cypriot Community:
Background, available at http://ec.europa.eu/
enlargement/tenders/aid-programme-tcc/index_en.htm
enlargement/tenders/aid-programme-tcc/index_en.htm
14 Seventh Annual Report 2012 on the implementation of
Community assistance under Council regulation (EC)
No 389/2006,, pg. 2..
No 389/2006,, pg. 2..
PAGE 13
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
THE GUIDELINES DISCRIMINATE AGAINST ISRAEL
program, and general welfare-improvement goals dominate the
considerations behind funding. The EU is doing exactly what it claims that
international law prohibits when it comes to Israel .
The contradiction between the Northern
Cyprus policy and the Israel policy
is much starker. The
Guidelines onIsrael aim
to regulate groups based in Israel proper
and they go out of their way to make sure no money might be incidentally
spent on “occupation.” Yet no such territorial restrictions are placed on
EU funding to Turkey itself,
despite the fact that Northern Cyprus ’s economy is
dominated by Turkish mainland-based entities and direct subsidies
from Ankara . The EU funding
of Northern Cyprus goes even further than
that: it is a specific project entirely dedicated to funding
occupation activities.
Guidelines on
Indeed, the EU maintains an office in Northern
Cyprus to oversee its over “1000 grant contracts…
to NGOs, SMEs, farmers, rural communities, schools, and
students.”15 This office liaises directly with the Turkish occupation
regime in the territory (which styles itself as an independent republic, but
neither the EU nor any other nation recognize it as such).
The Northern Cyprus program
is more flagrant in another way. The Israel-related Guidelines make an
exception for activities “aimed” at helping “protected persons,” i.e.
Palestinians. The Northern Cyprus funding can not (and does not attempt)
to claim this excuse, as i) the majority of the territory’s population is
composed of mainland Turkish settlers; ii) the ethnic Greeks present at the
time of occupation have all fled or been expelled.
The EU justification of the Guidelines is that it has no
choice - the EU doesn’t recognize the disputed territories as part
of Israel ,
and so no money can go there, and moreover, the EU has some
affirmative duty to prevent money going there. The Cyprus
program gives lie to this position. The Israel-related Guidelines are
neither the legal nor logical consequence of Israeli activities, but a
discretionary European political decision to impose a double standard
on Israel .
15 Id. at
pg. 3..
THE GUIDELINES
UNDERMINE THE PEACE PROCESS
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
THE GUIDELINES UNDERMINE THE PEACE PROCESS
The Guidelines undermine the peace process and international
agreements by seeking to impose a particular outcome regarding disputed
territory, in disregard of negotiated formulations.
1. The Guidelines seek to foreclose issues that are
preserved for negotiations by existing
Israeli-PLO agreements.
Israeli-PLO agreements.
The Oslo Accords explicitly preserve the positions of the
parties without resolving the question of
territorial sovereignty. Rather, the Oslo Accords assign to direct bilateral negotiations any questions about borders demarcating the separation betweenIsrael ’s
sovereign territory and the territory assigned to any agreed-upon
Palestinian entity. Pending such a “final status” agreement, both sides
legitimately maintain their positions. None of the agreements deny Israel the
right to assert sovereign claims in such negotiations. And, of course,
none of the agreements empower a third party like the EU to override the
negotiations and impose its own views of sovereignty over the disputed
territory. It is a violation of the spirit of international law for the EU
to seek to impose its position on Israel and
Israeli entities unilaterally.
territorial sovereignty. Rather, the Oslo Accords assign to direct bilateral negotiations any questions about borders demarcating the separation between
2. The Guidelines seek to undermine territorial arrangements
that are established by existing
Israeli-PLO agreements. Although they do not resolve the issue of territorial sovereignty, the Oslo Accords explicitly lay out the powers and responsibilities of Israel and the Palestinian Authority in the West Bank (as well as the Gaza Strip, though neither Israel nor the Palestinian Authority exercises effective control there).
They also allude to some powers and responsibilities inJerusalem .
The agreements oblige Israel and the
Palestinians to engage in negotiations regarding settlements (and the Roadmap
discusses Israeli concessions regarding construction in settlements), but
none of the agreements place any restrictions on the actions of private
Israeli entities in the territories. By contrast, the Israeli-PLO agreements
do place geographical restrictions on public actions of various
Palestinian authorities in several locations;
for instance, Palestinian authorities may not lawfully maintain their offices withinJerusalem .
Israeli-PLO agreements. Although they do not resolve the issue of territorial sovereignty, the Oslo Accords explicitly lay out the powers and responsibilities of Israel and the Palestinian Authority in the West Bank (as well as the Gaza Strip, though neither Israel nor the Palestinian Authority exercises effective control there).
They also allude to some powers and responsibilities in
for instance, Palestinian authorities may not lawfully maintain their offices within
3. The Guidelines seek to establish the pre-1967 armistice
lines (the Green Line) as borders of
Israeli sovereignty, contrary to international law and the negotiated agreements between
Israel and
its neighbors.
Israeli sovereignty, contrary to international law and the negotiated agreements between
The Guidelines explicitly and erroneously refer to the
pre-1967 armistice lines as borders, and implicitly and incorrectly insist
not only that the EU does not recognize potential Israeli claims to sovereignty
in the disputed territories but that Israel is not entitled to assert those
claims. Yet, numerous written agreements among parties to the peace
process show that the EU’s position is wrong. (The line between Israel and
the Golan Heights , on the other hand, is an
international border. It stems from the historical division between the
Mandates in Palestine and Syria ).
PAGE 16
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
THE GUIDELINES UNDERMINE THE PEACE PROCESS
While the EU is certainly entitled to aspire to limit the
ultimate sovereign territorial scope of Israel ,
its aspirations have no basis in any binding legal document. The peace agreement betweenIsrael and Jordan establishes
the international boundary between Israel and Jordan at
the Jordan River (without prejudice to
the status of the territories occupied by Jordan prior
to 1967); it does not deny Israeli sovereignty over the “West
Bank ” or “east Jerusalem .”
All of Israel ’s
peace agreements with bordering states - including the un-ratified
agreement with Lebanon and
the ratified peace treaties with Egypt and Jordan -
have relied on the boundaries of the Palestine Mandate prior to Israel ’s
independence to establish Israel ’s
current boundaries, rather than the armistice lines of 1949-1967 (or any
UN-proposed boundaries).
its aspirations have no basis in any binding legal document. The peace agreement between
The non-binding advisory opinion of the ICJ on the Wall
(non-binding by law) explicitly avoided ruling on the question of
territorial sovereignty.16 Indeed, the Court specifically criticized the
route of the Israeli-built barrier because it could “prejudge the future
frontier between Israel and Palestine .”17 Thus, in
the view of Court, there was no recognized frontier between the two entities.
If the Green Line were the recognized “frontier,” the Wall would not
prejudge it, but rather simply infringe upon it.
16 Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory
17 Id. at
par. 121 (emphasis added).
PAGE 17
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
RECOMMENDED ALTERNATIVES
The EU has better alternatives to achieve its policy aims:
it can either negotiate a more modest understanding directly with Israel or
it can adopt Guidelines that clarify EU policy without creating a double
standard.
While the Guidelines contradict international law and EU
practices, the EU does have alternative policy tools to clarify and amplify its
policy stances on Israel and
the status of the disputed territories.
The Commission can begin by rescinding the Guidelines in
their entirety and issuing a clarification to the effect that it has
further reviewed the matter and determined that the Guidelines are not
required by international law. This clarification is important if the EU
is to defend itself against future legal challenges against its policies
in Northern Cyprus , Western Sahara and
other disputed territories.
There is no difficult formal process required for the EU to
rescind the Guidelines — the Commission can cancel them in exactly the same way
it issued them; this is not a decision that requires unanimity among EU states.
If the Commission feels it is important to adopt measures to
advance the purported policy goals of the Guidelines, there are several
possible alternative means of doing so, either produced via
negotiations with Israel or
unilaterally by issuing less problematic language.
1. A Negotiated Alternative: A Memorandum of Understanding
Concerning EU Policy
In order to ensure respect for EU policy regarding Israel and
the peace process, the EU could issue together with Israel the
following memorandum of understanding. It is likely that Israel would
find this memorandum agreeable.
MEMORANDUM OF UNDERSTANDING
The EU affirms that no EU grants, prizes or financial
instruments will support activities that violate existing agreements
between Israel and
the PLO regarding the geographic location of activities.
The EU affirms that the borders of Israel’s territorial
sovereignty with its neighbors are those previously determined by legally
binding agreements produced through direct negotiations between the
affected parties; where the borders are unresolved by agreement, the EU
affirms that the borders will be those that are established through direct
negotiations between the affected parties. No EU grants will be granted in
support of activity that unilaterally establishes borders pending agreement or
alters borders already agreed upon.
No assistance to Israeli entities located in or carrying out
activities in areas under Israeli jurisdiction should be construed as EU
recognition of Israeli sovereignty in those areas. No assistance to Israeli
entities should be construed as altering the EU’s long standing position
on the illegality of Israeli settlements as the EU understands that term.
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
RECOMMENDED ALTERNATIVES
2. A Negotiated Alternative: A Memorandum of Understanding
Concerning EU Grants
The EU could negotiate with Israel for
a narrower Memorandum of Understanding that does not clarify the EU’s
overall policy on Israel and
borders, but does clarify the EU’s policy on grants. This
provision presented here is based upon similar language used by the
Binational Science Foundation (between Israel and
the US ),
as well as existing language contained in Commission funding programs for
other occupied territories.
MEMORANDUM OF UNDERSTANDING
No projects sponsored by the EU grants may be conducted in
geographic areas which came under the administration of the Government of
Israel after June 5, 1967 nor
may such projects relate to subjects primarily pertinent to such areas.
3. A Unilateral Alternative: Broad but Universal Guidelines
If the EU is unwilling or unable to negotiate with Israel an
agreement clarifying the application of EU policy to grants and the like,
the Commission could issue alternative guidelines that use EU funds
to promote EU policies without creating a double standard.
The simple means of doing this would be to reissue the current
Guidelines but rephrase them so they are universal. The new guidelines
would apply to all EU grants everywhere in the world. Specifically, they would
apply to all entities organized under the laws of countries or organizations
which are involved in EU frameworks. The new guidelines would forbid all
grants, etc., to (1) entities with addresses in territories under
administration of any country where the EU does not formally recognize the
sovereignty of the country over the territory being administered or (2) any
activities that take place in territories under administration of any
country where the EU does not formally recognize the sovereignty of
the country over the territory being administered.
These alternative guidelines would remove the taint of a double
standard from the Guidelines on Israel . However,
they would also make it impossible for the EU to continue its current funding
practices in Northern Cyprus , Western
Cyprus and in disputed territories elsewhere in the world.
EU’s Israel Grants Guidelines: A Legal and Policy Analysis
EXECUTIVE SUMMARY (HEBREW)
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