Free Market Vs. State Security
The ‘Israel Anti-Boycott Act,’ (IABA) is an affront to the American constitution and international law. It sets dangerous precedents, whilst nullifying meaningful opposition to Israel’s continued human rights abuses. In order for nation states to ensure their national security necessary for them, at times, to place restrictions on the economic activity of citizens. For instance it would be understandable for the British government to outlaw the sale of arms to Saudi Arabia. Justified by a large suite of evidence available that suggests Saudi Arabia are funding and arming Daeesh, as well as committing human rights abuses.
It is both understandable and effective for the British government to bring further sanctions, and support boycotts against any administration, global government or body, involved in activities that directly endanger the lives of their citizens or the world. In this situation it is simply common-sense for governmental power to overrule the rights of individual citizens. Companies and public bodies, can invest as they please so long as it doesn’t risk national security. Why is the ‘Israel Anti-Boycott Act’ different?
Unlike the hypothetical policy outlined above, which does have real life parallels, such as America’s sanctions forbidding commercial trade with Sudan, Iran and Cuba. The validity of these sanctions is of course questionable but sovereignty, and national security requires the government to be able to enforce such a law. The IABA however works in the negative. It is not a ban on economic activities that may endanger or abet America’s ‘enemies.’ Instead, the American government is attempting to reduce its citizen’s right to vote with their wallets, the most powerful and important tool of political dissent in a hyper-capitalist country. It does this under the cover of defending against discrimination; specifically Anti-Semitism.
Discernment vs. Discrimination
I support any law that defends people from discriminatory treatment, be it physical, economic or symbolic, and based on race, age, gender, religion, sexuality or nationality. Discrimination is the unequal treatment of people based on the immutable facts of their person. State governments should disallow businesses to make their investment decisions based on prejudice. It is right that the law outlaws discriminatory practice in commerce. The boycott Israel movement however does not support the global disengagement of economic investment in Jewish communities. Instead it is a collective of businesses and individuals who refuse to fund the behaviors of a nation state. Israel has been the subject of 66 UN resolutions condemning illegal occupation, settlement and expansion. The IABA does not defend against discrimination it nullifies discernment, and the right to practice personal ethical decisions.
Rumsfeld vs. Fair
The IABA is not a piece of legislation alien to the American system. It builds upon similar laws enforced at a state level since 1977 through the ‘Export Administration Act.’ In a recent Washington Post article, Eugene Kontorovich, explains why this legislation has survived for decades;
‘Refusing to do business is not an inherently expressive activity, as the Supreme Court held in Rumsfeld v. FAIR. It can be motivated by many concerns. It is only the boycotter’s explanation of the action that sends a message, not the actual business conduct. Those expressions of views are protected, but they do not immunize the underlying economic conduct from regulation.’
In other words, you may say what you like about another country but to damage the revenue stream that facilitates behavior is prohibited. This is a good indication of the effectiveness of such actions. Ethical concerns are for the government not institutions, businesses or individuals. In June 2017, The Palestine Solidarity Campaign (UK) launched a judicial review of similar legislation, tied into a local government pension scheme. The bill was an attack on the BDS movement outlawing “divestment and sanctions against foreign nations and UK defence industries … other than where formal legal sanctions, embargoes and restrictions have been put in place by the government”.
The UK’s Royal Court of Justice ruled the government to be acting unlawfully. It upheld the basic right of institutions, individuals and businesses to make their own ethical decisions regarding their commercial activities. This echoed Margaret Thatcher’s failure to prevent boycotts of apartheid South Africa. An injustice the international community was instrumental in resolving.
The IABA Vs. International Law
Unlike the prohibition of trade there is no national security argument in IABA. It can pose no risk, a company choosing NOT to do business in a specific nation. The new law constitutes a radical departure from the old legislation. Although it is a continuance of the US’ long-standing protection of Israel from the rule of international law. The bill has surfaced, by its own admission, as a response to the UN’s current machinations. International legislation is in circulation that would prohibit trade and assistance to settlements in East Jerusalem, the West Bank and the Golan Heights. These settlements are considered illegal by the UN, their position reaffirmed as recently as 2016 by resolution 2334.
The American government could sentence citizens up to 20 years in jail, and $1 million in fines, if they choose to abide by international law in their business practices.
This is an unquestionable and unacceptable infringement on the rights of American citizens. The American Civil Liberties Union (ACLU) is contesting the bill citing the first amendment (freedom of speech). It is also an attack on the rule of international law. In a world threatened by the very real threats of climate change or nuclear destruction global governance is integral. The Paris Agreement was a fantastic step in the right direction.
Patriotism Trumps Global Citizenship.
The Trump administration of course joined Syria (incapable) and Nicaragua (protesting Western inability to go far enough) in not signing the accord. Paradoxically Trump claimed American interests above that of the planet, on which the United States is located. Fortunately there are some in positions of power in the US who are eager to fulfill their obligations as citizens of the world. Hundreds of mayors and state governments pledged to reach the targets anyway. A welcome use of the states protection of certain freedoms to oppose the actions of a government with which the citizens vehemently disagree.
When American Foreign policy is placed above international law, the USA comes to define the ‘rogue state.’ Demonstrating a flagrant disregard for the international community. This is not the first time America has stood in contempt of the international community. They have failed to ratify landmark treaties covering everything from children’s rights to chemical weapons to discrimination laws to refugee status (astounding full list here). Ticking the last in its near-full checklist; restricting rights, sponsoring terrorism, and proliferating weapons of mass destruction. In prioritizing adherence to American policy above that of the UN it also characterizes itself as inherently authoritarian.