Photo by Justin McIntosh via Wikimedia Commons licensed under CC BY 2.0.

See all articles

Boycotts, Divestments, and Sanctions

An International Legal Analysis of the BDS-Movement

30.10.2024

Over the past few months, visitors to Cairo have encountered an unusual sight: once-bustling fast-food chains like McDonald’s and KFC now stand eerily empty. Similar scenes have been reported in other Muslim-majority countries like Jordan, Morocco, and Malaysia, all in response to a widespread boycott campaign by the global political movement known as “Boycott, Divest & Sanctions” (BDS).

The BDS movement, which emerged in 2005 as a response to the unresolved Israeli-Palestinian conflict, has long been a focal point of political and legal debate. Much has been written about the political dimension of the movement and, in particular, about the problematic aspects of its policies considering the long and painful history of Jewish businesses and institutions being targeted by antisemitism.

Yet, this debate has often overshadowed other aspects of the movement’s focal points, such as the movement’s interpretation of international law. BDS sees itself as an alternative mechanism for enforcing international law (Barghouti, s. 32-33) and frequently references United Nations resolutions and treaties to support its objectives. This article thus explores how the movement’s understanding of international law aligns with the actual legal framework by looking at the specific measures it advocates for, placing special emphasis on the International Court of Justice’s (ICJ) Advisory Opinion from July 19, 2024.

While the actions advocated for by BDS can be categorized into three primary areas: boycottsdivestments, and sanctions, the article will focus on the mechanisms of divestment and sanctions, as they directly address questions of international law, whereas boycotts are primarily governed by national civil law.

Divestment: Targeting Corporate Involvement

Under the heading “Divest”, BDS calls on companies to withdraw from the occupied territories. BDS justifies this measure by arguing that private companies directly violate the rights of the Palestinian population. As international law does not generally address companies but states, it is questionable whether this mechanism falls within the scope of existing international law.

Companies like the British construction giant JCB have been targeted by BDS for their role in supplying materials for settlement construction, arguing that businesses have an international legal obligation to refrain from supporting the construction of Israeli settlements as they are violating international law. Despite the prohibition of resettling civilians in occupied territories under Article 49 (6) of the Fourth Geneva Convention, Israel has actively supported settlement expansion since 1967, often with the involvement of international corporations (ICJ, Rn. 119). The Fourth Geneva Convention applies directly only to states. Although corporations may indirectly benefit from or facilitate violations of humanitarian law, its provisions do not directly bind corporations under customary international law.

Heidelberg Materials has been the target of BDS campaigns for operating a quarry in the West Bank through an Israeli subsidiary. In terms of resource exploitation, Article 55 of the Hague Regulations requires occupying powers to preserve natural resources and administer them according to the principles of usufruct. Israel’s longstanding practice of appropriating land and resources in the occupied territories for industrial and agricultural purposes is therefore inconsistent with its obligation to respect the Palestinian people’s right to permanent sovereignty over its natural resources (ICJ, para. 133). However, the international legal framework remains again focused solely on state responsibility and overlooks the responsibility of private actors. While there have been attempts, particularly by African states, to extend obligations to corporations, a consistent state practice has yet to emerge.

Airbnb, which offers rental properties in the occupied territories, was targeted by the BDS campaign with the argument that it facilitates and enables human rights violations. While the ICJ determined that the construction and maintenance of settlements involve a range of human rights violations (ICJ, Wall, Rn. 134), international human rights treaties generally bind states, not private entities. There is insufficient customary practice extending these obligations to corporations. This is independent of the fact that some national laws impose binding responsibilities on companies (e.g., the German Supply Chain Act).

An exception is made for peremptory norms (jus cogens), where there is a growing argument in literature that businesses have direct human rights obligations. One such norm is the right to self-determination of peoples, which was central to the recent ICJ advisory opinion regarding Israel’s settlement policies (ICJ, para. 243). The key question is whether businesses are also directly bound by collective jus cogens norms. The UN Independent International Commission of Inquiry on Syria, often referenced to prove non-state actors’ obligations, focuses mainly on protecting individual rights (e.g., against torture or enforced disappearances). However, it could be argued that for collective rights, such as cultural or political rights, companies cannot be held directly responsible as they lack territorial control. They can only violate the right to self-determination by supporting a state that itself violates this right. Extending this idea would mean that similar actions such as helping to build a settlement or providing security at a checkpoint—normally not direct violations— could potentially constitute a violation, depending on the question of whether the state also violates the collective right to self-determination.

The challenge lies in the general weakness of international law frameworks regulating business practices. Current international treaties do not impose effective and enforceable legal obligations on private economic actors (“hard law”), even when they participate in gross human rights violations. While the BDS movement aims to enforce stringent legal responsibilities for businesses, it primarily serves as a call for enhanced corporate accountability within international law, other than as an enforcer of existing obligations.

BDS could be seen as an enforcer of emerging law, so-called “soft law”. Corporate responsibility can arise from frameworks like the UN Guiding Principles on Business and Human Rights. According to these principles, businesses should assess the human rights risks in their operational context, taking into account international human rights and humanitarian law. It can be argued that the mere existence of economic actors in the occupied territories enables the Israeli state to maintain the settlements in the first place. Such collective responsibility is not included in the Guiding Principles. Companies do not have to take responsibility for the entire legal and social environment in which they operate. This does not change the fact that in areas where the protection of human rights is weak, they must not exploit this weakness in their own supply chains. They must address the human rights risks of their operating context on a case-by-case basis in accordance with Article 18 of the Guiding Principles.

For example, the provision of fences and barriers or the operation of checkpoints in the occupied territories violates the company’s responsibility under Article 13 (a) of the Guiding Principles. If the land on which the company operates has been expropriated from a private individual, the company is not simply a neutral observer. It is a direct beneficiary of a violation of human rights law in its own value chain. Therefore, Companies like Airbnb must examine whether properties listed on their platform are built on land expropriated contrary to Article 46 of the Hague Regulations. If so, these listings must be removed. Should this prove impossible, Airbnb may need to consider withdrawing from these territories entirely, as stipulated by Article 19 of the Guiding Principles.

Sanctions: The Role of States

The sanction pillar of the BDS strategy involves pressuring states to impose sanctions and embargoes on Israel. The movement argues that governments have a responsibility to hold Israel accountable for violations of international law and should, therefore, suspend trade relations. This argument by the BDS movement has received new headwind by the recent Advisory Opinion of the ICJ.

In this ruling, the ICJ addressed the obligations of states regarding violations of international law committed by Israel. The court determined that states have a duty to take measures to prevent trade or investment relationships that support the unlawful situation created by Israel in the occupied Palestinian territories (ICJ, para. 278). According to international law, this requires active measures from states.

While this does not yet establish a specific obligation for states to impose concrete sanctions, a complete ban on market access for goods from the occupied territories emerges as a logical step to prevent trade or investments that sustain the illegal situation created by Israel in the occupied territories. Currently, businesses operating in Israeli settlements continue to benefit from access to the European single market. The economic appeal of these settlements, driven by exploitation, encourages their growth and persistence (as discussed in detail here).

The BDS movement’s call for a trade embargo by states on goods from the occupied Palestinian territories  or on goods that are used to maintain the illegal occupation, therefore, aligns with the predominant legal view in international law.

Conclusion: BDS as a Shaper of International Discourse

The BDS movement, which emerged partly out of frustration with the inadequate enforcement of international law in cases of violations, serves not solely as a tool for enforcement of international law. Particularly in the realm of corporate responsibility, BDS promotes changes in international law while utilizing the language of existing legal frameworks. In doing so, it aligns with other social movements that challenge conventional frameworks of legal discourse and influences public understanding of international law.

Whether these methods are effective remains uncertain. The BDS movement took shape one year after the International Court of Justice issued its advisory opinion on the Israeli separation barrier, which marks its 20th anniversary this year. On March 6, 2024, the Israeli government approved the construction of 3,426 new housing units in the West Bank, highlighting again the lack of consequences for this violation of international law.

Author
Franka Weckner

Franka Weckner is a research assistant at the Institute for Comparative Law, Conflict of Laws and International Business Law of Heidelberg University.

View profile
Print article
2 Comments
  1. Thank you for your nuanced contribution. I would be happy to see a continuation of the blog post on the “B” in BDS – also because I believe that the statement that boycotts are primarily regulated by national law is true in quantitative terms, but not necessarily in qualitative terms.

  2. Thank you for the clear and at the same time differentiated analysis of this politically contingent topic!

Leave a Reply

We very much welcome your engagement with posts via the comment function but you do so as a guest on our platform. Please note that comments are not published instantly but are reviewed by the Editorial Team to help keep our blog a safe place of constructive engagement for everybody. We expect comments to engage with the arguments of the corresponding blog post and to be free of ad hominem remarks. We reserve the right to withhold the publication of abusive or defamatory comments or comments that constitute hate speech, as well as spam and comments without connection to the respective post.

Submit your Contribution
We welcome contributions on all topics relating to international law and international legal thought. Please take our Directions for Authors and/or Guidelines for Reviews into account.You can send us your text, or get in touch with a preliminary inquiry at:
Subscribe to the Blog
Subscribe to stay informed via e-mail about new posts published on Völkerrechtsblog and enter your e-mail address below.
[newsletter]