Trading with Occupied Territories: What Could Go Wrong?

Article by Alejandro Abadía | November 25, 2024 | Global Rights Defenders

The Belgian Parliament is currently discussing an innovative bill that, if approved, would contribute to upholding human rights in several regions worldwide. The legislation seeks to prohibit the import, marketing and selling of products originating from occupied territories to avoid reinforcing the ongoing human rights abuses perpetrated in such regions. The proposal has gained broad support from five of the seven governing parties and several NGOs, including Human Rights Watch and Al-Haq.[1]

The legislative proposal expressly acknowledges the potential adverse impacts of trading activities in occupied territories. Thus, if enacted, the bill would constitute an appropriate legal response to address those harms by reaffirming Belgium's extraterritorial human rights obligations.

What is Occupation?

Article 42 of the 1907 Hague Regulations defines occupation as a situation where a territory is "placed under the authority of the hostile army" during an international armed conflict. International humanitarian law (IHL) does not address the lawfulness of occupations nor equates it to annexation, which is illegal under the UN Charter.[2] Instead, it regards it as a transfer of territorial authority and stipulates the rights and duties of the belligerent force assuming control. Under the laws of war, occupying powers (among other obligations) must maintain law and order and public life in the occupied territory and preserve the pre-existing legal order. In addition, they are obliged to respect private property and refrain from deporting the local population to their own country or transferring their population to the territory they occupy.[3] However, some occupying powers have been found to violate their obligations by establishing settlements, imposing their own laws and illegally exploiting natural resources in multiple regions such as Western Sahara, the Palestinian Territories and Ukraine.[4]

In addition to IHL breaches, many violations of international human rights law (IHRL) have been reported in occupied territories. These infractions include land confiscation, restrictions on fundamental civil rights, violent expulsions, and discriminatory practices against local populations.[5] Furthermore, occupations contradict the collective human right to self-determination, as they trump people's capacity to decide on their economic, social and cultural development. As posed by the Declaration of Principles of International Law of Friendly Relations and Cooperation, any situation involving "alien subjugation, domination and exploitation constitutes a violation of the principle [of self-determination] as well as a denial of fundamental human rights…".[6] Consequently, although occupations are not illegal per se under international humanitarian law, they contravene essential legal dispositions enshrined in human rights treaties.

Trade, Occupation & Human Rights

Several NGOs have established a connection between trade and the wrongful acts committed in occupied territories. The "Made in Illegality" campaign launched in Europe, for instance, claims that importing products from the Israeli settlements in the Palestinian Occupied Territories contributes to the economic prosperity of these unlawful "colonies".[7] Human Rights Watch and Al-Haq take a similar stance and sustain that trading goods produced in occupied territories prolongs the violence associated with these illegal settlements.[8] The Human Rights Council and the UN High Commission for Human Rights have also confirmed this position by recognizing economic activities as an enabling factor for settlement expansions.[9] In particular, these organizations mention practices such as pillage, unlawful exploitation of natural resources and generalized acts of violence, among other human rights abuses perpetrated by occupying powers in regions like Palestine or Western Sahara.

In this context, trade can contribute to human rights violations by making it economically viable to establish colonies in occupied territories and encouraging other violent acts associated with this practice. In other words, while importing and selling products are territorial actions that take place inside Belgium, their effects extend beyond its borders. The country recognizes these consequences through its proposed legislation and accepts the extraterritorial responsibility to prevent them by regulating commercial activities and banning trade with such territories.

Third-Party Obligations

In cases of widespread human rights abuses such as those described above, international law may impose specific responsibilities to third parties, even when the violations occur outside their territories. The Maastricht Principles on Extraterritorial Obligations, as noted by scholar Dalia Palombo, reflect the European jurisprudence on this matter.[10]These principles assert that the duties to respect and protect human rights extend beyond the States' territories when their territorial conduct has extraterritorial effects. Specifically, the duty to respect entails refraining from knowingly aiding or assisting wrongful acts perpetrated by other international actors. On the other hand, the obligation to protect requires States to regulate all private entities under their jurisdiction to prevent them from infringing human rights.[11]Consequently, even when third parties are not the main perpetrators of illegal acts under IHRL, they may still be accountable for contributing to their commission or for not taking necessary steps to prevent them.

The extraterritorial obligations posed by the Maastricht Principles are not absolute, as States are only obliged to act when they can anticipate the potential violations outside their borders. As Palombo points out, "It would be unreasonable [...] to require States to prevent a human rights violation that they could not foresee, even though such a violation could be potentially connected to their conduct ...".[12] However, since human rights transgressions in occupied territories are widespread, social organizations argue that it is plausible to assume that States are aware of their occurrence.[13] As these circumstances satisfy the conditions for extraterritorial action, States would be obliged to halt or limit trade with occupied territories insofar as it is likely that such commercial activities contribute directly to ongoing human rights violations in those areas.

Against this backdrop, the Belgian proposed legislation regards trading with occupied territories as a territorial activity with foreseeable extraterritorial effects. Consequently, it helps the country comply with its duty to respect human rights by avoiding assisting human rights violations in such regions. Moreover, it exercises its jurisdiction over the national importers by regulating their actions to guarantee that their services, products or operations are not involved in illegal acts abroad. This way, Belgium would fulfil its duty to protect by taking necessary measures to prevent non-state actors, which it is in a position to regulate, from contributing to human rights breaches.

Conclusion

If approved, the proposed legislation would help Belgium comply with its duties to protect and respect human rights extraterritoriality. The bill reflects the interplay between trade and human rights and is an innovative legal tool to reconcile the two in relation to occupied territories. Such a move would reaffirm Belgium's commitment to upholding human rights. It would also set a practical example of the scope of the extraterritorial obligations of States in situations of widespread abuses and inspire similar actions in other countries.

References

[1] Al Haq Defending Human Rights. (2023). Al Haq, Al Mezan and PCHR Welcome the Belgian Parliament’s Draft Legislation for National Ban on Trade with Occupied Territories. Retrieved 10th October, 2024 from https://www.alhaq.org/advocacy/22175.html

[2] Diakonia. (n.d.). Occupation and IHL The Protection of Persons Living Under Occupation. Retrieved October 14th, 2024 from https://www.diakonia.se/ihl/resources/international-humanitarian-law/ihl-law-occupation/

[3] Ibid.

[4] Human Rights Watch. (2022). Europe: Ban Trade with Illegal Settlements. Trade with Settlements in Occupied Territories Contributes to Right Abuses. Retrieved October 12th, 2024 from https://www.hrw.org/news/2022/02/21/europe-ban-trade-illegal-settlements

[5] Ibid

[6] United Nations. (1970). Declaration on Principles of International Law Concerning Friendly Relations and Cooperation Among States in Accordance with the Charter of the United Nations.

[7] Made in Illegality. (n.d.). Ce que nous Dénonçons La Question des Colonies Israéliennes illégales en territoire palestinien. Retrieved October 23, 2024 from https://www.madeinillegality.org/-fr-ce-que-nous-denoncons-?lang=fr

[8] See no. 1. Al Haq Defending Human Rights (2023) & See no. 4 Human Rights Watch (2022). 

[9] United Nations Human Rights Office of the High Commissioner. (2016). Israeli Settlements in the Occupied Palestinian Territory. Retrieved Nov. 1st, 2024 from SG_Report_on_Israeli_A.71.355.pdf & Human Rights Council. (2013). Human Rights Situation in Palestine an Other Occupied Arab Territories. Retrieved November 1st, 2024 from United Nations

[10] Palombo, Dalia. (2019). Business & Human Rights: The Obligations of the European Home States. Oxford, Hart Publishing. Kindle Version.  

[11] FIAN International. (2013. Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic Social and Cultural Rights. Heidelberg, ETO Consortium. Retrieved October 12th, 2024 from https://www.fidh.org/IMG/pdf/maastricht-eto-principles-uk_web.pdf

[12] See no. 10. Palombo, D. (2019).

[13] See no. 1 Al Haq Defending Human Rights (2023)