JURIST Guest Columnist Valentina Azarova of Birzeit University Institute of Law discusses how the UK Note is a reminder that greater clarity is needed in the context of the use of boycotts as a means of international law enforcement…

On February 17, 2016, after much anticipation, the UK Crown Commercial Service issued a “Procurement Policy Note: Ensuring compliance with wider international obligations when letting public contracts,” which “aims to stop inappropriate procurement boycotts by public authorities.” The Note [PDF] was described as a win for pro-Israel activists, a loss for pro-Palestinian or anti-occupation groups and an undue limitation of the rights of municipalities to exclude companies seen to be involved in Israeli rights abuses from procurement contracts. Yet a closer look shows that in terms of international law and state practice, there is nothing new in the Note, which is not a result of amendments to primary legislation or the enactment of secondary legislation, and which does not criminalize boycotts or bar other measures that public bodies can adopt to achieve similar results.

In international law and relations, a boycott is defined as “a technique of economic coercion that involves the refusal to engage in certain economic interactions, particularly in buying or handling of goods and services from a target entity, typically for political reasons.” Whether a boycott is intended to bring about compliance with international law or to further other aspects of domestic foreign policy, it is a decision based on government discretion.

The following discussion of boycotts in international and domestic law, observes three distinctions between boycotts and other measures intended to bring about compliance with or enforcement of international law: the status of boycotts as a prerogative of national sovereignty, their political basis and their ascribed purpose.

Boycott: a national prerogative under government monopoly
The act of boycott in international affairs is deemed a prerogative of national sovereignty, consistent with the monopoly of each state’s executive branch of government on the use of coercive measures and decisions affecting its trade policies. As the UK Note affirms, boycotts by public authorities—regardless of their aim—are deemed “inappropriate, outside where formal legal sanctions, embargoes and restrictions have been put in place by the UK Government.”

Although critics argued that the UK government’s exercise of its monopoly on boycotts restrained freedom of expression, the Note is based on the claim that no such freedom of boycott exists. A pragmatic justification for the government monopoly on such decisions is that foreign policy would become impossible to manage if local government could institute boycotts. The potential consequences [PDF] entailed by boycott-type measures may include destabilizing international relations, producing conflict between states and violations of the international law prohibitions on disproportionate and indiscriminate coercive measures for which the state would be held accountable.

The Note states that imposing such “local level boycotts” could “hinder Britain’s export trade, and harm foreign relations to the detriment of Britain’s economic and international security.” The executive branch may preclude public bodies from adopting ad hoc, bottom-up decisions with potentially far-reaching implications for public and foreign policy. As cabinet office minister Matthew Hancock said, the Note’s clarification of policy “will help prevent damaging and counter-productive local foreign policies undermining our national security.”

In the UK and elsewhere, there is a long practice of executive branch monopoly over boycotts. The UK’s 1988 Local Government Act banned town halls from using political criteria to decide whom to award contracts, in response to the activism surrounding Apartheid South Africa. In the US, examples include anti-boycott provisions in the Export Administration Act 1977, and the recent US-Israel Trade and Commercial Enhancement Act 2015 prohibiting the use of economic boycotts against Israel. Of course, governments have also abused their authority to regulate boycotts. Israel’s 2011 Law for Prevention of Damage to the State of Israel Through Boycott subjects to lawsuits and damages anyone who calls on companies to avoid doing business with settlements, a draconian approach that both sanctions violations of international law and produces violations of individual rights.

As the Note further holds, the need to limit such measures at the domestic level is based on the state’s monopoly on the right to provide an exemption to non-discrimination rules on trade—and as such protects suppliers from such exemptions being adopted by public bodies without their being mandated by public policy. Moreover, under UK and EU law, the Note warns, a procurement decision not prescribed by law could be deemed “unlawful and lead to severe penalties against the contracting authority and the Government” for its disproportionate and indiscriminate effect.

Sanction regimes including boycotts that have a disproportionate and negative impact on the target entity or the population under its authority, may amount to and produce violations of international law. They could be deemed acts of interference with a state’s domestic affairs, produce widespread violations of human rights, and in some cases even amount to an act of aggression in violation of the UN Charter. While nothing in WTO law prevents the state from restricting trade, Article XXI of the GATT deems “secondary boycotts”—those carried out by individuals, groups, businesses and firms—to be discriminatory unless based on national security. The state would be in violation of these rules by not enforcing its monopoly and permitting discrimination by its own economic operators or public bodies. Primary boycotts, those adopted by a government directive, may only legitimately be initiated on national security grounds. The government becomes responsible for mandating the act of discrimination for a boycott, and could be held accountable for such infringements by the international system, even if they resulted from the actions of public bodies under its jurisdiction.

To uphold a common interest of conflict prevention in both inter-state relations and the domestic domain, international law and practice maintain that a decision to impose a boycott should be based on a complex set of considerations, consistent with international legality, and as such, not unlike the decision to use force, is a sovereign prerogative of the executive branch of government.

Domestic legal obligations
Civil society actors who call for boycotts as a tool to improve respect for human rights or other international law may find this analysis disheartening. Yet a different type of measure—one that eschews the political muscle-flexing and sometimes counterproductive contention associated with boycotts—has the potential to transform a wrongdoing supplier’s conduct.

Boycotts are politically driven restrictions based on a supplier’s sector, situation, geographical location or other grounds that may be deemed discriminatory in the absence of a government decision for lack of a political or legal basis. By contrast, as the Note affirms, public procurers are legally charged to assess whether each supplier’s commercial activities comply with transactional considerations embedded in UK law, including by balancing ethical and social considerations against the “value-for-money” principle, which guarantees suppliers from “third countries” (including those not in a preferential trade agreement with the EU) the same treatment as local suppliers.

Although public bodies may not institute boycotts or other legal sanctions that require government decisions, they are not precluded from assessing third party compliance with domestic laws, where such assessments have a basis in specific provisions of domestic law. UK law, as the Note recalls, permits public procurers to vet suppliers on the basis of “social and environmental” factors enshrined in the 2015 Public Contract Regulations [PDF] (based on the EU procurement directive).

The right granted to public bodies by UK procurement law is limited to the exclusion of a specific supplier from a specific contract on the basis of specific misconduct. Unlike broad-based boycotts, the Regulations allow UK contracting authorities “to exclude […] from participation in a procurement procedure any economic operator guilty of grave professional misconduct,” requiring case-by-case assessments. This requirement precludes public bodies from signing onto or creating a ‘blacklist’ based on broad, prima facie criteria—even if the criteria are broadly in line with domestic law and public policy—unless a specific policy to adopt such a boycott or blacklist was sanctioned by the government.

If a decision to exclude a specific supplier from procurement lists is firmly grounded in specific provisions of UK law, the decision should withstand allegations that it constitutes an act of boycott, since it was not adopted on the basis of a sweeping, politically-driven boycott that targets commercial sectors, governments, or situations.

In addition, many areas of domestic legislation and implementing rules apply the principle of non-recognition of acts and facts occurring under the jurisdiction of a foreign authority that contravene domestic public policy on their legality, including under international law. Consistent with the same principle in the international law of state responsibility codified in the ILC Draft Articles, some states have operative rules and laws that require the principle to be implemented domestically, to ensure consistency between public policy and domestic law. When a state adopts a position concerning the illegality of certain acts taking place abroad, all its legal subjects are precluded from giving legal effect to facts arising from such international wrongdoing.

For example, EU-based companies and governments have adopted a number of measures in recent years, often mischaracterized as boycotts or sanctions, that preclude the recognition of acts and facts that result from Israel’s internationally unlawful exercise of its domestic jurisdiction in occupied territory. Other examples from the context of inter-state relations include, as discussed by the ECFR [PDF], the EU’s funding guidelines for entities based or operating in Israeli settlements and Horizon 2020 and the labeling of Israeli settlement products. Such measures remain piecemeal, but have already achieved legally-driven policy changes: 18 EU government advisories warning companies of the “legal risks” of such dealings (e.g. the UK advisory); and albeit fewer measures by state regulatory authorities to ensure the full implementation of domestic law (e.g. the Scottish Policy Note [PDF] on ‘public procurement and illegal settlements’). On 22 March 2016, a UN Human Rights Council resolution requested the High Commissioner for Human Rights to compile and annually review a database of companies involved in settlements.

These measures are based on a twofold rationale of domestic legal necessity: compliance with domestic law provisions on ethical procurement, and a need to uphold public policy by avoiding giving legal effect to internationally unlawful acts (e.g. “differentiate” between dealings with Israel and with Israeli settlements in the occupied territory where Israel unlawfully exercises sovereign authority).

International law enforcement
If boycotts are the discretionary monopoly of central government, they are also hard-power measures that follow a logic of coercion. Further, boycotts or other sanctions are often imposed for political reasons; not all such measures are imposed to coerce conformity with international law. States that change their behavior in response to such sanctions may do so to end the coercion rather than to comply with international law.

In cases where boycotts are imposed as legal sanctions against a foreign wrongdoing authority, they are daring attempts to coerce compliance or, at least, a situational conformity. But in no circumstance does international law prescribe that individual states are under a positive obligation to adopt an economic boycott as a form of enforcement against a wrongdoing authority—they have a ‘right’ to do so within the confines of international law, but will not under contemporary international practice be held accountable for wrongful omission.

The degree to which international law compliance and mutual enforcement depends on the good will of individual states cannot be overstated. International law can demand the adoption of measures of condemnation and retorsion (and can be the basis for measures of diplomatic affront), but it does no more than strongly encourage certain responses between states to ensure respect for certain bright-line rules and uphold the law’s integrity, including through permissible collective and unilateral countermeasures and sanctions. Even in the most egregious cases of mass atrocities, the specific content of this obligation (as well as the normative scope of the ‘Responsibility to Protect’) remains at best a work in progress.

In contrast to coercive, discretionary measures of enforcement, the domestic state practice of non-recognition discussed above includes measures to ensure compliance that are based on internalized criteria of legality from international law. Public bodies reserve the right to adopt decisions to comply with international law—and indeed are under an obligation to do so in certain areas of domestic law—so long as they do not adopt sweeping measures boycotts in the absence of a formal government directive. Such measures are driven by state’s self-reflexive need to ensure the full implementation of domestic law, in order to avoid a penalty that would result from the public body giving legal effect to internationally unlawful acts in the implementation of its domestic law obligations; e.g. applying the prequalification criteria for choosing suppliers. Although such measures have often been misperceived as boycotts or sanctions—as though they were voluntary acts of compliance with international law, or of discretionary enforcement—their underlying rationale should be distinguished.

As a rule, measures that exclude businesses from public contracts are lawful so long as they are based on exclusion requirements provided in domestic law, such as exclusion for violations of environmental, social and labor law. Under the EU procurement directive, Member States may transpose both discretionary and mandatory criteria for exclusion of businesses from public contracts. For instance, both EU and UK law [PDF] provide for the exclusion of an economic operator that “has been guilty of serious misrepresentation in supplying the information required for the verification of the absence of grounds for exclusion or the fulfillment of the selection criteria”. A business involved in extraterritorial wrongdoing, which knowingly misrepresents its activities, may be promptly excluded from public contracts if the misrepresentation had significantly altered the public body’s assessment of the company under the exclusion criteria.

The public storm over the UK Note is a reminder that greater clarity is needed about the limited use of boycotts as a means of international law enforcement, and about the actual workings of international law enforcement machinery at the domestic level. Such clarity could help to avoid misperceptions (and misrepresentations) of the conduct of states and international actors, as well as effectively challenge and critique the present state of affairs that limits the public’s participation in international law enforcement, including through the initiation of boycotts.

Dr. Valentina Azarova is a Research Fellow at the Birzeit University, Institute of Law, and a Legal committee member of GLAN Law. She is presently a Visiting Research Fellow at Central European University. As of September 2016, she will be a Postdoc Fellow at the Centre for Global Public Law, Koc University, Istanbul. Her research concerns the links between international and domestic law, the function of non-recognition in international relations, and the occurrence and effects of situations of illegal territoriality.

Suggested citation: Valentina Azarova, Boycotts, International Law Enforcement and the UK’s ‘Anti-Boycott’ Note, JURIST – Academic Commentary, April 12, 2016, http://jurist.org/forum/2016/04/valentina-azarova-UK-Note.php.