February 13, 2020 | Policy Brief

The UN Blacklist, U.S. Laws, and U.S. Policy

February 13, 2020 | Policy Brief

The UN Blacklist, U.S. Laws, and U.S. Policy

The UN High Commissioner for Human Rights published on Wednesday a “database” of companies doing business with Israeli settlements. The list includes 112 firms, 94 of them Israeli and the other 18 from six other countries, including the United States.

The database was generated pursuant to Resolution 31/36, adopted by the UN Human Rights Council (UNHRC) on March 24, 2016, which calls upon the UN High Commissioner for Human Rights to produce a “database of all business enterprises” engaged in certain settlement-related activities in “the Occupied Palestinian Territory, including East Jerusalem.”

The database, also referred to as a blacklist, is inconsistent with U.S. law and policy. U.S. law, at 19 U.S.C. 4452(b)(4), states that Congress “opposes politically motivated actions that penalize or otherwise limit commercial relations specifically with Israel, such as boycotts of, divestment from, or sanctions against Israel.”

In addition, compliance with the blacklist could be inconsistent with the U.S. anti-boycott statute (50 U.S.C 4842), which has long been used to punish compliance with boycotts (and blacklists) fostered by the Arab League.

Boycotts spurred by the UNHRC and its blacklist would likely also run afoul of some or all of the two dozen U.S. state laws that require divestment from companies that boycott Israel (in some cases specifically defined to include Israeli settlements).

Compliance with a boycott fostered by the UNHRC and its blacklist may also cause U.S. companies to run afoul of the U.S. Treasury Department’s separate antiboycott regulations. The regulations implement the Ribicoff amendment to the Tax Reform Act of 1976. Internal Revenue Code section 999 requires U.S. taxpayers to report whether they (or corporations they control) have participated in or cooperated with boycotts not sanctioned by the U.S. government. According to the Treasury, U.S. persons who participate in such boycotts “may be subject to penalties that reduce their foreign tax credit, the benefits of foreign sales corporations, and the deferral available to U.S. shareholders of controlled foreign corporations.”

The blacklist also lacks a basis in international law. Indeed, international law does not prohibit business in disputed territories. Nor is doing such business inconsistent with the principles of corporate social responsibility (which are non-binding). That is the official view of the United Nations, expressed in its Global Compact document titled “Guidance on Responsible Business in Conflict-Affected and High-Risk Areas: A Resource for Companies and Investors.”

Finally, the legitimacy of the database is also thrown into doubt by the very makeup of the UNHRC, which includes as members many of the world’s worst human rights violators. Current UNHRC members sitting in judgment of Israel include the Democratic Republic of the Congo, Eritrea, Libya, Pakistan, Sudan, and Venezuela.

There are more than 100 territorial disputes in the world today, including in Crimea, Cyprus, Kashmir, Nagorno-Karabakh, Tibet, and Western Sahara. Yet only the West Bank and East Jerusalem were singled out for such a database. The decision to focus on Israel raises the question of whether the database is really about human rights, or rather about hypocritically bashing Israel.

The United States must now make clear that it rejects the UNHRC and its blacklist. Such a rejection is consistent with both international law and U.S. law.

Orde Kittrie is a senior fellow at the Foundation for Defense of Democracies (FDD), where he also contributes to FDD’s Center on Economic and Financial Power (CEFP). For more analysis from Orde and CEFP, please subscribe HERE. Follow Orde on Twitter @ordefk. Follow FDD on Twitter @FDD and @FDD_CEFP. FDD is a Washington, DC-based, nonpartisan research institute focusing on national security and foreign policy.

Issues:

Israel Lawfare Palestinian Politics United Nations