EJJP informs High Representative Borrell and other officials of the European Court of Human Rights ruling that BDS is legal

June 16, 2020

Dear Vice President Borrell, Vice President Schinas, Commissioner Reynders, Ms. Saastamoinen, and Ms. Kanellopoulou,

Please find enclosed our press release on the European Court of Human Rights ruling that BDS is legal, and our lead Op Ed from the EU Observer of 12 June.

In view of the ECHR ruling, we think the Commission should review its position on BDS. The former High Representative’s well-known statement to the Parliament on 15 September 2016 was a welcome endorsement of citizens’ right to advocate BDS, but nevertheless looked both ways in one important respect. The statement:

The EU stands firm in protecting freedom of expression and freedom of association in line with the Charter of Fundamental Rights of the European Union, which is applicable on EU Member States’ territory, including with regard to BDS actions carried out on this territory. Freedom of expression, as underlined by the case law of the European Court of Human Rights, is also applicable to information or ideas ‘that offend, shock or disturb the State or any sector of the population’ The EU rejects the BDS campaign’s attempts to isolate Israel and is opposed to any boycott of Israel.

The last sentence appears to contradict the rest of the statement. We interpret it as meaning that, while the Commission protects citizens’ legal right to advocate BDS without restriction, it nevertheless does not support advocacy of BDS relating to Israel itself rather then to the occupied Palestinian Territories. That was never fully satisfactory because the Charter does not support any such distinction. The borders of free speech should be determined by the law, not by policies more restrictive than the law. It is more unsatisfactory now because the ECHR ruling clarifies that all BDS activities by citizens are legal, including activities related to Israel itself.*

We think the Commission should now clarify that it supports all BDS activity in accordance with the law, including activities related to Israel as well as to the oPT.

Yours sincerely,

Dror Feiler, Chair of EJJP, Judar for Israelisk-Palestinsk Fred (Stockholm)

Arthur Goodman, Diplomatic and Parliamentary Liaison officer

c.c. Susanna Terstal, Neil Mac Call

*The position of government bodies is different because of the World Trade Organisation Government Procurement Agreement, which prohibits them from discriminating against products or services because of their origin. However, that does not apply to Israeli products from settlements because the occupied Palestinian territories are not part of Israeli sovereign territory. Therefore, although government bodies cannot apply BDS related to Israel itself, they can apply it related to the oPT.