Rondetafelgesprek met juridische experts over handelsverbod illegale nederzettingen

[0:00:00] Dan openen we hierbij de vergadering van de vaste commissie van Buitenlandse Zaken.

[0:00:05] En vandaag aan de orde is een ronde tafelgesprek met juridische experts over het handelsverbod illegale nederzettingen.

[0:00:12] En zoals afgesproken ook met onze gasten is de voertaal vandaag Engels.

[0:00:19] Dus ik zal de vergadering in het Engels continueren.

[0:00:23] A warm welcome to our guest speakers and to the members of parliament who made time available to attend this roundtable.

[0:00:32] Also, warm welcome to those of our guests who are with us online.

[0:00:37] We have four speakers at this roundtable, and I would kindly ask you when I introduce you to make sure your introduction is more or less five minutes.

[0:00:46] We first do the five introductions by the speakers, I'm sorry, four introductions by the speakers

[0:00:53] and then of course we have the opportunity with the members of parliament.

[0:00:57] We should have sufficient time to make sure we also can have an exchange of views.

[0:01:03] Having said that, let's start and could I perhaps first give the floor to Mr. Francis Wessel

[0:01:09] who's a professor of European law at my old university in Groningen.

[0:01:15] The floor is yours.

[0:01:18] Hartelijk dank, voorzitter, en thank you very much for having us today.

[0:01:22] I will gladly use my five minutes to highlight a number of the points that I made in my position paper that has been circulated, I hope.

[0:01:31] So there's more in that paper than I can say today.

[0:01:34] And I have a number of points that I think are relevant.

[0:01:36] The very first point I would like to make is an obvious one.

[0:01:39] En dat is, of course, dat is de common commercial policy, de trade policy

[0:01:43] of the European Union, Gemeenschappelijke Handelspolitiek, is an exclusive

[0:01:46] policy of the Union. So, the bottom line would be

[0:01:51] that the European Union is in charge for anything that has to do with restricting

[0:01:54] trade, restricting quota, putting tariffs on

[0:01:59] and there's not any room left for the member states. So, that is the

[0:02:03] starting point. This is a European Union issue and the member states

[0:02:07] Voluntarily decided on that when they drafted the treaty.

[0:02:11] That's my starting point, but don't be afraid, I'll get back to that.

[0:02:16] From an international law point of view,

[0:02:18] it is very clear that both the European Union and its member states

[0:02:22] are under the obligation to live up to international law

[0:02:26] with respect to Israel and its activities and policies.

[0:02:31] This has been clarified, as we probably all know,

[0:02:34] in 2024, again, by the International Court of Justice, who confirmed the relevant rules.

[0:02:40] So it's not the case that whatever the court says in this advisory opinion is not binding at all.

[0:02:45] That's irrelevant. The court has mainly confirmed all the rules that are applicable to this situation.

[0:02:52] And also pointed to a number of things that the European Union has to do, and that the Member States have to do.

[0:02:58] In a separate report I did some time ago for the European Parliament,

[0:03:02] We sort of listed all those obligations for the European Union and its member states,

[0:03:08] and I refer to that report for this moment.

[0:03:13] So this also means that the European Union has a number of obligations on its table.

[0:03:19] The main obligation out of this whole list is to continue to make a differentiation,

[0:03:25] to differentiate between Israel and the occupied Palestinian territories.

[0:03:30] Anything that has been done to sustain that situation that is currently in place would be a violation of international law.

[0:03:39] So there is a clear obligation to do anything that is possible to make clear that we do not sustain that current situation.

[0:03:47] That is one of the obligations.

[0:03:48] It's only one of them.

[0:03:50] And there's a whole list on very specific obligations, for instance, related to investment, in relation to funds being made available for Israel.

[0:04:00] in relation to providing visa to those who have been part of the settlements, etc.

[0:04:07] There's a whole list.

[0:04:08] And obviously, as we also know, there are possibilities for the European Union

[0:04:11] to actually sort of hold those relationships on the basis of the association agreement,

[0:04:17] which, as we also know, has not yet been used.

[0:04:21] So, there is a dilemma.

[0:04:24] There is an international law obligation for the Netherlands,

[0:04:27] But the Netherlands does not have the possibility to actually do something about that in terms of import restrictions.

[0:04:33] That is a clear dilemma.

[0:04:36] That does not mean that the Netherlands does not have this international obligation.

[0:04:40] So I think that the proposal that we have seen from the government last Friday

[0:04:46] for a new decision on this point is also based on this dilemma and I will come back to that in a minute.

[0:04:54] So what can the Netherlands do?

[0:04:57] In principle, nothing,

[0:04:59] because it does not have any trade competences.

[0:05:01] At the same time,

[0:05:04] the proposal tabled by the government

[0:05:07] indicates that there are possibilities.

[0:05:09] And those possibilities would then allow the Netherlands

[0:05:12] to actually have unilateral trade import restrictions

[0:05:17] on those goods.

[0:05:18] We're not talking about services here.

[0:05:20] Those goods originating from the settlements,

[0:05:24] to keep it simple.

[0:05:26] Hoe is dat being done?

[0:05:29] Basically, by the only opportunity that is offered in principle to member states of the European Union

[0:05:35] and that is the import regulation.

[0:05:38] In that import regulation, there is a clause

[0:05:42] that I think my colleague Professor Kotrakos will also be dealing with a bit more extensively

[0:05:47] that would allow member states to actually use this public order exception

[0:05:54] to use it as a basis

[0:05:55] for unilateral member state

[0:05:57] restrictions. And last

[0:05:59] Friday I noticed when I was reading the proposal

[0:06:01] by the government that this is exactly

[0:06:03] what they have been using

[0:06:05] as an exception and to allow the

[0:06:07] Netherlands also to take these unilateral

[0:06:09] import restrictions. By the way

[0:06:11] it's exactly the same as

[0:06:13] other countries in particular Spain and

[0:06:15] Slovenia have been using

[0:06:17] for their unilateral

[0:06:19] import restrictions and other countries

[0:06:21] are currently considering.

[0:06:24] So, this dilemma

[0:06:27] that we are facing today

[0:06:28] is that the Netherlands needs to do something

[0:06:30] on the basis of international law,

[0:06:31] that it only has limited possibilities

[0:06:33] and in fact perhaps even only one possibility

[0:06:36] under European law.

[0:06:37] And then the question is,

[0:06:38] what happens if it does use this opportunity?

[0:06:41] Would it violate any EU law?

[0:06:43] Well, it would definitely violate

[0:06:45] certain EU principles.

[0:06:46] Let me mention two very quickly.

[0:06:48] The first one is the principle

[0:06:50] of the attribution of powers.

[0:06:51] If you don't have the power to do something and you still do something that is in the hands of the European Union

[0:06:57] Then that will be a violation of that principle. So that is something to keep in mind

[0:07:01] In particular, since the common commercial policy, the trade policy is actually a policy that needs uniformity, right?

[0:07:09] It does not make sense for individual member states to make rules on import restrictions

[0:07:15] because we have an internal market

[0:07:17] and the next day you will see

[0:07:18] those exact same codes

[0:07:20] coming into the Netherlands from other sides

[0:07:23] Belgium or Germany

[0:07:24] So that is the first principle, the attribution of powers

[0:07:27] The other one is the principle of sincere cooperation

[0:07:29] We promised

[0:07:31] in the treaty that we would do everything

[0:07:33] to allow the European Union to reach its objectives

[0:07:35] and the common commercial policy

[0:07:37] is one of those objectives

[0:07:38] So the Netherlands would actually be, in principle

[0:07:41] violating this principle of sincere cooperation

[0:07:43] Is there a way out of that?

[0:07:45] Yes, perhaps, because one of the objectives of the European Union

[0:07:49] is also to further develop international law.

[0:07:54] So in a way, you could use the argument

[0:07:57] that by having these unilateral trade measures,

[0:08:00] the Netherlands would help the European Union

[0:08:03] to commit itself to those international law standards.

[0:08:08] And that, all in all, brings me to the conclusion

[0:08:12] dat in fact

[0:08:13] this proposal as it stands now

[0:08:15] based on this public order

[0:08:18] exception in the

[0:08:20] import regulation, combined

[0:08:22] with the fact that everything

[0:08:24] seems to have been done to turn

[0:08:26] this into a European Union measure

[0:08:28] would qualify as

[0:08:30] a legitimate and even a legal

[0:08:32] way of getting out of this

[0:08:34] situation. Final point

[0:08:36] this is not the end of the story

[0:08:37] this is just committing

[0:08:40] to one part of international law

[0:08:42] There's a lot more international law obligations that are listed by the court, International Court of Justice, that also need attention.

[0:08:49] So this is, I hope, also the beginning of the whole story.

[0:08:53] And it would also still, there would still be an obligation for the Netherlands to try and continue to seek a European solution and make this indeed a temporary decision as much as possible.

[0:09:06] Thank you very much.

[0:09:06] Thank you very much. Then our next guest is lecturer and researcher of EU and international economic law at the University of Leuven, Leuven. Mr. Cédric Henne. The floor is yours.

[0:09:22] Dank u wel heel erg bedankt voor me inviteren.

[0:09:24] Zoals je nette, ik ben van België, ik heb de trein deze morgen uit Brussel.

[0:09:28] En ik werk als een lawyer en ik benen professeur specialiseer in EU-economische law.

[0:09:34] En ik ben al in de similaere discussieën voor het parlement van België.

[0:09:39] Mijn opening statement comprise drie observaties,

[0:09:43] die heel erg genoeg zijn voor de details.

[0:09:46] Dat kan natuurlijk worden gevoerd tijdens de discussieën.

[0:09:49] My first point is that evidently I understand the necessity for representatives

[0:09:54] to have sufficient legal arguments in order to justify a trade restriction

[0:09:59] such as the envisaged ban.

[0:10:02] However, I would like to say that to me there is something a bit paradoxical

[0:10:06] to these legal discussions in the sense that we are examining

[0:10:10] whether a national restriction would be unlawfully produced good

[0:10:16] would be authorized under EU treaties and regulations.

[0:10:19] In other words, would the ban be legal?

[0:10:22] However, one must not forget here

[0:10:24] that not restricting this trade

[0:10:26] which results from international humanitarian law

[0:10:30] and human rights violations within occupied territories

[0:10:34] is already illegal, as Professor Wessel already mentioned.

[0:10:38] In addition to this, EU treaties themselves

[0:10:41] provide that compliance with international law

[0:10:43] is a core objective of union law.

[0:10:46] And I'm referring here more specifically to TFEU Articles 3 and 21, as well as to Declaration 13 to the TFEU.

[0:10:57] The European Court of Justice has also confirmed several times already that EU law must be interpreted as far as possible in a manner which is consistent with international law obligations of EU member states.

[0:11:10] Regarding specifically the impact of the 4th Geneva Convention, I am notably referring to case C-158-14.

[0:11:20] Hence, to conclude on this first point, in my view, considering EU treaties provisions,

[0:11:26] Advocate Generals' opinions and relevant European Court of Justice case law,

[0:11:30] EU law shall not be interpreted in a way that would make it legally impossible for a member state to comply with its obligations under international law.

[0:11:39] The second observation, the current EU system of differentiation is in my view not sufficient for member states to comply with those obligations.

[0:11:51] According to the International Court of Justice, as it has already been mentioned, states have a duty to distinguish in their dealings with Israel between its own territory and the occupied Palestinian territory.

[0:12:04] This was also stated by the United Nations General Assembly and the United Nations Security Council.

[0:12:11] However, what the ICJ added in 2024 is that this specific duty to distinguish encompasses two things.

[0:12:20] First, the duty to abstain from entering into economic and trade dealings with Israel settlements.

[0:12:25] Second, the duty to take steps to prevent trade or investment that assist in the maintenance of the illegal situation created by Israel.

[0:12:35] The current EU system of differentiation which is based mainly on labeling requirements and differentiation in terms of tariff rates

[0:12:46] actually authorizes trading goods that directly or indirectly contribute to maintaining the unlawful situation created by Israel.

[0:12:55] One should remember that settlement goods important in the EU necessarily result from the unlawful practices of the occupying power

[0:13:05] Namely, de appropriatie van landen, de transfer van civillen en de appropriatie van natuurlijke ressourcen van de vrouw.

[0:13:14] In fact, het is het gebeurt met israeli's settlements, maar het is ook het gebeurt voor andere situaties van occupation en, even meer breder, voor andere human rights violations related to de production van goods.

[0:13:29] Applying the common EU external tariff to those goods as the EU does with regard to Israeli settlement goods cannot reasonably be considered as a step to abstain from entering into trade dealings or as a step to prevent this trade from happening.

[0:13:44] It is actually quite the opposite. It allows it under specific circumstances.

[0:13:50] To conclude, I want to make two actually very basic yet I believe useful observations.

[0:13:58] The first one relates to enforcement.

[0:14:01] You will always hear people arguing that a ban,

[0:14:04] such as the one which is now envisaged,

[0:14:07] from my understanding, in the Netherlands,

[0:14:10] should not be adopted as it could not be properly enforced

[0:14:13] because some importers will be able too easily to circumvent it.

[0:14:20] First observation on this subject,

[0:14:24] Most enforcement issues concern also the current EU system of differentiations

[0:14:30] and it's already the case that an importer can falsify a document

[0:14:35] in order to avoid indicating the accurate place of origin of its goods.

[0:14:41] Second observation, the simple fact that some actors will manage to circumvent the law

[0:14:45] is not a valid reason not to adopt it.

[0:14:49] Not everyone stops at red light, not everyone pays his taxes.

[0:14:52] However, we did not consider it useless to adopt this mobility of fiscal rules.

[0:14:57] Finally, regarding the potential instrumentalization of legal arguments,

[0:15:02] having worked on this issue for almost a decade now,

[0:15:06] I must say that it seems that, at least in Belgium,

[0:15:10] the main obstacle for adopting a ban,

[0:15:14] which was quite similar to the one which is being discussed today,

[0:15:18] the main obstacles were actually political and not legal,

[0:15:21] en legal arguments were a bit used

[0:15:24] in order to avoid having

[0:15:26] an open political

[0:15:28] discussion. Eminent EU law

[0:15:30] experts, as the ones we

[0:15:32] just heard and we will be hearing,

[0:15:33] and also the Council of State

[0:15:36] in Belgium have confirmed many

[0:15:38] times now that a member of states

[0:15:39] can rely notably on the

[0:15:41] public policy derogation to adopt a trade

[0:15:44] ban on products that contribute

[0:15:45] to illegal occupation, violation

[0:15:47] of human rights, etc.

[0:15:49] It appears to me that in this debate

[0:15:51] EU law. Obstacles are sometimes used as excuses, as I mentioned. Just to cite one example, in 2007

[0:16:01] in Belgium, the federal state adopted a law that prohibited the imports of seal products

[0:16:08] and there was no discussion regarding the EU exclusive trade competence. Why? Because there

[0:16:12] was political will to move forward with a project that seemed aligned with public morality in

[0:16:19] België en de provinsen dat we

[0:16:22] will be discussing were already

[0:16:24] invoked. A couple of years later

[0:16:26] the EU followed Belgium

[0:16:28] and adopted a similar

[0:16:30] trade restriction. The EU

[0:16:32] itself knew that

[0:16:34] there was potential WTO

[0:16:36] legal issues related to this

[0:16:38] regulation. However

[0:16:40] it adopted the

[0:16:42] regulation anyway and it finally

[0:16:44] had to defend it before

[0:16:46] the WTO judiciary.

[0:16:48] Thank you for listening to me.

[0:16:50] Thank you very much.

[0:16:52] Then we continue on the screen.

[0:16:54] We go to Mr Panos Gutrakos, who is a Jean Monnet professor of EU law at the City St. George University of London.

[0:17:02] The floor is yours.

[0:17:05] Thank you very much, Chair.

[0:17:08] Thank you for inviting me to appear before you today.

[0:17:12] I would like to stress that I approach the issues that arise from this discussion strictly as a legal expert.

[0:17:19] I do not offer a view on the underlying political issues that arise in this case.

[0:17:26] And my views may be summarized as follows.

[0:17:30] In relation to trading goods, I have read an English translation of the legal justification for the proposal which accompanies the draft decree.

[0:17:43] I do agree with the view of the government that the Netherlands have the right under EU law to ban trading goods originating in the Occupied Territories.

[0:17:55] In my view, such a ban would be justified under the public policy exception laid down in Article 24, Paragraph 2, subparagraph A of the Input Regulation.

[0:18:07] And I share largely the reasons set out in the proposal for the decree.

[0:18:15] I have nothing further to add about this.

[0:18:18] But of course, I'm more than happy to answer any questions about these legal issues.

[0:18:23] I shall now turn to another related matter.

[0:18:28] I understand there is some debate about whether this ban could be wider in scope

[0:18:34] en cover trading services as well.

[0:18:38] Now, trading services with third countries also falls within the common commercial policy.

[0:18:44] And again, as Professor Vessel explained, the EU has exclusive competence.

[0:18:54] However, in this area, in the area of trading services with third countries,

[0:18:58] we have no general measure which is similar to the import regulation.

[0:19:02] And therefore in relation to services we have no public policy clause similar to that we find in imports regulation which expressly authorises a member state to impose restrictions on trade on grounds of public policy.

[0:19:19] However, the absence of such a public policy clause does not in itself mean that member states may not restrict trade in services with third countries in order to protect public policy.

[0:19:32] And in my view, there are four main reasons for this.

[0:19:36] So first, the fact that we have no public policy laws under EU law is not due to a policy choice which the EU has made.

[0:19:47] It is due to historical reasons and the peculiarities of services which distinguish them from goods.

[0:19:55] Second, under the EU treaties the freedom to provide cross-border services within the EU is subject to public policy exception.

[0:20:06] Trading goods within the EU and trading goods with third countries are also subject to public policy exception.

[0:20:14] And the same applies to the free movement of capital both within the EU and between the EU and third States.

[0:20:24] It would be very odd indeed if under EU law, the powers of member states to restrict trade in services with third countries were significantly more curtailed than their power to restrict trade in goods, capital and intra-EU services.

[0:20:42] Such a conclusion would be problematic. And in my view, it would not be justified by either a systematic or a purposive interpretation of EU law.

[0:20:54] Third, in this case, the primary objective of a ban would not be regulatory.

[0:21:00] It would rather be in order to pursue a foreign policy objective.

[0:21:04] And this makes a difference when we consider its legality under EU law.

[0:21:09] If the common commercial policy were to be interpreted so widely as to encompass any national foreign policy measure that has implications for trade,

[0:21:19] The freedom of member states to conduct effective foreign policy would be curtailed quite substantially.

[0:21:25] There's a fourth reason, too.

[0:21:28] The objective of a services ban would be consistent with the objective of the EU commercial policy.

[0:21:34] Reference has already been made to the objective of consolidating and supporting democracy, human rights,

[0:21:41] the principle of international law, preserving peace, strengthening international security, which we find in the EU treaties.

[0:21:48] And under Article 21, Paragraph 3 of TEU, the conduct of the Common Commercial Policy must also pursue these objectives.

[0:21:56] So where does that take us? In my view, if the Netherlands decided to rely on public policy in order to restrict trading services with third country,

[0:22:10] Where such a restriction expresses the foreign policy choice and pursues foreign policy objectives adopted in order to comply with international law in circumstances such as this.

[0:22:26] And it was proportionate that would be justified under EU law.

[0:22:32] And there is one final point I would like to make.

[0:22:35] There is another possibility for the Netherlands to impose a services ban if they decided that they wish to pursue that.

[0:22:45] And this would be on the basis of an express exception, which we find in a rather obscure provision of the treaties.

[0:22:52] And this is Article 347 of the Treaty on the Functioning of the European Union.

[0:22:58] This is a provision which has been viewed by the Court of Justice as standing apart from all the other exceptional provisions.

[0:23:05] It has been viewed as wholly exceptional because it enables member states to deviate from any EU legislation in any policy field and therefore trade in services with third countries too.

[0:23:18] And it enables member states to do so on three specific grounds of exceptional seriousness.

[0:23:25] We may call them extreme circumstances.

[0:23:28] They include war, serious international tension constituting a threat of war, or, which is the more relevant in our case, in order to carry out obligations that a member state has accepted for the purpose of maintaining peace and international security.

[0:23:45] Now, in my view, if the Netherlands decided to pursue a ban on trading services in the context of a decree similar to this before you,

[0:23:56] that would be justified under Article 247.

[0:24:00] Its objective would be to enable the Netherlands to carry out obligations it has accepted for the purpose of maintaining peace and international security,

[0:24:08] as set out in the advisory opinion of the International Court of Justice.

[0:24:14] en Sacha van Rood also meets the principle of proportionality.

[0:24:19] That's all I have to say.

[0:24:20] I'm at the disposal of the committee members

[0:24:22] to answer any questions which you may have.

[0:24:25] Thank you.

[0:24:25] Thank you so much.

[0:24:26] And then we come to our last guest speaker,

[0:24:29] who is Mr Erwin van Veen,

[0:24:31] programme leader, Middle East,

[0:24:33] and senior research fellow at the Klingendal Institute.

[0:24:37] Mr Van Veen, the floor is yours.

[0:24:40] Well, thank you so much for the opportunity

[0:24:42] to share a couple of thoughts with you

[0:24:45] And for the invitation to begin with.

[0:24:47] I'm not a lawyer, so I will approach this a little bit more from a contextual, political, and implementation perspective, if you don't mind.

[0:24:57] Four quick comments I think are appropriate.

[0:25:00] The first two relate to the urgency of this measure and any subsequent measures in line with the introduction of Professor Wessel.

[0:25:08] The other two have to do more with the scope and the implementation of any restrictions against the Israeli settlement enterprise.

[0:25:17] So the state of occupation in the West Bank is worthy of a quick reflection to begin with, right?

[0:25:23] This occupation enters its 59th year.

[0:25:27] It is the consequence of a policy that was commenced, initiated by the Israeli government shortly after the Six-Day War in 1967.

[0:25:36] en heeft gezegd onder alle israeli regeringen sinds het is de level van intensiteit het is

[0:25:43] verrijd across time right en er is much dat's been written about dit is nothing new

[0:25:48] maar het is worth realising i think er is een long trajectory

[0:25:51] of both settlement en condemnation of settlement by de international community

[0:25:56] including by countless resolutions by de general assembly

[0:26:01] The Security Council and several advisory opinions of the International Court of Justice.

[0:26:08] So the result of this sort of dialectic between settlement enterprise and condemnation of settlement enterprise is that we have today about 140 settlements in the West Bank, around 160 outposts.

[0:26:22] The difference being that outposts tend to be illegal even under Israeli law, not to mention international law.

[0:26:29] en over een quarter million israeli settlers in east jerusalem

[0:26:33] which is another part of the occupied palestinian territories

[0:26:38] so what makes the west bank interesting apart from a number of other factors

[0:26:43] is that it really clarifies the intentions of the israeli government

[0:26:47] it puts the situation into the highest level of contrast that is possible

[0:26:52] and this is because you know in gaza israel the israeli government

[0:26:56] ...tends to refer to Hamas as a threat to its own security.

[0:27:01] In Lebanon, it does the same with Hezbollah.

[0:27:03] In the West Bank, there is no such threat.

[0:27:06] In fact, what we have in the West Bank, since Mahmoud Abbas came to power after Yassir Arafat,

[0:27:12] is quite loyal security cooperation with the Israelis...

[0:27:16] ...by the dozen-plus Palestinian security services that have in part been trained by the U.S.

[0:27:22] and to a very minor level, the European Union.

[0:27:25] So their job has basically been to help or to assist in the security of Israel

[0:27:30] Which they have done even to the satisfaction of the Israeli security establishment

[0:27:35] Nevertheless, what we see today is an increased pace of annexation

[0:27:40] Under either conditions of apartheid or forced displacement

[0:27:44] And this is not something that I've invented

[0:27:46] This is basically written down in the coalition agreement of the current Israeli government

[0:27:50] en somebody like Bezalel Schmotrich

[0:27:53] has actually written this up in a public

[0:27:55] essay as far back as

[0:27:57] 2017 when he was not yet

[0:27:59] in power. So all of this I think

[0:28:01] points to the urgency of the

[0:28:03] implementation of the advisory

[0:28:05] opinion of the International Court of Justice

[0:28:07] of 2024

[0:28:08] plus the entire slew of

[0:28:11] resolutions and other advisory

[0:28:13] opinions, notably that of

[0:28:15] 2004 that preceded it.

[0:28:18] Now a third point I think

[0:28:20] relevant to our discussion here is that Israeli settlements are an extension of the Israeli

[0:28:25] government in the sense that they are the product of clear and targeted policies that have to do

[0:28:31] with things like road construction, land acquisition, subsidies for building these

[0:28:37] settlements, cheap mortgages, protection, violence against Palestinians in order to free up the land

[0:28:45] and to create space for these settlements and so on and so forth. So it is not an accident

[0:28:50] that these settlements are there,

[0:28:51] it is also not the consequence

[0:28:53] of the actions of just these settlers.

[0:28:56] So that basically means that,

[0:28:58] you know, to sort of act on the findings

[0:29:02] of the advisory opinion

[0:29:04] of the International Court of Justice

[0:29:05] cannot be limited to just a prohibition

[0:29:09] on the import and export of goods from settlements.

[0:29:12] It cannot even be limited to the import

[0:29:15] or export prohibition of goods, services and investment.

[0:29:18] If you read this ruling correctly, I think it would have to involve also the cessation of any cooperation with or support for relevant parts of the Israeli government that are critical to sustaining the settlement enterprise.

[0:29:34] So this would include probably, for example, the Israeli Ministry of Defense.

[0:29:39] It would also include commercial entities like Banka Boalim, you know, that provides cheap mortgages to settlers and a number of other businesses.

[0:29:49] So in that sense, it's quite correct to see, you know, the measure that has been proposed by the government as a first step on a much longer trajectory that will be necessary to make sure that the Netherlands is in compliance with its international obligations.

[0:30:05] And it will be a long trajectory.

[0:30:07] And the urgency, nevertheless, is very high given the circumstances in the West Bank.

[0:30:12] And we can see what kind of human rights violations occur on a daily basis.

[0:30:17] Then my final point has to do more with implementation and enforcement of any such measures.

[0:30:24] I think the first, probably most crucial issue is the fact that the definition of goods will need to be inclusive.

[0:30:33] In other words, also goods that have only benefited from inputs from the settlements in one or two stages of the production, like labor, capital, intellect, raw materials and so on.

[0:30:46] but who have been finally put together in Israel

[0:30:49] within the boundaries of 1967

[0:30:52] will need to be included in this prohibition

[0:30:56] on goods for it to be effective and meaningful

[0:31:00] because the definition of the international court

[0:31:02] has been that the signatories

[0:31:04] will need to refrain from anything

[0:31:07] basically that allows Israel to continue

[0:31:09] its unlawful practice of occupation

[0:31:12] the second point I think is that already

[0:31:15] with the current labeling requirements there has been a lot of fraud and circumvention so in other

[0:31:21] words it will be important and next to the general measure that there is adequate prioritization

[0:31:28] of checks on relevant imports and that there is adequate capacity in the customs department to

[0:31:35] actually make sure that this measure means anything right and this has often been a

[0:31:40] problem throughout the EU, not limited to the Netherlands in the past

[0:31:44] with respect to prevailing requirements, in particular

[0:31:48] those related to labelling. So these are the

[0:31:52] points I wanted to make here for your consideration and thank you so much

[0:31:56] for the time and attention. Thank you very much. Thank you

[0:32:00] to all our four guest speakers. My apologies.

[0:32:04] Then we turn to the side of the Members of Parliament.

[0:32:08] Zullen we first start with one question?

[0:32:14] Mrs Dobbe?

[0:32:16] Ja, please.

[0:32:17] Thank you, Chair, and all thank you for all the speakers for your introduction

[0:32:20] and also your position papers.

[0:32:22] It was very helpful and very clear.

[0:32:25] Also our obligations under international law

[0:32:28] and that we have a justification to implement a trade ban.

[0:32:33] I have a question for Mr Koutrakos.

[0:32:36] Ik hoop dat ik je namelijk benieuwd heb, want je ook een ban van de servicies.

[0:32:42] Dus niet alleen een ban van de goods, maar ook een ban van de servicies.

[0:32:45] Ik was gewoon wonderen, als we naar EU-lijf en we willen implementeren een ban van de goods en de servicies,

[0:32:54] zou dat een similar legal trajectorie zijn?

[0:32:58] Of zou het een andere trajectories zijn die ook een andere tijdsbrames om te implementeren?

[0:33:05] I was just wondering if you could say something about that

[0:33:08] or if we could do it simultaneously.

[0:33:10] Yeah, I'll first collect two more questions

[0:33:12] and then we turn to our guests.

[0:33:14] Ms. van der Werf.

[0:33:16] Yes, thank you, Chair.

[0:33:18] I also have a question for Mr. Kutrakos.

[0:33:22] Spain and Slovenia have taken national trade-off on goods

[0:33:27] under national legislation

[0:33:30] and Ireland has concept measures in the making

[0:33:33] Which lessons can the Netherlands learn from both Ireland and Spain in attaining these national sanctions?

[0:33:42] Thank you. And then the final question, Mrs Maas.

[0:33:45] Thanks a lot, everyone, for your very interesting introductions.

[0:33:51] I have a question for Mr. Wessel.

[0:33:54] From what I understand, it's not going to be easy to implement the legislation that we have now in a draft.

[0:34:03] Do you think it is easier and maybe wiser to do it within the EU?

[0:34:11] Thank you very much.

[0:34:12] Then I first go to Mr. Kutrakos to answer the two questions.

[0:34:22] Sure.

[0:34:23] I'll take the first question first.

[0:34:29] There is an inherent difference between goods and services.

[0:34:35] And it is easier to monitor the movement of goods.

[0:34:40] Whereas services, there is something intangible, and it makes it more difficult to control them.

[0:34:51] And this is why the European Union has, one of the reasons rather,

[0:34:57] the European Union has been rather slow in including fully services within the common commercial policy

[0:35:02] and therefore governed by exclusivity.

[0:35:06] so the kind of restrictions we have

[0:35:09] they are sort of more regulatory in nature

[0:35:12] and invisible

[0:35:14] and therefore they may be a bit more pervasive

[0:35:17] so in terms of drafting

[0:35:23] there is nothing to prevent

[0:35:27] the Netherlands from having a decree

[0:35:31] ...which would apply both to trades and services.

[0:35:35] It's just that there would be different kinds of regulatory challenges in ensuring its implementation.

[0:35:41] My understanding, though, I may be wrong about this, but my understanding, though, from another country, Ireland,

[0:35:50] is that the movement of services, there's not really that much.

[0:35:58] So I don't know concretely how much difference this kind of different challenge would make.

[0:36:07] In terms of the second question, it's interesting that I am more familiar with the Irish experience.

[0:36:20] And their concerns was similar to the concerns you were faced with in terms of legality with EU law.

[0:36:29] Can public policy be construed broadly enough to cover this kind of action?

[0:36:38] And in the area of services, it's exactly the same question.

[0:36:44] given that we do not have a clause

[0:36:46] similar to the public policy exception

[0:36:48] we have in the inputs regulation

[0:36:49] how far can we go

[0:36:52] so in some ways

[0:36:57] you're in good company

[0:37:02] thank you

[0:37:02] and the second question

[0:37:04] yeah the second question

[0:37:15] yeah thank you on that

[0:37:17] question on whether or not

[0:37:19] it would be difficult to implement

[0:37:21] this new decree

[0:37:23] I would say it's not difficult to implement.

[0:37:26] It can be implemented after Parliament agrees with it

[0:37:30] and the Council of State gives its positive advice on it.

[0:37:33] The problem lies in, indeed, this point.

[0:37:36] Is there a sufficient legal basis?

[0:37:39] And I think my argument was and is,

[0:37:43] and I think all of us would agree on that, is actually yes.

[0:37:46] And then your question could be,

[0:37:48] are we using a trick in European Union law to make this work

[0:37:52] by finding this specific provision in the import regulation

[0:37:56] and using the public policy exception for this particular issue?

[0:38:03] And then my answer would be no, this is not a trick.

[0:38:06] The Netherlands has to live up to its international law obligations

[0:38:10] and those are very, very clear.

[0:38:12] And anything we can do, we need to do to make that work.

[0:38:17] And luckily, in a way, European Union law offers a possibility

[0:38:22] to allow us to live up to those international law obligations.

[0:38:26] Thank you very much.

[0:38:27] Then we continue.

[0:38:28] Mrs. Stoenissen.

[0:38:29] Thank you, Chair.

[0:38:31] Thank you.

[0:38:32] My question is for Sir Wessel.

[0:38:35] You talked a lot about the tension between international law

[0:38:40] and the national obligation that we have as the Netherlands

[0:38:42] to do something, to do what is possible,

[0:38:45] and the EU rules.

[0:38:48] And my question is about the investments,

[0:38:52] So not only the goods, but the investments, because the Netherlands is a very big investor in Israel.

[0:38:58] And if we don't do anything about these investments, is that according to the advice of the International Court of Justice?

[0:39:08] Is that still in line with it?

[0:39:10] Or can we actually do more and also take actions against these investments on a national level?

[0:39:19] Just to clarify, you mean investments to Israel

[0:39:22] or you mean investments into Israeli-occupied territories?

[0:39:26] Yeah, it's about, because the difference between both areas

[0:39:31] is not always very clear,

[0:39:32] so that is why my question is about the whole of Israel.

[0:39:36] Okay, then a question of Mr. Seder.

[0:39:39] Thanks so much for the contributions.

[0:39:42] I have a question of the scope of the Dutch government's position

[0:39:47] when it comes to the letter.

[0:39:48] I think, Mr. Hennen, I think you mentioned that you read the letter.

[0:39:52] Is that correct?

[0:39:53] So I think I should address the question to you.

[0:39:56] Because is it correct to conclude that the Dutch government,

[0:40:00] by linking its positions concerning sanctions to the advisory opinion

[0:40:04] of the International Court in 2024,

[0:40:11] that the Dutch government practically takes the view

[0:40:14] that the national West Bank trading sanctions could only be lifted

[0:40:18] if the criteria in that position were met,

[0:40:21] which would mean the evacuation of all Jewish population

[0:40:26] on the West Bank and the eastern part of Jerusalem

[0:40:28] before lifting the sanctions after the three-year term

[0:40:31] as mentioned in the letter.

[0:40:33] Is that correct, that by linking it towards that advice,

[0:40:39] that that's a Dutch official standpoint

[0:40:42] and the sanctions could not be lifted by any other means,

[0:40:46] other, of course, than geopolitical reasons,

[0:40:48] but I'm talking from a legal perspective.

[0:40:51] Is that de facto criteria by lifting the sanctions sooner

[0:40:56] or after the three years mentioned?

[0:40:58] Thank you.

[0:40:59] And then I would have a question to Mr. Kutrakos.

[0:41:03] When it comes to, we are kind of stuck between,

[0:41:08] on the one hand, European law, international law,

[0:41:11] national obligations.

[0:41:13] And I wondered, because I think for those of us in this parliament

[0:41:17] die zouden willen zien deze banen gebeuren,

[0:41:19] we zouden, of course, preferen te hebben de Europese banen.

[0:41:22] Let dat be clear.

[0:41:23] Als er geen manier dat de Europese Unieën

[0:41:26] zouden kunnen worden gegeven om de banen,

[0:41:30] als er geen politische will,

[0:41:31] als er een court die zouden kunnen zeggen

[0:41:33] met zulke violeren,

[0:41:35] als dat zou kunnen zijn.

[0:41:36] En om te bevinden,

[0:41:37] we zijn geen politische of niet te maken

[0:41:42] dat je niet wilt te maken.

[0:41:44] Het is op je hoe je antwoordt.

[0:41:45] any question then I first go to mr vessel yes thank you madam chair this

[0:41:52] question was on investments and and and you I think you're right in in if it

[0:41:58] would be your conclusion to saying that the advisory opinion of the International

[0:42:01] Court of Justice also talks about this so this as many of us have said is it

[0:42:06] should just be the beginning it's just one minor element in a whole list of

[0:42:10] ...of obligations, for both the European Union and the member states.

[0:42:16] And reconsidering investments, at least, is one of those issues.

[0:42:21] And can we do that, is your question.

[0:42:24] And the answer would be yes, to a certain extent, at least.

[0:42:27] Because part of the investment policy also falls under the exclusive competence of the European Union.

[0:42:33] But part of it is still in the hands of member states.

[0:42:36] It would require the same legal creativity as we have seen now to make this work.

[0:42:45] But definitely the same argument would count here.

[0:42:47] There is an international obligation to reconsider and then take conclusions on that basis.

[0:42:54] Thank you. Ms. Thijne.

[0:42:56] Yes. I will maybe add something to the question that was asked to Mr. Wessel.

[0:43:03] And I will then provide an answer.

[0:43:05] ZANG EN MUZIEK

[0:43:35] Grounds based on mainly TFEU article 65 to adopt such a restriction based on the public policy derogation has the provisions regarding capital movement in EU treaties concern both inward investment so in capital movement within the union as well as outward investment.

[0:44:00] So the derogation that is already in the treaty, namely TFU Article 65, could be used as a basis for a public policy motivated restrictions regarding investment.

[0:44:15] I would like to add that reference can be made to the provision that Professor Koutrakos mentioned,

[0:44:21] Namely, TFU article 347

[0:44:25] That could provide for an additional second legal basis

[0:44:29] For such investment related restriction

[0:44:33] I will not go to further details

[0:44:35] As they have already been mentioned

[0:44:38] I would like maybe just to add one last legal element

[0:44:42] On this matter

[0:44:44] Is that we should not also forget

[0:44:47] But maybe my colleague will not completely agree

[0:44:51] To some point we should not forget that it is completely true that the EU has an exclusive competence when it comes to external trade.

[0:44:59] That cannot be discarded.

[0:45:01] However, the member states still have competence when it comes to foreign policy, including when it comes to adopting sanctions.

[0:45:10] When sanctions fall within the scope of the common commercial policy, then there is this question of exclusivity that arises.

[0:45:21] Maar het zou ook kunnen zijn dat sommige sanctions, die heel erg bezocht zijn, die heel limited zijn,

[0:45:26] zouden niet zullen in de

[0:45:32] externe

[0:45:34] politie, die is exclusief, maar dat kan nog steeds worden bezocht.

[0:45:39] Regarding de question die was directed to me,

[0:45:44] ik ben niet heel comfortabel met de termologie die was gebruikt.

[0:45:47] de fact that Jews

[0:45:50] would need to be

[0:45:52] would need to leave

[0:45:53] but anyway

[0:45:56] I'm not

[0:45:57] an international law expert

[0:46:00] so it will be complicated

[0:46:01] for me to provide you

[0:46:03] with a clear answer

[0:46:05] the ICJ

[0:46:07] advisory opinion

[0:46:09] has been mentioned

[0:46:11] does not create binding obligations

[0:46:14] it's only the recognition

[0:46:16] it carries

[0:46:17] is legal way but it but the legal obligations arise from the UN Charter

[0:46:24] international humanitarian law etc so I think that there are there are multiple

[0:46:32] actions that could be adopted but I I'm not in a position to say that this

[0:46:39] specific ban would have to be maintained until Israeli settlement have been

[0:46:47] ...displaced, maar het is niet een negatieve antwoord, het is gewoon niet een antwoord.

[0:46:52] Ik ben niet in een positie om te antwoord te antwoord. Het is niet mijn beeld van expertise.

[0:46:59] Ja, dat is het. Dank u.

[0:47:00] Dank u. Dan gaan we naar Mr. Kutrakos. Ik kom terug naar u.

[0:47:03] Mr. Kutrakos.

[0:47:07] Dank u, Madam Chair. In de antwoord van uw vraag,

[0:47:12] De EU is bound by Customer International Law and the ICJ Opinion found that there has been a violation of Customer International Law.

[0:47:22] But the thing is that quite how the European Union complies with its Customer International Law obligations is an area where it enjoys discretion.

[0:47:35] So it is for the Union to decide how to do this.

[0:47:39] If anything, there is a link between how far member states can go in order to protect public policy

[0:47:48] and what the union does in areas in the same field put differently.

[0:47:55] The fact that the European Union has not acted so far in the way that the Netherlands would consider necessary

[0:48:05] strengthens the argument that the Netherlands

[0:48:08] would have the right to rely upon the public policy

[0:48:12] exception in order to protect an interest, its compliance with international

[0:48:16] law, which it may not protect otherwise by

[0:48:20] letting the European Union act in this area. I've also

[0:48:24] realised that my answer to the question that was asked by the

[0:48:28] first member was not entirely complete and I have something to add. Would you like me

[0:48:32] Please do, please do, yes.

[0:48:35] Okay, so the question was whether there were any lessons to be learned by the experience of other countries,

[0:48:41] which I've either considered or adopted similar bans.

[0:48:46] And I do remember that in the case of Ireland, part of the debate was whether that there is not that much case-loan public policy

[0:48:57] in the area of imports, the imports regulation.

[0:49:00] And therefore, was there not a considerable risk by Ireland imposing a ban?

[0:49:06] And if that was the case, then would that not mean that then they would be fined?

[0:49:12] In other words, they would be fined by the court to have got things wrong.

[0:49:17] And that would have implications for the Exchequer,

[0:49:19] because they would be fined by the European Union.

[0:49:24] And my view on this is that this is not the case.

[0:49:29] for a member state to be fined for a violation of EU law would involve a process whereby

[0:49:37] the Commission would initiate an enforcement action under Article 258 of the Treaty on the

[0:49:43] Functioning of the European Union. The Commission enjoys discretion as to whether to bring such an

[0:49:48] action and even if the Court of Justice held that actually a state may not ban inputs in order to

[0:49:57] public policy in such circumstances, the state would not have to pay. They would be under an

[0:50:02] obligation to remedy the violation. It would only be if then the Commission brought a second action

[0:50:10] before the Court of Justice, arguing that the state had failed to comply with the international,

[0:50:16] with European law, that the court might decide to impose financial sanctions.

[0:50:22] Another way in which the state might literally have to pay for having got things wrong would be if an individual, say an importer, challenged the ban before domestic courts.

[0:50:36] And they would argue that this ban was in violation of EU law and they suffered financial loss.

[0:50:44] And therefore, the state, Ireland, the Netherlands, would literally have to pay compensation.

[0:50:53] But under the case law of the Court of Justice, states, even if were to be found that a state violated EU law,

[0:51:03] the state would be liable in damages only if a number of conditions were met,

[0:51:07] one of which is the existence of a sufficiently serious violation of the EU law.

[0:51:12] And in this case, a state would be found to violate the EU law in a sufficiently serious manner if they exceeded their discretion manifestly and gravely.

[0:51:27] This is a high threshold. I think it is arguable that, at the very least, that even if a state were found by the Court of Justice not to have the power to impose a unilateral ban, that in these circumstances, that violation would not be sufficiently serious to give rise to a right of compensation.

[0:51:53] Thank you very much.

[0:51:54] I hope I do not confuse you any further. Thank you.

[0:51:58] I'll leave that up to the members to judge, professor.

[0:52:02] Thank you.

[0:52:03] I also want to give the opportunity to Mr. van Veyn in case he has something to add.

[0:52:08] Although not a single question was addressed to him specifically.

[0:52:13] But if you have something to add, Mr. van Veyn.

[0:52:17] Yeah, that's very thoughtful of you.

[0:52:18] Maybe just one thought, since we were just talking about liability on the part of the State in case a wrongful act or in this case a wrongful measure is adopted.

[0:52:29] The flip side of that coin, I think, is the liability for businesses that is increasing,

[0:52:36] which is not the subject of this debate, obviously,

[0:52:38] but nevertheless an interesting point to take into account

[0:52:41] because under different jurisdictions and different international regulatory arrangements,

[0:52:49] many businesses have due diligence requirements for their activities

[0:52:53] to prevent violations of human rights, for example.

[0:52:56] Now, these violations have been very well documented in the case of the West Bank and other places that are subject to Israel's occupation.

[0:53:06] But what might be different this time around is that the International Court of Judgment's advisory opinion of 2024 really made it impossible to go around this observation.

[0:53:18] This is a court, not UN OCHA or another reputable body that does not, however, have a sort of legal professional competence.

[0:53:28] So in that sense, I think it is also incumbent on many businesses to check whether their due diligence requirements process is actually taking into account the mounting level of human rights violations in the West Bank.

[0:53:43] since that could in fact expose them to claims later on further down the line

[0:53:49] for example in the civilian realm

[0:53:52] at least that is my understanding

[0:53:53] if those around others around the expert table see that differently

[0:53:58] it would be great to hear so

[0:54:00] but it's the flip side of the same coin in a sense

[0:54:04] that's useful to consider, thank you

[0:54:06] Thank you very much

[0:54:08] then we go to round number two

[0:54:10] to give the opportunity to all the members I know Mr Seid

[0:54:13] Maar ik wil ook alle andere members de mogelijkheid vragen om een vraag te vragen.

[0:54:18] Ik denk dat je nu een point of order bent, meneer Seder.

[0:54:21] Ja, ik zal het doen.

[0:54:22] Of else ik zal het vragen om de vraag te vragen.

[0:54:24] Want het was niet answered.

[0:54:26] No, ik denk dat het was heel clearly, zoals ik zei, dit is niet een politische debate.

[0:54:31] No, het is niet.

[0:54:32] Ik denk dat je een specifiek request in de Dutch legislatie met een referentje daar.

[0:54:38] I didn't see any of our guest speakers who said we have the competence to answer that question.

[0:54:46] So I think when we have a roundtable with those who drafted the legislation,

[0:54:50] I think your question can be addressed there.

[0:54:53] That's a wrong conclusion of my statement.

[0:54:56] Can I double check if there's anybody here that can answer the question?

[0:54:59] No, no, Mr. Seda, I'm very sorry.

[0:55:01] I will make sure that every member has, again, the opportunity to ask a question.

[0:55:07] en dan we terugkomen naar u en dan u kan even een tweede vraag

[0:55:11] of niemand kan vragen uw eerste vraag.

[0:55:14] Meneer Dobbe.

[0:55:17] We were talking about the legal risks of imposing this ban,

[0:55:22] for example, related to EU legislation.

[0:55:26] But, Mr Van Veen, I think you made an interesting point

[0:55:29] to see the flip side of that argument

[0:55:32] related to businesses that do not comply

[0:55:35] with due diligence

[0:55:37] and actually are at a risk

[0:55:39] of being liable

[0:55:40] to not confirm

[0:55:42] not following

[0:55:46] international law

[0:55:46] but in your position paper you also said

[0:55:49] that it's the Dutch state

[0:55:51] that is at risk if we do not

[0:55:53] impose something

[0:55:55] like a trade ban

[0:55:58] you said it in your last

[0:55:59] in the last piece of your

[0:56:01] of your position paper

[0:56:04] Can you explain a little bit more about that?

[0:56:06] What is the risk if we do not do this or if we take too much time to implement it?

[0:56:11] Mrs. van der Werf.

[0:56:15] Yes, I would like to ask a question to Mr. Wessel.

[0:56:19] Instead of seeing EU law only as a barrier,

[0:56:24] how can we use the strongest legal openings in the EU law for the Netherlands

[0:56:31] ...to introduce national sanctions...

[0:56:35] ...against trade with illegal settlements.

[0:56:38] Thank you. Mrs Maas.

[0:56:40] Thanks. I have a follow-up question for Mr Hennet.

[0:56:45] And Mr Van Veen may also be able to answer it.

[0:56:48] Because you both mentioned the enforcement of the new legislation...

[0:56:53] ...if it comes into force.

[0:56:58] My question would be, how do you, from the perspective of Mr. van Veyn,

[0:57:02] look at the Dutch situation, because you know the Dutch situation a little bit,

[0:57:06] but also Mr. Hennet mentioned enforcement, and that might be a difficulty also in practice.

[0:57:12] But maybe you can share a little bit on what you know from other countries,

[0:57:16] and also your perspective on how you think it can be enforced,

[0:57:20] en wanneer het is easy, difficult to enforce

[0:57:25] en wat we can do from our perspective in the government

[0:57:29] to make sure that it's enforced in the right way, in the best way.

[0:57:35] Thank you very much.

[0:57:36] Then I first turn to Mr. van Veen.

[0:57:43] Yes, thank you.

[0:57:44] Well, I mean, if you agree,

[0:57:48] the first question I think is better answered by Professor Wessel,

[0:57:52] in fact, because that last two sentences

[0:57:54] in the paper that I sent

[0:57:56] you, the support

[0:57:58] was basically based on a hyperlink

[0:58:00] to the study that Professor Russell

[0:58:02] and a colleague of his had done before

[0:58:04] and I can speak to it, of course

[0:58:06] I've read this piece extensively, but maybe

[0:58:08] we better hear it from the horse's mouth

[0:58:10] because that at the end

[0:58:12] talks about liability issues

[0:58:15] so maybe

[0:58:16] we can check whether that's okay, if not

[0:58:18] I'm happy to elaborate, of course

[0:58:19] On the second point

[0:58:21] of Ms. Maas, well

[0:58:24] Well, I mean, I think we can learn a little bit from the practice or the current regulation, which basically states that Israeli products from the Israeli settlements have to be labeled as such, right?

[0:58:36] So it needs to be clear to the buyer that the product is actually produced in or by an Israeli settlement.

[0:58:43] And these labeling requirements are violated at a fairly large scale based on anecdotic evidence across different EU countries.

[0:58:54] It's just like, you know, the reference will be obscure, the reference will be incorrect.

[0:58:59] You know, the product will say it's from Israel instead of from the occupied West Bank.

[0:59:04] So that problem is likely to replicate, of course, you know, when an import restriction is extended to all goods from Israeli settlements.

[0:59:15] And then there is the additional problem of goods that are not, of which the final production phase doesn't take place in the settlements,

[0:59:22] but in Israel within the 1967 boundaries,

[0:59:26] but has enjoyed inputs from the settlements

[0:59:29] or from one of the settlements.

[0:59:32] So all of that together gives rise, I think,

[0:59:34] to several pointers for an adequate implementation

[0:59:37] so that this measure, if it passes, actually means something.

[0:59:42] One is, of course, on the basis of

[0:59:44] what is implementation going to be enforced.

[0:59:48] And the common practice seems to be

[0:59:50] looking askance at Spain and Slovenia.

[0:59:53] is to use the postal codes of Israeli settlements as sort of the basic starting point, right?

[0:59:59] Which would, of course, have to be updated with outposts and would be subject to regular revision,

[1:00:05] because especially under the current Israeli government, there's a lot of settlement constructions.

[1:00:10] New settlements are called into being, outposts are legalized to then become official settlements and so on and so forth.

[1:00:17] So that's one step that there would need to be capacity to keep that list up to date,

[1:00:21] as it will change fairly quickly the second i think is to make sure that contracts for the

[1:00:27] import of israeli goods are very clear on the fact that goods that are only partially produced in

[1:00:34] settlements or have benefited from an input from from a settlement substantial input to

[1:00:39] be defined what that means also follow the import restrictions because otherwise you just have a

[1:00:46] You know, backdoor open the size of a farm door.

[1:00:50] The third thing, I think, will be that there is adequate priority and adequate capacity in the customs, the relevant bits of the customs department, I guess, especially in Rotterdam and Schiphol to, you know, actually supervise the correct implementation.

[1:01:06] So these are, I think, the key issues to take into consideration with regard to implementation of this measure.

[1:01:12] Dank u wel.

[1:01:43] En dat is obvious.

[1:01:44] Our report, by the way, was basically about the obligations of the European Union as such,

[1:01:48] because that is where we were talking about, what we're talking about.

[1:01:52] But obviously the advisory opinion of the courts, of the International Court of Justice,

[1:01:56] was also very much about states.

[1:01:58] So in any case, in international law, once you violate a rule,

[1:02:04] you are responsible of repairing that situation and getting it back.

[1:02:10] In theory, so the problem always is, who is going to sue you, right?

[1:02:15] So you would need to have another member state, at least, to try and sue us before, for instance, the international courts.

[1:02:23] No, that is very likely not going to happen.

[1:02:26] The other possibility would be to have somebody at the national level sue the Netherlands as such before a national court, an NGO, or whatever.

[1:02:34] Er is mogelijk, want we're talking about some of the most serious crimes and the International

[1:02:42] Court of Justice has even hinted in the direction of genocide.

[1:02:46] So we're talking about the most serious crimes and then there would be possibilities also

[1:02:51] for everyone because those crimes can be brought to court by many more than just the parties

[1:02:59] to that situation.

[1:03:00] So those are the two possibilities there.

[1:03:02] But in practice, I don't see it happen too fast.

[1:03:06] On the question of Mrs van der Werf on EU law

[1:03:11] not being a barrier or an obstacle actually to doodling,

[1:03:15] I very much like that question

[1:03:16] because you could argue that if you look at what the European Union stands for,

[1:03:21] what it was created for,

[1:03:23] if you look at the objectives of contributing to a world order that would work,

[1:03:28] peace, security, human rights, rule of law,

[1:03:31] Everything is in the EU Treaty.

[1:03:34] There's even obligations for the European Union to promote all those values that we have internally.

[1:03:40] So the argument could also be, if the European Union is not living up to its own obligations

[1:03:45] and the promotion of its own values, because of the fact that they are not in agreement on this,

[1:03:52] there are ways, there are reasons to look in European law to find ways to help the European Union reach its own objectives.

[1:03:59] En dat is de point I was trying

[1:04:01] to make. For instance, the

[1:04:03] further development and the strict observance

[1:04:05] of international law is one of

[1:04:07] the things that the European Union has to do.

[1:04:09] The Netherlands could help.

[1:04:11] Member States could help

[1:04:12] the European Union in reaching that goal and living up

[1:04:15] to its international obligations, at least

[1:04:16] temporary. Thank you very much.

[1:04:19] Mr. Heller. Yes.

[1:04:22] Regarding enforcement...

[1:04:23] The microphone, please. Sorry.

[1:04:26] Sorry. Regarding

[1:04:27] enforcement,

[1:04:29] In mijn vijf, de probleem van de regering is erg appropriat in de sens dat het maakt deze link tussen de prohalte goods en hun origen.

[1:04:48] So the scope is, the scope of application is related to the geographical delimitation of where do the goods come from.

[1:05:02] So that is very different from what was envisaged in Belgium two years ago.

[1:05:10] In Belgium, the law proposal was general. It was not directly related to the Israeli occupation case.

[1:05:18] So the law was general, and there were two criteria that had to be fulfilled in order for good to be prohibited.

[1:05:29] The good had to be resulting from violation of international humanitarian law or human rights law,

[1:05:37] and it had to come from occupied territories.

[1:05:41] And then, and it was a law proposal, that was the first step,

[1:05:44] en de tweede step was dat de government

[1:05:46] would have to adopt implementing measures

[1:05:50] en for the Israeli case

[1:05:52] it was already envisioned

[1:05:53] that the criteria would be

[1:05:56] basically the postal codes

[1:05:59] that are already being used

[1:06:00] for the labeling process

[1:06:02] so I think

[1:06:04] there is no way around

[1:06:07] using the postal codes

[1:06:09] but

[1:06:11] in my view

[1:06:14] When you use the postal codes and they are, as Edwin van Veyn mentioned,

[1:06:23] there are mass circumventions of this mechanism,

[1:06:29] you rely on the producers and you rely on his honesty, etc.

[1:06:35] And there is, unless I'm mistaken, nothing in the government proposal

[1:06:41] dat imposes obligations

[1:06:44] voor importers, except for

[1:06:46] de declaration at the custom, but you could

[1:06:48] have, for instance, a due diligence

[1:06:50] declaration from

[1:06:52] the importers or the

[1:06:54] persons reselling the goods within

[1:06:56] the Netherlands. They could have

[1:06:58] to declare that

[1:07:00] the goods they are importing

[1:07:02] are not

[1:07:04] resulting from

[1:07:05] violation of international law

[1:07:08] within Israeli settlements.

[1:07:10] en inspiration can be taken from the EU forced labor regulation or the EU deforestation regulation.

[1:07:24] But you have to realize that all those regulations, so they are first adopted, they are quite long and technical

[1:07:33] and then you always have very long guidelines from the Commission on how to implement it.

[1:07:38] So it's definitely a first step in terms of scope.

[1:07:41] We already discussed that.

[1:07:43] I think it's already a first step also in terms of enforcement.

[1:07:47] And the Netherlands will have to see how it is actually implemented in order to make some adaptation.

[1:07:56] And I think one way to adapt would be to also add obligations on the importers or the person reselling the goods.

[1:08:05] In addition to the declaration at the custom.

[1:08:36] Dank u wel.

[1:08:38] Is it a different legal road to take?

[1:08:41] Thank you.

[1:08:41] And then I want to give Mr. Seder the opportunity first to repeat his first question and add a second one.

[1:08:48] That's very generous of you, Chairwoman.

[1:08:52] I'll try to rephrase the question.

[1:08:55] And I hope somebody can answer.

[1:08:57] I'm afraid to point someone out.

[1:08:59] Maybe Mr. Petros from his EU law background can answer the question.

[1:09:04] The ICJ 2024 called concerning the legal consequences of the policies of Israel

[1:09:11] that one of the conclusions would be, and I quote, this is in the document,

[1:09:17] the State of Israel is under the obligation to cease immediately all new settlement activities

[1:09:22] and to evacuate all settlers from the occupied Palestinian territories.

[1:09:28] My question is if the EU or a national country would impose these sanctions

[1:09:33] because they are following the advisory

[1:09:35] opinion, would that mean that the

[1:09:37] legal ground for sanctions

[1:09:39] would maintain

[1:09:41] until this

[1:09:42] objective, one

[1:09:45] cease new activities, but the second

[1:09:47] point, evacuate all settlers

[1:09:49] which are about, I presume

[1:09:51] several hundred, fifty thousand in the Golan Heights

[1:09:53] the West Bank and the

[1:09:55] eastern part of Jerusalem

[1:09:58] would that sustain

[1:09:59] that ground for sanctions, which would mean

[1:10:01] dat er een perpetuaal repetitie van de sanktion tot dat doel is met.

[1:10:07] Dat is mijn vraag van een legal stand.

[1:10:09] Is dat wat de adviesering van de opinie betekent?

[1:10:18] Als er geen geopolitische intervieren?

[1:10:20] Maar ik denk dat je dat al eerder.

[1:10:22] De vraag is voor de ting bij Sapanos.

[1:10:27] Ik ga het kijken.

[1:10:29] En dan je tweede vraag.

[1:10:30] Can I have, I might have a follow-up, so can I have the question answered first?

[1:10:35] You always want to shift the rules, so.

[1:10:38] I'm just trying to be informed the best I can.

[1:10:40] Okay, okay, we'll do it like that.

[1:10:42] Then first I go to Mr. Vessel.

[1:10:47] Yes, again on investment.

[1:10:49] And I'm not an investment law expert, so I also hope that my colleague Panos Kortrakos

[1:10:55] could say a few words on that.

[1:10:57] in particular using the possibility of using the public policy exception also in that area

[1:11:02] as he indicated there are reasons at least also to use it for services so the question for me to

[1:11:08] him would be how far can we extend that so i i hope that you get your question there

[1:11:13] your answer there sorry thank you very much and then i go to mr kutrakos right um the first

[1:11:25] First question, I mean, as I said earlier, the European Union has discretion as to how

[1:11:34] to comply with its international obligations.

[1:11:37] Now if it decided to enjoy, to exercise its discretion by imposing some kind of sanctions

[1:11:46] on then how these sanctions would be drafted, how, what would be the criterion for lift

[1:11:57] of them, how would they be reviewed. This will depend on how the Council, i.e. the Ministers

[1:12:05] of the Member States, will decide to exercise this discretion. There is no, under EU law,

[1:12:15] there is no specific obligation as to how to exercise this discretion. The obligation

[1:12:21] is to comply with international law.

[1:12:23] Quite how this is done is subject to discretion.

[1:12:27] So that's my answer to the first question.

[1:12:30] The second question about investment.

[1:12:37] We have to make a distinction.

[1:12:41] We have two kinds of investment under the treaty.

[1:12:44] So we have foreign direct investment.

[1:12:46] So investment which requires exercise of control on behalf of the investor.

[1:12:53] en we hebben in direct investment portfolio investment stocks shares etc

[1:12:58] now the former is covered by the common commercial policy under article 207

[1:13:09] so we have the same rules exclusivity etc in my view the logic we would apply is the same

[1:13:19] The European Union acknowledges the right of member states to take decisions to protect certain foreign policy interests

[1:13:34] in a manner which is proportionate in order to protect their public policy.

[1:13:39] And I'm thinking, for instance, now off the top of my head, the European Union has not fully set out

[1:13:47] foreign direct investment policy for historical reasons, which we don't need to go into now

[1:13:55] unless you want to. But we do see acknowledgement of what I've just said. For instance,

[1:14:03] the foreign investment regulation, which imposes a screening regime, it acknowledges in its preamble

[1:14:13] de right to protect public security by imposing restrictions on foreign direct investment.

[1:14:19] So, this is one side of the coin.

[1:14:21] Another side of the coin, indirect investment, portfolio investment, shares, et cetera.

[1:14:28] Well, I mean, this does not fall within the scope of the common commercial policy.

[1:14:32] Then we are moving, we are within the terrain of free movement of capital.

[1:14:36] And there we have an express exception, which enables member states to impose restrictions

[1:14:42] in order to protect free movement, in order to protect, amongst others, public policy.

[1:14:47] And we find this in Article 65, Paragraph 1, Subparagraph B of the Treaty on the Functioning of the European Union.

[1:14:54] So, I think, where does this take us?

[1:14:59] On the basis of what I've just said, if the Netherlands decided to go further

[1:15:05] and broaden up the scope of the decree in order to cover investments,

[1:15:11] I think this would be compatible with EU law.

[1:15:15] Thank you.

[1:15:15] Then I look at Mr. Seder for a follow-up question, if he has one.

[1:15:21] Yes.

[1:15:23] Concerning the sanctions,

[1:15:31] could you give us some cases, whether in Slovenia or Ireland,

[1:15:35] hoe de distinguisement can be made

[1:15:40] between Palestinian products or Israeli products

[1:15:44] en hoe dat in practice,

[1:15:45] so not on a theoretical perspective,

[1:15:47] maar hoe dat in de practice has worked out.

[1:15:50] Because as a matter of fact,

[1:15:52] some Palestinians, whether legal or not,

[1:15:55] have been working for some settlements.

[1:15:57] Some Palestinians have their own companies,

[1:15:59] but because of the labeling at the border,

[1:16:02] is kind of difficult to see

[1:16:04] where the specific

[1:16:06] origins are from. So I'm wondering

[1:16:08] how does this play out with Ireland

[1:16:10] Spain or Slovenia

[1:16:14] and that's a question

[1:16:15] to whoever feels

[1:16:17] qualified to answer the question. That's always

[1:16:19] dangerous. I see Mr. Wessel smiling

[1:16:21] so maybe he's the one. I'm looking

[1:16:23] to any of you

[1:16:25] if you feel confident

[1:16:27] enough to make a comparison between

[1:16:29] these legislations.

[1:16:31] wanneer I don't want to force anyone but it's there's no data that's fine as well I'm just

[1:16:37] checking if we can cross-reference I mean as far as I can tell Ireland has not adopted the measure

[1:16:41] yet um I as far as Slovenia and and Spain are concerned I'm afraid I don't know is the answer

[1:16:48] for this that's that's also a very clear answer then I would have one question to Mr. van veen

[1:16:54] we have

[1:16:57] when it comes to goods

[1:16:59] when it comes to

[1:17:00] services and when it comes to

[1:17:02] investment, when you look at the

[1:17:04] EU level and trade

[1:17:06] in all these areas

[1:17:08] what would have the most impact

[1:17:11] if Mr. van Veen

[1:17:12] could answer that question

[1:17:18] well it really depends on how far you

[1:17:21] want to go on this

[1:17:23] letter that I outlined

[1:17:24] in both

[1:17:26] my position paper and in my short introduction so you know if you want to follow the line that says

[1:17:36] you know there are significant parts of the israeli government involved in making and

[1:17:44] sustaining the settlement enterprise like the ministry of defense the ministry of finance

[1:17:50] There is even a Ministry for Settlements.

[1:17:53] There are several Israeli banks that finance a lot of the things to do with settlements, construction, mortgages and so on.

[1:18:03] There is the Israeli Land Authority that plays a big role in the acquisition of land on the West Bank by legal, illegal or hybrid means.

[1:18:13] There's a lot of other Israeli entities involved.

[1:18:15] So if you, you know, sort of go down the route of saying these entities are critical to sustaining the settlements and therefore should be included in any prohibition on trade services and investment,

[1:18:31] Then the most effective way would obviously be to get financial actors to stop their dealings with Israeli banks and other financial entities to keep supporting the settlement enterprise, because that is the heart of the whole undertaking, essentially.

[1:18:53] If that's not how far you want to go for political reasons, essentially, because the legal commitments are clearer, I think, especially after this round of interventions, that I think it's a matter of assessing correctly which part of good services and investment currently make up the larger part of the West Bank economy.

[1:19:18] En daarvoor, welke restrictive measures

[1:19:22] Will maken de biggest difference

[1:19:23] In clarifying

[1:19:25] De cost of occupation

[1:19:27] Prolonged occupation

[1:19:28] To the Israeli government

[1:19:29] So I think that would require

[1:19:31] A simple, or maybe not so simple

[1:19:33] Analysis of the economy

[1:19:35] Of the West Bank

[1:19:36] Which would also help differentiate

[1:19:38] I think between

[1:19:39] The Palestinian side of the equation

[1:19:41] And the settlement side of the equation

[1:19:43] Taking account of

[1:19:46] the use by Israeli settlements

[1:19:48] of what are essentially

[1:19:51] Palestinian resources

[1:19:52] like the aquifers for example

[1:19:54] that sit underneath the West Bank

[1:19:57] so it's sort of half

[1:19:58] an answer that I can give you, the other half

[1:20:00] I think would require a slightly

[1:20:02] more in-depth analysis of the

[1:20:04] shall we say local economy

[1:20:06] than I have at hand

[1:20:07] Thank you very much

[1:20:10] We're coming to

[1:20:12] we have 10 minutes left and I also want to give

[1:20:14] our guests the chance if they have

[1:20:17] like a one minute closure but also want to

[1:20:18] of course give the

[1:20:20] members of parliament a chance if they

[1:20:22] still have a burning question left

[1:20:27] then I'm sure Mr. Seder

[1:20:29] will want to take that opportunity right

[1:20:30] please go ahead

[1:20:31] thank you I'm just curious

[1:20:37] the

[1:20:38] I had

[1:20:41] two

[1:20:41] yes

[1:20:43] just one

[1:20:46] The ICJ advisory opinion seems to contradict the previous position between the PA and the Palestinian Authority, sorry, and the Israeli authorities concerning the Oslo Accords.

[1:20:59] Well, we could say the Oslo Accords are dead, but de facto some of the key deals concerning security and area ABC are still in some weird way still in place.

[1:21:14] Niet 100%.

[1:21:17] My question is, from a legal perspective,

[1:21:20] maybe that's something...

[1:21:22] I see Mr. Wessel looking,

[1:21:24] so maybe he could explain that.

[1:21:25] What is the current legal position

[1:21:27] of the Oslo's Accords,

[1:21:29] including Area ABC,

[1:21:30] occurring in the Palestinian Authority,

[1:21:32] all the measures taken there,

[1:21:34] what's the current status?

[1:21:35] And if it's dead, which I presume,

[1:21:38] when did it legally die?

[1:21:41] And what's the current legal position?

[1:21:44] Het is een erg, erg wide scope, om te zeggen, van de specielijke toekomst van de roundtable,

[1:21:50] die is over de legislatie en de ban on import.

[1:21:53] Maar, of course, ik zie misschien iemand online?

[1:21:59] Ja?

[1:22:02] Mr. Kutrakels of Mr. Van Veen?

[1:22:06] Je moet niet.

[1:22:08] Ik wil het zelfs uit de scope.

[1:22:11] Ja, het is.

[1:22:13] Je hebt jezelf de conclusie.

[1:22:15] No, no, the question is maybe a little outside of the scope,

[1:22:20] but it relates to the sanctions, so that's why I'm asking the question.

[1:22:22] But if nobody feels obligated to answer the question, then that's it.

[1:22:26] Yeah, okay, then thank you.

[1:22:30] I would like to give you also a final word,

[1:22:32] and if I can ask you, Mr. Vessel, to include in that,

[1:22:37] if you see the Dutch proposal as a very strict way,

[1:22:45] of of of you know if you want to if you want to comply with the icj advisory opinion is this the

[1:22:55] strictest way or is it a wide way to do it i would be interested to hear your opinion on that thank

[1:23:04] you very much and i i will try and do that in in one minute to to start with your with your main

[1:23:09] question actually of of today the dutch proposal i think it's it's it's neither strict from abroad

[1:23:15] It's just one part of a whole set of obligations that the states, not even the member states of the European Union,

[1:23:23] all the states in the world are confronted with on the basis of international law, as clarified in the advisory opinion.

[1:23:31] So it's a very first small step that is being taken here.

[1:23:36] And I think we all agreed during this discussion that that is indeed the case.

[1:23:41] And that we presume that there will be more steps.

[1:23:45] De problem is, of course, there is only so much that the Member States can do, because

[1:23:52] of EU law.

[1:23:54] So my other argument would be, this is the first step, and we all agree that it is legally

[1:23:59] and legitimately sound, but that continued efforts should be made to turn this into an

[1:24:07] EU law rule.

[1:24:10] And I also hope that the Netherlands will play a role in that.

[1:24:14] If you look at the Spanish decision on this, it's much broader.

[1:24:19] So it takes many more elements than just import restrictions on boards in just one or two pages.

[1:24:26] So I think we should head in that direction.

[1:24:31] Try and take it broader, firstly, and also see what the European Union can do.

[1:24:36] Thank you very much, Mr. Heller.

[1:24:39] Whatever you wish, if you want to make a final remark.

[1:24:45] en een praktisch onderwerp.

[1:24:49] Regarding investment,

[1:24:52] so a restriction on investment

[1:24:55] would basically limit the financing

[1:24:58] of specific unlawful activities

[1:25:01] within Palestinian occupied territories.

[1:25:05] There is already a list

[1:25:08] of enterprises

[1:25:10] having such illegal activities

[1:25:13] within occupied palestinien territories

[1:25:16] which is established by the Human Rights

[1:25:19] by the United Nations Human Rights Council

[1:25:23] so that could be a basis

[1:25:25] in terms of practical implementation

[1:25:29] of a financial or investment ban

[1:25:31] the problem is this list is far from being complete

[1:25:36] there are other lists

[1:25:38] coming from for instance NGOs working on the ground

[1:25:42] which can complement the list that is being updated

[1:25:49] on a regular basis by the UN.

[1:25:52] But it would, of course, be very useful

[1:25:55] to have an updated and comprehensive list

[1:26:00] in order to be able to establish an investment restriction.

[1:26:06] Thank you very much.

[1:26:07] Mr. Kudrakos.

[1:26:10] The challenge for the Netherlands is to ensure compliance with international law, whilst they also comply with EU law.

[1:26:20] In my view, the proposal does this well.

[1:26:29] It justifies any deviation from EU law on the basis of compliance with international law.

[1:26:36] So, if the Netherlands decided to exercise, to comply with international law

[1:26:45] by expanding the scope of the proposal,

[1:26:48] I think that, in principle, EU law would tolerate any deviations from it.

[1:26:57] Thank you very much. Mr van Veen.

[1:26:59] Well, it's long stated Dutch policy to pursue or support two-state solution

[1:27:08] It's also a long stated Dutch policy commitment to abide by international law, which was repeated once more in the current coalition agreement.

[1:27:18] What we see, however, in the West Bank in particular, is that this two-state solution is being made impossible in front of our eyes.

[1:27:26] We saw recently the announcement, for example, of several thousands of housing units in the E1 settlement that will kill off basically the ID of East Jerusalem.

[1:27:37] as the capital of the Palestinian state to be.

[1:27:41] There are lots of settlement projects going on elsewhere.

[1:27:45] The current Israeli government in particular

[1:27:46] has accelerated the enterprise building business

[1:27:50] and legalization business.

[1:27:53] So in that context, I think this step,

[1:27:55] this measure in front of parliament

[1:27:57] or soon to be involved in front of parliament

[1:27:59] is a welcome step,

[1:28:01] but a very small step that is happening very late

[1:28:04] if the objective is to discourage more Israeli settlement construction

[1:28:09] and to basically nudge the Israeli government

[1:28:12] to reopening some form of peace talks

[1:28:15] with whichever Palestinian authority they care to talk to

[1:28:20] or that will reconstitute itself after the current issues in Gaza

[1:28:24] but also in Ramallah

[1:28:26] So that basically pushes the point home

[1:28:29] I think that Professor Wessel also mentioned

[1:28:32] That the meaning of this measure and its eventual adoption will lie in the question whether it will serve as the start of a snowball that basically rolls down the mountain of an increasing and growing set of measures with a greater scope that address the full width of the issues raised by the International Court of Justice in its 2024 opinion.

[1:28:56] Thank you again for the opportunity.

[1:28:58] Thank you very much.

[1:29:00] A big thanks to all our guests, of course also to the members of parliament.

[1:29:05] I think we had a very fruitful one and a half hour discussion and I'm sure we will continue it, of course, when the political actors of the government are also in the room.

[1:29:14] Thank you very much.

[1:29:15] And then I hereby close the meeting.