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Business and Human Rights in Occupied Territory: The UN Database of Business Active in Israel’s Settlements

Published online by Cambridge University Press:  30 July 2018

Valentina AZAROVA
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Abstract

The law and practice concerning the responsibilities of businesses and the obligations of their home states in relation to private dealings in occupied territory are under-developed. The establishment of a database by the United Nations (UN) Office of the High Commissioner for Human Rights to monitor the activities of corporate actors in the Occupied Palestinian Territory (OPT) is an opportunity to provide much-needed guidance on the scope of application of existing international law in this paradigmatic case of a high-risk business environment. This article engages with the contribution of this initiative to the regulation of transnational corporate dealings through two normative issues: the structural characteristics and effects of the violations taking place in certain business environments maintained in the OPT on the responsibilities of business and home states; and the various modes through which businesses become directly linked with and contribute to the illicit property rights regime underpinning the existence of settlements and the serious human rights abuses perpetuated by their maintenance.

Keywords

belligerent occupationhome state regulationimmitigabilityOHCHRthird state responsibility
Type
Scholarly Article
Information
Business and Human Rights Journal , Volume 3 , Issue 2 , July 2018 , pp. 187 - 209
Copyright
© Cambridge University Press 

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Footnotes

*

Visiting Academic, Manchester International Law Centre; Postdoctoral Fellow, Centre for Global Public Law, Koç University, Istanbul.

References

1 Human Rights Council, ‘Resolution 31/36 Israeli Settlements in the Occupied Palestinian Territory, Including East Jerusalem, and in the Occupied Syrian Golan’, A/HRC/31/L.39 (22 March 2016), para 17.

2 ‘Report of the Independent International Fact-Finding Mission to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural Rights of the Palestinian People Throughout the Occupied Palestinian Territory, Including East Jerusalem’, A/HRC/22/63 (16 January 2013), para 117 (hereafter ‘UN fact-finding mission report on settlements’).

3 On the legal consequences of such illegal situations in international law, see Azarova, Valentina, Israel’s Unlawfully Prolonged Occupation: Consequences Under an Integrated Legal Framework (London: European Council on Foreign Relations, 2017)Google Scholar.

4 On business and human rights in occupied territory, see Yael Ronen, ‘Responsibility of Businesses Involved in the Israeli Settlements in the West Bank’ (2015), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2594851 (accessed 9 June 2018); Kontorovitch, Eugene, ‘Economic Dealings with Occupied Territories’ (2015) 53 Columbia Journal of Transnational Law 584 Google Scholar.

5 Such domestic law obligations align with the home state’s responsibility to ensure that its territory or exclusive domain is not used to cause or further harm caused by others. On the principle of transboundary harm, see Trail Smelter Arbitration (United States v Canada) (1938 and 1941) 3 R.I.A.A. 1905. See, for the application of the wrongful omission standard, Commission of Inquiry on Burundi, ‘Final Detailed Report of the Commission of Inquiry on Burundi’, A/HRC/36/CRP.1 (18 September 2017) paras 69–73 (in French).

6 Such bodies ‘brandish’ soft enforcement powers. Shany, Yuval, ‘Sources and the Enforcement of International Law: What Norms International Law-Enforcement Bodies Actually Invoke?’ in Samantha Besson and Jean D’Aspremont (eds.), Oxford Handbook on the Sources of International Law (Oxford: Oxford University Press, 2017) 789 Google Scholar.

7 On the scope of the obligation of non-recognition in international law, see Talmon, Stefan, ‘The Duty Not to “Recognize as Lawful” a Situation Created by the Illegal Use of Force or Other Serious Breaches of a Jus Cogens Obligation: An Obligation without Real Substance?’ in Christian Tomuschat and Jean-Marc Thouvenin (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes (The Hague: Martinus Nijhoff, 2005) 103 Google Scholar.

8 Human Rights Council, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework’ A/HRC/17/31 (21 March 2011), Principles 4–6. See also Bernaz, Nadia, ‘Enhancing Corporate Accountability for Human Rights Violations: Is Extraterritoriality the Magic Potion?’ (2013) 117 Journal of Business Ethics 493 CrossRefGoogle Scholar.

9 ‘From Motorola to Ahava: The UN Blacklist of Companies Doing Business in Israeli Settlements’, Haaretz (26 October 2017).

10 UN settlements fact-finding mission report, note 2, para 97.

11 UN settlements fact-finding mission report, note 2, para 4. See also Working Group on the issue of human rights and transnational corporations and other business enterprises, ‘Statement on the Implications of the Guiding Principles on Business and Human Rights in the Context of Israeli Settlements in the Occupied Palestinian Territory’ (6 June 2014), http://www.ohchr.org/Documents/Issues/Business/OPTStatement6June2014.pdf (accessed 10 January 2018).

12 On the peculiar character and consequences of Israel’s occupation under international law, see Benvenisti, Eyal, Legal Dualism: The Absorption of the Occupied Territories into Israel (Jerusalem: West Bank Data Base Project, 1986)Google Scholar; Gross, Aeyal, The Writing on the Wall: Rethinking the Law of Occupation (Cambridge: Cambridge University Press, 2017)CrossRefGoogle Scholar. See also Azarova, note 3.

13 UN settlements fact-finding mission report, note 2. Although the appropriation of private land is no longer sanctioned by the Israeli authorities, ‘outposts’ on private land have been de facto authorized. Yesh Din, ‘From Occupation to Annexation: The Silent Adoption of the Levy Report on Retroactive Authorization of Illegal Construction in the West Bank’ (February 2016), https://s3-eu-west-1.amazonaws.com/files.yesh-din.org/מכיבוש+לסיפוח/From+Occupation+to+Annexation+English+Yesh+Din.pdf (accessed 9 June 2018). There are recent efforts to formalize the status of settlements on private land. Yotam Berger, ‘Israel Presents: How to Legalize West Bank Settlements Built on Private Palestinian Land’, Haaretz (4 May 2018), https://www.haaretz.com/israel-news/.premium-israel-presents-how-to-legalize-west-bank-settlements-1.6054412 (accessed 7 May 2018).

14 Military Order No. 59, Order Concerning State Property (Judea & Samaria) (1967). B’Tselem – The Israeli Information Center for Human Rights in the Occupied Territories, ‘Under the Guise of Legality: Israel’s Declarations of State Land in the West Bank’ (February 2012), https://www.btselem.org/download/201203_under_the_guise_of_legality_eng.pdf (accessed 9 June 2018). According to the Civil Administration’s data as of 2012, Israel has declared about 913,000 dunums of land in the West Bank as state land: B’Tselem, ‘By Hook and By Crook: Israeli Settlement Policy in the West Bank’ (July 2012) 24, https://www.btselem.org/download/201007_by_hook_and_by_crook_eng.pdf (accessed 9 June 2018).

15 The Custodian allocates land to settlements based on a decision by the Government Secretariat (the Cabinet) to establish or expand a settlement. It then concludes a development agreement with the World Zionist Organization (WZO) (and company) transferring the rights in the land to the company within a year. The private developer company undertakes the preparation of the plans for the development of the settlement in coordination with the WZO Settlement Division and Israeli domestic line ministries such as the Ministry of Construction and Housing, the Ministry of Industry and Trade, and the Ministry of Agriculture. B’Tselem, note 14.

16 Ibid.

17 Who Profits, ‘Ahava: Tracking the Trade Trail of Settlement Products’ (May 2012), https://www.whoprofits.org/sites/default/files/ahava_report_final.pdf (accessed 9 June 2018).

18 ‘Mitzpe Shalem’ entry in the ‘Brigadier General Spiegel Database of West Bank Settlements and Outposts, Developed by Israel’s Ministry of Defense’ (on file with author).

19 B’Tselem, Acting the Landlord: Israel’s Policy in Area C, the West Bank (June 2013), http://www.btselem.org/download/201306_area_c_report_eng.pdf (accessed 10 January 2018). Kerem Navot, Closed Garden: Declaration of Closed Areas in the West Bank (2015), http://media.wix.com/ugd/cdb1a7_5d1ee4627ac84dca83419aebf4fad17d.pdf (accessed 10 January 2018).

20 Articles 53 and 55, Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (18 October 1907); Articles 34 and 57, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (12 August 1949) (Fourth Geneva Convention); Rule 50, Destruction and Seizure of Property of an Adversary, International Committee of the Red Cross (ICRC), Customary International Humanitarian Law, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule50 (accessed 10 January 2018).

21 Rule 51, Public and Private Property in Occupied Territory, ICRC, Customary International Humanitarian Law, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule51 (accessed 9 June 2018).

22 Stewart, James G, Corporate War Crimes: Prosecuting the Pillage of Natural Resources (New York: Open Society Foundations, 2011)Google Scholar. On the criminal consequences of land appropriation by corporate actors, see International Criminal Court Office of the Prosecutor, ‘Policy Paper on Case Selection and Prioritisation’ (15 September 2016) 5.

23 Article 47, Fourth Geneva Convention, note 18. The Israeli authorities rely on the Interim Agreements with the Palestine Liberation Organization (PLO) to claim full control in military and civil affairs in the so-called Area C (over 60% of the West Bank where all settlements are located), in violation of Articles 7 and 8, Fourth Geneva Convention, note 18.

24 Article 49(6), Fourth Geneva Convention, note 20; International Court of Justice (ICJ), ‘Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’ (9 July 2004), paras 115–122; International Committee of the Red Cross, ‘What Does the Law Say About the Establishment of Settlements in Occupied Territory?’ (5 October 2010), https://www.icrc.org/eng/resources/documents/faq/occupation-faq-051010.htm (accessed 7 May 2018).

25 Article 43, Hague Regulations, note 20. Article 64, Fourth Geneva Convention, note 20.

26 On the way settlements exploit mineral extraction and fertile agricultural lands, denying Palestinians access to their natural resources, see UN settlements fact-finding mission report, note 2, para 36.

27 Ibid, paras 105, 109.

28 ICJ Wall Opinion, note 24.

29 On Israel’s Supreme Court’s jurisprudence on the settlements, see Kretzmer, David, ‘The Law of Belligerent Occupation in the Supreme Court of Israel’ (2012) 94 International Review of the Red Cross 207 CrossRefGoogle Scholar.

30 UN Office for the Coordination of Humanitarian Affairs (OCHA), Under Threat: Demolition Orders in Area C of the West Bank (September 2015), http://data.ochaopt.org/demolitionos/demolition_orders_in_area_c_of_the_west_bank_en.pdf (accessed 10 January 2018).

31 Article 8(2)(b)(viii), Rome Statute of the International Criminal Court (ICC) (17 July 1998). Settlement activities are under examination by the ICC. Office of the Prosecutor, ‘Report on Preliminary Examination Activities 2017’ (4 December 2017), para 59. See also Michael Kearney, ‘On the Situation in Palestine and the War Crime of Transfer of Civilians into Occupied Territory’ (2016) 28:1 Criminal Law Forum 1.

32 Human Rights Council Resolution, ‘Israeli settlements in the Occupied Palestinian Territory, Including East Jerusalem, and in the Occupied Syrian Golan’, A/HRC/34/L.41/Rev.1 (16 March 2017). para 7; Azarova, note 3; Dajani, Omar, ‘Israel’s Creeping Annexation’ (2017) 111 American Journal of International Law Unbound 51 Google Scholar.

33 Human Rights Committee, ‘General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights, on the Right to Life’, para 71 http://www.ohchr.org/Documents/HRBodies/CCPR/GCArticle6/GCArticle6_EN.pdf (accessed 10 January 2018).

34 Cyprus v Turkey, Application No. 25781/94, Just Satisfaction Award, 20 May 2014, para 4.

35 Ibid, para 24.

36 Wrange, Pal, ‘Occupation/Annexation of a Territory: Respect for International Humanitarian Law and Human Rights and Consistent EU Policy’ (Brussels: European Parliament Think Tank, 2015)Google Scholar. Kontorovich, Eugene, ‘Unsettled: A Global Study of Settlements in Occupied Territories’ (2017) 9 The Journal of Legal Analysis 285 CrossRefGoogle Scholar.

37 For documentation on over 500 Israeli and foreign companies involved in the settlement, see ‘Who Profits from the Occupation’, https://whoprofits.org/ (accessed 10 January 2018).

38 International Federation for Human Rights (FIDH) and others, ‘Trading Away Peace: How Europe Helps Sustain Illegal Israeli Settlements’ (October 2012) https://www.fidh.org/IMG/pdf/trading_away_peace_-_embargoed_copy_of_designed_report.pdf (accessed 10 January 2018).

39 Working Group, ‘Statement on the Implications of the Guiding Principles on Business and Human Rights’, note 11, 11.

40 United Nations Office of High Commissioner for Human Rights (OHCHR), ‘Database of All Business Enterprises Involved in the Activities Detailed in Paragraph 96 of the Report of the Independent International Fact-Finding Mission to Investigate the Implications of the Israeli Settlements on the Civil, Political, Economic, Social and Cultural rights of the Palestinian People Throughout the Occupied Palestinian Territory, Including East Jerusalem’, A/HRC/37/39 (1 February 2018) (‘OHCHR report on the database’) paras 40–41.

41 Compare Ronen, note 4.

42 All foreign and Israeli companies that operate in Israel and the settlements are registered in Israel’s Companies Registrar based at the Israeli Ministry of Justice, under the Israeli Business Licensing Law 1968.

43 Association for Civil Rights in Israel, ‘One Rule, Two Systems: Israel’s Regime of Law in the West Bank’ (2014) 19, https://www.acri.org.il/en/wp-content/uploads/2015/02/Two-Systems-of-Law-English-FINAL.pdf (accessed 9 June 2018). See also Karayyani, Michael, Conflicts in A Conflict: A Conflict of Laws Case Study on Israel and the Palestinian Territories (Oxford: Oxford University Press, 2014)CrossRefGoogle Scholar. On the application of Israeli labour laws to the occupied territory, see Paz-Fuchz, Amir and Ronen, Yael, ‘Occupational Hazards’ (2012) 30 Berkeley Journal of International Law 580 Google Scholar.

44 See, e.g., Human Rights Watch, ‘Israeli Law and Banking in West Bank Settlements’ (12 September 2017), https://www.hrw.org/news/2017/09/12/israeli-law-and-banking-west-bank-settlements (accessed 14 June 2018).

45 Article 55, Hague Regulations 1907, note 20. On the consequences of such transgressions, see Stewart, note 22.

46 Who Profits, ‘Financing Land Grab: The cDirect Involvement of Israeli Banks in the Israeli Settlement Enterprise’ (February 2017), https://whoprofits.org/content/financing-land-grab-direct-involvement-israeli-banks-israeli-settlement-enterprise (accessed 10 January 2018).

47 On the activities of G4S Israel in Israeli prisons, see Diakonia International Humanitarian Law Resource Center, ‘Securing Injustice: Legal Analysis of G4S Israel Operations in Occupied Palestinian Territory’ (2013) 15, https://www.diakonia.se/globalassets/documents/ihl/ihl-resources-center/securing-injustice-legal-analysis-of-g4s-operations-in-occupied-palestinian-territory.pdf (accessed 9 June 2018); Who Profits, ‘The Case of G4S: Private Security Companies and the Israeli Occupation’ (March 2011), https://whoprofits.org/sites/default/files/WhoProfits-PrivateSecurity-G4S.pdf (accessed 9 June 2018).

48 Human Rights Watch, ‘Occupation Inc.: How Settlement Businesses Contribute to Israel’s Violations of Palestinian Rights’ (19 January 2016), https://www.hrw.org/news/2016/01/19/occupation-inc-how-settlement-businesses-contribute-israels-violations-palestinian (accessed 14 June 2018).

49 On the regulation of corporate wrongs in high-risk business environments, see Shift, ‘Due Diligence in High Risk Circumstances’ (March 2015), https://www.shiftproject.org/resources/publications/human-rights-due-diligence-high-risk-circumstances/ (accessed 10 January 2018); SOMO – Centre for Research on Multinational Corporations, ‘Multinationals and Conflict’ (2014), https://www.somo.nl/multinationals-and-conflict/ (accessed 9 June 2018); Danish Institute for Human Rights, ‘Doing Business in High-Risk Human Rights Environments’ (2010), http://nhri.ohchr.org/EN/Themes/BusinessHR/DocumentsPage/Highrisk_Environments_ENG.pdf (accessed 9 June 2018). See also Azarova, Valentina, ‘The Bounds of (Il)legality: Rethinking the Regulation of Transnational Corporate Wrongs’ in Ekaterina Yahyaoui (ed.), Human Rights and Power in Times of Globalization (The Hague: Brill, 2017) 248 Google Scholar.

50 Human Rights Council, ‘Clarifying the Concepts of “Sphere of influence” and “Complicity”’, A/HRC/8/16 (15 May 2008) 4–5.

51 See Commentary on Principle 19, UNGPs, note 8.

52 Human Rights Council, ‘Resolution 31/36 Israeli Settlements in the Occupied Palestinian Territory’, note 1, para 13(b).

53 Commentary on Principle 17, UNGPs, note 8 (‘business enterprises conducting such due diligence should not assume that, by itself, this will automatically and fully absolve them from liability for causing or contributing to human rights abuses.’).

54 See Davis, Rachel, ‘The UN Guiding Principles on Business and Human Rights and Conflict-Affected Areas: State Obligations and Business Responsibilities’ (2012) 94 International Review of the Red Cross 961 CrossRefGoogle Scholar.

55 On due diligence measures in national action plans, see International Corporate Accountability Roundtable and Danish Institute for Human Rights, ‘National Action Plan Toolkit and National Baseline Assessment’ (29 November 2017).

56 Article 11, International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts 2001.

57 Berkes, Antal, ‘Extraterritorial Responsibility of the Home States for MNCs Violations of Human Rights’ in Yannick Radi (ed.), Research Handbook on Human Rights and Investment (Cheltenham: Edward Elgar Publishers, 2018)Google Scholar (forthcoming).

58 Seck, Sara L, ‘Conceptualizing the Home State Duty to Protect Human Rights’ in Karin Buhman, Mette Morsing and Lynn Roseberry (eds.), Corporate Social and Human Rights Responsibilities: Global Legal and Management Perspectives (London: Palgrave Macmillan, 2011) 40 Google Scholar.

59 Trail Smelter Case (United States, Canada) (1938, 1941) III UNRIAA 1905, 1965; in the same sense: Corfu Channel Case (UK v Albania) (Merits) [1949] ICJ Rep 4, 22. See also Skogly, Sigrun, ‘Extraterritorial Obligations and the Obligation to Protect’ (2016) Netherlands Yearbook of International Law 217 Google Scholar.

60 Inter-American Court of Human Rights, ‘The Environment and Human Rights’, Advisory Opinion, OC-23/17 (15 November 2017). See also Antal Berkes, ‘A New Extraterritorial Jurisdictional Link Recognised by the IACtHR’, EJIL:Talk! (28 March 2018).

61 Human Rights Council, ‘Business and Human Rights: Further Steps Toward the Operationalization of the “Protect, Respect and Remedy” Framework’, A/HRC/14/27 (9 April 2010) para 49. See also Berkes, note 57.

62 Articles 40 and 41, International Law Commission Articles on the Responsibility of States for Internationally Wrongful Acts 2001.

63 Rule 50, Destruction and Seizure of Property of an Adversary, note 20.

64 Commentary on Chapter III, Articles 40–41, International Law Commission Draft Articles on the Responsibility of States for Internationally Wrongful Acts 2001.

65 Security Council Resolution 465 (1 March 1980). The Norwegian authorities used Resolution 465 as a benchmark for assessing the charitable nature of activities under Norwegian law. Norwegian People’s Aid, ‘No More Tax Deductibles for Funding Settlements in Occupied Territory’ (2012) https://www.npaid.org/News/News-archive/2012/No-more-tax-deductibles-for-funding-settlements-in-occupied-territory (accessed 10 January 2018).

66 Security Council Resolution 2334 (26 December 2016), para 5.

67 On public law coherence and home state responsibility, see Buhmann, Karin, ‘Juridifying Corporate Social Responsibility Through Public Law: Assessing Coherence and Inconsistencies Against UN Guidance on Business and Human Rights’ (2016) 11:3 International and Comparative Corporate Law Journal 194 Google Scholar.

68 On this logic of ‘legal necessity’ for consistency, see Nikolov, Krassimir, ‘Ashton’s Second Hat: The European Union’s Funding Guidelines on Israel as a Post-Lisbon Instrument of Foreign Policy Making’ (2014) 1 Diplomacy 167 Google Scholar.

69 UN settlements fact-finding mission report, note 2, para 117.

70 UK Foreign and Commonwealth Office, ‘Overseas Business Risk – Israel, Settlements’, https://www.gov.uk/government/publications/overseas-business-risk-israel/overseas-business-risk-israel--3 (accessed 10 January 2018).

71 Noah Browning, ‘Major Dutch Pension Firm Divests from Israeli Banks over Settlements’, Reuters (8 January 2014), https://www.reuters.com/article/netherlands-israel-divestment/major-dutch-pension-firm-divests-from-israeli-banks-over-settlements-idUSL6N0KI1N220140108 (accessed 14 June 2018).

72 Royal Haskoning DHV, ‘Royal Haskoning DHV Terminates its Involvement in the Wastewater Treatment Plant in East Jerusalem’ (September 2013), http://www.royalhaskoningdhv.com/en/news/royal-haskoningdhv-terminates-its-involvement-in-the-wastewater-treatment-plant-in-east-jerusalem/727 (accessed 10 January 2018).

73 Who Profits, ‘Financing Land Grab: The Direct Involvement of Israeli Banks in the Israeli Settlements Enterprise’ (February 2017) https://whoprofits.org/content/financing-land-grab-direct-involvement-israeli-banks-israeli-settlement-enterprise (accessed 10 January 2018).

74 See, for example, Diakonia IHL Resource Centre, ‘The Unsettling Business of Settlement Business’ (May 2015), https://www.diakonia.se/globalassets/documents/ihl/ihl-in-opt/briefs/the-unsettling-business-of-settlememt-business.pdf (accessed 10 January 2018); United Methodist Church, ‘Wespath Human Rights Guidelines and Management of Excessive Sustainability Risk’, https://www.wespath.org/gbphb-human-rights-guidelines-and-management-of-excessive-sustainability-risk/ (accessed 10 January 2018); Peter Beaumont, ‘Orange says it Plans to Terminate Contract with Brand Partner in Israel’, The Guardian (4 June 2015), https://www.theguardian.com/world/2015/jun/04/orange-says-it-plans-to-terminate-contract-with-brand-partner-in-israel (accessed 14 June 2018).

75 See, e.g., Nikolov, note 69; Mueller, Patrick and Smolinski, Peter, ‘The Role of Law in EU Foreign Policy-making’ (2016) Journal of Common Market Studies 1 Google Scholar. See also Lovatt, Hugh and Toaldo, Matteo, EU Differentiation and Israeli Settlements (European Council for Foreign Relations, June 2015)Google Scholar.

76 Council of the European Union v Polisario Front, Judgement, C-104/16 (21 December 2016), para 106. See also Western Sahara Campaign et al v Commissioners for Her Majesty’s Revenue and Customs, C-266/16 (27 February 2018).

77 The Sahrawi Arab Democratic Republic and Polisario Front v NM Shipping High Court of South Africa, C-1487/2017 (23 February 2018, http://wsrw.org/files/dated/2018-02-23/20180223_south_africa_ruling.pdf (accessed 7 May 2018).

78 UN report on the database, note 40, para 8.

79 See, e.g., Amnesty International and others, ‘Joint NGO Statement in Support of the UN Human Rights Database on Business Activities Related to Settlements in the Occupied Palestinian Territory’ (20 November 2017) https://www.amnesty.org/download/Documents/MDE1575212017ENGLISH.pdf (accessed 9 June 2018).

80 UN report on the database, note 40, para 13.

81 Human Rights Council, ‘Clarifying the Concepts of “Sphere of influence”’, note 50, para 71.

82 See, e.g., Richardson et al v Director of Public [2014] UKSC 8, para 17. See also International Commission of Jurists (ICJ), Expert Legal Panel on Corporate Complicity in International Crimes: Corporate Complicity & Legal Accountability (Geneva: ICJ, 2008)Google Scholar.

83 For the definition of ‘contribution’ and ‘direct link’, see Debevoise Business Integrity Group and Enodo Rights, ‘Discussion Draft 8: Practical Definitions of Cause, Contribute, and Directly Linked’ (Debevoise & Plimpton, 2017) 7–8, https://www.business-humanrights.org/sites/default/files/documents/Debevoise-Enodo-Practical-Meaning-of-Involvement-Draft-2017-02-09.pdf (accessed 9 June 2018).

84 On objective illegality and invalidity of wrongful titles and rights, see Crawford, James, Brownlie’s Principles of Public International Law (Cambridge: Cambridge University Press, 2012) 608 CrossRefGoogle Scholar.

85 On the ‘financialization’ of land, see Ferrando, Tomaso, ‘Land Rights at the Time of Global Production: Leveraging Multi-Spatiality and “Legal Chokeholds”’ (2017) 2 Business and Human Rights Journal 275 CrossRefGoogle Scholar.

86 ICJ Expert Legal Panel Report, note 83, 25–26. See also Human Rights Council, ‘Clarifying the Concepts of “Sphere of influence”’, note 50, para 15.

87 Thun Group of Banks, ‘Paper on the Implication of UN Guiding Principles 13b and 17 in a Corporate and Investment Banking Context’ (December 2017) https://www.business-humanrights.org/sites/default/files/documents/2017_12_Thun%20Group%20of%20Banks_Paper_UNGPs%2013b%20and%2017.pdf (accessed 9 June 2018). However, see John Ruggie, ‘Comments on Thun Group of Banks Discussion Paper on the Implications of UN Guiding Principles 13 and 17 in a Corporate and Investment Banking Context’ (21 February 2017), https://www.business-humanrights.org/sites/default/files/documents/Thun%20Final.pdf (accessed 14 June 2018).

88 ICJ Expert Panel Report, note 83, 23.

89 See, e.g., the multi-national real estate company Remax who has franchisees in settlements and includes settlement properties on its global database, Human Rights Watch, note 48. Telecommunications giant Orange, who had a brand licensing agreement with an Israeli company Partner which regularly operated in settlements. International Federation for Human Rights (FIDH) and others, ‘Dangerous Liaisons in Israeli Settlements: Orange and its Shareholder the French State’ (6 May 2015) https://www.fidh.org/en/issues/globalisation-human-rights/business-and-human-rights/dangerous-liaisons-in-israeli-settlements-orange-and-its-shareholder-17609 (accessed 9 June 2018).

90 See, e.g., Israeli telecommunications companies that service settlements. Who Profits, ‘Bezeq – The Israeli Telecommunications Corporation’ https://whoprofits.org/company/bezeq-israeli-telecommunication-corporation (accessed 10 January 2018). The French company Veolia operates a landfill that services settlements. Human Rights Watch, note 48.

91 See, e.g., Israeli supermarkets that buy settlement agricultural products from settlement farms, and Israeli wholesale and export companies that contract with settlement-based manufacturers.

92 See, e.g., a foreign company that owns shares in an Israeli company that operates in settlements. John Mulligan, ‘CRH Sells Controversial Stake in Israel’s Only Cement Firm Mashav’, The Independent (8 January 2016), https://www.independent.ie/business/crh-sells-controversial-stake-in-israels-only-cement-firm-mashav-34345981.html (accessed 14 June 2018).

93 See, e.g., a foreign construction equipment company that supplies an Israeli distributor who in turn contracts with a settlement-based municipality or development companies. Who Profits, ‘Facts on the Ground: Heavy Engineering Machinery and the Israeli Occupation’ (July 2014), https://whoprofits.org/bulldozers (accessed 14 June 2018).

94 See, e.g., foreign importers that buy agricultural produce from exporters that source their products from settlement farms, and foreign retailers or wholesalers who buy from European subsidiaries of an Israeli exporter of settlement agricultural products.

95 See, e.g., banks or pension funds that invest in a company with operations in the settlements. VBDO, ‘Dutch Institutional Investors and Investments related to the Occupation of the Palestinian Territories’ (February 2014), https://business-humanrights.org/sites/default/files/media/vbdo_dutch_institutional_investors_7.pdf (accessed 10 January 2018).

96 OHCHR report on the database, note 40, para 47.

97 Ibid, para 59.

98 James Crawford, ‘Third Party Obligations with Respect to Israeli Settlements in the Occupied Palestinian Territories, Expert Opinion’ (24 January 2012) https://www.tuc.org.uk/sites/default/files/tucfiles/LegalOpinionIsraeliSettlements.pdf (accessed 7 May 2018).

99 Francois Dubuisson, The International Obligations of the European Union and Its Member States with regard to Economic Relations with Israeli Settlements, Expert Opinion (Centre de Droit International, Brussels Free University, 11.11.11. and FIDH February 2014).

100 Mueller, Patrick and Slominski, Peter, ‘The Role of Law in EU Foreign Policy-Making: Legal Integrity, Legal Spillover, and the EU Policy of Differentiation towards Israel’ (2016) 55:4 Journal of Common Market Studies 1 Google Scholar.

101 ‘Legal Opinion on Third Party Obligations with Respect to Illegal Economic and Other Activities in the Occupied Territories of Azerbaijan’, Annex to the letter dated 10 April 2017 from the Permanent Representative of Azerbaijan to the United Nations addressed to the Secretary-General, A/71/880–S/2017/316 (26 April 2017).

102 On the inconsistent application of international law to business in occupied territory, see Kontorovich, note 4. On the inconsistent enforcement of international law to settlements, see Kontorovich, note 36.

103 Ministry of Foreign Affairs of the Republic of Azerbaijan, ‘Illegal Economic and Other Activities in the Occupied Territories of Azerbaijan’ (2016), http://mfa.gov.az/files/file/MFA_Report_on_the_occupied_territories_March_2016_1.pdf (accessed 10 January 2018).

104 See, e.g., European Union External Action (EEAS), ‘EU Restrictive Measures in Response to the Crisis in Ukraine’ (16 March 2017). EEAS, ‘The EU non-recognition policy for Crimea and Sevastopol: Fact Sheet’ (12 December 2017).

105 Government of Georgia, ‘Occupied Territories of Georgia’, http://gov.ge/index.php?lang_id=ENG&sec_id=220 (accessed 10 January 2018).

106 See, e.g., Mozer v The Republic of Moldova and Russia, Application No. 11138/10 (23 February 2016).

107 Cyprus Ministry of Foreign Affairs, ‘Greek Cypriot Properties Under Turkish Military Occupation’, http://www.mfa.gov.cy/mfa/mfa2016.nsf/mfa12_en/mfa12_en?OpenDocument (accessed 10 January 2018).

108 Barak Ravid, ‘Israel to the West: Don’t Honor UN Human Rights Council’s Vote to Blacklist Settlement-Linked Firms’, Haaretz (25 March 2016), https://www.haaretz.com/israel-news/.premium-israel-to-the-west-don-t-honor-unhrc-vote-1.5422459 (accessed14 June 2018).

109 ‘US Threatens to Cut UN Funding Over Settlement ‘Blacklist’ – Report’, Times of Israel (30 August 2017), https://www.timesofisrael.com/us-threatens-to-cut-un-funding-over-settlement-blacklist-report/ (accessed 14 June 2018).

110 See, e.g., Amir Tibon, ‘US Legislators, AIPAC Push Anti-BDS Bill After UN Letter Warns Companies Against Operating in Settlements’, Haaretz (28 September 2017), https://www.haaretz.com/us-news/.premium-u-s-legislators-aipac-push-anti-bds-bill-in-light-of-un-blacklist-1.5454314 (accessed 14 June 2018).

111 UN report on the database, note 40, 3–6.

112 On domestic regulatory agencies as international law-applying and enforcing actors, see Kingsbury, Benedict, ‘The Concept of Compliance as a Function of Competing Conceptions of International Law’ (1998) 19 Michigan Journal of International Law 345 Google Scholar.

See also Redgewell, Catherine, ‘National Implementation’ in Daniel Bodansky et al (eds.), Oxford Handbook of International Environmental Law (Oxford: Oxford University Press, 2007)Google Scholar.