The European Court of Justice decided an interesting case last week (Case C-386/08, Brita, 25 February 2010). The Hauptzollamt Hamburg-Hafen (the main customs office of the port of Hamburg) had refused to give preferential treatment under the EC-Israel Association Agreement to products manufactured by an Israeli company in the West Bank.The judgment gives the following facts:
32. The German customs authorities
provisionally granted the preferential tariff applied for, but commenced
the procedure for subsequent verification. On being questioned by the
German customs authorities, the Israeli customs authorities replied that
‘[o]ur verification has proven that the goods in question originate in
an area that is under Israeli Customs responsibility. As such, they are
originating products pursuant to the [EC-Israel] Association Agreement
and are entitled to preferential treatment under that agreement’.33. By letter
of 6 February 2003, the German customs authorities asked the Israeli
customs authorities to indicate, by way of supplementary information,
whether the goods in question had been manufactured in Israeli-occupied
settlements in the West Bank, the Gaza Strip, East Jerusalem or the
Golan Heights. That letter remained unanswered.34. By decision of 25 September 2003, the German Customs authorities
therefore refused the preferential treatment that had been granted
previously, on the ground that it could not be established conclusively
that the imported goods fell within the scope of the EC-Israel
Association Agreement. Consequently, a decision was taken to seek
post-clearance recovery of customs duties amounting to a total of EUR 19
155.46.
One might have thought that the question would hinge on whether the origin of the products fell within the territorial scope of the EC-Israel Agreement (the 'territory of the State of Israel'). But the Court took quite a different route. It referred to the EC-PLO Association Agreement, which provides for free trade for products from the ‘territories of the West Bank and the Gaza Strip’ and said:
52. Accordingly, to interpret Article 83 of the EC-Israel Association
Agreement as meaning that the Israeli customs authorities enjoy
competence in respect of products originating in the West Bank would be
tantamount to imposing on the Palestinian customs authorities an
obligation to refrain from exercising the competence conferred upon them
by virtue of the abovementioned provisions of the EC-PLO Protocol. Such
an interpretation, the effect of which would be to create an obligation
for a third party without its consent, would thus be contrary to the
principle of general international law, ‘pacta tertiis nec nocent nec
prosunt’, as consolidated in Article 34 of the Vienna Convention.
Is this correct? Recognizing Israeli competence in relation to products originating in the West Bank does not amount to a denial of Palestinian competence over those products. And even if it did, it does not impose any obligation on the Palestinian authorities not to exercise this competence. They remain free to do so, if they can. So this is not entirely convincing.
The more interesting question is why the Court found it necessary to adopt this odd approach to the case? Why not just determine whether or not the West Bank is part of the 'territory of the State of Israel'?
(… Oh. I see.)