Civil rights? But not for you: chilling a globalized palestinian resistance movement's freedom of expression protections as guaranteed by the international covenant on civil and political rights

• Author: Dina Awshah
• Position: Executive Articles Editor, Emory International Law Review (Vol. 36); Emory University School of Law, J.D. 2022; University of South Florida, B.A. 2018
• Pages: 125-166

CIVIL RIGHTS? BUT NOT FOR YOU: CHILLING A

GLOBALIZED PALESTINIAN RESISTANCE

MOVEMENT’S FREEDOM OF EXPRESSION

PROTECTIONS AS GUARANTEED BY THE

INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS

DINA AWSHAH*

ABSTRACT

The past decade has seen both an increase in Israeli violence against

Palestinians and a notable surge in global solidarity with Palestine. One of the

most effective solidarity movements has been the Boycott, Divestment, and

Sanctions (BDS) movement, created by a coalition of Palestinian civil society

activists in 2005. With the increase in popularity of this global movement,

many countries began to f‌iercely respond to BDS with legislation limiting partic-

ipation in the movement. Most notably, states in the U.S. and EU, and of

course the State of Israel itself, have all passed anti-BDS laws. In violation of

international law treaties that each of these states and entities are party to, these

anti-BDS laws generally prohibit participation in the movement based on disin-

genuous anti-discrimination justif‌ications and the interest of protecting State

of Israel.

Spurred by the European Court of Human Rights’ decision in Baldassi and

Others v. France in July 2020, and its similarity in reasoning to the United

States Supreme Court decision in NAACP v. Claiborne Hardware and the

United Nations Human Rights Committee decision in Ballantyne and

Others v. Canada, this article assesses whether proposed and passed anti-BDS

laws in the United States, France, and Israel are legal under international

law. BDS is a coordinated global solidarity movement and a principled nonvio-

lent effort of resistance in the face of devastating settler colonialism. As a key to

the overall movement for Palestinian rights, BDS activities are legal and

* Executive Articles Editor, Emory International Law Review (Vol. 36); Emory University School

of Law, J.D. 2022; University of South Florida, B.A. 2018. I would like to sincerely thank my

advisor, Professor Teemu Ruskola, for the support and feedback throughout my drafting process,

and for the encouragement to think creatively about the law. I would also like to thank the

editorial board of the Georgetown Journal of International Law for their thorough editing and review

of this article. All mistakes remain my own. Finally, as the f‌irst person in my family to graduate law

school, I would like to thank my family and friends for their unwavering support in everything I

do. Especially mama and baba, thank you for cultivating my love for Palestine and making me a

proud Palestinian. V

C 2021, Dina Awshah.

125

protected by law in the respective states discussed in this article; yet they are con-

sistently legislated against. Therefore, in the interest of further protection, this

article turns to the International Covenant for Civil and Political Rights and

the United Nations Human Rights Committee’s interpretation of the treaty to

prove the BDS movement must be protected by international human rights law.

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

A. What is BDS? — Background and Origins . . . . . . . . . . . . . 127

B. International Human Rights Framework . . . . . . . . . . . . . . 132

II. INTERNATIONAL LEGISLATIVE RESPONSES TO THE BDS MOVEMENT . 135

A. United States. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

B. France and the European Union . . . . . . . . . . . . . . . . . . . . 140

1. France . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

2. European Union . . . . . . . . . . . . . . . . . . . . . . . . . . 142

C. Israel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143

III. APPLICATION OF THE INTERNATIONAL COVENANT ON CIVIL AND

POLITICAL RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146

A. Does a Violation of the International Covenant on Civil and

Political Rights Exist?. . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

1. Do the Proposed United States Anti-BDS Laws Pass

Under Ballantyne?. . . . . . . . . . . . . . . . . . . . . . . . . . 151

2. Does France’s Anti-BDS Law Pass Under Ballantyne? 153

3. Do Israel’s Anti-BDS Laws Pass Under Ballantyne?. 157

IV. LEGAL ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159

V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165

I. INTRODUCTION

Across the globe, there is a cultural shift toward increased concern

over Israel’s human rights record. For more than a decade a wide range

of groups have taken steps to challenge the status quo of ignoring

Israel’s abuse of Palestinian rights.

1

At the same time, opponents have

attempted to smear Palestinian activism as anti-Semitic or discrimina-

tory in nature, in hopes of gaining standing with a legally cognizable

claim of discrimination.

2

See, e.g., David French, The Anti-Semitic BDS Movement Advocates Illegal Discrimination, NAT’L

REV. (July 18, 2019, 3:59 PM), https://www.nationalreview.com/2019/07/the-anti-semitic-bds-

movement-advocates-illegal-discrimination.

The past few years have also seen an increase

in legislation aimed at curbing Palestinian activism across the globe.

1. Brief of Amici Curiae, The Center for Constitutional Rights and Palestine Legal, Supporting

of Plaintiffs-Appellees, Jordahl v. Brnovich, 789 F. App’x 589 (9th Cir. 2020) (No. 18-16896)

[hereinafter CCR & PalLegal Brief].

2.

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

126 [Vol. 53

The main target of these actions has been the Boycott, Divestment, and

Sanctions (BDS) movement. Legislative actions aimed at restricting

participation in and the success of the BDS movement are on the rise

in the United States, Europe, and Israel, alongside litigation that chal-

lenges these legislative attempts as violations of the right to freedom of

speech and expression. At the same time, in July 2020, the European

Court of Human Rights (ECtHR) released a decision and opinion in

the case of Baldassi and Others v. France.

3

Baldassi and Others v. France, App. No. 15271/16, Judgment, § 81 (June 11, 2020), https://

hudoc.echr.coe.int/eng-press?i=003-6718555-8953654.

The ECtHR determined that a

French law imposing a criminal penalty on individuals participating in

the BDS movement is indeed a violation of the right to freedom of

expression and speech,

4

enshrined in both the International Covenant

on Civil and Political Rights (ICCPR) and the European Convention

on Human Rights (ECHR).

5

This Note explains the objective of the BDS movement and explores

the legality of these legislative actions in the United States, France, and

Israel under the ICCPR. First, this Note will review the premises and

goals of the BDS movement, demonstrating that it works within the lim-

its of international law. Then, this Note will discuss a variety of legisla-

tive actions seeking to silence the call for boycotts, divestment, and

sanctions, and some of the litigation challenging these laws. Finally,

this Note will conclude with a legal analysis of the relevant legislation

and litigation using the United Nations Human Rights Committee’s

case law as precedent to determine whether there is a violation of

Article 19 of the International Covenant on Civil and Political Rights.

Ultimately, under the human rights standards of the ICCPR, these

domestic prohibitions on the BDS movement do not meet the standard

for legitimate restrictions on speech and expression. Based on the

international legal precedent that will be discussed below, the United

States, France, and Israel remain in violation of Article 19 of the ICCPR

for their limitations on non-violent activism in support of Palestine and

Palestinians across all countries and territories.

A. What is BDS? — Background and Origins

In 2005, the BDS movement was founded as a way to leverage non-

violent pressure against Israel.

6

What is BDS?, BDS, https://bdsmovement.net/what-is-bds (last updated Feb. 9, 2020).

The movement aims to end the Israeli

3.

4. Id.

5. Eur. Comm’n H.R. art. 10, ¶ 1, opened for signature Nov. 4, 1950, C.E.T.S. 231 [hereinafter

ICCPR].

6.

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