Trump Administration's West Bank and Gaza Labeling Helped Affirm Reality | Opinion

Two weeks ago, six far-left groups sent an inaccurate and deceitful letter to the Biden administration that urged the reversal of the Trump administration's labeling requirements for goods exported from Judea and Samaria (the West Bank) and Gaza Strip into the United States. Their effort is not surprising, given their long record of vilifying and delegitimizing Israel and their support for the discriminatory Boycott, Divestment and Sanctions (BDS) campaign against Jewish communities in Judea and Samaria. But there is absolutely no legitimate basis to reverse the Trump administration's decision, which is consistent with long-standing U.S. policy and practice, as well as prior agreements and the reality on the ground.

The Trump administration's Notice issued on December 23, 2020 requires goods produced where Israel continues to exercise relevant authorities and administrative control under the Oslo Accords and Hebron Protocol in Area C and H2 of the West Bank be labeled as "Product of Israel" or similar markings. Goods produced where the Palestinian Authority (PA) continues to have civilian oversight in Areas A and B, along with H1 of the West Bank, must be labeled as "West Bank" or similar markings. Goods from the Gaza Strip have to be marked as "Gaza Strip" or similar markings. It is no longer permitted for goods from any of these geographic areas to be labeled as "West Bank and Gaza" or similar markings.

The central argument in the groups' letter is that the Trump administration's decision "marks a significant change from longstanding U.S. Customs guidance maintained under both Democratic and Republican administrations, which prohibits products from anywhere in the West Bank—whether from settlements or Palestinian areas—from being labeled as made in Israel." Their letter further states that "[t]he pre-Trump guidance was first promulgated in 1995 following the Oslo Accords." Both these claims are untrue. Indeed, these groups conveniently excluded from their letter the 1995 Notice text described prior to the Oslo Accords: "Customs required that the word 'Israel' must appear in the marking designation" for all goods exported from the West Bank or Gaza Strip.

The 1995 Notice changed the labeling requirements only after the Oslo Accords. Goods from the West Bank or Gaza Strip had to be marked as "West Bank," "Gaza" or "Gaza Strip," and could no longer use the word "Israel" or similar markings. The 1997 Notice then stated that the West Bank and Gaza should be considered one territory, thus permitting the label "West Bank and Gaza" or similar markings. Both the 1995 and 1997 Notices were reaffirmed by the Obama administration in 2016.

But there were three main problems with the 1995 and 1997 Notices.

Jewish settlement of Givat Zeev near Ramallah
Jewish settlement of Givat Zeev near Ramallah AHMAD GHARABLI/AFP via Getty Images

First, the 1995 and 1997 Notices did not reflect the arrangements that existed as a result of the Oslo Accords and the Hebron Protocol. The reality on the ground is that Israel continues to maintain relevant authorities and administrative control in Area C and H2, while the PA has civilian oversight in Areas A and B and H1 of the West Bank. The Trump administration's State Department accurately advised U.S. Customs and Border Protection in December 2020 of the reality that "...there has been no further transfer of relevant authorities from Israel to the [PA] since issuance of the earlier guidance, and Israel continues to exercise relevant authorities in areas of the West Bank."

The Trump administration also correctly recognized "that Israel has disengaged from Gaza." The 1997 Notice was issued eight years before Israel left Gaza in 2005, and did not reflect that the PA has subsequently been ruling parts of the West Bank and the terrorist organization Hamas rules over the Gaza Strip. As a result of this development, the Trump administration recognized that "Gaza and the West Bank are politically and administratively separate and should be treated accordingly" in the labeling requirements—in other words, they cannot be considered one joint territory.

Second, the 1995 and 1997 Notices did not reflect U.S. policy in practice, and their labeling requirements were not really enforced. In fact, it seems that for more than two decades after 1997 to the present day, goods exported from Jewish communities in Judea and Samaria into the U.S. have used the word "Israel" or similar markings without any enforcement consequences.

Third, even after the Oslo Accords were signed, Congress amended the U.S.-Israel Free Trade Implementation Act of 1985 on October 2, 1996 to give the president the authority to issue a proclamation to provide duty-free treatment for goods exported from the West Bank and Gaza into the U.S. Both the law and President Bill Clinton's signed Proclamation 6955 on November 13, 1996 provided that "articles of Israel may be treated as though they were articles directly shipped from Israel for the purposes of the Agreement even if shipped to the United States from the West Bank, the Gaza Strip or a qualifying industrial zone." Therefore, even though the law and Proclamation focused on extending duty-free treatment to all goods (including Palestinian products), the key point is that the U.S. has treated and continues to treat Israeli goods the same irrespective of their precise geographic origin.

After attempting to rewrite the actual history of U.S. policy, the letter also falsely claims that the Trump administration's Notice was actually part of an effort "to endorse and legitimize Israeli settlements." It is important to reiterate the fact that U.S. policy prior to the Oslo Accords mandated the word "Israel" on the label of all goods emanating from the West Bank. No one ever suggested or claimed throughout decades of Republican and Democratic administrations that this policy meant the U.S. was supporting settlements or Israeli sovereignty over the West Bank. Neither did the Trump administration. To the contrary, country of origin markings factually reflect who has control over a geographic area at a given time. They are not used as a tool to denote sovereignty.

The Biden administration must reject the letter's misguided effort to politicize labeling requirements and advance an anti-Israel agenda redolent of the European Union's similar malicious labeling efforts against Israel. We will soon see whether the Biden administration capitulates, or whether the facts will prevail.

David Milstein served as special assistant to the U.S. ambassador to Israel and as a legislative aide in the U.S. Senate.

The views expressed in this article are the writer's own.