·
Recent Examples/Punishments
of US Anti-Boycott Law (this is not theoretical): http://acdemocracy.org/how-the-arab-boycott-of-israel-works/
The anti-boycott provisions of the Act are written in general terms
to protect U.S. businesses and exporters from being forced into aligning their
trade and commerce practices with the foreign policy of foreign countries
hostile to U.S. foreign policy. Although the Act’s terms are general, the office
of the Department of Commerce that administers the Act acknowledges that the
statutory focus is the Arab League’s boycott of Israel. See: www.bis.doc.gov/complianceandenforcement.
This memo addresses the issues raised by the Act’s general terms, despite its
admitted focus on the Arab League’s boycott of Israel.
BDS campaigns that are conceived independently, rather than as
support for or in response to pressure by a hostile foreign government or in
concert with the Arab League’s boycott of Israel, do not violate the
anti-boycott laws. This is because the Act specifically defines an “unsanctioned”
foreign boycott as one that is “fostered or imposed by a foreign country against
a country which is friendly to the United States and which is not itself the
object of any form of boycott pursuant to United States law or regulation.” 50
U.S.C. App. § 2407(a)(1). A
boycott against the State of Israel or an Israeli company or concern would be
prohibited under the EAA only if the boycott is specifically intended to
support or comply with boycotts initiated by foreign countries. The phrase “foreign
country” refers to the official government of the country and does not
encompass NGOs.
We understand that BDS activists may want to acknowledge in their
boycott appeals and resolutions the fact that in 2005, more than 170 groups in
Palestinian civil society called for a boycott of Israel. This call to action
in 2005 was not governmental action, but a private call for international solidarity.
Homegrown BDS campaigns inspired by the 2005 call and having the same or
similar moral or political goals do not run afoul of the EAA.
Apart from the limited reach of the anti-boycott provisions, the
Act that contains the antiboycott provisions, the Export Administration Act,
has expired. It is our opinion that the Act’s antiboycott provisions cannot
lawfully be enforced unless the EAA is reenacted by Congress. Presidential Executive
Orders purport to continue the Act, but this is, in our opinion, dubious
authority for imposing sanctions for violation of the anti-boycott provisions.
Nevertheless, the Act could be reenacted by Congress at any time. Therefore,
our advice rests on an analysis of the Act as though it were still in effect.
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