Matthew Taub: Ottawa threatens sanctions on Israeli settlements without testing them legally

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On Friday last week, Global Affairs Canada published an official advisory telling Canadian businesses to stay away from an entire category of lawful commerce. The document warns of “significant legal, financial and reputational risks” tied to Israeli settlements in the West Bank and East Jerusalem, and advises companies against “investments, financial transactions, procurement, purchases and tourism” connected to them. Foreign Affairs Minister Anita Anand framed this warning as an extension of Canada’s “long-standing position” that the settlements are “illegal under international law” and “constitute a serious obstacle to a just and lasting peace.”

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This advisory threatens to sanction both Israelis abroad and Canadians.

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This is a serious problem. This decision does not come from a Canadian court or statute. It was not made by members of Parliament. It comes from Ottawa deciding, on its own authority, that the matter is closed. There is an important distinction Ottawa is blurring: Canada’s foreign-policy position is not the same thing as Canadian law. Parliament has debated the issue. NDP MP Heather McPherson introduced Motion M-28 in March calling for, among other things, targeted sanctions connected to settlements. But Parliament has not enacted a general prohibition on Canadians doing business connected to Israeli settlements. This matters.

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The advisory’s argument appears to rest on a single premise: Israeli settlements are “illegal under international law.” This claim rests on a contested interpretation of Article 49(6) of the 1949 Fourth Geneva Convention, which says an occupying power “shall not deport or transfer parts of its own civilian population into the territory it occupies.” The treaty does not define “transfer” in that provision or expressly say civilians are prohibited from moving voluntarily. The legal dispute is over how broadly “transfer” should be interpreted and what degree of government encouragement, assistance or involvement is sufficient to constitute one. Credentialed international lawyers have disputed these questions for decades.

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In the advisory, Ottawa points to the United Nations as the source of its reasoning. Fair enough. But let’s be precise about what the UN has actually said and done.

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UN Security Council Resolution 2334 calls the settlements a violation of international law. But it was passed under Chapter VI of the UN Charter, not Chapter VII, which authorizes enforcement. Whatever diplomatic and legal significance Resolution 2334 carries internationally, it does not itself make settlement commerce a crime under Canadian statute. A UN Security Council resolution addressed to states does not, by itself, make it illegal under Canadian law for a Canadian to buy a bottle of wine, for instance, produced in a West Bank settlement. Wine is not unique, it is simply a useful example because settlement-produced wine has already been tested in Canadian courts Canada has dealt with precisely such wines before, the resulting Canadian litigation concerned how they could be labelled, not whether Canadians were prohibited from buying them.

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Ottawa’s strongest argument is the International Court of Justice’s 2024 advisory opinion. But an advisory opinion is not legally binding, and several judges issued separate or dissenting opinions. A government may consider it, but it should not relay it to its citizens as Canadian law they break at their peril.