So, I am a bit reticent to dip my toe into this water, but I think it's a necessary dip in light of this CNN story on Scarlett Johannson's SodaStream debacle. I know the title is a little provocative, but if you stick with me, you'll see why I have this title...
The CNN story is vapid and shallow in its treatment of a complex issue. First off - CNN, you are discussing international law and can't have a single person explain what "international law" issues are at hand? Come now. That's just lazy reporting.
But more importantly, what CNN does here is present two stories that are seemingly disconnected - the ability of SodaStream to employ both Israelis and Palestinians on the one hand; and the conditions of Palestinians in nearby towns on the other - and never explains what the connection is between the two, other than the presence or absence of bubbles in their water.
WTF? You think that's the connection you need to hone in on CNN? Because I was sooo confused when the Palestinians were using a jerry-rigged hose for their water source. I totally thought "I bet that sh-- comes with bubbles."
Okay, no more cursing. This story is too important for cursing - only the bad reporting deserves cursing...
The CNN story would be annoying if the underlying impact of the Israeli businesses in the West Bank wasn't so fundamentally important both to individuals in Palestine but also to the underlying stability of the region.
The connection that CNN failed to draw was that SodaStream's operations in the West Bank may provide jobs for a few Palestinians but their presence actually harms a lot of Palestinians, and the Palestinian state as a whole. This is why it actually is part of a larger threat to the stability of the region.
Let's start with some basics. In all decisions about the investment and human rights (or business and human rights, if you will) - meaning the impact of businesses on human rights - the question comes down first to a cost-benefit analysis. What is ratio of the benefit for the community to the detriment facing the community, and is that ratio worth it?
The general premise of business development is that you pursue projects that may harm some people in the short-term but that ultimately benefit the community as a whole. And you compensate those who are harmed so that the harm isn't unfairly distributed just to them.
The underlying question, though, and the one I'll principally be discussing here, is who gets to decide that balance. That's the issue when discussing Israeli businesses in the West Bank.
In international law, the state (or "country" for my American friends and fam) gets to make decisions about the use of its own territory. It's called "state sovereignty." No other state gets that right.
Underlying this right is a belief that the decision-makers are operating in the state's best interests and have some accountability towards the local citizenry. This isn't always through a democratic voice -- international law favors democracy but doesn't explicitly require it (though it's definitely moving in that direction). But there's a presumption (a naive one, at best) that in a sovereign state, those in power work on behalf of those they exercise power over.
This deep naivety has changed a bit with the advent and development of international human rights law, but there remains an underlying foundation of state sovereignty. And with state sovereignty comes the right to make cost-benefit analyses about the operation of certain companies, local water conditions, health and safety regulations, etc.
In an occupation, though, international law recognizes that those with power and authority aren't accountable. As in, they explicitly are not intended to be accountable to the people they are now exercising authority over. The leaders represent a whole different set of people - their own citizens - and a whole different interest set; an interest set that may benefit from completely ignoring the local population's needs.
In an occupation, the occupied get no decision-making power; they have no authority; no one is accountable to them; and they get no clear representation.
This is the problem that international law recognizes and the issue that is at the heart of this SodaStream controversy.
International law recognizes that since those individuals under the control of an occupying force have no recourse to the domestic system, the occupying force (Israel) has additional obligations to the occupied (Palestinians).
One of those obligations is to ensure it does not make decisions about the regular use of the territory. The occupier doesn't have a right to bring businesses in and give them land titles. It doesn't have a right to confiscate (or expropriate) land, to create new communities or to decide the balance of rights-detriments of a particular industry's presence. It doesn't have a right to forcefully move a population, to destroy its land, or to sell the local minerals, resources, etc.
The right to make all of those decisions about the use of a territory comes from state sovereignty. And an occupier has no sovereignty over the occupied territory. Occupation is distinctly a temporarily limited and does not transfer rights associated with sovereignty.
The West Bank doesn't belong to Israel. Israel therefore doesn't get to make decisions about its daily use.
Now, let's be clear: these are standards Israel has consented to be bound by. Israel is a party to the Conventions that govern occupation. Israel just wants to believe it shouldn't be bound by these rules in relation to the Palestinian state. But, wishing and hoping isn't a legal answer. I know - I've tried it. I got laughed at in 1L classes because the law isn't whatever you think is right in a particular situation. The law is what the law is and if you don't like it's application in a particular context, the obligation is to change the law. Israel hasn't done that and neither has the international community. The law of occupation remains as it was, and Israel is bound by it.
There's another reason for the rules on use of land, deciding what corporations you'll let in, etc.: you don't get to derive legal benefits from illegal activities. That's one of the fundamental rules of all law.
So, occupation is illegal under international law. Going back to the issue of sovereignty: you only have a right to your own territory; not to anyone else's. So when you're on the other territory, you're just there, but you're not supposed to derive any legal protection / rights / benefits from your presence there.
But when occupiers (like Israel) establish businesses in occupied territories (like Palestine), they often do so in ways that give a lot of financial benefits to Israel. For example, SodaStream pays taxes to Israel, not to Palestine. While 1/3 of SodaStream's employees are Palestinian (according to the CNN story numbers of 1500 employees, 500 of whom are Palestinian), that means 2/3 of them are Israeli. And Palestinians have no ability to decide which Israeli's they want working there - and taking jobs from them.
Think about it terms of US-Mexican immigration: the US gets to decide how many Mexicans it lets come to look for work; it gets to decide what their qualifications must be; and it gets to decide to not let criminals or threats to national security into its borders. The US gets to decide when the market is too saturated and protect work-based immigration for its own people.
Palestinians, though, don't get to do this.
So despite the fact that there is high unemployment within Palestine, 2/3 of people working in a plant on their territory aren't Palestinian and the local government - the PA - has no right to refuse them the right to enter the territory for work. So while CNN pretty much sings the praises of SodaStream for paying Palestinians an appropriate wage, there's 1000 jobs that the Palestinians don't benefit from but have to accept the detriments of.
And they didn't get to chose that reality.
The tax on all those incomes also goes to Israel, not Palestine. While a normal business enterprise might pay taxes that work towards the construction of local schools, local hospitals, local Universities, water and food distribution, and welfare services for those in the community, that's not what Palestine gets out of the deal.
Perhaps a moral - though still not legal - case could be made for the benefit to Palestinians if the Israeli government were using the tax money on incomes from Israeli settlement businesses on developing said schools, hospitals, Universities, homes, roads, etc., for the benefit of Palestinians.
What's actually happening, though, is that the tax money Israel gets is going toward demolishing Palestinian homes, cutting off Palestinian water supplies - or providing protection for those who do interfere with the right to water, demolishing Palestinian churches, denying access to hospitals, and other activities that harm them and benefit Israel or Israeli settlers.
So when CNN takes us to a Bedouin village, what it's showing us isn't really disconnected from the story of SodaStream: the plight of Palestinians is directly related to the operations of settlement businesses, and not simply because of the jobs they may get. Those businesses take from the Palestinian community -- land, resources and water, for a start -- and the benefit that should be paid back to Palestinians -- the benefit that is normally paid to the community in which a business operates -- that benefit is instead being used to further limit Palestinians and their rights.
CNN simply fails to explain that connection -- favoring a trite comparison about how bubbly water can be. But that lack of water for the Bedouin community? It's because businesses like SodaStream are paying taxes to the wrong people. They are abiding by the wrong laws. And they are supporting a regime that ignores its international obligations toward the Palestinians.
If SodaStream was the only company for which this was applicable, there'd be a problem but it wouldn't be a big problem. But, this is a big problem because it happens throughout Palestine.
Now, those that defend SodaStream's presence - including numerous commentators on the CNN article but also the CEO of SodaStream himself - argue that the 500 jobs are a great benefit to Palestinians. They argue Palestinians are better off than they would've been but for their jobs, and they get paid better than they would in ordinary conditions -- without ever questioning why Palestinians are underemployed and receive lower wages.
And this is where we get into a "white man's burden" argument: we are telling Palestinians what they should accept because it's better for them. We are telling them that this one, small, minor benefit from the plant is enough to outweigh all the harm the plant's presence done. Like how bringing Christianity to the slaves was supposed to outweigh the harm of the whip and the lash.
Now, let me be clear: I'm not comparing Palestinian standards or treatment with that of slavery. But, what I am saying is that it's not the right of the externals -- Israelis, Americans, others -- to decide for Palestinians what benefits outweigh what harms in their own communities. That's for Palestinians to decide. That's the Palestinian right in their territory.
Perhaps I wouldn't think of it in "white man's burden" terms but for watching 12 Years a Slave last night. I was struck by the brutality of man to mankind, but perhaps not in the way most were. Yes, the whipping scenes were brutal and horrible. The hanging scenes made me want to vomit - particularly when I thought about how long after the end of slavery that was a reality in the US.
But what stuck with me was the other brutality. The brutality of those that sat by, not agreeing with slavery but refusing to do anything about it.
The guy who treated his slaves well but then sold them and traded them to others.
The wife who seemed at first to disagree with slavery, until she decided if her husband would be a slaver, he should be the worst slaver possible.
The guy who was sentenced to slave conditions and then sold out a man he knew was free.
Those individuals bore the brutality of indifference - the acceptance that another human being was not worth supporting. Was not worth standing up for. Was sacrificial. And collectively, the South justified its brutality by pointing to the "benefits" to black people. When they realized that black people were people at all.
Evil and injustice require a lot of bystanders. And with that bystander mentality comes the cruelty. With that bystander mentality comes acceptance and the perpetration of cruelty.
So SodaStream's ill is not in its treatment of its Palestinian employees. It's in its willingness to participate in, benefit from, and ignore injustice. The cruelty comes in its willingness to point to the benefits it gives as a justification for the incalculable harm it is doing to the very people it claims it is helping.
Sure, SodaStream pays its employees well. But at what cost? What social injustices do those same employees pay because of SodaStream's indifference and assistance in an illegal occupation?
And who should get to decide that the cost is worth it?
Unless we see Palestine as the Israeli Man's Burden, we know the answer. International law and morality demand the same here: the Palestinians should get to decide the cost-benefit analysis of any new investment. Since they can't, nothing excuses what SodaStream is doing.
The CNN story is vapid and shallow in its treatment of a complex issue. First off - CNN, you are discussing international law and can't have a single person explain what "international law" issues are at hand? Come now. That's just lazy reporting.
But more importantly, what CNN does here is present two stories that are seemingly disconnected - the ability of SodaStream to employ both Israelis and Palestinians on the one hand; and the conditions of Palestinians in nearby towns on the other - and never explains what the connection is between the two, other than the presence or absence of bubbles in their water.
WTF? You think that's the connection you need to hone in on CNN? Because I was sooo confused when the Palestinians were using a jerry-rigged hose for their water source. I totally thought "I bet that sh-- comes with bubbles."
Okay, no more cursing. This story is too important for cursing - only the bad reporting deserves cursing...
The CNN story would be annoying if the underlying impact of the Israeli businesses in the West Bank wasn't so fundamentally important both to individuals in Palestine but also to the underlying stability of the region.
The connection that CNN failed to draw was that SodaStream's operations in the West Bank may provide jobs for a few Palestinians but their presence actually harms a lot of Palestinians, and the Palestinian state as a whole. This is why it actually is part of a larger threat to the stability of the region.
Let's start with some basics. In all decisions about the investment and human rights (or business and human rights, if you will) - meaning the impact of businesses on human rights - the question comes down first to a cost-benefit analysis. What is ratio of the benefit for the community to the detriment facing the community, and is that ratio worth it?
The general premise of business development is that you pursue projects that may harm some people in the short-term but that ultimately benefit the community as a whole. And you compensate those who are harmed so that the harm isn't unfairly distributed just to them.
The underlying question, though, and the one I'll principally be discussing here, is who gets to decide that balance. That's the issue when discussing Israeli businesses in the West Bank.
In international law, the state (or "country" for my American friends and fam) gets to make decisions about the use of its own territory. It's called "state sovereignty." No other state gets that right.
Underlying this right is a belief that the decision-makers are operating in the state's best interests and have some accountability towards the local citizenry. This isn't always through a democratic voice -- international law favors democracy but doesn't explicitly require it (though it's definitely moving in that direction). But there's a presumption (a naive one, at best) that in a sovereign state, those in power work on behalf of those they exercise power over.
This deep naivety has changed a bit with the advent and development of international human rights law, but there remains an underlying foundation of state sovereignty. And with state sovereignty comes the right to make cost-benefit analyses about the operation of certain companies, local water conditions, health and safety regulations, etc.
In an occupation, though, international law recognizes that those with power and authority aren't accountable. As in, they explicitly are not intended to be accountable to the people they are now exercising authority over. The leaders represent a whole different set of people - their own citizens - and a whole different interest set; an interest set that may benefit from completely ignoring the local population's needs.
In an occupation, the occupied get no decision-making power; they have no authority; no one is accountable to them; and they get no clear representation.
This is the problem that international law recognizes and the issue that is at the heart of this SodaStream controversy.
International law recognizes that since those individuals under the control of an occupying force have no recourse to the domestic system, the occupying force (Israel) has additional obligations to the occupied (Palestinians).
One of those obligations is to ensure it does not make decisions about the regular use of the territory. The occupier doesn't have a right to bring businesses in and give them land titles. It doesn't have a right to confiscate (or expropriate) land, to create new communities or to decide the balance of rights-detriments of a particular industry's presence. It doesn't have a right to forcefully move a population, to destroy its land, or to sell the local minerals, resources, etc.
The right to make all of those decisions about the use of a territory comes from state sovereignty. And an occupier has no sovereignty over the occupied territory. Occupation is distinctly a temporarily limited and does not transfer rights associated with sovereignty.
The West Bank doesn't belong to Israel. Israel therefore doesn't get to make decisions about its daily use.
Now, let's be clear: these are standards Israel has consented to be bound by. Israel is a party to the Conventions that govern occupation. Israel just wants to believe it shouldn't be bound by these rules in relation to the Palestinian state. But, wishing and hoping isn't a legal answer. I know - I've tried it. I got laughed at in 1L classes because the law isn't whatever you think is right in a particular situation. The law is what the law is and if you don't like it's application in a particular context, the obligation is to change the law. Israel hasn't done that and neither has the international community. The law of occupation remains as it was, and Israel is bound by it.
[I do realize I'm oversimplifying the debate on this, but that's because it's not the focus of this piece. I can address the debate another time. After my PhD is done.]
There's another reason for the rules on use of land, deciding what corporations you'll let in, etc.: you don't get to derive legal benefits from illegal activities. That's one of the fundamental rules of all law.
So, occupation is illegal under international law. Going back to the issue of sovereignty: you only have a right to your own territory; not to anyone else's. So when you're on the other territory, you're just there, but you're not supposed to derive any legal protection / rights / benefits from your presence there.
But when occupiers (like Israel) establish businesses in occupied territories (like Palestine), they often do so in ways that give a lot of financial benefits to Israel. For example, SodaStream pays taxes to Israel, not to Palestine. While 1/3 of SodaStream's employees are Palestinian (according to the CNN story numbers of 1500 employees, 500 of whom are Palestinian), that means 2/3 of them are Israeli. And Palestinians have no ability to decide which Israeli's they want working there - and taking jobs from them.
Think about it terms of US-Mexican immigration: the US gets to decide how many Mexicans it lets come to look for work; it gets to decide what their qualifications must be; and it gets to decide to not let criminals or threats to national security into its borders. The US gets to decide when the market is too saturated and protect work-based immigration for its own people.
Palestinians, though, don't get to do this.
So despite the fact that there is high unemployment within Palestine, 2/3 of people working in a plant on their territory aren't Palestinian and the local government - the PA - has no right to refuse them the right to enter the territory for work. So while CNN pretty much sings the praises of SodaStream for paying Palestinians an appropriate wage, there's 1000 jobs that the Palestinians don't benefit from but have to accept the detriments of.
And they didn't get to chose that reality.
The tax on all those incomes also goes to Israel, not Palestine. While a normal business enterprise might pay taxes that work towards the construction of local schools, local hospitals, local Universities, water and food distribution, and welfare services for those in the community, that's not what Palestine gets out of the deal.
Perhaps a moral - though still not legal - case could be made for the benefit to Palestinians if the Israeli government were using the tax money on incomes from Israeli settlement businesses on developing said schools, hospitals, Universities, homes, roads, etc., for the benefit of Palestinians.
What's actually happening, though, is that the tax money Israel gets is going toward demolishing Palestinian homes, cutting off Palestinian water supplies - or providing protection for those who do interfere with the right to water, demolishing Palestinian churches, denying access to hospitals, and other activities that harm them and benefit Israel or Israeli settlers.
So when CNN takes us to a Bedouin village, what it's showing us isn't really disconnected from the story of SodaStream: the plight of Palestinians is directly related to the operations of settlement businesses, and not simply because of the jobs they may get. Those businesses take from the Palestinian community -- land, resources and water, for a start -- and the benefit that should be paid back to Palestinians -- the benefit that is normally paid to the community in which a business operates -- that benefit is instead being used to further limit Palestinians and their rights.
CNN simply fails to explain that connection -- favoring a trite comparison about how bubbly water can be. But that lack of water for the Bedouin community? It's because businesses like SodaStream are paying taxes to the wrong people. They are abiding by the wrong laws. And they are supporting a regime that ignores its international obligations toward the Palestinians.
If SodaStream was the only company for which this was applicable, there'd be a problem but it wouldn't be a big problem. But, this is a big problem because it happens throughout Palestine.
Now, those that defend SodaStream's presence - including numerous commentators on the CNN article but also the CEO of SodaStream himself - argue that the 500 jobs are a great benefit to Palestinians. They argue Palestinians are better off than they would've been but for their jobs, and they get paid better than they would in ordinary conditions -- without ever questioning why Palestinians are underemployed and receive lower wages.
And this is where we get into a "white man's burden" argument: we are telling Palestinians what they should accept because it's better for them. We are telling them that this one, small, minor benefit from the plant is enough to outweigh all the harm the plant's presence done. Like how bringing Christianity to the slaves was supposed to outweigh the harm of the whip and the lash.
Now, let me be clear: I'm not comparing Palestinian standards or treatment with that of slavery. But, what I am saying is that it's not the right of the externals -- Israelis, Americans, others -- to decide for Palestinians what benefits outweigh what harms in their own communities. That's for Palestinians to decide. That's the Palestinian right in their territory.
Perhaps I wouldn't think of it in "white man's burden" terms but for watching 12 Years a Slave last night. I was struck by the brutality of man to mankind, but perhaps not in the way most were. Yes, the whipping scenes were brutal and horrible. The hanging scenes made me want to vomit - particularly when I thought about how long after the end of slavery that was a reality in the US.
But what stuck with me was the other brutality. The brutality of those that sat by, not agreeing with slavery but refusing to do anything about it.
The guy who treated his slaves well but then sold them and traded them to others.
The wife who seemed at first to disagree with slavery, until she decided if her husband would be a slaver, he should be the worst slaver possible.
The guy who was sentenced to slave conditions and then sold out a man he knew was free.
Those individuals bore the brutality of indifference - the acceptance that another human being was not worth supporting. Was not worth standing up for. Was sacrificial. And collectively, the South justified its brutality by pointing to the "benefits" to black people. When they realized that black people were people at all.
Evil and injustice require a lot of bystanders. And with that bystander mentality comes the cruelty. With that bystander mentality comes acceptance and the perpetration of cruelty.
So SodaStream's ill is not in its treatment of its Palestinian employees. It's in its willingness to participate in, benefit from, and ignore injustice. The cruelty comes in its willingness to point to the benefits it gives as a justification for the incalculable harm it is doing to the very people it claims it is helping.
Sure, SodaStream pays its employees well. But at what cost? What social injustices do those same employees pay because of SodaStream's indifference and assistance in an illegal occupation?
And who should get to decide that the cost is worth it?
Unless we see Palestine as the Israeli Man's Burden, we know the answer. International law and morality demand the same here: the Palestinians should get to decide the cost-benefit analysis of any new investment. Since they can't, nothing excuses what SodaStream is doing.
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