The Public Court nº 3 of Barcelona issued a judgement on November 30, 2016, annulling the boycott decision passed by the City Council of Sant Adrià de Besòs —a city of 35,386 inhabitants in the metropolitan area of Barcelona. This judgement may act as a deterrent to a boycott decision on Barcelona and in other capital cities, a goal that is actively pursued by the boycott campaign in Spain.
This boycott decision proclaimed the city a ‘Free Space from Israeli Apartheid’, affiliated the Council with the Boycott, Divestment and Sanctions (BDS) campaign against Israeli, and committed the City Council to refrain from signing any contract, agreement or covenant with Israeli public bodies, companies or organizations, lest they would formally adhere to the objectives of the boycott campaign. This last boycott commitment targeted as well —here without any exemption clause— companies, institutions and organizations that might be involved, cooperate or obtain economic benefits from the alleged violations of International Law and Human Rights in the ‘Palestinian territories’ or the occupied Golan.
Finally, for the sake of clarity of purpose, the City Council agreed to engage in cooperation with the BDS movement, to explicitly ensure the proper implementation of the boycott decision; elevating thus, the BDS activists to the category of arbiters of the anti-Israeli policies of the City Council.
The judgement of this Public Court of Barcelona elaborated on several of my legal arguments, rendering the boycott illegal and without effect as in breach of the most fundamental civil liberties.
- The legal reasoning states that public bodies have a duty of restraint and political neutrality, and are not to be used for the political interest of councillors.
This argument is far-reaching as it can be argued in other cases where the wording of the boycott does not include provisions that preclude Israeli companies or companies that engage in business with Israel, from public procurement; as it prevents city councils from transferring particularly inflammatory views to their own cities, avoiding the use of local councils to broadcast radical statements.
- The boycott sets unconstitutional limitations to academic freedom as it subjects every school, college, researcher, teacher, lecturer or scholar who holds a specific position on the Arab-Israeli conflict that does not match the objectives of the boycott campaign, to exclusion from any City Council funds or activities, in addition to being subjected to a decisive public campaign that will undoubtedly affect their reputation and career.
- The boycott sets a restraint on freedom of speech. The endorsement of the boycott campaign against Israel by a public body seeks to control, select and determine the free circulation of ideas in the marketplace.
- The boycott is in breach of cultural, artistic and technical freedom. Any person or organization that holds or advocates a position contrary to the objectives of the BDB campaign will see limitations set to their free will to hold any opinion, and to the right to disclose it or not. The disparity of opinions is a sine qua non condition to guarantee pluralism and the need for the free exchange of ideas that is the foundation of a democratic society. A boycott policy seeks to control, select or punish the public circulation of ideas. In doing so, it violates freedom of speech.
- Freedom of opinion and freedom of religion. Right not to be forced to disclose opinions, religion or beliefs.
The boycott decision by setting a policy of abstaining from any political, commercial, agricultural, educational, cultural, sporting or security agreement, contract or covenant with public institutions, companies and organizations until Israel recognizes the right of the Palestinian people and abides by International Law, sets a restraint which has the effect of preventing, dissuading or restricting the right to hold ideas or opinions without interference.
Both the guidelines and the exemption clause of the boycott campaign that grants relief to companies, institutions and organizations that abide by the objectives of the campaign, ask for an effort to investigate and disclose personal views, opinions and political inclinations, a task explicitly prohibited both in the Constitution of Spain and in a number of international conventions of Human Rights.
- Violation of the right to equality before the Law. The boycott is sheer discrimination that is blatantly in breach of the national Law on public procurement, the Directives of the European Union, and the International Agreements on the matter.