Spinning the WTO GPA to intimidate the BDS Movement: The UK Crackdown
The WTO Government Procurement Agreement (GPA) is at the heart of a controversy in the UK surrounding the boycott by some local councils of products and services associated with illegal settlements in Palestine. It has been widely reported in the UK press that the government is imposing severe legal penalties on local governments, and perhaps even student organizations, who engage in such boycotts. The UK Cabinet Office has offered as a reason, or pretext, for this action the need to comply with the EU's (hence UK's) obligations under the GPA.
In fact, an examination of the document issued today by the UK Government reveals that it is little more than an intimidation tactic.http://bit.ly/1mHC97f The document merely states, in general terms, the existing international obligations that apply to UK sub-national authorities by virtue of the GPA. It doesn't create any new legal requirement to avoid boycotting. Instead through a kind of sleight of hand, it implies that the general disapproval (without creating any new legal constraint) of boycotts as "inappropriate" follows necessarily from the existing international obligations under the GPA.
So what are these obligations in the case of the EU? The GPA does apply to EU sub-central government bodies, including regional and local authorities and to bodies governed by public law. It is unclear that student organizations would fall within the category "bodies governed by public law". For the UK, universities and polytechnics do (Annex I EU Directive 93/37) but the question of student organizations or unions that operate autonomously or semi-autonomously from the institutions in question is more complex.
But there are other limitations on the application of the GPA to EU sub-central authorities that are relevant. The first is the minimum threshold of 200,000 SDRs (roughly 200,000 UK pounds) for both goods and services generally. The second limitation is in Annex V of the EC GPA schedule, which sets out the 15 classes of services that the GPA applies to for the EU. Certainly, one major area of local council procurement is clearly covered: waste disposal and management. But housing and construction services (generally speaking) are not covered (except for architectural services), nor are services related to fire and public safety.
Finally, and perhaps most important, is the "public morals" exception in Article III:2:a of the GPA. This is modeled on similar exceptions in GATT and GATS. Of course, recently the WTO Appellate Body found that, in general (subject to some concerns about exceptions in the fine print), a ban on seal products by the EU was justified on public morals grounds, based on cruelty in the seal hunt being contrary to fundamental beliefs of the community. It is certainly plausible that some forms of boycott in procurement that target illegal settlements might be justified, along similar lines, in terms of "public morals."
Personally, I'm largely against the BDS movement, though I'm sympathetic to peaceful activism against the settlements. That's a longer story. The bottom line here: local councils and other organizations shouldn't back off just because of today's intimidation tactic by the UK Cabinet Office. Instead, they should learn the law of the WTO on procurement. Knowledge is power.