Invest in North Dakota: Behind the State’s Anti-BDS Law

BDS is an acronym for “boycott, divestment, and sanctions”. This is a movement that aims to apply economic pressure on the state of Israel to end its occupation of Palestinian lands, recognize the right of return of Palestinian refugees, and respect the civil rights of Palestinian citizens of Israel. Launched in 2005 by an alliance of Palestinian civil society organizations, the movement hopes that by encouraging participants to disassociate from corporations and other institutions that do business with Israel– tactics inspired by the successful anti-apartheid movement in South Africa– Palestine can nonviolently win its freedom.

Works Cited: BDS Movement. (n.d.). What is BDS? Retrieved from https://bdsmovement.net/what-is-bds

Boycotts have been employed as a tactic against empires and other forces of empire for centuries. The word “boycott”, in fact, originates from Charles Boycott, a British estate manager ostracized by the Irish Land League after he refused their demands to reduce tenants’ rents. Boycotts were even used in the American Revolution– the First Continental Congress called for a boycott of British merchants in the hope it would compel Parliament to respond to their demands.

The BDS movement is often compared to the South African anti-apartheid movement’s boycott campaign. Beyond the similarities drawn between Black South African and Palestinian oppression, the modus operandi of the two movements are similar. Unlike the aforementioned Irish and American examples, in which colonies refused to economically support the metropole or its agents, the South African and Palestinian BDS movements urge third parties to not do business with an oppressive regime.

Crawford and Kloz (1999), in analyzing the impact of sanctions on South Africa’s apartheid system, identify four potential mechanisms by which BDS can achieve its ends.

1. Compellence: Increase the economic cost of enforcing a policy, therefore motivating the target to abandon its course of action
2. Normative Communication: Use BDS as a tool to cast moral opprobrium on a target, guilting or shaming it into changing its behavior
3. Resource Denial: Prevent the target from acquiring the capital or other materials required to continue its political program
4. Political Fracture: Induce a domestic political crisis through which the target alters its policy in order to meet the demands of the boycotters and return to normalcy

Works Cited: Crawford, N. C., & Klotz, A. (1999). How sanctions work: a framework for analysis. In How Sanctions Work: Lessons from South Africa (pp. 25-42). London: Palgrave Macmillan UK.

“Anti-BDS” refers to the political campaign to oppose attempts to boycott, divest, or sanction Israel. Tactically, this counter-movement seeks to apply its own economic pressure on entities that have publicly proclaimed they will not do business with the state of Israel so long as the occupation continues. This may involve prohibiting state governments from signing contracts with individuals, groups, or companies that have boycotted Israel; legislation may also require entities entering contracts with the state to sign a pledge that they will not boycott Israel (at least for the duration of the contract).

Anti-BDS and Civil Liberties

By restricting how institutions can affiliate with other countries, anti-BDS legislation fits into a broader campaign to penalize or restrict dissent. Consider one example: HB 1123 in Oklahoma. Months after Native American protestors launched a campaign to halt construction of the Dakota Access Pipeline, which, in the case of a leak, threatened the water supply of the Standing Rock Indian Reservation. HB 1123 responded to the economic threat posed by such protests by criminalizing trespassing on property containing a “critical infrastructure facility”, defined so as to include major energy-related industrial plants, pipelines, and chemical tanks.

The American Legislative Exchange Committee (ALEC) would use HB 1123 as a model bill for similar legislation in other states. This was the same tactic ALEC employed to circulate anti-BDS legislation across the country. Indeed, ALEC would later support model legislation that would forbid boycotts of fossil fuel companies.

Even beyond this greater, concerning trend towards restricting dissent, anti-BDS legislation is antithetical to civil liberties. Freedom of speech, after all, is more than the mere expression of opinion. If an individual believes an entity is performing gravely immoral actions, it follows that their conduct will align with those beliefs, and the expression of those beliefs will lead listeners to also act likewise. If a citizen discovers that a chef spits in his customers’ food, it makes sense that this individual would not want to eat at the chef’s restaurant and encourage friends to do likewise.

Consider the Supreme Court case NAACP v. Claiborne Hardware, which involved a protracted boycott of White-owned businesses in Mississippi by a coordinated group of Black Americans. The court ruled in favor of the boycotters on the basis that government authority to regulate the economy did not extend to peaceful political campaigns to not patronize particular businesses. So long as boycott organizers do not attempt to coerce others into participating (e.g., graffitiing the homes of neighbors who shop at a targeted store), the state cannot quash a boycott campaign. 

Works Cited:

Bot, M. (2019). The right to boycott: Bds, law, and politics in a global context. Transnational Legal Theory, 10(3-4), 421-445. https://doi.org/10.1080/20414005.2019.1672134

Center for Constitutional Rights. (2018). ALEC attacks. https://www.alecattacks.org/about-this-report

Cunningham, M. (2021, December 22). Model legislation targets banks that divest from fossil fuel companies. ABC News. https://abcnews.go.com/Politics/model-legislation-targets-banks-divest-fossil-fuel-companies/story?id=81865813

Palestine Legal. (n.d.). Protect the right to boycott: Oppose anti-BDS legislation. 

HB 1368

During the 68th Legislative Assembly (i.e., 2023), the North Dakota legislature passed a bill relating to the BDS movement: House Bill 1368 (HB 1368). The bill forbids the state of North Dakota itself from adopting a policy that would “have the effect of requiring or inducing any person to boycott Israel”. More critically, when a company enters into a contract with the state, if the contract includes an anti-discrimination provision, there must also be a provision prohibiting the company from boycotting Israel during the duration of the contract.

There are limits to this bill. The prohibition does not apply to contracts valued less than $100,000 or to contracted companies with fewer than 10 full-time employees. Additionally, “an expressive activity, alone, directed at a specific person or a governmental action” is insufficient to denote a boycott of Israel. The anti-boycott provision also may be waived “ if the waiver is in the best interest of the state”.

Who voted for it?

The bill passed the Senate by a vote of 43 “yays”, 3 “nays”, and 1 abstention. The bill passed the House by a vote of 87 “yays”, 4 “nays”, and 3 abstentions.

CODEPINK North Dakota has created a spreadsheet which lists the representatives and senators who voted for and against the final version of HB 1368.Please note that not all current members of the North Dakota legislature were in office at the time of the HB 1368, some legislators have resigned or died and been replaced in the interim. The spreadsheet is subject to change in response to primary and general elections.