In my last post on the Kuwait Airways case, I noted that I hadn’t been able to find the airline’s “countersuit” against the Department of Transportation. “Countersuit” is, of course, the wrong word, but in fact the airline has petitioned the DC Circuit to review the DOT’s administrative decision. Eldad Gatt, the Israeli national who was refused service by the airline, has moved for leave to intervene.
There may be administrative law issues in the case, and even substantive questions of the law governing common carriers and airlines in particular. I am not going to try to comment on those. The interesting question, in my mind, is the question of the United States’s jurisdiction to require the airline to do something that violates Kuwaiti law, namely, do business with Israelis. Section 441 of the Restatement (Second) of the Foreign Relations Law of the United States gives the basic rule:
- In general, a state may not require a person
- to do an act in another state that is prohibited by the law of that state or by the law of the state of which he is a national; or
- to refrain from doing an act in another state that is required by the law of that state or by the law of the state of which he is a national.
- In general, a state may require a person of foreign nationality
- to do an act in that state even if it is prohibited by the law of the state of which he is a national; or
- to refrain from doing an act in that state even if it is required by the law of the state of which he is a national.
To put that more simply: the United States cannot require a person—even an American—to violate Kuwaiti law when the person is in Kuwait, but it can when the person is in the United States, even if the person is Kuwaiti. A moment’s reflection shows that stated at this level of generality, this rule is a necessary rule, else no state could effectively regulate the conduct of foreigners on its territory.
The rule is basically territorial, and so the question in this case is: is the United States regulating the airline’s activities in Kuwait, or in the United States?
The answer seems fairly clear, to me at least. The ticket sale took place in the United States. The travel at issue was travel between the United States and the United Kingdom, not the United States and Kuwait. The only connection between the facts of the case and Kuwait is the nationality of the business entity that operates the airline. So it is difficult for me to imagine that a US court would find that the United States lacks the jurisdiction to prescribe non-discrimination rules in this case.
I haven’t taken a look at the cases to see how closely they follow the Restatement approach, or whether there are special rules for common carriers generally or airlines in particular. But I will be following this case and will refine the analysis as more papers are filed.