In a networked world, attempting to separate friends from foes can be messy. The High Court of the German state of Hesse last week tried to make some legal sense of the mess that is Kuwait’s non-recognition of Israel in an era of near-seamless interconnection. The result was unsatisfying.
At issue was an Israeli student who in 2016 bought a ticket on Kuwait Air, known as a bargain carrier, to fly from Frankfurt to Bangkok, with a stop in Kuwait City. When the airline learned of the passenger’s Israeli citizenship, it canceled his ticket, citing a law barring Kuwaiti carriers from providing service to Israeli passengers.
The High Court of Hesse upheld a November 2017 ruling by a district court in Frankfurt, which held that it is unreasonable to expect an airline to fulfill the non-discrimination provisions of a contract if doing so violated the laws in its home state. Kuwait, which doesn’t recognize Israel, bars contact and commerce with Israelis.
In reaching its latest ruling the High Court observed that while it was not within its jurisdiction to decide whether Kuwaiti law was reasonable, the reality of that law had measurable consequences that impacted the plaintiff’s case: “As Israelis in practice are not allowed to enter the transit areas of Kuwait’s airport, the plaintiff cannot demand transportation by the Kuwaiti airline from Frankfurt to Bangkok with a stopover in Kuwait.”
While the High Court observed that the Kuwaiti policy is “incompatible with German values” because it discriminates against a customer because of his Israeli nationality, its ruling did nothing more than pay lip service to that public policy. In contrast, the U.S. Transportation Department reached the same underlying legal and public policy conclusions in 2016, but unlike the German legal system, acted on those public policy concerns and demanded that Kuwait Air cease discriminating against Israelis on its New York to London route or cease operating on the route. Kuwait Air chose the latter.
Admittedly, the two cases are not entirely analogous. In the German case, the Israeli passenger was to land in Kuwait, while in the U.S. case he wasn’t. If the Hesse High Court had overturned the lower court ruling, it would have opened the possibility of an Israeli flying the Frankfurt-Bangkok route and being arrested upon landing in Kuwait, opening up potentially steep liability for Germany.
The German court may have reached the technically correct decision under German law. So, it is now up to the German legislature to tighten discrimination laws to the point where discriminatory airlines like Kuwait’s can be told: You must carry everyone or no one.
It wasn’t that long ago that U.S. forces, in a coalition that included the United Kingdom, liberated Kuwait from the Iraqi army of Saddam Hussein. We wouldn’t even be having this discussion if the coalition had not acted in the defense of liberty.
Now it’s time for Western nations to back their own non-discrimination policies. PJC