While condemning the discriminatory policy, a German appeals court in Frankfurt nevertheless ruled that Kuwait Airways cannot be forced to carry Israeli passengers.
An Israeli student in Germany had purchased a ticket in 2016 on Kuwait Airways to travel from Frankfurt to Bangkok via Kuwait City. But Kuwait Airways cancelled the ticket because Kuwaiti law prevents “all commercial relations” with Israelis or Israeli companies.
Upholding a lower court ruling, the appeals court (High Court of Hesse) argued the focus should on on Kuwaiti law, not German law:
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.
Brooke Goldstein of Lawfare, the organization that represented the student, expressed shock at the ruling:
This is a tragic day for German law. Rather than be held accountable before the law, the court has rewarded Kuwait Airways for its anti-Semitism.
But the ruling was not a surprise. The judge deemed the Kuwaiti policy “incompatible with German values” but argued that the courts hands were tied. As the lower court noted, German anti-discrimination laws do not protect against discrimination on the basis of citizenship. In a sense, the German court took a highly pragmatic approach. Let’s say they ruled for the Israeli passenger. What happens when he is denied boarding in Frankfurt? What happens if he reaches Kuwait and is arrested? Would German government officials escort him to Bangkok?
Nathan Gelbart, lawyer for the student passengers, bemoaned the decision and vowed a different approach, stating:
Now that justice so far has proven unable to solve this matter, politics immediately need to take clear decisions and tell the Kuwaitis: carry everyone or no one.
And he’s right. It is the German legislature that must now decide whether to tighten anti-discrimination laws that would in a sense force Kuwait Airways to choose between transporting Israelis or abandoning service to Germany.
CONCLUSION
I think the court reached the correct decision considering current German law and the pragmatic considerations of passenger safety. Nevertheless, I maintain that Kuwait’s discriminatory approach to transit passengers is disgusting and hope that Germany will weigh whether it makes sense to present the airline with an ultimatum.
A similar controversy in the United States led Kuwait Airways to cancel its Fifth Freedom flight between New York and London. But that was concerning flights that did not touch Kuwaiti soil.
What do you think about the latest German court ruling?
All businesees, in my opinion, should have the right to decide who they do business with so long as it doesn’t interfere with someone’s fundamental rights.
The law in Kuwait prohibits Isreali people, and as an airline based in Kuwait and ultimately flying to/from, they have to follow their laws. Not to mention the whole incident if the guy ended up there and he was thrown in the oubliete or something.
Germany should stay out of it IMO.
I guess the question is what constitutes a fundamental right? Should a German resident face discrimination on the basis of national origin? Or should the cost of doing business in Germany mean that customers cannot be discriminated on the basis of which passport they hold?
A German resident? As a student he may be entitled protection of German law, while staying in Germany. This is about traveling outside German. Pretty sure at that time the student is no longer German resident, but Israel citizen through and through.
What fundamental rights are you referring to? Is the student going to die if not flying Kuwait Airlines? Ridiculous…
As you have studied law, you might want to consider under what law the sale and purchase of ticket and the subsequent service of transportation are regulated.
This is just a case of attention seeeker, tabloid sensationalism.
Exactly, James.
He does like he someone who was pulling an attention seeking stunt more than anything else.
Your comment comes across as being from an ignorant person.
Every country has a right to decide who to let in and who not. Period.
We’re not talking about who they let in. We’re talking who they allow to transit. I’ve transited through Kuwait many times. There is no passport check. There is no stamp. It’s not like the USA where transit passengers must first enter the country.
Does not matter a passport check or not in Kuwait, for US transit a visa or ESTA would needed, not possible to transit without it. There is a huge difference between Germany and Israel, therefore German passport is one of the top visa free entry passports. That is why some passport holders need a visa for travel to certain countries and some do not. Kuwaities support their allies(arabic countries) like US supports his allies(visa requirement, six countries enter ban etc.) It is just a normal way in the current world to deal with enemies. And believe, it goes to worst. More technology,less brains for other things.
But I’m talking about transit in Kuwait City. No visa is necessary for other passport holders.
I remember that some years back the UK would generally deny transit without visas to citizens of Serbia and some other countries even as the UK would allow citizens of most other countries to transit LHR without a visa if not going landside at LHR.
Whether we like it or not, discrimination based on citizenship happens all the time, and legally so, when it comes to international travel and/or migration. Discrimination based on ethnicity and religion is even something that US DHS wants and enables. And Israel is no stranger to engaging in racist/tribalist profiling and other discrimination when it comes to travel to/via Israel and migration.
Would I prefer that Kuwait stop with this discrimination based on Israeli citizenship and passport use? Yes. Would I prefer that Israel stopped its use of racist profiling and advocacy for such? Yes. But I think the former is more likely than the latter,
Governments aren’t saints.
Uhm… maybe Kuwait also have the right to decide who they allowed to transit on their sovereign territory?
Just because you didn’t go through immigration or passport control didn’t mean you are standing on free ocean.
I never disputed that right. But Germany has the right to condition business in Germany upon meeting certain requirements, including not discriminating on the basis of citizenship.
Germany has first of all a right to respect the law of other country. 1. Do not go there where you are not welcome. 2. Do not go to other church with your own rules.
Since the US doesn’t generally allow Somali citizens to transit the US without a US visa or other US travel docs, even as the US allows Canadian citizen passport users to do so with nothing beside a Canadian citizen passport in the way of travel docs, should countries doing business with the US condition accesss to the market based on Canada and Somalia being treated equally by the US and US carriers? In that case would you have Germany stop flights to/from the US?
If other countries viewed this as a policy rooted in prejudice and bigotry, I’d say go for it. There is always a cost/benefit analysis gauging morals and economics. It’s not like the U.S. is going to stop trading with China anytime soon or vice versa. But I think your example is not analogous. Transiting through Kuwait, as a rule, does not require entering Kuwait.
But it is still also each country’s right to allow and determine who can transit within that country.
One could argue that Germany, who requires transit visas from citizens from certain countries and not others, has just as disgusting a policy.
In the case of Kuwait, this is a political issue and not one based on religion, bigotry, etc. Jewish citizens can both visit Kuwait and/or transit through it’s airport, they just can’t do it with an Israeli passport.
I wonder what would happen if an airline refused Islam passengers based on their country of origin.
Anti-Zionism is not anti-Semitism.
The German courts got it right this time.
Well said
Given the way Israel treats Palestinians, I can’y say I blame Kuwait Airways.
The Kuwaitis treated the Palestinians pretty badly too, and in some ways even way worse than Israelis did at the time.
In more recent years, the wealthier Gulf Arab regimes have gotten pretty much in bed with Netanyahu, and the relations with Israel got ever more intimate as Israel’s violence against Palestinians got ever more ratcheted up.
Hey Matthew- I’m in law school right now and taking a class called international business transactions and this is such an interesting problem.
Did you take any courses like that? Or study the CISG and Rome regs? It’s such a perfect incident, I’ll highlight it to my professor and get his feedback.
Thanks for the cool content.
Matt, I did study that in my European Law Class. Let me know what your professor thinks.
If I were you, I would use VPN based on German, log to kuwait air web and try to purchase the ticket. Along the way, I print out all and every terms and conditions for carriage. Just to make things interesting to your lecturers and not to sound as annoying student…
Look for clause such as “by purchasing this ticket you acknowledged yourself and this transaction subjected to kuwait laws” or the more general “kuwait air reserve its rights to refuse passage solely on its discretion”.
Boiler plates….
I suspect most of the comments will miss the key point on many a legal dispute, which is the often substantial difference between the court ruling on what the law as written is, and what perhaps the law ought to be
Am I?
Is any country against discrimination based on citizenship? I am justwondeing given so many rules in all ocuntries specify nationality…
The point is that prohibition enter to Kuwait,transit through or doing any business is against state of Israel and citizens, not against jews. As written above Canadian citizens have a privilege transiting trough US. Some countries have privilege, some do not.
I have lived in Kuwait from 2014-2016 and this is somewhat of an interesting dillema and its only related to Kuwait. Granted, Israelis when transiting through Doha and U.A.E. I don’t believe have the same problems.
But just to give you an idea of how far off it is..Kuwait does not even recognize Israel as an independent state. I had a coworker that had to make a call to the American Embassy in Tel Aviv a few years back and when he attempted to call, the Kuwaiti Telco literally had a pre-recorded message that stated “You are attempting to make a call to the disputed terrority of Palestine” and disconnected the call.
So this is more of a diplomatic issue and one that has been held steadfast. Also remember, after the incident with the 5th freedom flight Kuwait Air had to JFK being told by the FAA that it had to carry everyone or cancel the flight, it had to cancel the flight and in some weird retailation also cancelled the United Airways flight tandem to KWI. The Bahrain leg got cancelled as well since it was a tag along flight. The question remains what will Germany do. If they take the same stance that the US has taken, than I would possibly expect Kuwait Air to not only cancel, but to probably force Lufthansa out as well.
Fair play. The Israelis discriminate against anyone with an Arabic sounding name. They run a concentration camp called Gaza. Wtf does an Israeli even want to fly on Kuwait Airways? Let him fly El Al.
Because a student find out that Kuwait Airlines does not take Israeli passport holders to their planes and wanted his/her 15 minutes of fame, hoping that a German jewish lawyers(Goldstein) can affiliate to German court with help of history. Instead of taking to court Israeli government for continuing holocaust in Palestina.
Funny that you quoted a comment from student’s lawyer but none from the defendant’s side. Oh well… maybe prejudice resides in all of us, tough only some have the guts to acknowledge.
“I guess the question is what constitutes a fundamental right? Should a German resident face discrimination on the basis of national origin? Or should the cost of doing business in Germany mean that customers cannot be discriminated on the basis of which passport they hold?”
The answer is both. The reality is, practically every country applies discrimination on the basis of citizenship or national origin when it comes to immigration laws in some form. But Country A should absolutely have the right to apply economic pressure, such as sanctions or a ban on doing business, against Country B for discriminating against Country C if Country A considers the discrimination offensive. That’s just the nature of diplomacy.
All that said, as someone who strongly believes that the role of a judiciary is to interpret the law AS WRITTEN, not as the judge things it SHOULD BE, I think the German court got it right. If the people of Germany find the court’s ruling objectionable and care enough about it, they should demand that their political leaders fix the law through the legislative and/or executive process. And then exercise the power of the ballot box if it isn’t fixed to their satisfaction.
The student is not resident but have a student visa for period of studies. Why should Germany make a legal decision against any other country when German citizen(even the permanent resident) is not involved? This would be nonsense. How about Israel do not let anyone to enter to Palestina by boat? It is not their sea or territory, but they refuse to enter anyone. No passport control too. Should I go to study to Germany and file a case against Israel? Despite of any court decision, they do not care a sh.t about it and NO ONE cannot or want do anything about it. Because anti-zionist or anti-semitist card will be raised. That is the current world. A contest between evils.
Your quote refers to disrimination against jews and someone has to stand up for them, i get it but you could interpret it as a discrimination against palistine as well…if you truly follow the meaning of it one could say kuwait is standing up for palistine,
The answer to discrimination is not discrimination: the answer to apartheid is not apartheid.
It is also wrong to equate discrimination against Jews to politically banning someome from entering a country. Not the same thing at all.
@Aaron, in case you forgot… Israel does this quite often. UN members are often banned from entering Palestine as they need to enter via Israel and Israel often bans them entry. Some double standards here for those complaining.
I agree with you on this one. Israel is not any better when it comes to how it treats non-Israeli Jews. I think the German Courts ruled in the right way and Kuwait Airlines did the right thing. about time neighboring countries stood together with their neighboring Arab countries.
Actually they were national socialists. Israel behavior towards Palestina is similar, just the methods are different than in Germany in 1930s.
Fascinating debate, but Kuwait Airways has the right to make its rules, while the US and Germany (and Kuwait, for that matter) have the right to decide what antidiscrimination rules they impose on airlines doing business in their countries. The US and Germany have made some decisions about how Kuwait Airlines can do business in their respective countries. That is all.
Love the logic ….. Since Muslims and those from muslim countries tend to blow up planes at a higher percentage then let’s say Buddhists….maybe United should ban them …. most would feel more comfortable …..