When the State Taketh and the State Giveth

Abstract

The recent decision of the House of Lords in Kuwait Airways Corporation v. Iraqi Airways Company1 has done little to help resolve one of the most difficult questions relating to the practical application of the 1978 State Immunity Act. Indeed, it highlights the near intractable nature of the question at the heart of the case: was the seizure and subsequent operation by the respondent (IAC) of ten aircraft belonging to the applicant (KAC) an act—or action (and the distinction is important)—which attracted immunity under the Act? The answer to such a question is difficult enough when the acts involved are done by a State. When, as in this case, they are done not by the State but at the behest of the State, it becomes even more difficult to resolve and the principal problem with the decision of the majority in the House of Lords is that it fails fully to appreciate the full effect of this point of difference. Moreover, in order to return to the position abandoned by their interpretation of the Act, the majority raise the spectre of justiciability, which not only introduces additional complications but also distorts the frame of reference.