State immunity or government liability? McGill University/PEOPIL Conference on International Aviation Law: Liability, Insurance & Finance 2018 – Dublin Dr Steven Truxal

State immunity Competing theories 2 doctrines Absolute Restrictive Principle of CIL Restrictive Exceptions – consent Acts Acta jure imperii Acta jure gestionis Competing theories

Restrictive doctrine Concept of commerciality Recognised principle Application? Criteria? Timing? National courts and legislation Canada State Immunity Act 1985 s.5 – commercial activity (incidental v ‘deep intrusion’) UK State Immunity Act 1978 s.3 – commercial transactions not immune s.14(2) – ‘separate entities’ U.S. Foreign Sovereign Immunity Act (FSIA) commercial activity 28 U.S.C.§1605(a)(2) ‘sole basis for obtaining jurisdiction over a foreign state’ International law European Convention on State Immunity 1972 (ECSI), Art. 27 UN Convention on Jurisdictional Immunities of States & Their Property 2004 (not in force)

Waiver of immunity Foreign air carriers MH370 Authority – economic and safety Permit or exception DoT: reasonable conditions Long history Waiver 28 U.S.C.§1605(a)(1) Interpretation? MH370 “In the conduct of the operations authorized, the holder shall…agree that operations under this authority constitute a waiver of sovereign immunity…with respect to… that are: (a) based on its operations in international air transportation that, according to the contract of carriage, include a point in the United States as a point of origin, point of destination, or agreed stopping place, or for which the contract of carriage was purchased in the United States; or (b) based on a claim under any international agreement or treaty cognizable in any court or tribunal of the United States.” Jurisdiction: Treaty, FSIA?