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

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

3. 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)

4. 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?