US Rules Kuwait Airways Must Fly Israeli Citizens

Back in September I wrote about Kuwait Airways denying boarding to an Israeli passport holder. They weren’t flying to Kuwait. They were flying New York – London.

What’s more, the customer didn’t even choose to buy a ticket from Kuwait Airways.

  • They bought their ticket on Priceline
  • It was issued as an Air India codeshare

There, it was Priceline’s fault for booking a passenger onto a flight where the carrier would not accept them.

Kuwait’s policy has been challenged, though. Eldad Gatt, a citizen and resident of Israel, tried to buy a ticket on a Kuwait Airways flight between New York and London using the airline’s website. He was required to enter his passport-issuing country and nationality, and Israel isn’t an option so he couldn’t purchase a ticket. (As the Priceline case demonstrates, if he had bought the ticket elsewhere he would have been refused passage with his Israeli passport in any case.)

Gatt filed a DOT complaint under 49 U.S.C. § 40127, which prohibits discrimination “on
the basis of race, color, national origin, religion, sex, or ancestry” — but the DOT refused to take action. Their position was that there was no national origin discrimination in a policy “based
on citizenship or passport status” and that rather than violating law, the airline was following a 1964 Kuwait law prohibiting the airline from doing business with those “working for or in the interest of Israel.”

The customer filed a petition in March 2014 with the federal appeals court for the DC Circuit for review of this decision, and the DOT agreed to review its position in exchange for suspending the case.

Gatt eventually asked the court to proceed because of agency inaction. However the Department of Transportation has now ruled that Kuwait Airways’ refusal to transport Israeli passport holders between New York and London violates US law.

The department concluded that Kuwait Airways discriminated. In a letter to the airline, the department said Kuwait Airlines must comply with U.S. laws forbidding discrimination in exchange for access to U.S. facilities.

“It is our duty to ensure that the transportation system is free of discrimination. Period,” Transportation Secretary Anthony Foxx said in announcing the letter.

No doubt the two years it took to get there involved DOT coordination with the State Department as this represents an issue of the US’ overall relationship with Kuwait. The airline has 15 days to respond to DOT.

Kuwait Airways offers a mediocre passenger experience. Here’s the brand new business class product offered by this dry airline:

They’re often cheap. They have the cheapest current business class fare between Colombo, Sri Lanka and New York for instance (I’d definitely pay a $200 premium and fly Turkish one-stop via Istanbul..).

They are in a unique position with ‘5th freedom’ rights that allow them to fly between London Heathrow and New York JFK.

It does seem rather black letter law that an unwillingness to carry Israeli citizens between the US and UK violates US legal prohibitions on ‘national origin’ discrimination.

Kuwait Airways could reconcile US and Kuwait law by dropping this fifth freedom route and flying non-stop between the US and Kuwait City. Israelis cannot get Kuwait visas, and so it would be permissible for the airline to deny transportation without violating US law.

Indeed, that’s already what they do 3 days a week. They’d simply need to convert their one-stop flight via London to a non-stop (or limit their New York – Kuwait flights to non-daily service).

(HT: Dov)

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. Good. I’m no fan of the Israeli government or its policies, but this kind of blatantly racist discrimination should not be tolerated. Frankly, the US needs to do more to pressure its Middle East allies on issues of human rights and discrimination.

  2. Good. I’ve complained about Saudia’s policy on this as well and the DOT denied my complaint. Technically, “citizenship” isn’t the same as “national origin” and so they think it’s okay to deny Israeli passport holders. I think that’s bullshit – you want to fly to the US, you will accept every passenger.

  3. I agree with the DOT’s ruling that the practice is discriminatory.

    That said, I’m not sure how enthusiastic I’d be to avail myself of certain services that’ve been forced by law. That would apply here, to the wedding cake, or (if ever) to the person cutting my hair or operating on me.

  4. Kuwaiti law allegedly restricts the ability of Kuwait Airways to agree to fly certain people on its planes regardless of route. That group of certain people restricted under Kuwaiti law seems to include all those presenting Israeli passports.

    US law restricts the ability of US airlines to fly certain people on their planes regardless of route. If a certain group of passengers is blacklisted by the US Government in some ways, they can’t fly even intra-Asia on US airlines the ways all others do unless and until the US Government grants US airlines a waiver.

  5. It’s interesting to me how ME airlines differ on this issue. For example, EK does allow Israelis on it’s fifth freedom flights, such as JFK-MXP (I know from personal experience).

  6. If you’re flying from the U.S., it’s U.S. laws that matter, trumping whatever the Kuwaiti law may be. They can choose to obey the law or give up the route. That’s it.

  7. If you’re flying on a carrier, it’s the laws of the carrier’s home country, the visited country and the transited countries that may apply to the flight. In this case, at the very least Kuwaiti, US and UK laws come into the picture.

    Most countries have some kind of stupid laws — whether or not you consider “extraterritorial” application of sanctions to be stupid or not, the fact of the matter is that the US does very much use sanctions to restrict the ability of US carriers to carry people on board flights that involve neither taking off from the US nor landing in the US.

  8. Of course, it is the U.S. government that consistently discriminates based on citizenship. Not a citizen? No voting allowed. Not a citizen or permanent resident? Must get special permission to work, study, or even visit the country. And it’s not just your U.S. citizenship status — which country you’re a citizen of plays an important consideration in whether you’re allowed to work, study or visit.

    Of course, if as a non-citizen you are given the right to work in the U.S., then I believe an employer cannot deny you employment based on your citizenship. I’m guessing this would fall under “national origin”.

  9. Dude26 — I believe Israeli passport holders are allowed not only fly on Emirates’ fifth freedom flights, they can also transit through UAE airports.

  10. Ron,

    Very few governments let non-citizens vote, in federal elections at least. Even when non-citizens can vote, it is typically limited to other special classes, like Commonwealth or EEC members. And I think this is a sensible restriction- you don’t want politicians soliciting the tourist vote.

    I also can’t think of any country that does not require “special permission” to work, and most discriminate on the basis of nationality. So not special to the U.S. Government, either.

  11. George — exactly, which is why citizenship is not (and will never be) a protected category like race, color, national origin, religion, sex, or ancestry. Whether the privilege to discriminate based on citizenship is restricted to the U.S. government or may be exercised by other entities is a matter for the courts to decide.

  12. What Ron said! No taxation without representation!

    I’m fortunate enough to hold a useful European nationality that I don’t need/want US citizenship but being an alien does create some expensive hoops to jump through. And I still have to pay full US taxes. Bah!

  13. Boarding occurs in the US, therefore US laws apply to boarding procedures. It’s not inconceivable that Kuwait could agree to comply with US law on the outbound, but then refuse to board the passenger for the return. In the UK, a similar anti-discrimination rule applies, but until there’s a complaint, Kuwait could choose to not abide by it.

    For clarification, some seem to believe Kuwait Airways is subject only to Kuwaiti law. This is incorrect. Kuwaiti law applies after the doors are shut, but until then, the applicable law depends on where the aircraft is located. Kuwaiti jurisdiction ends on the other end of this flight when the doors open in the UK.

  14. Who here has said only Kuwaiti law applies? Certainly no one commenting here, so why even raise that straw man that can be so easily knocked over?

    The fact of the matter is still that Kuwaiti law applies to Kuwaiti companies operating outside of Kuwait too, sort of like how US law applies to US companies operating outside of the US.

    US law applies to US companies operating outside of the US too. If a US airline knowingly sells tickets to and transports some Russians wanting to fly on some US airline between two Asian or Pacific island countries, the US airlines could be subject to US prosecution or US administrative penalties for flying people whom the US Government has blacklisted in some way.

    While local law should trump on the ground and does, the US position is ironic since the US is one of the world’s chief players in regulating behavior of US parties even when those US persons/entities are operating beyond the US.

  15. Kuwaiti law applies to Kuwaiti vessels at non-Kuwaiti ports (sea/land/air) too.

    The notion that foreign law doesn’t restrict how foreign carriers may conduct business at or between foreign ports before or after journey is a recipe for violating laws due to ignorance of the law. Of course ignorance of the law is no blanket immunity provider for violating the law.

  16. Kuwait airways as much as I don’t like their service or flights, truth be said. They did not discriminate against the Israeli passport holder. Since Israel is not recognized by the State of Kuwait, the Israeli passport is useless and cannot be used to travel on Kuwait airways flights. Just like the movie “the Terminal” when Tom Hanks could not use his passport to travel or enter US since his country no longer existed so his passport was not recognized by US government. The discrimination was not because whether the passenger was Israeli or not, it’s because his country does not exist according to Kuwaiti law.

  17. So much fuss about Kuwait Airways not flying Israeli passport holders??!!

    What about passengers of Middle Eastern origin / Muslim / Arabic speaking being offloaded from European / American airlines ?.
    Where are the human rights then ?

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