The First Gulf War's Last Battle: Limits Of State Sovereignty

Kuwait Airways Corp. v. Iraq, 2010 SCC 40

The Supreme Court of Canada recently released a very important, and no less interesting, unanimous decision dealing with the convergence of public and private international law, with particular regard to Canadian recognition of foreign judgments against foreign states.

Background

On August 2nd, 1990, under orders from then dictator Saddam Hussein, the Iraqi armed forces crossed the country's southern most border, invaded and occupied its neighbour, Kuwait. Iraq had long claimed Kuwait was properly the eastern portion of its Basra province, a territory that had been improperly ceded by the British after the commencement of the First World War, in violation of a convention between the United Kingdom and the Ottoman Empire, until then the recognized sovereignty over the autonomous city of Kuwait and surrounding areas.1

Yet, it was not historical claims of territorial sovereignty which prompted Saddam to violate Kuwaiti independence – rather, it was the massive Iraqi debt, stemming from the horrific Iraq-Iran War (1980-1988), owed to Kuwait that the latter refused to forgive that raised the former dictator's ire. Saddam's plan was as simple as it was evil: incorporate Kuwait into Iraq, thereby not only eliminating the debt, but adding Kuwaiti assets, including billions worth in oil reserves, to his treasury (not even to mention that he would become the most powerful Arab leader in the region).2 Clearly, then, Saddam had planned the mother of all hostile takeovers!

The Facts

Of course, Saddam's gambit failed miserably, and approximately six months after the occupation of Kuwait, a United Nations coalition of armed forces, manned primarily by the United States and Britain, liberated Kuwait and defeated the Iraqi army in the First Gulf War. Nonetheless, during the six months of occupation, Kuwait suffered incredible damages as the country was simply looted by the Iraqi forces, under control of the Iraqi government.3

As part of Saddam's scheme of incorporating Kuwait into Iraq, the Iraqi government directed the Iraqi Airways Company (Iraq's national airline) to appropriate the aircraft and equipment of the Kuwait Airways Corporation (Kuwait's national airline). Kuwait Airways Corporation was only able to mitigate a portion of its damages by recovering some its aircraft and equipment after the war. For the yet uncompensated damages, Kuwait Airways Corporation brought an action for damages against the Iraqi Airways Company in the United Kingdom.

English Judgments

Kuwait Airways Corporation's action for damages for losses sustained as a result of the appropriation of its property by the Iraq Airways Company during the occupation was allowed to be heard by the United Kingdom courts. The proceedings were both lengthy and...