Aviation Security Law 航空安全法(92)

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300Shaw(2003, p. 692).
301For the military analogy, see Lazareff (1971). Also Brownlie (1990, p. 372). These authors
refer to the NATO Status of Forces Agreement of 1951, the provisions of which exclusively
governed the relations between the State sending troops and the state receiving them. The courts
held that the state sending troops to another State has overall jurisdiction of the troops in terms of
offences committed in the receiving State, although the latter may prosecute foreign troops in its
own soil if an offence were to be committed which was illegal in that State’s jurisdiction.
However, the overall principle recognized by the courts was that the sending State has primary

jurisdiction over its subjects (or troops) sent on mission if the offence committed related to the
performance of duty. See also Woodliffe(1992, p. 298).
302See Ex parte Pinochet (No.3) [2000]1AC147at201(per Lord Browne-Wilkinson) and 268-9

(per Lord Millett).
303The Victory Transport Case, ILR 35 at 110.
304New York County, 25 January 1988, 524 NYS 2d. 971 (1988); (1989) 80 ILR 31–38.

question. This decision can be distinguished from the ICAO situation as the ITC had not been given the status of a foreign States as has ICAO under its Headquarters agreement with Canada.
5. Waiver of Immunity
There are instances where the courts might deem immunity granted by treat or other agreement to be waived. Waiver of immunity might result either from express agreement between the parties to a contract or by implied acquiescence of the party purporting to enjoy immunity through overt or covert acts. The leading case in this area concerns the 1967 decision305 of the District of Columbia Circuit Court ruled that the Inter-American Development Bank did not enjoy immunity as any immu-nitygiventothe bankhad been waivedbytheBankby virtueof ArticleXI(3)ofits Articles of Agreement with a Brazilian Corporation who was the other party to the action. An advance waiver, incorporated in a commercial agreement, even though it is calculated to apply only to a particular situation, cannot be deemed invalid and will be generally applicable according to the merits of the case. In Standard Chartered Bank v. International Tin Council and others306 The Queen’s Bench in England rejected the claim that an advance waiver is inapplicable to a dispute if it were meant speci.cally in the contract to apply to “a particular case,” which was interpretedby the court asa particular transaction and nota whole dispute.Achoice of forum clause in a speci.c agreement could also be interpreted as a waiver of immunity from suit that could be effectively performed in advance.307
In the particular case of the public key directory, ICAO is not merely an overseer of the maintenance and administration of the PKD but has other functions such as being the agent of the group of States who own the directory as well as being a party to possible contracts with a provider of services and technology aimed at running the directory. The status of ICAO would clearly be bifurcated into that of an international organization bestowed with immunity similar to that enjoyed by a sovereign State in its overall role in being responsible for the maintenance of the directory and, on the other hand to being an organization which is a legal person having the capacity to enter into legally enforceable contracts. From the above discussion it could well be subsumed that ICAO would enjoy jurisdictional immu-nity and immunity for any act perceived as a sovereign act performed by a foreign State. With regard to any local contract that ICAO may enter into, courts may consider restrictive immunity depending on the merits of the case. With regard to liability, it is clear that courts would view with serious apprehension any claim to
305Lutcher SA Cellulose e Papel v. Inter-American Development Bank, 382 F.2d. 454 (DC Cir.
1967).

306[1986] 2 All ER 257; [1987] 1 WLR 641(1988) 77 ILR 16.
　
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