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Separately, the contractor chosen or the PKD operator would have the responsi-bility to design, install and operate the PKD system in accordance with the contractual agreement made with ICAO. The PKD operator would provide data base services not only to contributing States but also to States and other entities using the keys to verify e-passports presented to them.
As for .nancial management and outlay, the proposal for ICAO involvement in the PKD as outlined above will be based and carried out on the principles of
B. Innovative Security Tools
cost-recovery, whereby fees from the States that produce e-passports and send their public keys to ICAO for uploading to the Directory will support administrative and other expenses incurred. At the time of writing, ICAO had already received an advance contribution from one member State and had received letters of intent and requests for invoices from several others. The cost-income formula will be calcu-lated on a schedule of country sign-up fees and annual user fees based on the total estimated cost of a .ve-year operation and the number of countries expected to sign up in each year. A special account would be set up in ICAO for the receipt and distribution of contributions and assessments.
Essentially, there will be three main protagonists in the PKD process. Firstly there would be the “group” of e-passport issuing States, comprising a group that would be constituted as a legal body with its own governance structure. This body would be the owner of the PKD and determine independently its mode of operations – including membership, and .nancial operations. Secondly, there would be ICAO, duly authorized by the Council to act as an agent of the Group, with de.ned responsibility for providing advice to the Group and executing the work of the group based on agreed terms and conditions. It is envisioned that such an arrangementwould cover ICAO against any .nancial liability arising either from contracting with a third party or a shortfall in the .nances of the group. The Group, as a whole, should underwrite the .nancing of the activities undertaken by ICAO. The last person in the triangle is the contractor, who is appointedeither by the group or by ICAO on authority granted by the Group. ICAO’s responsibility for the management of the contractor’s activity would be de.ned by the Group.
2. Legal Liability of ICAO
As stated above, ICAO’s responsibility with regard to oversightof the PKD process would involve two areas, i.e., maintenance and administration.A host of functions are attached to these two supervisory functions, such as acting on behalf of e-passport issuing States, and being responsible for establishment of the PKD system, appointment of the PKD operator and providing oversight of the system operation, .nancial matters and policies as decided or approved by the Council. The .rstquestionthat arisesinregardto ICAO’slegal statusiswhethertheOrganization has the legal capacity to perform the abovementioned functions and be responsible for them. In other words, if ICAO’s legalliability were to be questioned in a court of law in any jurisdiction of an ICAO member State, would the courts recognize ICAO as having the legal capacity to assume these functions and be legally accountable for them?
3. ICAO’s Capacity to Conduct Business
The basic issue regarding ICAO’s legal status lies in Article 44 of the Chicago Convention, which recognizes that ICAO’s aims and objectives are to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport so as to, inter alia, meet the needs of the peoples of the world for safe, regular, ef.cient and economical air transport.294 This general proviso is quali.ed by Article 37 (j) of the Convention which provides that ICAO shall adopt and amend from time to time, as may be necessary, interna-tional standards and recommended practices and procedures dealing with, inter alia, customs and immigration procedures. It is arguable that, if the PKD process were to be classi.ed as a “procedure” dealing with customs and immigration procedures, ICAO can have oversight, maintain and administer the PKD.
　
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