This is a purely procedural provision and the historical and legal bases of the Annexes have already been discussed under Articles 37 and 38. The ICAO Assembly, at its 2nd Session (Geneva 1–21 June 1948) adopted Recommendation 8 which recommended that the Council, when adopting further Annexes and establishing a date by which States may notify their disapproval of them, take fully into account the time needed for transmitting the Annexes, so as to allow for their effective study during the full period provided in Article 90. In Resolution A7-9 (adopted at the 7th Session of the Assembly—Brighton 16 June–6 July 1953) the assembly resolved that the Council, in fixing the dates for the application by Contracting States of International Standards, allow sufficient time to enable States to complete their arrangements for implementation thereof.

There are two operative phrases of importance in Article 90 which speak of an Annex being “effective” within 3 months after its submission to the Contracting States and the Annex “coming into force”. The issue is: “what is the significance of these two practices?”

Firstly one must start with the two main components of the Annexes i.e. Standards on the one hand, and Recommended Practices on the other. A Standard is defined as any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is recognized as necessary for the safety or regularity of international air navigation and to which Contracting States will conform in accordance with the Convention; in the event of impossibility of compliance, notification to the Council is compulsory under Article 38 of the Convention.

A Recommended Practice is any specification for physical characteristics, configuration, material, performance, personnel or procedure, the uniform application of which is recognized as desirable in the interest of safety, regularity or efficiency of international air navigation, and to which Contracting States will endeavour to conform in accordance with the Convention. States are invited to inform the Council of non-compliance.

SARPs are formulated in broad terms and restricted to essential requirements. For complex systems such as communications equipment, SARPs material is constructed in two sections: core SARPs—material of a fundamental regulatory nature contained within the main body of the Annexes, and detailed technical specifications placed either in the Appendices to Annexes or in manuals.

The differences to SARPS notified by States are published in Supplements to Annexes. After the Council adopts an Annex it is sent to ICAO member States for their comments and notification of disapproval of Standards with a date identified by the Council of the Annexes effective date which is within 3 months of submission. This is an interim edition of the Annex, referred to as the “Green Edition”, which is dispatched to States with a covering explanatory letter. This covering letter also gives the various dates associated with the introduction of the Annex including its effective date. Once the Annex becomes effective, the States have 3 months to indicate disapproval of adopted amendments to SARPs. Unless a majority of the States indicate their disapproval on or before the time allocated to them to respond with their disapprovals, the Council declares the Annex to have come into force at a particular date.

All this leaves one with the inevitable question as to whether ICAO has sufficient clout to enforce its mandatory duties which appear under Article 54 of the Chicago Convention and in particular Article 54j). From a legal perspective, the above discussion points to a resolute “yes” with an additional qualifier that it is indeed ICAO’s duty to do so. It is therefore largely left to ICAO to decide on the path it takes to ensure the legitimacy of its SARPs and the credibility of its Assembly and Council in the most diplomatic manner possible, in this defining point in the history of the Organization.

Finally, it must be mentioned that the instrument reflecting ICAO’s involvement with commercial space transport, regardless in which that instrument comes into effect—whether by the amendment provision in the Chicago Convention or by a separate multilateral treaty, will be binding only on those member States that accept it. responsibility could devolve upon ICAO with regard to commercial space transport regulation by an amendment to the convention or a new treaty, either through a merger with another organization or through the transfer of functions to a specific branch or bureau of ICAO such as the Air Navigation Bureau.⁷

If a separate treaty is drawn up, which would be the most uncomplicated approach, there are certain facts to be borne in mind.⁸ The Vienna Convention on the Law of Treaties, provides that such treaties shall be binding upon the Parties and be performed by them in good faith. The Vienna Convention further states that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty. Furthermore, the Vienna Convention stipulates that, unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each Party in respect of its entire territory. Therefore, a part of a State, however formed as a province, cannot take a unilateral decision to contravene the provisions of a treaty which the sovereign State has entered into. The Convention goes on to state that a Party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. A treaty is an international agreement concluded between States⁹ in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.¹⁰ The above notwithstanding, a treaty can be concluded between a State and another subject of international law such as an international Organization. An example is the Headquarters Agreement between ICAO and the Government of Canada.¹¹ When a State places its signature on a treaty it merely means that the State has agreed to the text in the instrument. It comes into effect for that State when it is ratified¹² by the State. At the time of ratification a State can record a reservation to a part of the treaty.¹³ These generic principles and those discussed below also apply to aeronautical treaties and agreements.

It must be noted that a State can sign a treaty in two ways. The first is called attestation by “simple signature” which corresponds to the above statement—that such a signature merely denotes that a State agrees with the text of an instrument and a simple signature is subject to ratification, acceptance or approval. However, if a State attaches to the instrument what is called a “definitive signature” it means that the State has agreed to be bound by the treaty. Therefore a definitive signature obviates the need for that State to later ratify the treaty, as it has the same force as ratification.

The process of ratification usually goes through two phases. The first is the internal procedure where the State concerned has to attend to its constitutional provisions by sending the text of the instrument it has signed through its national legislature or parliament. Once parliament adopts the text as its internal law, the State then has to proceed with its international procedure of depositing its notice of ratification with the depository. In formal terminology this process is called the doctrine of incorporation where customary international law as incorporated in a treaty that has been signed by a State is recognized as the internal law of the land on the common law practice based on a presumption that the legislature does not intend to commit a breach of international law.¹⁴

As the Vienna Convention¹⁵ provides, a treaty need not be signed. According to Article 12 of the Convention the consent of a State to be bound by a treaty is expressed by the signature of the representative of that State only in certain circumstances.¹⁶ Article 13 goes on to say that the consent of States to be bound by a treaty constituted by instruments exchanged between them is expressed by that exchange when: the instruments provide that their exchange shall have that effect; or it is otherwise established that those States were agreed that the exchange of instruments should have that effect. States may also contract with each other under their domestic laws.

A treaty enters into force when the number of ratifications as specified in that treaty is received by the depository. When a treaty enters into force it is in force for only those States who have consented to be bound by it which are called “Parties”.¹⁷ However, an expression by a State that it consents to be bound by a particular treaty does not mean that ipso facto that treaty enters into force for that State. Either, the treaty must already be in force at that time, or as already mentioned the number of ratifications must be deposited. The Vienna Convention (1969) is more specific when it says that a treaty enters into force in such manner and upon such date as it may provide or as the negotiating States may agree.¹⁸ There are three ways in which a treaty may enter into force. They are: on a date specified in the treaty; on signature only, as agreed by the negotiating States; or on ratification by all or a specified number of States. A treaty may be considered to apply to a State provisionally when the treaty itself so provides; or the negotiating States have in some other manner so agreed. Unless the treaty otherwise provides or the negotiating States have otherwise agreed, the provisional application of a treaty or a part of a treaty with respect to a State will be considered as terminated if that State notifies the other States between which the treaty is being applied provisionally of its intention not to become a party to the treaty.¹⁹

Treaties, conventions, agreements, protocols, exchanges of notes and other synonyms all mean one and the same thing at international law—that they are international transactions of a legal character. Treaties are concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.²⁰ Each treaty has four constituent elements: the capacity of the parties thereto to conclude agreement of the provisions of the treaty under international law; the intention of the parties to apply principles of international law when concluding agreement under a treaty; consensus ad idem or a meeting of the minds of the parties²¹