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Over the high seas, the rules of the air have binding effect under Article 12, Sentence3 of the Chicago Convention.It shouldbe clari.ed that rulesof the air havea broader meaning than Annex 2 and encompass the Standards and Recommended Practices of all other Annexes as far as their application makes sense over the high seas.456
Kaiser is of course referring mainly to Annexes 10 and 11 to the Chicago Convention relating to air traf.c services and air traf.c management, while at the same time drawing the example of Annex 16 (on environmental)protection being applicable in a future date if extended beyond noise and engine emissions to the high seas under Article 12 of the Chicago Convention.457 This argument, which would ascribe to the ICAO Council wider control over larger spans of the world’s air space, would be acceptable only if provisions ofother Annexes (other than those of Annex 2) would directly have a bearing on the manoeuvre and navigation of aircraft over the high seas, as exclusively provided for by Article 12 of the Chicago Convention.
The provision of air navigation services are mainly regulated by three Annexes to theChicagoConvention,namelyAnnex2(RulesoftheAir),Annex3(Meteorologi-cal Service for International Air Navigation) and Annex 11 (Air Traf.c Services).458 Of these, compliance with Annex2is mandatory459 and does not give the States the
456Kaiser (1995, p. 455). Bin Cheng states that contracting States are expected to be able to exercise control over all that takes place within their territories, but outside their respective territories only over aircraft bearing their nationality. Cheng(1962, p. 110).
457Ibid.
458Article 54(l) of the Chicago Convention stipulates as a mandatory function of the Council the act of adopting, in accordance with Chapter VI of the Convention, international standards and recommended practices (SARPs) and for convenience designate them as Annexes to the Conven-tion. Article 37 of the Convention re.ects the areas in which SARPs should be developed and Annexes formed. Article 38 obliges contracting States to notify ICAO of any differences between their own regulations and practices and those established by international standards or procedures. The noti.cation of differences however, does not absolve States from their continuing obligation under Article 37 to collaborate in securing the highest practicable degree of uniformity in international regulations, standards, and procedures.
459In October 1945, the Rules of the Air and Air Traf.c Control (RAC) Division at its .rst session made recommendations for Standards, Practices and Procedures for the Rules of the Air. These were reviewed by the then Air Navigation Committee and approved by the Council on 25 February 1946. They were published as Recommendations for Standards, Practices and Procedures – Rules
F. Unmanned Aerial Vehicles .exibility provided in Article 38 of the Chicago Convention to register differences
from any provisions of the Annex.
Withregard to maritime navigation, the United Nations Convention on the Law of the Sea (UNCLOS), Article 39, lays down the duties of ships and aircraft involved in transit navigation to the effect that ships and aircraft, while exercising the right of transitpassage, should:proceedwithoutdelay through or over the strait; refrain from any threat or use of force against the sovereignty, territorial integrity or political independence of States bordering the strait, or in any other manner in violation of the principles of international law embodiedin the Charter of the United Nations; refrain from any activities other than those incident to their normal modes of continuous and expeditious transit unless rendered necessary by force majeure or by distress; and comply withthe relevantprovisions of the Convention. Article 39 (3) explicitly states that aircraft in transitpassage shallobserve the Rules of the Air established by ICAO as they apply to civil aircraft and that state aircraft will normally comply with such safety measures and will at all times operate with due regard for the safety of navigation. The provision further states that at all times aircraft shall monitor the radio frequency assigned by the competent internationally designated air traf.c control authority or the appropriate international distress radio frequency.
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Aviation Security Law 航空安全法(125)
