Conclusion of Conventions on Compensation for Damage Caused by Aircraft in Flight to Third Parties (항공운항 시 제3자 피해 배상 관련 협약 채택 -그 혁신적 내용과 배경 고찰-)
-
- The Korean Journal of Air & Space Law and Policy
- /
- v.24 no.1
- /
- pp.35-58
- /
- 2009
A treaty that governs the compensation on damage caused by aircraft to the third parties on surface was first adopted in Rome in 1933, but without support from the international aviation community it was replaced by another convention adopted again in Rome in 1952. Despite the increase of the compensation amount and some improvements to the old version, the Rome Convention 1952 with 49 State parties as of today is not considered universally accepted. Neither is the Montreal Protocol 1978 amending the Rome Convention 1952, with only 12 State parties excluding major aviation powers like USA, Japan, UK, and Germany. Consequently, it is mostly the local laws that apply to the compensation case of surface damage caused by the aircraft, contrary to the intention of those countries and people who involved themselves in the drafting of the early conventions on surface damage. The terrorist attacks 9/11 proved that even the strongest power in the world like the USA cannot with ease bear all the damages done to the third parties by the terrorist acts involving aircraft. Accordingly as a matter of urgency, the International Civil Aviation Organization(ICAO) picked up the matter and have it considered among member States for a few years through its Legal Committee before proposing for adoption as a new treaty in the Diplomatic Conference held in Montreal, Canada 20 April to 2 May 2009. Accordingly, two treaties based on the drafts of the Legal Committee were adopted in Montreal by consensus, one on the compensation for general risk damage caused by aircraft, the other one on compensation for damage from acts of unlawful interference involving aircraft. Both Conventions improved the old Convention/Protocol in many aspects. Deleting 'surface' in defining the damage to the third parties in the title and contents of the Conventions is the first improvement because the third party damage is not necessarily limited to surface on the soil and sea of the Earth. Thus Mid-air collision is now the new scope of application. Increasing compensation limit in big gallop is another improvement, so is the inclusion of the mental injury accompanied by bodily injury as the damage to be compensated. In fact, jurisprudence in recent years for cases of passengers in aircraft accident holds aircraft operators to be liable to such mental injuries. However, "Terror Convention" involving unlawful interference of aircraft has some unique provisions of innovation and others. While establishing the International Civil Aviation Compensation Fund to supplement, when necessary, the damages that exceed the limit to be covered by aircraft operators through insurance taking is an innovation, leaving the fate of the Convention to a State Party, implying in fact the USA, is harming its universality. Furthermore, taking into account the fact that the damage incurred by the terrorist acts, where ever it takes place targeting whichever sector or industry, are the domain of the State responsibility, imposing the burden of compensation resulting from terrorist acts in the air industry on the aircraft operators and passengers/shippers is a source of serious concern for the prospect of the Convention. This is more so when the risks of terrorist acts normally aimed at a few countries because of current international political situation are spread out to many innocent countries without quid pro quo.
One manifestation of the contemporary era of renewed great power competition has been the deepening relationship between China and Russia. Their strengthening military ties, notwithstanding their lack of a formal defense alliance, have been especially striking. Since China and Russia deploy two of the world's most powerful navies, their growing maritime cooperation has been one of the most significant international security developments of recent years. The Sino-Russian naval exercises, involving varying platforms and locations, have built on years of high-level personnel exchanges, large Russian weapons sales to China, the Sino-Russia Treaty of Friendship, and other forms of cooperation. Though the joint Sino-Russian naval drills began soon after Beijing and Moscow ended their Cold War confrontation, these exercises have become much more important during the last decade, essentially becoming a core pillar of their expanding defense partnership. China and Russia now conduct more naval exercises in more places and with more types of weapons systems than ever before. In the future, Chinese and Russian maritime drills will likely encompass new locations, capabilities, and partners-including possibly the Arctic, hypersonic delivery systems, and novel African, Asian, and Middle East partners-as well as continue such recent innovations as conducting joint naval patrols and combined arms maritime drills. China and Russia pursue several objectives through their bilateral naval cooperation. The Treaty of Good-Neighborliness and Friendly Cooperation Between the People's Republic of China and the Russian Federation lacks a mutual defense clause, but does provide for consultations about common threats. The naval exercises, which rehearse non-traditional along with traditional missions (e.g., counter-piracy and humanitarian relief as well as with high-end warfighting), provide a means to enhance their response to such mutual challenges through coordinated military activities. Though the exercises may not realize substantial interoperability gains regarding combat capabilities, the drills do highlight to foreign audiences the Sino-Russian capacity to project coordinated naval power globally. This messaging is important given the reliance of China and Russia on the world's oceans for trade and the two countries' maritime territorial disputes with other countries. The exercises can also improve their national military capabilities as well as help them learn more about the tactics, techniques, and procedures of each other. The rising Chinese Navy especially benefits from working with the Russian armed forces, which have more experience conducting maritime missions, particularly in combat operations involving multiple combat arms, than the People's Liberation Army (PLA). On the negative side, these exercises, by enhancing their combat capabilities, may make Chinese and Russian policymakers more willing to employ military force or run escalatory risks in confrontations with other states. All these impacts are amplified in Northeast Asia, where the Chinese and Russian navies conduct most of their joint exercises. Northeast Asia has become an area of intensifying maritime confrontations involving China and Russia against the United States and Japan, with South Korea situated uneasily between them. The growing ties between the Chinese and Russian navies have complicated South Korean-U.S. military planning, diverted resources from concentrating against North Korea, and worsened the regional security environment. Naval planners in the United States, South Korea, and Japan will increasingly need to consider scenarios involving both the Chinese and Russian navies. For example, South Korean and U.S. policymakers need to prepare for situations in which coordinated Chinese and Russian military aggression overtaxes the Pentagon, obligating the South Korean Navy to rapidly backfill for any U.S.-allied security gaps that arise on the Korean Peninsula. Potentially reinforcing Chinese and Russian naval support to North Korea in a maritime confrontation with South Korea and its allies would present another serious challenge. Building on the commitment of Japan and South Korea to strengthen security ties, future exercises involving Japan, South Korea, and the United States should expand to consider these potential contingencies.
The conflict between major corporations and small and medium-sized businesses is being aggravated, the trickle down effect is not working properly, and, as the controversy surrounding the effectiveness of the business limiting system continues to swirl, the plan proposed to protect the business domain of small and medium-sized businesses, resolve polarization between these businesses and large corporations, and protect small family run stores is the suitable business type designation system for small and medium-sized businesses. The current status of carrying out this system of selecting suitable business types among small and medium-sized businesses involves receiving applications for 234 items among the suitable business types and items from small and medium-sized businesses in manufacturing, and then selecting the items of the consultative group by analyzing and investigating the actual conditions. Suitable business type designation in the service industry will involve designation with priority on business types that are experiencing social conflict. Three major classifications of the service industry, related to the livelihood of small and medium-sized businesses, will be first designated, and subsequently this will be expanded sequentially. However, there is the concern that when designated as a suitable business type or item, this will hinder the growth motive for small to medium-sized businesses, and designation all cause decrease in consumer welfare. Also it is highly likely that it will operate as a prior regulation, cause side-effects by limiting competition systematically, and also be in violation against the main regulations of the FTA system. Moreover, it is pointed out that the system does not sufficiently reflect reverse discrimination factor against large corporations. Because conflict between small to medium sized businesses and large corporations results from the expansion of corporations to the service industry, which is unrelated to their key industry, it is necessary to introduce an advanced contract method like a master franchise or local franchise system and to develop local small to medium sized businesses through a franchise system to protect these businesses and dealers. However, this method may have an effect that contributes to stronger competitiveness of small to medium sized franchise businesses by advancing their competitiveness and operational methods a step further, but also has many negative aspects. First, as revealed by the Ministry of Knowledge Economy, the franchise industry is contributing to the strengthening of competitiveness through the economy of scale by organizing existing individual proprietors and increasing the success rate of new businesses. It is also revealed to be a response measure by the government to stabilize the economy of ordinary people and is emphasized as a 'useful way' to revitalize the service industry and improve the competitiveness of individual proprietors, and has been involved in contributions to creating jobs and expanding the domestic market by providing various services to consumers. From this viewpoint, franchises fit the purpose of the suitable business type system and is not something that is against it. Second, designation as a suitable business type may decrease investment for overseas expansion, R&D, and food safety, as well negatively affect the expansion of overseas corporations that have entered the domestic market, due to the contraction and low morale of large domestic franchise corporations that have competitiveness internationally. Also because domestic franchise businesses are hard pressed to secure competitiveness with multinational overseas franchise corporations that are operating in Korea, the system may cause difficulty for domestic franchise businesses in securing international competitiveness and also may result in reverse discrimination against these overseas franchise corporations. Third, the designation of suitable business type and item can limit the opportunity of selection for consumers who have up to now used those products and can cause a negative effect that reduces consumer welfare. Also, because there is the possibility that the range of consumer selection may be reduced when a few small to medium size businesses monopolize the market, by causing reverse discrimination between these businesses, the role of determining the utility of products must be left ot the consumer not the government. Lastly, it is desirable that this is carried out with the supplementation of deficient parts in the future, because fair trade is already secured with the enforcement of the franchise trade law and the best trade standard of the Fair Trade Commission. Overlapping regulations by the suitable business type designation is an excessive restriction in the franchise industry. Now, it is necessary to establish in the domestic franchise industry an environment where a global franchise corporation, which spreads Korean culture around the world, is capable of growing, and the active support by the government is needed. Therefore, systems that do not consider the process or background of the growth of franchise businesses and harm these businesses for the sole reason of them being large corporations must be removed. The inhibition of growth to franchise enterprises may decrease the sales of franchise stores, in some cases even bankrupt them, as well as cause other problems. Therefore the suitable business type system should not hinder large corporations, and as both small dealers and small to medium size businesses both aim at improving competitiveness and combined growth, large corporations, small dealers and small to medium sized businesses, based on their mutual cooperation, should not include franchise corporations that continue business relations with them in this system.
The overall study of Samsaebulhoedo (painting of the Assembly of Buddhas of Three Ages) at Yongjusa Temple has focused on dating it, analyzing the painting style, identifying its painter, and scrutinizing the related documents. However, its greater coherence could be achieved through additional support from empirical evidence and logical consistency. Recent studies on Samsaebulhoedo at Yongjusa Temple that postulate that the painting could have been produced by a monk-painter in the late nineteenth century and that an original version produced in 1790 could have been retouched by a painter in the 1920s using a Western painting style lack such empirical proof and logic. Although King Jeongjo's son was not yet installed as crown prince, the Samsaebulhoedo at Yongjusa Temple contained a conventional written prayer wishing for a long life for the king, queen, and crown prince: "May his majesty the King live long / May her majesty the Queen live long / May his highness the Crown Prince live long" (主上殿下壽萬歲, 王妃殿下壽萬歲, 世子邸下壽萬歲). Later, this phrase was erased using cinnabar and revised to include unusual content in an exceptional order: "May his majesty the King live long / May his highness the King's Affectionate Mother (Jagung) live long / May her majesty the Queen live long / May his highness the Crown Prince live long" (主上殿下壽萬歲, 慈宮邸下壽萬歲, 王妃殿下壽萬歲, 世子邸下壽萬歲). A comprehensive comparison of the formats and contents in written prayers found on late Joseon Buddhist paintings and a careful analysis of royal liturgy during the reign of King Jeongjo reveal Samsaebulhoedo at Yongjusa Temple to be an original version produced at the time of the founding of Yongjusa Temple in 1790. According to a comparative analysis of formats, iconography, styles, aesthetic sensibilities, and techniques found in Buddhist paintings and paintings by Joseon court painters from the eighteenth and nineteenth centuries, Samsaebulhoedo at Yongjusa Temple bears features characteristic of paintings produced around 1790, which corresponds to the result of analysis on the written prayer. Buddhist paintings created up to the early eighteenth century show deities with their sizes determined by their religious status and a two-dimensional conceptual composition based on the traditional perspective of depicting close objects in the lower section and distant objects above. This Samsaebulhoedo, however, systematically places the Buddhist deities within a threedimensional space constructed by applying a linear perspective. Through the extensive employment of chiaroscuro as found in Western painting, it expresses white highlights and shadows, evoking a feeling that the magnificent world of the Buddhas of the Three Ages actually unfolds in front of viewers. Since the inner order of a linear perspective and the outer illusion of chiaroscuro shading are intimately related to each other, it is difficult to believe that the white highlights were a later addition. Moreover, the creative convergence of highly-developed Western painting style and techniques that is on display in this Samsaebulhoedo could only have been achieved by late-Joseon court painters working during the reign of King Jeongjo, including Kim Hongdo, Yi Myeong-gi, and Kim Deuksin. Deungun, the head monk of Yongjusa Temple, wrote Yongjusa sajeok (History of Yongjusa Temple) by compiling the historical records on the temple that had been transmitted since its founding. In Yongjusa sajeok, Deungun recorded that Kim Hongdo painted Samsaebulhoedo as if it were a historical fact. The Joseon royal court's official records, Ilseongnok (Daily Records of the Royal Court and Important Officials) and Suwonbu jiryeong deungnok (Suwon Construction Records), indicate that Kim Hongdo, Yi Myeong-gi, and Kim Deuksin all served as a supervisor (gamdong) for the production of Buddhist paintings. Since within Joseon's hierarchical administrative system it was considered improper to allow court painters of government position to create Buddhist paintings which had previously been produced by monk-painters, they were appointed as gamdong in name only to avoid a political liability. In reality, court painters were ordered to create Buddhist paintings. During their reigns, King Yeongjo and King Jeongjo summoned the literati painters Jo Yeongseok and Kang Sehwang to serve as gamdong for the production of royal portraits and requested that they paint these portraits as well. Thus, the boundary between the concept of supervision and that of painting occasionally blurred. Supervision did not completely preclude painting, and a gamdong could also serve as a painter. In this light, the historical records in Yongjusa sajeok are not inconsistent with those in Ilseongnok, Suwonbu jiryeong deungnok, and a prayer written by Hwang Deok-sun, which was found inside the canopy in Daeungjeon Hall at Yongjusa Temple. These records provided the same content in different forms as required for their purposes and according to the context. This approach to the Samsaebulhoedo at Yongjusa Temple will lead to a more coherent explanation of dating the painting, analyzing its style, identifying its painter, and interpreting the relevant documents based on empirical grounds and logical consistency.