• The Korean Journal of Air & Space Law and Policy
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• 제32권1호
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• pp.201-224
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• 2017

The main subject of this article focused on the legal status of the military aircraft in the high seas. For this the legal status of the military aircraft, the freedom of overflight, the right of hot pursuit, the right of visit and Air Defense Identification Zone (ADIZ) were dealt. The 1944 Chicago Convention neither explicitly nor implicitly negated the customary norms affecting the legal status of military aircraft as initially codified within the 1919 Paris Convention. So the status of military aircraft was not redefined with the Chicago Convention and remains, as stated in the 1919 Paris Convention, as a norm of customary international law. The analyses on the legal status of the military aircraft in the high seas are found as follows; According to the Article 95 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) warships on the high seas have complete immunity from the jurisdiction of any State other than the flag State. We can suppose that the military aircraft in the high seas have also complete immunity from the jurisdiction of any State other than the flag State. According to the Article 111 (5) of the UNCLOS the right of hot pursuit may be exercised only by warships or military aircraft, or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect. We can conclude that the right of hot pursuit may be exercised by military aircraft. According to the Article 110 of the UNCLOS a warship which encounters on the high seas a foreign ship, is not justified in boarding it unless there is reasonable ground for suspecting that: (a) the ship is engaged in piracy, (b) the ship is engaged in the slave trade, (c) the ship is engaged in an unauthorized broadcasting and the flag State of the warship has jurisdiction under article 109, (d) the ship is without nationality, or (e) though flying a foreign flag or refusing to show its flag, the ship is, in reality, of the same nationality as the warship. These provisions apply mutatis mutandis to military aircraft. As for Air Defence Identification Zone (ADIZ) it is established and declared unilaterally by the air force of a state for the national security. However, there are no articles dealing with it in the 1944 Chicago Convention and there are no international standards to recognize or prohibit the establishment of ADIZs. ADIZ is not interpreted as the expansion of territorial airspace.

• The Korean Journal of Air & Space Law and Policy
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• 제32권1호
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• pp.225-285
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• 2017

In regard to the regulations related to the RPA(Remotely Piloted Aircraft), which is sometimes called in other countries as UA(Unmanned Aircraft), ICAO stipulates the regulations in the 'RPAS manual (2015)' in detail based on the 'Chicago Convention' in 1944, and enacts provisions for the Rules of UAS or RPAS. Other contries stipulates them such as the Federal Airline Rules (14 CFR), Public Law (112-95) in the United States, the Air Transport Act, Air Transport Order, Air Transport Authorization Order (through revision in "Regulations to operating Rules on unmanned aerial System") based on EASA Regulation (EC) No.216/2008 in the case of unmanned aircaft under 150kg in Germany, and Civil Aviation Act (CAA 1998), Civil Aviation Act 101 (CASR Part 101) in Australia. Commonly, these laws exclude the model aircraft for leisure purpose and require pilots on the ground, not onboard aricraft, capable of controlling RPA. The laws also require that all managements necessary to operate RPA and pilots safely and efficiently under the structure of the unmanned aircraft system within the scope of the regulations. Each country classifies the RPA as an aircraft less than 25kg. Australia and Germany further break down the RPA at a lower weight. ICAO stipulates all general aviation operations, including commercial operation, in accordance with Annex 6 of the Chicago Convention, and it also applies to RPAs operations. However, passenger transportation using RPAs is excluded. If the operational scope of the RPAs includes the airspace of another country, the special permission of the relevant country shall be required 7 days before the flight date with detail flight plan submitted. In accordance with Federal Aviation Regulation 107 in the United States, a small non-leisure RPA may be operated within line-of-sight of a responsible navigator or observer during the day in the speed range up to 161 km/hr (87 knots) and to the height up to 122 m (400 ft) from surface or water. RPA must yield flight path to other aircraft, and is prohibited to load dangerous materials or to operate more than two RPAs at the same time. In Germany, the regulations on UAS except for leisure and sports provide duty to avoidance of airborne collisions and other provisions related to ground safety and individual privacy. Although commercial UAS of 5 kg or less can be freely operated without approval by relaxing the existing regulatory requirements, all the UAS regardless of the weight must be operated below an altitude of 100 meters with continuous monitoring and pilot control. Australia was the first country to regulate unmanned aircraft in 2001, and its regulations have impacts on the unmanned aircraft laws of ICAO, FAA, and EASA. In order to improve the utiliity of unmanned aircraft which is considered to be low risk, the regulation conditions were relaxed through the revision in 2016 by adding the concept "Excluded RPA". In the case of excluded RPA, it can be operated without special permission even for commercial purpose. Furthermore, disscussions on a new standard manual is being conducted for further flexibility of the current regulations.

• The Korean Journal of Air & Space Law and Policy
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• 제26권1호
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• pp.93-125
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• 2011

The International Civil Aviation Convention (Chicago Convention) has been a backbone of international air transport system whereby air transport between States should be based on bilateral agreements, and in particular, international airfares, which are set up through IATA(International Air Transport Association) rate-fixing machinery could be approved by the governments concerned. International airfares are fares for transporting passenger and freight and their conditions between two or more countries. However, since U.S. pursued th deregulation policy in 1978 whereby routes, capacity and fares could be freely determined by airlines, many States have been following so called open-skies agreements. In many cases, aeronautical and competent authorities have been reviewing whether airlines' commercial activities including air fares could possibly conflict with free competition rules envisaged in relevant laws and regulations. As competition among airlines gets intense, airlines often resort to cooperation with other airlines in the forms such as equity exchange, M&A, code-sharing, fares consultation and resource pooling, mainly with a view to effectively use resources available and to avoid monopoly situation resulting from excessive and destructive competition among players. Whereas bearing in mind that application of competition laws is important to secure consumers' interests by preventing airlines's malpractices such as bargaining exorbitant fares, it is also important to comprehensively consider as many factors as possible, from that unilateral measure by governments may bring about retaliatory measures by the governments affected, to that airlines' cooperative practices may rather increase consumers' benefits by lowering air fares.

• Journal of Environmental Policy
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• 제8권1호
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• pp.1-30
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• 2009

Emission trading schemes, exemplified by the EU Emission Trading Scheme, have been playing active roles in mitigating greenhouse gas emissions since the Kyoto Protocol employed an emission trading as one of the cost-effective mechanisms. The objective of this study is to investigate potential integration of forestry offsets in designing an emission trading scheme in South Korea. First, the study found feasible scopes in which forestry sectors can take part by analyzing five emission trading schemes: EU Emission Trading Scheme, Chicago Climate Exchange, New South Wales Greenhouse Gas Abatement Scheme, New Zealand Emission Trading Scheme, and Regional Greenhouse Gas Initiative. The rationale of including forestry offsets in a domestic emission trading scheme was derived from the fact that forestry offset credits can provide cost-effective ways for market participants to commit their emission targets and expand abatement activities through reducing greenhouse gases in other geographical locations as well as other industrial sectors. Even though forestry offset credits have risks induced by their technical complexities in terms of accounting, additionality, and leakage, the integration of forestry offset credits into an emission trading scheme would be able to provide positive opportunities both to forestry sectors and other industrial sectors. In addition, there are technical questions which need to be answered in order to maintain these opportunities.

• The Korean Journal of Air & Space Law and Policy
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• 제28권2호
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• pp.145-181
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• 2013

General aviation is an integral part of civil aviation and involves the widest range of aviation segments except commercial aviation. Featured with different operational procedures and practices to satisfy the economic needs and safety requirements of a sovereign state, general aviation tends to be regulated by an individual state. The last three decades have seen exponential growth of commercial air transport in China, but its general aviation sector has remained disproportionally underdeveloped. With the deepening of the reform of low-altitude airspace, the sector is poised for a radical change and rapid growth. However, legislation governing general aviation activities in China is distorted causing inconsistency and confusions in their application and implementation. This paper aims to analyse China's prevailing legislation regulating general aviation activities. It first discusses the various definitions adopted by ICAO and its member states and reviews the development of general aviation in the US, EU, Australia and China. It then examines the sources of China's general aviation laws, e.g. Chicago Convention and its annexes, and Chinese domestic legislature which covers legislation, laws, directives, rules and procedures. The paper continues to analyse and establish the deficiencies of its prevailing legal framework by pointing out the following: variation of definitions in different regulations, inconsistency of principles in existing laws and regulations, legal vacuum concerning government subsidy, environment protection, safety and security, and other operational areas such as aerial club, sightseeing, and search and rescue. In this process, the paper argues that a coherent, consistent and systematic legal framework is required in order to ensure fair competition and safety for a healthy, progressive and sustainable general aviation growth. Suggestions for rectification and improvement are proposed.

• The Korean Journal of Air & Space Law and Policy
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• 제21권1호
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• pp.135-167
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• 2006

Air service agreements between EU Member States and third countries concluded by Sweden, Finland, Belgium, Luxembourg, Austria, the Netherlands, Denmark and the United Kingdom after the Second World War infringe EU law. They authorize the third countries to withdraw, suspend or limit the traffic rights of air carriers designated by the signatory States. According to the Court of Justice of the European Communities (CJEC), these agreements infringe EU law in two respects. On the one hand, the presence of nationality clauses infringes the right of European airlines to non-discriminatory market access to routes between all Member States and third countries. On the other hand, only the EU has the authority to sign up to this type of commitment where agreements affect the exercise of EU competence, i.e. involve an area covered by EU legislation. The Court held that since the third countries have the right to refuse a carrier, these agreements therefore constitute an obstacle to the freedom of establishment and freedom to provide services, as the opening of European skies to third countries' companies is not reciprocal for all EU airlines. In the conclusion, in order to reconstruct these public international air law, The new negotiations between EU member states and third countries, especially the US, must be designed to ensure an adequate set of principles, so that Member States, in their bilateral relations with third countries in the area of air service, should consider following three models. The 1st, to develop a new model of public international air law such as a new Bermuda III. The 2nd, to reconstruct new freedoms of the air, for example, the 7th, 8th, and 9th freedoms. The 3rd, to explore new approaching models, such as complex system theory explored in the recent social sciences, to make access world-wide global problems instead of bilateral problems between EU member states and United States. The example will show any lessons to air talks between European Union and ROK.

• The Korean Journal of Air & Space Law and Policy
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• 제33권2호
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• pp.345-366
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• 2018

Article 37 of the International Convention on Civil Aviation requires that rules should be adopted to keep in compliance with international standards and recommended practices established by ICAO. As SARPs are revised annually, each ICAO Member State needs to reflect the new content in its national aviation Acts in a timely manner. In recent years, data-driven international standards have been developed because of the important roles of aviation safety data and information-based legislation in accident prevention based on human factors. The Safety Management System and crew Fatigue Risk Management Systems were reviewed as examples of the result of data-driven rulemaking. The safety management system was adopted in 2013 with the introduction of Annex 19 and Chapter 5 of the relevant manual describes safety data collection and analysis systems. Through analysis of safety data and information, decision makers can make informed data-driven decisions. The Republic of Korea introduced Safety Management System in accordance with Article 58 of the Aviation Safety Act for all airlines, maintenance companies, and airport corporations. To support the SMS, both mandatory reporting and voluntary safety reporting systems need to be in place. Up until now, the standard of administrative penal dispensation for violations of the safety management system has been very weak. Various regulations have been developed and implemented in the United States and Europe for the proper legislation of the safety management system. In the wake of the crash of the Colgan aircraft, the US Aviation Safety Committee recommended the US Federal Aviation Administration to establish a system that can identify and manage pilot fatigue hazards. In 2010, a notice of proposed rulemaking was issued by the Federal Aviation Administration and in 2011, the final rule was passed. The legislation was applied to help differentiate risk based on flight according to factors such as the pilot's duty starting time, the availability of the auxiliary crew, and the class of the rest facility. Numerous amounts data and information were analyzed during the rulemaking process, and reflected in the resultant regulations. A cost-benefit analysis, based on the data of the previous 10 year period, was conducted before the final legislation was reached and it was concluded that the cost benefits are positive. The Republic of Korea also currently has a clause on aviation safety legislation related to crew fatigue risk, where an airline can choose either to conform to the traditional flight time limitation standard or fatigue risk management system. In the United States, specifically for the purpose of data-driven rulemaking, the Airline Rulemaking Committee was formed, and operates in this capacity. Considering the advantageous results of the ARC in the US, and the D4S in Europe, this is a system that should definitely be introduced in Korea as well. A cost-benefit analysis is necessary, and can serve to strengthen the resulting legislation. In order to improve the effectiveness of data-based legislation, it is necessary to have reinforcement of experts and through them prepare a more detailed checklist of relevant variables.

• The Korean Journal of Air & Space Law and Policy
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• 제30권2호
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• pp.427-468
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• 2015

To date, we have considered the theoretical views, the standpoint of states and the discourse within the international community such as the UN Committee on the Peaceful Uses of Outer Space(COPUOS) regarding the Air/Outer Space Boundary Question which is one of the first issues of UN COPUOS established in line with marking the starting point of Outer Space Area. As above mentioned, discussions in the United Nations and among scholars of within each state regarding the delimitation issue often saw a division between those in favor of a functional approach (the functionalists) and those seeking the delineation of a boundary (the spatialists). The spatialists emphasize that the boundary between air and outer space should be delimited because the status of outer space is a type of public domain from which sovereign jurisdiction is excluded, as stated in Article 2 of Outer Space Treaty. On the contrary art. I of Chicago Convention is evidence of the acknowledgement of sovereignty over airspace existing as an international customary law, has the binding force of which exists independently of the Convention. The functionalists, backed initially by the major space powers, which viewed any boundary demarcation as possibly restricting their access to space, whether for peaceful or non-military purposes, considered it insufficient or inadequate to delimit a boundary of outer space without obvious scientific and technological evidences. Last more than 50 years there were large development in the exploration and use of outer space. But a large number states including those taking the view of a functionalist have taken on a negative attitude. As the element of location is a decisive factor for the choice of the legal regime to be applied, a purely functional approach to the regulation of activities in the space above the Earth does not offer a solution. It seems therefore to welcome the arrival of clear evidence of a growing recognition of and national practices concerning a spatial approach to the problem is gaining support both by a large number of States as well as by publicists. The search for a solution to the problem of demarcating the two different legal regimes governing the space above Earth has undoubtedly been facilitated and a number of countries including Russia have already advocated the acceptance of the lowest perigee boundary of outer space at a height of 100km. As a matter of fact the lowest perigee where space objects are still able to continue in their orbiting around the earth has already been imposed as a natural criterion for the delimitation of outer space. This delimitation of outer space has also been evidenced by the constant practice of a large number of States and their tacit consent to space activities accomplished so far at this distance and beyond it. Of course there are still numerous opposing views on the delineation of a outer space boundary by space powers like U.S.A., England, France and so on. Therefore, first of all to solve the legal issues faced by the international community in outer space activities like delimitation problem, there needs a positive and peaceful will of international cooperation. From this viewpoint, President John F. Kennedy once described the rationale behind the outer space activities in his famous "Moon speech" given at Rice University in 1962. He called upon Americans and all mankind to strive for peaceful cooperation and coexistence in our future outer space activities. And Kennedy explained, "There is no strife, ${\ldots}$ nor any international conflict in outer space as yet. But its hazards are hostile to us all: Its conquest deserves the best of all mankind, and its opportunity for peaceful cooperation may never come again." This speech seems to even present us in the contemporary era with ample suggestions for further peaceful cooperation in outer space activities including the delimitation of outer space.