• The Korean Journal of Air & Space Law and Policy
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• v.23 no.2
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• pp.207-223
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• 2008

The launching of the Taepo-dong 1 on 31 August 1998 by the North Korea was the first case where the diplomatic protests was made against the flight, the purpose of which, the launching State claimed, consisted in space exploration and use. It is the principle regarding the freedom of space exploration and use, as included in the international treaty, that is relevant in applying the various rules and in defining the legal status of the flight. Its legal status, however, was not actually taken into account, as political negotiations leading to the test moratorium has been successful until present day in freezing the political crisis. This implies that the rules of the law lack the validity and logic sufficient in dictating the conduct of the States. This case shows that, in effect, it is not the rule but the politics that is to govern the status of the flight.

• The Korean Journal of Air & Space Law and Policy
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• v.23 no.1
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• pp.111-129
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• 2008

Denying the legitimacy of occupying any parts of the outer space satisfied the political interests of space fairing States. 'Res communis' idea was converted into the rationale which met such political needs in the best way available. This rationale, as its roman law concept implies, is based upon ownership to things. Ownership paradigm, as discussed in this paper, may be not sufficient for applying the OST. A new paradigm may be more valuable. Diversified type of the right to use would be best available one. Space commercialization should be understood in social and economical dimension, which is too diverse and important for space lawyers, especially adhering to ownership paradigm, to deal with. It is mature to admit that res communis rationale operated for 40 years is not sufficiently refined to foster the advent and benefit expected from space commercialization. Diversified type of right to use is to be taken into account seriously, as workable paradigm provided by other social science.

• The Korean Journal of Air & Space Law and Policy
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• v.32 no.2
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• pp.247-276
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• 2017

The protection of space asset has been new major cause of space militarization. For such purpose, it has been officially announced that a policy of deterring and denying any adversaries from accessing the outer space. Space militarization is to be conversed into a new concept of space weaponization. The USA has announced its policy of space weaponization, while China and Russia have not revealed their plan or policy. Latter States, however, have proposed a draft treaty limiting the deployment of warfare in the outer space. The terms of the Outer Space Treaty, reflecting three significant United Nations General Assembly resolutions from the 1960s, support the position that ground rules must be observed in the exploration and the use of outer space, particularly in the absence of specific space law rules. Yet the combination (and culmination) of these two approaches to the legal regulation of outer space-specific rules as and when agreed by the international community and the translation of principles developed for terrestrial regulation to outer space-still leaves much room for uncertainty and exploitation for military and strategic purposes. As space weaponization may contribute to deterring the use of weapon, it may be not against the UN Charter Article 2(4). If space weaponization might generate the space debris such that the outer space is no more available for exploration and use, it is against the proportionality principle and discrimination principle enshrined in the laws of the war. But, if the limitation upon the kind and use of space weaponization is agreed among the States, then the space weaponization may not be against the laws of the war, and be considered permissible within the rationale of limited war.

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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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.

• The Korean Journal of Air & Space Law and Policy
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• v.24 no.2
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• pp.211-234
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• 2009

North Korea conducted the launcher test, which, as North Korea claimed, belonged to the sovereign rights for the purpose of peaceful utilization and exploration of the outer space. The launching was allegedly done for the sole purpose of putting the satellite into earth orbit, while international community stressed the fact that the orbiting of satellite was not confirmed and that the technology used was not distinct from the purpose of building intercontinental ballistic missile. UN Security Council adopted the resolutions which took the effect that the launching was deemed as the missile launching, not the mere launcher test. North Korea declared the moratorium of suspending its test activity. Controversial issues have been raised regarding whether the launcher itself has the legal status of enjoying the freedom of space flight based upon the 1967 Outer Space Treaty. The resolutions, however, has put forward a binding instrument forbidding the launching. UN Security Council resolutions, however, should be read not as defining the missile test illegal, in that the language of resolutions, such as 'demand', should be considered as not formulating a sort of obligatory act or inact. On the other hand, the resolutions should be read as having binding force with respect to any activity relating to the weapons of mass destruction. The resolution 1718 is written in more specific language such as 'decides that the DPRK shall suspend all activities related to its ballistic missile programme and in this context re-establish its pre-existing commitments to a moratorium on missile launching'. Therefore, the lauching activity of the North Korea is banned by the UN Security Council resolution. It should be noted that the resolution does not include any specific provisions defining the space of activity of the North Korea as illegal. But, the legal effect of the moratorium is not denied as to its launching itself, which is corresponding to the missile test clearisibanned in accordance with the resolutions.

• The Korean Journal of Air & Space Law and Policy
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• v.22 no.1
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• pp.29-54
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• 2007

Nuclear Power Sources(NPS) have been used since 1961 for the purpose of generating energy for space objects and have since then been recognized as particularly suited essential to some space operations. In January 1978 a malfuctioning Soviet nuclear powered satellite, Cosmos 954, re-entered the earth's atmosphere and disintegrated, scattering radioactive debris over a wide area of the Canadian Northwest Territory. This incident provided some reasons to international legal scholars to make some principles to regulate using NPS in outer space. In 1992 General Assembly adopted "Principles Relevant to the Use of Nuclear Power Sources in Outer Space". These NPS Principles set out certain legal and regulatory requirements on the use of nuclear and radioactive power sources for non-propulsive purposes. Although these principles, called 'soft laws', are not legal norms, they have much enfluences on state practices such as 1983 DBS Principles(Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting), 1986 RS Principles(Principles Relating to Remote Sensing of the Earth from Space) and 1996 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of all States, Taking into Particular Account the Needs of Developing Countries. As far as 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space is concerned the main points such as free use of outer space, non-appropriation of celestial bodies, application of international law to outer space etc. have become customary international law binding all states. NPS Principles might have similar characters according to states' willingness to respect them.

• The Korean Journal of Air & Space Law and Policy
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• no.spc
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• pp.35-58
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• 2007

Nuclear Power Sources(NPS) have been used since 1961 for the purpose of generating energy for space objects and have since then been recognized as particularly suited essential to some space operations. In January 1978 a malfuctioning Soviet nuclear powered satellite, Cosmos 954, re-entered the earth's atmosphere and disintegrated, scattering radioactive debris over a wide area of the Canadian Northwest Territory. This incident provided some reasons to international legal scholars to make some principles to regulate using NPS in outer space. In 1992 General Assembly adopted "Principles Relevant to the Use of Nuclear Power Sources in Outer Space". These NPS Principles set out certain legal and regulatory requirements on the use of nuclear and radioactive power sources for non-propulsive purposes. Although these principles, called 'soft laws', are not legal norms, they have much enfluences on state practices such as 1983 DBS Principles(Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting), 1986 RS Principles(Principles Relating to Remote Sensing of the Earth from Space) and 1996 Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interests of all States, Taking into Particular Account the Needs of Developing Countries. As far as 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space is concerned the main points such as free use of outer space, non-appropriation of celestial bodies, application of international law to outer space etc. have become customary international law binding all states. NPS Principles might have similar characters according to states' willingness to respect them.

• The Korean Journal of Air & Space Law and Policy
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• v.31 no.1
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• pp.145-167
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• 2016

UN Security Council is entitled to power for determining the existence of the threat to the peace. Specifying the provisions adopted in accordance with the chapter 7 of the UN Charter, its resolution is deemed as document confirming its decision about the threat to the peace. In general, resolutions adopted by the Security Council acting under Chapter VII of the Charter, are considered binding, in accordance with Article 25 of the Charter. Regarding to the terms of the Resolutions to be interpreted, the word "decide" is used as to the suspension of the ballistic missile program, the word "demand" is used as to the stopping of the the launch of ballistic missile, and the word "demand" is used as to return to the missile test moratorium. These provisions may be deemed to determining specific obligations to be imposed upon the States in accordance with the 1967 Outer Space Treaty. On the other hand, the Resolutions may be limited to the decision, not leading to a sort of international legislation, the main purpose of which is to provide a legal basis for international sanctions against Northe Korea. North Korea missile test case has reminded us of continuing discussion about whether the decision of the Security Council lacks the legislative authority due to its decision process. Furthermore, having regard to the outer space and space activities, the outer space law regime would be not compatible with the Security Council decision process in that the former presupposes the agreement among all States parties, while the latter based upon the agreement between Council member States. Therefore, it is premature to consider the Security Council decision as becoming the lex specialis of the space law regime.