• The Korean Journal of Air & Space Law and Policy
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• v.22 no.2
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• pp.27-51
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• 2007

The cumulative result of the work by the ICAO Secretariat, the Secretariat Study Group and the Council Special Group on the Modernization of the Rome Convention of 1952 are two draft Conventions, namely: "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties, in case of Unlawful Interference", and "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties" The core provisions of the former draft Convention are as follows: The liability of the operator is strict, that is, without the necessity of proof of fault. It would be liable for damage sustained by third parties on condition only that the damage was caused by an aircraft in flight(Article 3). However, such liability is caped based on the weight of the aircraft(Article 4). It is envisaged to create an independent organization called the Supplementary Compensation Mechanism, with the principle purpose to pay compensation to persons suffering damage in the territory of a State Party, and to provide financial support(Article 8). Compensation shall be paid by the SCM to the extent that the total amount of damages exceeds the Article 4 limits(Article 19). The main issues on the farmer draft Convention are relating to breaking away from Montreal Convention 1999, no limits on individual claims but a global limitation on air carrier liability, insurance coverage, cap of operators' strict liability, and Supplementary Compensation Mechanism. The core provisions of the latter draft Convention are as follows: the liability of the operator is strict, up to a certain threshold tentatively set at 250,000 to 500,000 SDRs. Beyond that, the operator is liable for all damages unless it proves that such damage were not due to its negligence or that the damages were solely due to the negligence of another person(Article 3). The provisions relating to the SCM and compensation thereunder do not operate under this Convention, as the operator is potentially for the full amount of damages caused. The main issues on the latter draft Convention are relating to liability limit of operator, and definition of general risks. In conclusion, we urge ICAO to move forward expeditiously on the draft Convention to establish a third party liability and compensation system that can stand ready to protect both third party victims and the aviation industry before another 9/11-scale event occurs.

• The Korean Journal of Air & Space Law and Policy
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• v.17
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• pp.55-89
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• 2003

What are the international aviation regimes? It is said that they are sets of principles, norms, rules, and decision-making procedures of international aviation around which aviation actors' (states-actors, intergovernmental aviation organization, international aviation conventions, airlines and their organizations etc.) expectations converge in a given aviation issue-area for the purposes of the human welfare and the operations of the stable civil aviation. In this regards, the purposes of this study are focused on the aviation actors' shifts. Chronologically, international aviation regimes have been developed by some stages as followings; The 1st stage is the period from 1944 Chicago Convention to 1978 US Deregulation Act, when the aviation regulations and rules within the international aviation relations were implemented by Chicago-Bermuda regimes as Christer Jonsson pointed out. In this first stage, the sovereignty for the airspace over their countries is absolute. The second stage is the period from 1978 to '1992 Open Skies Agreement' between US and Netherlands. In this regime, airlines' activities as well as state-actors' have been actuated. The third stage is the period from 1992 to the contemporary. In this stage, airlines' activities for the consumers such as 'Open Skies Agreements', 'e-commerce business', 'airspace open policy within EU area', 'service open policy of WTO', and 'airlines' strategic alliance' are the central focal points in the world aviation relationship. In the conclusion, this phenomenon of the core actors in the international aviation rules has been shifted from the states-actors to the non-states actors especially, operating airlines, or consuming customers. Finally, I' d like to suggest that international aviation regimes should be developed to promote and facilitate the globalized level for the people's movements among the global aviation society. That is the way to proceed to the welfare and peace for all human beings of the World.

• The Korean Journal of Air & Space Law and Policy
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• v.21 no.2
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• pp.157-179
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• 2006

According to the Annex 17 to the Convention on International Civil Aviation, an appropriate authority of each contracting state has to define and allocate tasks and coordinate activities between the departments, agencies and other organizations of the State, airport and aircraft operators and other entities concerned with or responsible for the implementation of various aspects of the national civil aviation security programme. The airport has to take leading role in implementing security tasks at airport area because the airport operator is the provider of airport facilities and services to its customer and the security activities belong to its services. So Republic of Korea Government enact the Law, Aviation Safety and Security. The Purpose of this Act is to prevent any unlawful act in airport facilities with international conventions, including the ICAO to provide for standards, procedures and mandatory matters needed to ensure the safety and security of civil aviation. But the Act has some error. So is this paper to review the revision of aviation security regulation and the changes of aviation security responsibilities and task assignment. There is the term "aviation security personnel", who are charged with the task of preventing any act of disrupting the order and safety in airport. But there is no term "security screening personnel" who performs to detect or search for dangerous object, such as weapons or explosives, which may be used for the unlawful obstruction.

• The Korean Journal of Air & Space Law and Policy
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• v.26 no.1
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• pp.3-30
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• 2011

According to the Article 86 of the United Nations on the Law of the Sea(UNCLOS) the provisions of high seas apply to all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of an archipelagic State. Article 87 also stipulates the freedom of the high seas. International laws on the flight over the high seas are found as follows; Firstly, as far as the nationality of the aircraft is concerned, its legal status is quite different from the ship where the flags of convenience can be applied practically. There is no flags of convenience of the aircraft. Secondly, according to the Article 95 of 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(or state) aircraft over the high seas have also complete immunity from the jurisdiction of any State other than the flag State. Thirdly, according to the Article 101 of UNCLOS piracy consists of any act of voluntary participation in the operation of a ship or of an aircraft with knowledge of facts making it a pirate ship or aircraft. We can conclude that piracy can de done by a pirate aircraft as well as a pirate ship. Fourthly, according to the Article 111 (5) of 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 only military aircraft, or aircraft clearly marked and identifiable as being on government service and authorized to that effect. Fifthly, according to the Article 110 of 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 authorized 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. Sixthly, according to the Article 1 (5)(dumping), 212(pollution from or through the atmosphere), 222(enforcement with respect to pollution from or through the atmosphere) of UNCLOS aircraft as well as ship is very much related to marine pollution. Seventhly, as far as the crime on board aircraft over the high seas is concerned 1963 Convention on the Offences and Certain Other Acts Committed on Board Aircraft(Tokyo Convention) will be applied, and as for the hijacking over the high seas 1970 Convention for the Suppression of Unlawful Seizure of Aircraft(Hague Convention) and as for the sabotage over the high seas 1971 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation(Montreal Convention) will be applied respectively. These three conventions recognize the flag state jurisdiction over the crimes on board aircraft over the high seas. Eightly, as far as reconnaissance by foreign aircraft in the high seas toward the coastal States is concerned it is not illegal in terms of international law because its act is done in the high seas. Ninthly as for Air Defence Identification Zone(ADIZ) there are no articles dealing with it in the 1944 Chicago Convention. The legal status of the foreign aircraft over this sea zone might be restricted to the regulations of the coastal states whether this zone is legitimate or illegal. Lastly, the Arctic Sea is the frozen ocean. So the flight over that ocean is the same over the high seas. Because of the climate change the Arctic Sea is getting melted. If the coastal states of the Arctic Sea will proclaim the Exclusive Economic Zone(EEZ) as the ocean is getting melted, the freedom of flight over that ocean will also be restricted to the regulations of the coastal states.

• The Korean Journal of Air & Space Law and Policy
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• v.25 no.1
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• pp.27-54
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• 2010

Soon after September 11 attacks in 2001, there were strong demands in Korea on making relevant laws and regulations on aviation security, and Korean parliament legislated "Aviation Safety and Security Act"to fulfill the demands on safety and security of aircrafts during aviation. However, the current Aviation Safety and Security Act seems to have many problems which do not meet the practical needs in Korea, because there were not enough considerations on the practical needs and extinguishable national circumstances on civil aviation system in Korea, but only regarded the relevant international conventions and foreign practices on it. In this context, it is necessary to amend several provisions in Aviation Safety and Security Act to enhance more practical efficiencies in its implementation through systematization of the provisions on crimes which may happen during aviation. In this context, this article argues two main issues. First, Article 39 of Aviation Safety and Security Act does not express whether it is possible to punish the attempt of crime of causing damage to aircraft. Therefore, regarding a principle of legality, it is impossible to punish the perpetrator even when coincidently failed to destruct or damage aircraft. In this context, this article argues that the necessity to introduce the possibility to punish the attempt of crime of causing damage to aircraft. Second, regarding Article 160 of Civil Aviation Act of Korea, current Aviation Safety and Security Act should be amended by guaranteeing the culpability of negligence of crime of causing damage to aircraft.