• Title/Summary/Keyword: Acts of Unlawful Interference in Aircraft

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The Main Contents and Task in Future for the Air Transport Law Established Newly in the Korean Revised Commercial Law

  • Kim, Doo-Hwan
    • The Korean Journal of Air & Space Law and Policy
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    • v.27 no.1
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    • pp.75-101
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    • 2012
  • As the Reublic of Korea revised the Commercial Code including 40 articles of air transport enacted newly on May 23, 2011, so Korea became first legislative examples in the Commercial Code of the developed and developing countries. I would like to explain briefly the main contents of my paper such as (1) history of enacting newly Part VI (air transport) in the Korea's revised commercial law, (2) legal background enacting newly Part VI (air transport) in the Korea's revised commercial law and the problems on the conditions of air transport, (3) every countries' legislative examples on the civil liability of aircraft's operator, (4) unlawful Interference Convention and general risk convention of 2009, (5) main contents and prospects of the revised Commercial Code for the liability of aircraft's operator etc as the followings. Meanwhile as the Aviation Act, Commercial Code and Civil Code in Korea and Japan did not regulated at all the legal basis of solution on the disputes between victims and offender for the amount of compensation for damage due to personal or property damage caused by aircraft accidents in Korea and Japan, so it has been raised many legal problems such as protection of victims, standard of decision in trial in the event of aircraft accident's lawsuit case. But the Korean Revised Commercial Code including Part VI, air transport regulations was passed by the majority resolution of the Korean National Assembly on April 29, 2011 and then the South Korean government proclaimed it on May 23 same year. The Revised Commercial Code enforced into tothe territory of the South Korea from November 24, 2011 after six month of the proclaimed date by the Korean Government. Thus, though Korean Commercial Code regulated concretely and respectively the legal relations on the liability of compensation for damage in the contract of transport by land in it's Part II (commercial activities) and in the contract of transport by sea in its Part V (marine commerce), but the Amended Commercial Act regulated newly 40 articles in it's Part VI (air transport) relating to the air carrier's contract liability on the compensation for damage caused by aircraft accidents in the air passengers and goods transport and aircraft operator's tort liability on compensation for damage caused by the sudden falling or collision of aircraft to third parties on the surface and so it was equipped with reasonable and unified system among the transport by land, marine and air. The ICAO adopted two new air law conventions setting out international compensation and liability rules for damage caused by aircraft to third parties at a diplomatic conference hosted by it from April 20 to May 2, 2009. The fight against the effects of terrorism and the improvement of the status of victims in the event of damage to third parties that may result either from acts of unlawful interference involving aircraft or caused by ordinary operation of aircraft, forms the cornerstone of the two conventions. One legal instrument adopted by the Conference is "the Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft" (Unlawful Interference Convention). The other instrument, "the Convention on Compensation for Damage Caused by Aircraft to Third Parties" (General Risk Convention), modernizes the current legal framework provided for under the 1952 Rome Convention and related Protocol of 1978. It is desirable for us to ratify quickly the abovementioned two conventions such as Unlawful Interference Convention and General Risk Convention in order to settle reasonably and justly as well as the protection of the South Korean peoples.

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Some Consideration on the Study of ICAO for the Rome Convention Amendment and the Necessity of Domestic Legislation (로마조약의 개정과 국내입법의 필요성에 관한 소고)

  • Kim, Sun-Ihee;Kwon, Min-Hee
    • The Korean Journal of Air & Space Law and Policy
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    • v.23 no.1
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    • pp.3-32
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    • 2008
  • In proportion to recent developments in aviation technology and growth of the air transport market, the risk of damages to third parties caused by aircrafts and the likelihood of unlawful interference on an aircraft in flight has grown larger. The war risk insurance market was paralyzed by the 9/11 terror event. And if another event on the scale of 9/11 occurs, compensations for third party damages will be impossible. Recognizing the need to modernize the existing legal framework and the absence of a globally accepted authority that deals with third party liability and compensation for catastrophic damage caused by acts of unlawful interference, the ICAO and various countries have discussed a liability and compensation system that can protect both third party victims and the aviation industry for the 7 years. In conclusion, in order to provide adequate protection for victims and the appropriate protection for air transport systems including air carriers, work on modernizing the Rome Convention should be continued and the new Convention should be finalized in the near future. Korea has not ratified the relevant international treaties, i.e. Rome Convention 1933, 1952 and 1978, and has no local laws which regulate the damage caused by aircraft to third parties on land. Consequently, it has to depend on the domestic civil tort laws. Most of the advanced countries in aviation such as the United States, England, Germany, France and even China, have incorporated the International Conventions to their national air law and governed carriers third party liability within their jurisdiction. The Ministry of Justice organized the Special Enactment Committee for Air Transport chapter under Commercial Law. The Air Transport chapter, which currently includes third party liability, is in the process of instituting new legislation. In conclusion, to settle such problems through local law, it is necessary to enact as soon as possible domestic legislation on the civil liability of the air carrier which has been connected with third party liability and aviation insurance.

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A Study on the 3rd Party Liability for the Damages Caused by the Aircraft - With respect to the 2009 Montreal Conventions (New Rome Convention) - (항공기에 의한 제3자 피해보상에 관한 고찰 - 2009 몬트리올 신로마협약을 중심으로 -)

  • Hong, Soon-Kil
    • The Korean Journal of Air & Space Law and Policy
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    • v.24 no.2
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    • pp.3-17
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    • 2009
  • The Rome Convention System (1933, 1952, 1978) which deal the third party lability relating to damage caused by aircraft to third parties on the surface have not been so effective and successful like the Warsaw Convention System. This paper briefs the development of the Rome Convention System and the reasons of their failure which are the low level of the limit of liability and non-parties of major civil aviation states such as the United States, the United Kingdom, Japan, Germany and etc. The Diplomatic Conference hosted by ICAO at Montreal during April 20 to May 2 has successfully produced two Conventions; One is Convention on Compensation for Damage Caused by Aircraft to Third Parties (General Risk Convention), the other is Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference involving Aircraft (Unlawful Interference Convention). The major contents and some problems of these two Conventions are reviewed in comparison with the exisiting Rome Convention System and other legal system. Particularly, the entrance into force of the Unlawful Interference Convention may take some time, at least more than 5 years, due to the realistic problems arising from the operation of International Civil Aviation Fund.

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A Study on Developmental Plan of In-Flight Security Officer in Korea - Focused on U.S. Federal Air Marshal Service - (항공기내보안요원제도의 발전 방안에 관한 연구 - 미국 연방 Air Marshal 제도를 중심으로-)

  • Park, Hee-Kyun;Moon, Jun-Seob
    • Korean Security Journal
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    • no.53
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    • pp.83-105
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    • 2017
  • The purpose of this study is to identify the problems of In-Flight Security Officer responsible for the security of the aircraft in the situation where Acts of Unlawful Interference in Aircraft shows an increasing tendency and the aircraft security is threatened by the terror threat of IS(Daesh) and to suggests its policy implications. Based on the problems of In-Flight Security Officer system found in the media reports and laws, the US Air Marshal system and the domestic similar system were presented to the In-Flight Security Officer developmental implications. First, it is necessary to revise the "Operational Guidelines for Airline Operators' In-Flight security officer" and the related qualifications to the "National Technical Qualifications" system. Second, the plan to change the national civil servants of In-Flight Security Officer in the aircraft, Third, it is a plan to use the registered security guard system in the aircraft. Although this study has limitations the accessibility of information related to aviation security. But, contributions of this study is that the government's efforts to create the public sector jobs, the "strengthening of public services in the country", "the establishment of national accountability for safety accident prevention and disaster safety management" in the "A five-year plan for Government Operation" that it has a timeliness in that it is together. In addition, since there are not many researches related to In-Flight Security Officer, this study also has another contribution as a basic study of the researchers in the aviation security aircraft in the future.

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A Study on Modernization of International Conventions Relating to Aviation Security and Implementation of National Legislation (항공보안 관련 국제협약의 현대화와 국내입법의 이행 연구)

  • Lee, Kang-Bin
    • The Korean Journal of Air & Space Law and Policy
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    • v.30 no.2
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    • pp.201-248
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    • 2015
  • In Korea the number of unlawful interference act on board aircrafts has been increased continuously according to the growth of aviation demand, and there were 55 incidents in 2000, followed by 354 incidents in 2014, and an average of 211 incidents a year over the past five years. In 1963, a number of states adopted the Convention on Offences and Certain Other Acts Committed on Board Aircraft (the Tokyo Convention 1963) as the first worldwide international legal instrument on aviation security. The Tokyo Convention took effect in 1969 and, shortly afterward, in 1970 the Convention for the Suppression of Unlawful Seizure of Aircraft(the Hague Convention 1970) was adopted, and the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation(the Montreal Convention 1971) was adopted in 1971. After 9/11 incidents in 2001, to amend and supplement the Montreal Convention 1971, the Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation(the Beijing Convention 2010) was adopted in 2010, and to supplement the Hague Convention 1970, the Protocol Supplementary to the Convention for the Suppression of Unlawful Seizure of Aircraft(the Beijing Protocol 2010) was adopted in 2010. Since then, in response to increased cases of unruly behavior on board aircrafts which escalated in both severity and frequency,, the Montreal Protocol which is seen as an amendment to the Convention on Offences and Certain Other Acts Committed on Board Aircraft(the Tokyo Convention 1963) was adopted in 2014. Korea ratified the Tokyo Convention 1963, the Hague Convention 1970, the Montreal Convention 1971, the Montreal Supplementary Protocol 1988, and the Convention on the Marking of Plastic Explosive 1991 which have proven to be effective. Under the Tokyo Convention ratified in 1970, Korea further enacted the Aircraft Navigation Safety Act in 1974, as well as the Aviation Safety and Security Act that replaced the Aircraft Navigation Safety Act in August 2002. Meanwhile, the title of the Aviation Safety and Security Act was changed to the Aviation Security Act in April 2014. The Aviation Security Act is essentially an implementing legislation of the Tokyo Convention and Hague Convention. Also the language of the Aviation Security Act is generally broader than the unruly and disruptive behavior in Sections 1-3 of the model legislation in ICAO Circular 288. The Aviation Security Act has reflected the considerable parts of the implementation of national legislation under the Beijing Convention and Beijing Protocol 2010, and the Montreal Protocol 2014 that are the modernized international conventions relating to aviation security. However, in future, when these international conventions would come into effect and Korea would ratify them, the national legislation that should be amended or provided newly in the Aviation Security Act are as followings : The jurisdiction, the definition of 'in flight', the immunity from the actions against the aircraft commander, etc., the compulsory delivery of the offender by the aircraft commander, etc., the strengthening of penalty on the person breaking the law, the enlargement of application to the accomplice, and the observance of international convention. Among them, particularly the Korean legislation is silent on the scope of the jurisdiction. Therefore, in order for jurisdiction to be extended to the extra-territorial cases of unruly and disruptive offences, it is desirable that either the Aviation Security Act or the general Crime Codes should be revised. In conclusion, in order to meet the intelligent and diverse aviation threats, the Korean government should review closely the contents of international conventions relating to aviation security and the current ratification status of international conventions by each state, and make effort to improve the legislation relating to aviation security and the aviation security system for the ratification of international conventions and the implementation of national legislation under international conventions.

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-)

  • Park, Won-Hwa
    • The Korean Journal of Air & Space Law and Policy
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    • v.24 no.1
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    • pp.35-58
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    • 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.

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Some New Problems of International Aviation Security- Considerations Forcused on its Legal Aspects (최근국제항공보안대책(最近國際航空保安対策)의 제간제(諸間題) -특히 법적측면(法的測面)을 중심(中心)으로-)

  • Choi, Wan-Sik
    • The Korean Journal of Air & Space Law and Policy
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    • v.5
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    • pp.53-75
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    • 1993
  • This article is concerned with the comment on "Some New Problems of International Aviation Security-Considerations Forcused on its Legal Aspects". Ever since 1970, in addition to the problem of failure to accept the Tokyo, Hague and Montreal Conventions, there has been also the problem of parties to them, failing to comply with their obligations under the respective treaties, in the form especially of nominal penalties or the lack of any effort to prosecute after blank refusals to extradite. There have also been cases of prolonged detention of aircraft, passengers and hostages. In this regard, all three conventions contain identical clauses which submit disputes between two or more contracting States concerning the interpretation or application of the respective conventions to arbitration or failing agreement on the organization of the arbitration, to the International Court of Justice. To the extent to which contracting States have not contracted out of this undertaking, as I fear they are expressly allowed to do, this promision can be used by contracting States to ensure compliance. But to date, this avenue does not appear to have been used. From this point of view, it may be worth mentioning that there appears to be an alarming trend towards the view that the defeat of terrorism is such an overriding imperative that all means of doing so become, in international law, automatically lawful. In addition, in as far as aviation security is concerned, as in fact it has long been suggested, what is required is the "application of the strictest security measures by all concerned."In this regard, mention should be made of Annex 17 to the Chicago Convention on Security-Safeguarding International Civil Aviation against Acts of Unlawful Intereference. ICAO has, moreover, compiled, for restricted distribution, a Security Manual for Safeguarding Civil Aviation Against Acts of Unlawful Interference, which is highly useful. In this regard, it may well be argued that, unless States members of ICAO notify the ICAO Council of their inability to comply with opecific standards in Annex 17 or any of the related Annexes in accordance with Article 38 of the 1944 Chicago Convention on International Civil Aviation, their failure to do so can involve State responsibility and, if damage were to insure, their liability. The same applies to breaches of any other treaty obligation. I hope to demonstrate that although modes of international violence may change, their underlying characteristics remain broadly similar, necessitating not simply the adoption of an adequate body of domestic legislation, firm in its content and fairly administered, but also an international network of communication, of cooperation and of coordination of policies. Afurther legal instrument is now being developed by the Legal Committee of ICAO with respect to unlawful acts at International airports. These instruments, however, are not very effective, because of the absence of universal acceptance and the deficiency I have already pointed out. Therefore, States, airports and international airlines have to concentrate on prevention. If the development of policies is important at the international level, it is equally important in the domestic setting. For example, the recent experiences of France have prompted many changes in the State's legislation and in its policies towards terrorism, with higher penalties for terrorist offences and incentives which encourage accused terrorists to pass informations to the authorities. And our government has to tighten furthermore security measures. Particularly, in the case an unarmed hijacker who boards having no instrument in his possession with which to promote the hoax, a plaintiff-passenger would be hard-pressed to show that the airline was negligent in screening the hijacker prior to boarding. In light of the airline's duty to exercise a high degree of care to provide for the safety of all the passengers on board, an acquiescence to a hijacker's demands on the part of the air carrier could constitute a breach of duty only when it is clearly shown that the carrier's employees knew or plainly should have known that the hijacker was unarmed. The general opinion is that the legal oystem could be sufficient, provided that the political will is there to use and apply it effectively. All agreed that the main responsibility for security has to be borne by the governments. A state that supports aviation terrorism is responsible for violation of International Aviation Law. Generally speaking, terrorism is a violation of international law. It violates the sovereign rights of states, and the human rights of the individuals. We have to contribute more to the creation of a general consensus amongst all states about the need to combat the threat of aviation terrorism. I think that aviation terrorism as becoming an ever more serious issue, has to be solved by internationally agreed and closely co - ordinated measures.

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