An Examination into the Illegal Trade of Cultural Properties (문화재(文化財)의 국제적 불법 거래(不法 去來)에 관한 고찰)
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- Korean Journal of Heritage: History & Science
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- v.37
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- pp.371-405
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- 2004
International circulation of cultural assets involves numerous countries thereby making an approach based on international law essential to resolving this problem. Since the end of the
The main purpose of the investigation of an accident caused by aircraft is to be prevented the sudden and casual accidents caused by wilful misconduct and fault from pilots, air traffic controllers, hijack, trouble of engine and machinery of aircraft, turbulence during the bad weather, collision between birds and aircraft, near miss flight by aircrafts etc. It is not the purpose of this activity to apportion blame or liability for offender of aircraft accidents. Accidents to aircraft, especially those involving the general public and their property, are a matter of great concern to the aviation community. The system of international regulation exists to improve safety and minimize, as far as possible, the risk of accidents but when they do occur there is a web of systems and procedures to investigate and respond to them. I would like to trace the general line of regulation from an international source in the Chicago Convention of 1944. Article 26 of the Convention lays down the basic principle for the investigation of the aircraft accident. Where there has been an accident to an aircraft of a contracting state which occurs in the territory of another contracting state and which involves death or serious injury or indicates serious technical defect in the aircraft or air navigation facilities, the state in which the accident occurs must institute an inquiry into the circumstances of the accident. That inquiry will be in accordance, in so far as its law permits, with the procedure which may be recommended from time to time by the International Civil Aviation Organization ICAO). There are very general provisions but they state two essential principles: first, in certain circumstances there must be an investigation, and second, who is to be responsible for undertaking that investigation. The latter is an important point to establish otherwise there could be at least two states claiming jurisdiction on the inquiry. The Chicago Convention also provides that the state where the aircraft is registered is to be given the opportunity to appoint observers to be present at the inquiry and the state holding the inquiry must communicate the report and findings in the matter to that other state. It is worth noting that the Chicago Convention (Article 25) also makes provision for assisting aircraft in distress. Each contracting state undertakes to provide such measures of assistance to aircraft in distress in its territory as it may find practicable and to permit (subject to control by its own authorities) the owner of the aircraft or authorities of the state in which the aircraft is registered, to provide such measures of assistance as may be necessitated by circumstances. Significantly, the undertaking can only be given by contracting state but the duty to provide assistance is not limited to aircraft registered in another contracting state, but presumably any aircraft in distress in the territory of the contracting state. Finally, the Convention envisages further regulations (normally to be produced under the auspices of ICAO). In this case the Convention provides that each contracting state, when undertaking a search for missing aircraft, will collaborate in co-ordinated measures which may be recommended from time to time pursuant to the Convention. Since 1944 further international regulations relating to safety and investigation of accidents have been made, both pursuant to Chicago Convention and, in particular, through the vehicle of the ICAO which has, for example, set up an accident and reporting system. By requiring the reporting of certain accidents and incidents it is building up an information service for the benefit of member states. However, Chicago Convention provides that each contracting state undertakes collaborate in securing the highest practicable degree of uniformity in regulations, standards, procedures and organization in relation to aircraft, personnel, airways and auxiliary services in all matters in which such uniformity will facilitate and improve air navigation. To this end, ICAO is to adopt and amend from time to time, as may be necessary, international standards and recommended practices and procedures dealing with, among other things, aircraft in distress and investigation of accidents. Standards and Recommended Practices for Aircraft Accident Injuries were first adopted by the ICAO Council on 11 April 1951 pursuant to Article 37 of the Chicago Convention on International Civil Aviation and were designated as Annex 13 to the Convention. The Standards Recommended Practices were based on Recommendations of the Accident Investigation Division at its first Session in February 1946 which were further developed at the Second Session of the Division in February 1947. The 2nd Edition (1966), 3rd Edition, (1973), 4th Edition (1976), 5th Edition (1979), 6th Edition (1981), 7th Edition (1988), 8th Edition (1992) of the Annex 13 (Aircraft Accident and Incident Investigation) of the Chicago Convention was amended eight times by the ICAO Council since 1966. Annex 13 sets out in detail the international standards and recommended practices to be adopted by contracting states in dealing with a serious accident to an aircraft of a contracting state occurring in the territory of another contracting state, known as the state of occurrence. It provides, principally, that the state in which the aircraft is registered is to be given the opportunity to appoint an accredited representative to be present at the inquiry conducted by the state in which the serious aircraft accident occurs. Article 26 of the Chicago Convention does not indicate what the accredited representative is to do but Annex 13 amplifies his rights and duties. In particular, the accredited representative participates in the inquiry by visiting the scene of the accident, examining the wreckage, questioning witnesses, having full access to all relevant evidence, receiving copies of all pertinent documents and making submissions in respect of the various elements of the inquiry. The main shortcomings of the present system for aircraft accident investigation are that some contracting sates are not applying Annex 13 within its express terms, although they are contracting states. Further, and much more important in practice, there are many countries which apply the letter of Annex 13 in such a way as to sterilise its spirit. This appears to be due to a number of causes often found in combination. Firstly, the requirements of the local law and of the local procedures are interpreted and applied so as preclude a more efficient investigation under Annex 13 in favour of a legalistic and sterile interpretation of its terms. Sometimes this results from a distrust of the motives of persons and bodies wishing to participate or from commercial or related to matters of liability and bodies. These may be political, commercial or related to matters of liability and insurance. Secondly, there is said to be a conscious desire to conduct the investigation in some contracting states in such a way as to absolve from any possibility of blame the authorities or nationals, whether manufacturers, operators or air traffic controllers, of the country in which the inquiry is held. The EEC has also had an input into accidents and investigations. In particular, a directive was issued in December 1980 encouraging the uniformity of standards within the EEC by means of joint co-operation of accident investigation. The sharing of and assisting with technical facilities and information was considered an important means of achieving these goals. It has since been proposed that a European accident investigation committee should be set up by the EEC (Council Directive 80/1266 of 1 December 1980). After I would like to introduce the summary of the legislation examples and system for aircraft accidents investigation of the United States, the United Kingdom, Canada, Germany, The Netherlands, Sweden, Swiss, New Zealand and Japan, and I am going to mention the present system, regulations and aviation act for the aircraft accident investigation in Korea. Furthermore I would like to point out the shortcomings of the present system and regulations and aviation act for the aircraft accident investigation and then I will suggest my personal opinion on the new and dramatic innovation on the system for aircraft accident investigation in Korea. I propose that it is necessary and desirable for us to make a new legislation or to revise the existing aviation act in order to establish the standing and independent Committee of Aircraft Accident Investigation under the Korean Government.
The Chicago Convention and Annexes have become the basis of aviation safety regulations for every contracting state. Generally, the State's aviation safety regulations refer to the Standards and Recommended Practices(SARPs) provided in the Annexes of the Chicago Convention. In order to properly reflect international aviation safety regulations, constant studies of the aviation fields are of paramount importance. This Paper is intended to identify the main differences between korean and foreign regulation and suggest a few amendment proposals on Mixed-fleet Flying(at or more two aircraft type operation) of flight crew. Comparing with these regulations, the korean regulations and implementations have some insufficiency points. I suggest some amendment proposals of korean regulations concerning Mixed-fleet Flying that flight crew operate aircraft of different types. Basically an operator shall not assign a pilot-in-command or a co-pilot to operate at the flight controls of a type of airplane during take-off and landing unless that pilot has operated the flight controls during at least three take-offs and landings within the preceding 90 days on the same type of airplane or in a flight simulator. Also, flight crew members are familiarized with the significant differences in equipment and/or procedures between concurrently operated types. An operator shall ensure that piloting technique and the ability to execute emergency procedures is checked in such a way as to demonstrate the pilot's competence on each type or variant of a type of airplane. Proficiency check shall be performed periodically. When an operator schedules flight crew on different types of airplanes with similar characteristics in terms of operating procedures, systems and handling, the State shall decide the requirements for each type of airplane can be combined. In conclusion, it is necessary for flight crew members to remain concurrently qualified to operate multiple types. The operator shall have a program to include, as a minimum, required differences training between types and qualification to maintain currency on each type. If the Operator utilizes flight crew members to concurrently operate aircraft of different types, the operator shall have qualification processes approved or accepted by the State. If applicable, the qualification curriculum as defined in the operator's Advanced Qualification Program could be applied. Flight crew members are familiarized with the significant differences in equipment and/or procedures between concurrently operated types. The difference among different types of airpcrafts decrease and standards for these airpcrafts can be applied increasingly because function and performance have been improved by aircraft manufacture company in accordance to basic aircraft system in terms of developing new aircrafts for flight standard procedure and safety of flight. Also, it becomes more necessary for flight crews to control multi aircraft types due to various aviation business and activation of leisure business. Nevertheless, in terms of flight crew training and qualification program, there are no regulations in Korea to be applied to new aircraft types differently in accordance with different levels. In addition, it has no choice different programs based on different levels because there are not provisions to restrict or limit and specific standards to operate at or more than two aircraft types for flight safety. Therefore the aviation authority introduce Flight Standardization and/or Operational Evaluation Board in order to analysis differences among aircraft types. In addition to that, the aviation authority should also improve standard flight evaluation and qualification system among different aircraft types for flight crews to apply reasonable training and qualification efficiently. For all the issue mentioned above, I have studied the ICAO SARPs and some state's regulation concerning operating aircraft of different types(Mixed-fleet flying), and suggested some proposals on the different aircraft type operation as an example of comprehensive problem solving. I hope that this paper is 1) to help understanding about the international issue, 2) to help the improvement of korean aviation regulations, 3) to help compliance with international standards and to contribute to the promotion of aviation safety, in addition.
Air transport today is a means of transport that is optimized for exchanges between nations. Around the world, has experienced an increase in operating and the number of airline route expansion that has entered into the international aviation agreements in order to take advantage of the air transport efficient, but the possibility of the occurrence of air transport accidents increased. When compared to the accident of other means of transport, development of air transport accidents, not high, but it leads to catastrophe aviation accident occurs. Air Transport accident many international transportation accident than domestic transportation accident, in the event of an accident, the analysis of the legal responsibility of the shipper or the like is necessary or passenger air carrier. Judgment of the legal order of discipline of air transport accident is a classification of the type of air transport agreement. Depending on the object, air transport agreements are classified into the contract of carriage of aviation of the air passenger transportation contract. For casualties occurs, air passenger transportation accident is a need more discussion of legal discipline for this particular. Korean Commercial Code, it is possible to reflect in accordance with the actual situation of South Korea the contents of the treaty, which is utilized worldwide in international air transport, even on the system, to control land, sea, air transport and welcoming to international standards. However, Korean Commercial Code, the problem of the Montreal Convention has occurred as it is primarily reflecting the Montreal Convention. As a cause of liability for damages, under the Commercial Code of Korea and the contents of the treaty precedent is reflected, the concept of accident is necessary definition of the exact concept for damages of passengers in particular. Cause of personal injury or death of passengers, in the event of an accident to the "working for the elevation" or "aircraft" on, the Montreal Convention is the mother method of Korea Commercial Code, liability for damages of air carrier defines. The Montreal Convention such, continue to be a matter of debate so far in connection with the scope of "working for the lifting of" the concepts defined in the same way from Warsaw Convention "accident". In addition, it is discussed and put to see if you can be included mental damage passenger suffered in air transport in the "personal injury" in the damage of the passenger is in the range of damages. If the operation of aircraft, injury accident, in certain circumstances, compensation for mental damage is possible, in the same way as serious injury, mental damage caused by aviation accidents not be able to live a normal life for the victim it is damage to make. So it is necessary to interpret and what is included in the injury to the body in Korea Commercial Code and related conventions, non-economic damage of passengers, clearly demonstrated from the point of view of prevention of abuse of litigation and reasonable protection of air carrier it must compensate only psychological damage that can be. Since the compensation of delay damages, Warsaw Convention, the Montreal Convention, Korea Commercial Code, there are provisions of the liability of the air carrier due to the delayed arrival of passenger and baggage, but you do not have a reference to delayed arrival, the concept of delay arrangement is necessary. The strict interpretation of the concept of delayed arrival, because it may interfere with safe operation of the air carrier, within the time agreed to the airport of arrival that is described in the aviation contract of carriage of passenger baggage, or, these agreements I think the absence is to be defined as when it is possible to consider this situation, requests the carrier in good faith is not Indian or arrive within a reasonable time is correct. The loss of passenger, according to the international passenger Conditions of Carriage of Korean Air, in addition to the cases prescribed by law and other treaties, loss of airline contracts, resulting in passengers from a service that Korean Air and air transport in question do damage was is, that the fact that Korean Air does not bear the responsibility as a general rule, that was caused by the negligence or intentional negligence of Korean Air is proof, negligence of passengers of the damage has not been interposed bear responsibility only when it is found. It is a clause in the case of damage that is not mandated by law or treaty, and responsible only if the negligence of the airline side has been demonstrated, but of the term negligence "for" intentional or negligent "Korean Air's Terms" I considered judgment of compatibility is required, and that gross negligence is appropriate. The "Korean Air international passenger Conditions of Carriage", airlines about the damage such as electronic equipment that is included in the checked baggage of passengers does not bear the responsibility, but the loss of baggage, international to arrive or depart the U.S. it is not the case of transportation. Therefore, it is intended to discriminate unfairly passengers of international flights arriving or departure to another country passengers of international flights arriving or departure, the United States, airlines will bear the responsibility for the goods in the same way as the contents of the treaty it should be revised in the direction.
The objectives of the 1963 Tokyo Convention cover a variety of subjects, with the intention of providing safety in aircraft, protection of life and property on board, and promoting the security of civil aviation. These objectives will be treated as follows: first, the unification of rules on jurisdiction; second, the question of filling the gap in jurisdiction; third, the scheme of maintaining law and order on board aircraft; fourth, the protection of persons acting in accordance with the Convention; fifth, the protection of the interests of disembarked persons; sixth, the question of hijacking of aircraft; and finally some general remarks on the objectives of the Convention. The Tokyo Convention mainly deals with general crimes such as murder, violence, robbery on board aircraft rather than aviation terrorism. The Article 11 of the Convention deals with hijacking in a simple way. As far as aviation terrorism is concerned 1970 Hague Convention and 1971 Montreal Convention cover the hijacking and sabotage respectively. The Problem of national jurisdiction over the offence and the offender was as tangled at the Hague and Montreal Convention, as under the Tokyo Convention. Under the Tokyo Convention the prime base of jurisdiction is the law of the flag (Article 3), but concurrent jurisdiction is also allowed on grounds of: territorial principle, active nationality and passive personality principle, security of the state, breach of flight rules, and exercise of jurisdiction necessary for the performance of obligations under multilateral agreements (Article 4). No Criminal jurisdiction exercised in accordance with national law is excluded [Article 3(2)]. However, Article 4 of the Hague Convention(hereafter Hague Article 4) and Article 5 of the Montreal Convention(hereafter Montreal Article 5), dealing with jurisdiction have moved a step further, inasmuch as the opening part of both paragraphs 1 and 2 of the Hague Article 4 and the Montreal Article 5 impose an obligation on all contracting states to take measures to establish jurisdiction over the offence (i.e., to ensure that their law is such that their courts will have jurisdiction to try offender in all the circumstances covered by Hague Article 4 and Montreal Article 5). The state of registration and the state where the aircraft lands with the hijacker still on board will have the most interest, and would be in the best position to prosecute him; the paragraphs 1(a) and (b) of the Hague Article 4 and paragraphs 1(b) and (c) of the Montreal Article 5 deal with it, respectively. However, paragraph 1(b) of the Hague Article 4 and paragraph 1(c) of the Montreal Article 5 do not specify if the aircraft is still under the control of the hijacker or if the hijacker has been overpowered by the aircraft commander, or if the offence has at all occurred in the airspace of the state of landing. The language of the paragraph would probably cover all these cases. The weaknesses of Hague Article 4 and Montreal Article 5 are however, patent. The Jurisdictions of the state of registration, the state of landing, the state of the lessee and the state where the offender is present, are concurrent. No priorities have been fixed despite a proposal to this effect in the Legal Committee and the Diplomatic Conference, and despite the fact that it was pointed out that the difficulty in accepting the Tokyo Convention has been the question of multiple jurisdiction, for the reason that it would be too difficult to determine the priorities. Disputes over the exercise of jurisdiction can be endemic, more so when Article 8(4) of the Hague Convention and the Montreal Convention give every state mentioned in Hague Article 4(1) and Montreal Article 5(1) the right to seek extradition of the offender. A solution to the problem should not have been given up only because it was difficult. Hague Article 4(3) and Montreal Article 5(3) provide that they do not exclude any criminal jurisdiction exercised in accordance with national law. Thus the provisions of the two Conventions create additional obligations on the state, and do not exclude those already existing under national laws. Although the two Conventions do not require a state to establish jurisdiction over, for example, hijacking or sabotage committed by its own nationals in a foreign aircraft anywhere in the world, they do not preclude any contracting state from doing so. However, it has be noted that any jurisdiction established merely under the national law would not make the offence an extraditable one under Article 8 of the Hague and Montreal Convention. As far as international aviation terrorism is concerned 1988 Montreal Protocol and 1991 Convention on Marking of Plastic Explosives for the Purpose of Detention are added. The former deals with airport terrorism and the latter plastic explosives. Compared to the other International Terrorism Conventions, the International Aviation Terrorism Conventions do not have clauses of the passive personality principle. If the International Aviation Terrorism Conventions need to be revised in the future, those clauses containing the passive personality principle have to be inserted for the suppression of the international aviation terrorism more effectively. Article 3 of the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Article 5 of the 1979 International Convention against the Taking of Hostages and Article 6 of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation would be models that the revised International Aviation Terrorism Conventions could follow in the future.