A study on Operation Rules of Korean Air Defence Identification Zone (한국 방공식별구역 운영규칙에 관한 고찰)
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- The Korean Journal of Air & Space Law and Policy
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- v.32 no.2
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- pp.189-217
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- 2017
Declaration of Air Defense and Identification Zones started with the United States in 1950, which was followed by declaration of KADIZ by the Republic of Korea in 1951. Initial ADIZ were solely linked with air defense missions, but their roles have changed as nations around the globe manifested a tendency to expand their influence over maritime resources and rights. In particular, China declared ADIZ over the East China Sea in October 2013 and forced all passing aircraft to submit flight plan to ATC or military authority, saying failure of submission will be followed by armed engagement. China announced it would declare another zone over the South China Sea despite the ongoing conflict in the area, clearly showing ADIZ's direct connection with territorial claim and EEZ and that it serves as a zone within which a nation can execute its rights. The expanded KADIZ, which was expanded in Dec 15, 2013 in response to Chinese actions, overlaps with the Chinese ADIZ over the East China Sea and the Japanese ADIZ. The overlapping zone is an airspace over waters where not only the Republic of Korea but also of China and Japan argue to be covering their continental shelf and EEZ. Military conventions were signed to prevent contingencies among the neighboring nations while conducting identifications in KADIZ, including the overlapping zone. If such military conventions and practice of air defense identification continue to be respected among states, it is under the process of turning into a regional customary law, although ADIZ is not yet recognized by international law or customary law. Moreover, identification within ADIZ is carried out by military authorities of states, and misguided customary procedures may cause serious negative consequences for national security since it may negatively impact neighboring countries in marking the maritime border, which calls for formulation of operation rules that account for other state activities and military talks among regional stake holders. Legal frameworks need to be in place to guarantee freedom of flights over international seas which UN Maritime Law protects, and laws regarding military aircraft operation need to be supplemented to not make it a requirement to submit flight plan if the aircraft does not invade sovereign airspace. Organizational instructions that require approval of Chairman of Joint Chiefs of Staff for entrance and exit of ADIZ for military aircraft need to be amended to change the authority to Minister of National Defense or be promoted to a law to be applicable for commercial aircraft. Moreover, in regards to operation and management of ADIZ, transfer of authority should be prohibited to account for its evolution into a regional customary law in South East Asia. In particular, since ADIZ is set over EEZ, military conventions that yield authority related to national security should never be condoned. Among Korea, China, Japan and Russia, there are military conventions that discuss operation and management of ADIZ in place or under negotiation, meaning that ADIZ is becoming a regional customary law in North East Asia region.
Land was originally communized by a community in the primitive society of Korea, and in the age of the ancient society SAM KUK-SILLA, KOKURYOE and PAEK JE-it was distributed under the principle of land-nationalization. But by the occupation of the lands which were permitted to transmit from generation to generation as Royal Grant Lands and newly cleared lands, the private occupation had already begun to be formed. Thus the private ownership of land originated by chiefs of the tribes had a trend to be gradually pervaded to the communal members. After the, SILLA Kingdom unified SAM KUK in 668 A.D., JEONG JEON System and KWAN RYO JEON System, which were the distribution systems of farmlands originated from the TANG Dynasty in China, were enforced to established the basis of an absolute monarchy. Even in this age the forest area was jointly controlled and commonly used by village communities because of the abundance of area and stocked volume, and the private ownership of the forest land was prohibited by law under the influence of the TANG Dynasty system. Toward the end of the SILLA Dynasty, however, as its centralism become weak, the tendency of the private occupancy of farmland by influential persons was expanded, and at the same time the occupancy of the forest land by the aristocrats and Buddhist temples began to come out. In the ensuing KORYO Dynasty (519 to 1391 A.D.) JEON SI KWA System under the principle of land-nationalization was strengthened and the privilege of tax collection was transferred to the bureaucrats and the aristocrats as a means of material compensation for them. Taking this opportunity the influential persons began to expand their lands for the tax collection on a large scale. Therefore, about in the middle of 11th century the farmlands and the forest lands were annexed not only around the vicinity of the capital but also in the border area by influential persons. Toward the end of the KORYO Dynasty the royal families, the bureaucrats and the local lords all possessed manors and occupied the forest lands on a large scale as a part of their farmlands. In the KORYO Dynasty, where national economic foundation was based upon the lands, the disorder of the land system threatened the fall of the Dynasty and so the land reform carried out by General YI SEONG-GYE had led to the creation of ensuing YI Dynasty. All systems of the YI Dynasty were substantially adopted from those of the KORYO Dynasty and thereby KWA JEON System was enforced under the principle of land-nationalization, while the occupancy or the forest land was strictly prohibited, except the national or royal uses, by the forbidden item in KYEONG JE YUK JEON SOK JEON, one of codes provided by the successive kings in the YI Dynasty. Thus the basis of the forest land system through the YI Dynasty had been established, while the private forest area possessed by influential persons since the previous KORYO Dynasty was preserved continuously under the influence of their authorities. Therefore, this principle of the prohibition was nothing but a legal fiction for the security of sovereign powers. Consequently the private occupancy of the forest area was gradually enlarged and finally toward the end of YI Dynasty the privately possessed forest lands were to be officially authorized. The forest administration systems in the YI Dynasty are summarized as follows: a) KEUM SAN and BONG SAN. Under the principle of land-nationalization by a powerful centralism KWA JEON System was established at the beginning of the YI Dynasty and its government expropriated all the forests and prohibited strictly the private occupation. In order to maintain the dignity of the royal capital, the forests surounding capital areas were instituted as KEUM SAN (the reserved forests) and the well-stocked natural forest lands were chosen throughout the nation by the government as BONG SAN(national forests for timber production), where the government nominated SAN JIK(forest rangers) and gave them duties to protect and afforest the forests. This forest reservation system exacted statute labors from the people of mountainious districts and yet their commons of the forest were restricted rigidly. This consequently aroused their strong aversion against such forest reservation, therefore those forest lands were radically spoiled by them. To settle this difficult problem successive kings emphasized the preservation of the forests repeatedly, and in KYEONG KUK DAI JOEN, the written constitution of the YI Dynasty, a regulation for the forest preservation was provided but the desired results could not be obtained. Subsequently the split of bureaucrats with incessant feuds among politicians and scholars weakened the centralism and moreover, the foreign invasions since 1592 made the national land devasted and the rural communities impoverished. It happned that many wandering peasants from rural areas moved into the deep forest lands, where they cultivated burnt fields recklessly in the reserved forest resulting in the severe damage of the national forests. And it was inevitable for the government to increase the number of BONG SAN in order to solve the problem of the timber shortage. The increase of its number accelerated illegal and reckless cutting inevitably by the people living mountainuos districts and so the government issued excessive laws and ordinances to reserve the forests. In the middle of the 18th century the severe feuds among the politicians being brought under control, the excessive laws and ordinances were put in good order and the political situation became temporarily stabilized. But in spite of those endeavors evil habitudes of forest devastation, which had been inveterate since the KORYO Dynasty, continued to become greater in degree. After the conclusion of "the Treaty of KANG WHA with Japan" in 1876 western administration system began to be adopted, and thereafter through the promulgation of the Forest Law in 1908 the Imperial Forests were separated from the National Forests and the modern forest ownership system was fixed. b) KANG MU JANG. After the reorganization of the military system, attaching importance to the Royal Guard Corps, the founder of the YI Dynasty, TAI JO (1392 to 1398 A.D.) instituted the royal preserves-KANG MU JANG-to attain the purposes for military training and royal hunting, prohibiting strictly private hunting, felling and clearing by the rural inhabitants. Moreover, the tyrant, YEON SAN (1495 to 1506 A.D.), expanded widely the preserves at random and strengthened its prohibition, so KANG MU JANG had become the focus of the public antipathy. Since the invasion of Japanese in 1592, however, the innovation of military training methods had to be made because of the changes of arms and tactics, and the royal preserves were laid aside consequently and finally they had become the private forests of influential persons since 17th century. c) Forests for official use. All the forests for official use occupied by government officies since the KORYO Dynasty were expropriated by the YI Dynasty in 1392, and afterwards the forests were allotted on a fixed standard area to the government officies in need of firewoods, and as the forest resources became exhausted due to the depredated forest yield, each office gradually enlarged the allotted area. In the 17th century the national land had been almost devastated by the Japanese invasion and therefore each office was in the difficulty with severe deficit in revenue, thereafter waste lands and forest lands were allotted to government offices inorder to promote the land clearing and the increase in the collections of taxes. And an abuse of wide occupation of the forests by them was derived and there appeared a cause of disorder in the forest land system. So a provision prohibiting to allot the forests newly official use was enacted in 1672, nevertheless the government offices were trying to enlarge their occupied area by encroaching the boundary and this abuse continued up to the end of the YI Dynasty. d) Private forests. The government, at the bigninning of the YI Dynasty, expropriated the forests all over the country under the principle of prohibition of private occupancy of forest lands except for the national uses, while it could not expropriate completely all of the forest lands privately occupied and inherited successively by bureaucrats, and even local governors could not control them because of their strong influences. Accordingly the King, TAI JONG (1401 to 1418 A.D.), legislated the prohibition of private forest occupancy in his code, KYEONG JE YUK JEON (1413), and furthermore he repeatedly emphasized to observe the law. But The private occupancy of forest lands was not yet ceased up at the age of the King, SE JO (1455 to 1468 A.D.), so he prescribed the provision in KYEONG KUK DAI JEON (1474), an immutable law as a written constitution in the YI Dynasty: "Anyone who privately occupy the forest land shall be inflicted 80 floggings" and he prohibited the private possession of forest area even by princes and princesses. But, it seemed to be almost impossible for only one provsion in a code to obstruct the historical growing tendecy of private forest occupancy, for example, the King, SEONG JONG (1470 to 1494 A.D.), himself granted the forests to his royal families in defiance of the prohibition and thereafter such precedents were successively expanded, and besides, taking advantage of these facts, the influential persons openly acquired their private forest lands. After tyrannical rule of the King, YEON SAN (1945 to 1506 A.D.), the political disorder due to the splits to bureaucrats with successional feuds and the usurpations of thrones accelerated the private forest occupancy in all parts of the country, thus the forbidden clause on the private forest occupancy in the law had become merely a legal fiction since the establishment of the Dynasty. As above mentioned, after the invasion of Japanese in 1592, the courts of princes (KUNG BANGG) fell into the financial difficulties, and successive kings transferred the right of tax collection from fisherys and saltfarms to each KUNG BANG and at the same time they allotted the forest areas in attempt to promote the clearing. Availing themselves of this opportunity, royal families and bureaucrats intended to occupy the forests on large scale. Besides a privilege of free selection of grave yard, which had been conventionalized from the era of the KORYO Dynasty, created an abuse of occuping too wide area for grave yards in any forest at their random, so the King, TAI JONG, restricted the area of grave yard and homestead of each family. Under the policy of suppresion of Buddhism in the YI Dynasty a privilege of taxexemption for Buddhist temples was deprived and temple forests had to follow the same course as private forests did. In the middle of 18th century the King, YEONG JO (1725 to 1776 A.D.), took an impartial policy for political parties and promoted the spirit of observing laws by putting royal orders and regulations in good order excessively issued before, thus the confused political situation was saved, meanwhile the government officially permittd the private forest ownership which substantially had already been permitted tacitly and at the same time the private afforestation areas around the grave yards was authorized as private forests at least within YONG HO (a boundary of grave yard). Consequently by the enforcement of above mentioned policies the forbidden clause of private forest ownership which had been a basic principle of forest system in the YI Dynasty entireely remained as only a historical document. Under the rule of the King, SUN JO (1801 to 1834 A.D.), the political situation again got into confusion and as the result of the exploitation from farmers by bureaucrats, the extremely impoverished rural communities created successively wandering peasants who cleared burnt fields and deforested recklessly. In this way the devastation of forests come to the peak regardless of being private forests or national forests, moreover, the influential persons extorted private forests or reserved forests and their expansion of grave yards became also excessive. In 1894 a regulation was issued that the extorted private forests shall be returned to the initial propriators and besides taking wide area of the grave yards was prohibited. And after a reform of the administrative structure following western style, a modern forest possession system was prepared in 1908 by the forest law including a regulation of the return system of forest land ownership. At this point a forbidden clause of private occupancy of forest land got abolished which had been kept even in fictitious state since the foundation of the YI Dynasty. e) Common forests. As above mentioned, the forest system in the YI Dynasty was on the ground of public ownership principle but there was a high restriction to the forest profits of farmers according to the progressive private possession of forest area. And the farmers realized the necessity of possessing common forest. They organized village associations, SONGE or KEUM SONGE, to take the ownerless forests remained around the village as the common forest in opposition to influential persons and on the other hand, they prepared the self-punishment system for the common management of their forests. They made a contribution to the forest protection by preserving the common forests in the late YI Dynasty. It is generally known that the absolute monarchy expr opriates the widespread common forests all over the country in the process of chainging from thefeudal society to the capitalistic one. At this turning point in Korea, Japanese colonialists made public that the ratio of national and private forest lands was 8 to 2 in the late YI Dynasty, but this was merely a distorted statistics with the intention of rationalizing of their dispossession of forests from Korean owners, and they took advantage of dead forbidden clause on the private occupancy of forests for their colonization. They were pretending as if all forests had been in ownerless state, but, in truth, almost all the forest lands in the late YI Dynasty except national forests were in the state of private ownership or private occupancy regardless of their lawfulness.
After withdrawal of military troops of Chinese Tang dynasty in the 18th year of King Moon-moo's reign(678), the Silla Kingdom had actually unified the Korean peninsula and had divided the territory into 9 states benchmarking the China's local administrations adjustment system. He had established local administrative units by deploying secondary capitals, counties and prefectures in the nine states. The so-called "9 Provinces and 5 Secondary capitals" are what constitutes the local administrations system. The provinces can be compared to current provinces of the Republic of Korea(hereinafter Korea), and secondary capitals to megalopolises. According to a chapter of the Samkuksaki(三?史記) which had recorded the achievements of king Kyoungdeok in December in his 16th year on the throne(757), the local administrative units had amounted to 5 secondary capitals, 117 counties and 293 prefectures. There are still lots of ambiguous points since there have never been any consultation on locations of provinces and secondary capitals' castles, and on structures of cities because the researches for local cities inside the 9 Provinces and 5 Secondary capitals in the Unified Silla Kingdom has been conducted centering on the historic literatures only. The research for restoring structures of cities seen from an archeological perspective are limited to the studies of Taewoo Park("A study on the local cities in the Unified Kingdom Age" 1987) and that of the author("A study on the restoration of planned cities for the Unified Silla Kingdom in terms of the structures and realities of the castles in the 9 Provinces and 5 Secondary capitals" 2009). The Gangneung city of Gangwon province was originally called Haseoryang(河西良) of the Gogureo Kingdom as an ancient nation of Ye(濊). According to "Samkuksaki", it had evolved from Haseoju(河西州) to a secondary capitals in the 8th year of King Seonduk(639). Afterwards, it had been renamed as Myeongju(溟洲) in the 16th year of King Kyoungduk(757), and then several other names were given to it after Goryo dynasty. Taewoo Park claims that it is being defined as a sanctuary remaining in Myoungjudong because of the vestige of bare castle, and this cannot be ascertained due to the on-going urbanization processes. Also, the Kwandong university authority is suggesting an opinion of regarding Myeongju mountain castle located 3 Kms southwest of the center of Gangwon city as commanding post for the pertinent state. The author has restored the pertinent area into a city composed of villages within a lattice framework like Silla Keumkyoung and many other cities. The structure is depicted next. The downtown of Gangneung is situated on a flat terrain at the west bank of Namdaecheon stream flowing southwest to northeast along the inner area of the city. Though there isn't any hill comparatively higher than others in the vicinity, hills are continuously linked east to west along the northern area of the downtown, and the maximum width of flat terrain is about 1 Km and is not so large. Currently, urbanization is being proceeded into the inner portion of Gangneung city, the lands in all directions from the hub of Gangneung station have been readjusted, and thus previous land-zoning program is almost nullified. However, referring to the topographic chart drawn at the time of Japanese colonial rule, it can be validated that land-zoning program to accord the lattice framework with the length of its one side equaling to 190m leaves its vestige about 0.8Km northwest to southeast and about 1.7Km northeast to southwest of the vicinity of Okcheondong, Imdangdong, Geumhakdong, Myeongjudong, and etcetera which comprize the hub of the downtown. The land-zoning vestige within the lattice framework, compared to other cases related with the '9 states and 5 secondary capitals', is very much likely to be that of the Unified Silla Kingdom. That the length of a side of a lattice framework is 190m as opposed to that of Silla Geumkyoung and other cities with their 140m or 160m long sides is a single survey item in the future. The baseline direction for zoning the lands is tilting approximately 37.5 degrees west of northwest to southeast axis in accordance with the topographic features. It seems that this phenomenon takes place because of the direction of Namdaecheon and the geographic constraints of the hills in the north. Reviewing minimally, a rectangular size of zoned land by 4 Pangs(坊) on the northwest to southeast side multiplied by 7 Pangs(坊) on the northeast to southwest side had been restored within a lattice framework. Otherwise, considering the extent of expansion of the existing zoned lands in the lattice framework and one more Pang(坊) being added to each side, it is likely that the size could have been with 5 Pangs(坊) on the northwest to southeast side multiplied by 8 Pangs(坊) on the northeast to southwest side(950 M on the northwest to southeast side multiplied by 1,520m on the northeast to southwest side). The overall shape is rectangle, but land-zoning programs reminiscent of rebuilt roads(red phoenix road) like Jang-an castle(長安城) of Chinese Tang dynasty or Pyoungseong castle(平城城) in Japan is not to be validated. There are some historic items among the roof tiles and earthen wares excavated at local administrative office sites or Gangneung's town castle in Joseon dynasty inside the area assumed to be containing municipal vestiges even though archeological survey for the vestige of Myeongju has not been made yet, and these items deserve dating back to the Unified Silla Kingdom age. Also, all of the construction sites at local administrative authorities of the Joseon dynasty are showing large degrees of slant in the azimuth. This is a circumstantial evidence indicating the fact that the inherited land-zoning programs to be seen in Gangneung in terms of the lattice framework had ever existed in the past. Also, the author does not decline that Myeongju mountain castle had once been the commanding post when reviewing the roof tiles at the edge of eaves in this stronghold. The ancient municipal castles in the Korean peninsula are composed of castles on the flat terrain as well as hilly areas and the cluster of strongholds like Myounghwal, Namhan, Seohyoung mountain castles built around municipal castle of Geumkyoung based on a lattice framework program. Considering that mountain castles are spread in the vicinity of municipal vestiges in other cities other than the 9 states and 5 secondary capitals, it is estimated that Myeongju was assuming the function of commanding post incorporating cities on the flat terrain and castles on the hills.