Legal implications of missile test moratorium by the North Korea

신홍균,Shin, Hong-Kyun Korea Society of AirSpace Law and Policy 2007 한국항공우주정책·법학회지 Vol.2007 No.special

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.

항공기 및 항공사의 국적 다원화와 시카고 조약 제7조의 해석 문제

신홍균 ( Hong Kyun Shin ) 한국항공우주정책·법학회 1995 한국항공우주정책·법학회지 Vol.7 No.-

In recent years, questions have arisen under several forms with respect to the need for adapting present legal order established under the Chicago Convention and relevant customary rules into newly developed environment surrounding the international air transport industry. Major feature of such trends included in opinions for modification of the present legal order might be defined as more liberalistic approach to this industry. In this respect, many scholars and lawyers in this field agree with a view that a theoretical tie between an aircraft/air liners and a register -State lies in political and strategical concern of the State so that each aircraft/air liners has been attributed a single nationality. In the context of such concern, each aircraft/air liners has been related with each register-State in the form of $quot;genuine connection$quot;. However, present and near future development of air transport industry and its world-wide market requires some modification of such single nationality regime. Taking into account such circumstances, States as creator of present legal order are in the process of establishing new legal order where air liners with multi-nationality are capable of satisfying to such needs. As adopting a series of liberalization package for air transport industry in european continent, European Union adopts a concept of $quot;community air carrier$quot;, by which an air space of each member State is open to each other, especially through the grant of cabotage right. A serious concern may arise in such grant because the Article 7 of the Chicago Convention prohibits such grant on an exclusive basis. While many theoretical opinions have been put forward concerning the interpretation of that article, a case of European Union shall be a good test of the range of its application. It is anticipated that future development around this issue shall furnish us a major feature of the liberalization of international air transportation and an adaptation process of present legal order.

인공위성무궁화호의 기술개발과 용역계획

신홍균 ( Hong Kyun Shin ) 한국항공우주정책·법학회 1994 한국항공우주정책·법학회지 Vol.6 No.-

우주 상업활동 규율에 있어서의 우주법의 발전적 위상

신홍균 ( Hong Kyun Shin ) 한국항공우주정책·법학회 1991 한국항공우주정책·법학회지 Vol.3 No.-

This paper examines current developing status of space law as defined in terms of its unique principle that $quot;the utilization of outer space for all mankind`s interest$quot;. As commercialization of space activities has brought about heated debate on its legitimacy with respect to that principle, space law has come to witness a dual situation. One is the realization of that principle in establishing commercial space activities system where all mankind`s interest is respected through the non-discriminatory distribution mode of space benefit. In satellite telecommunication system, the INTELSAT Organization assures its public service policy while protecting itself against a competition from separate systems. For remote sensing, commercialization of LANDSAT Systems promoted since 1984 seems not to affect present non-discriminatory distribution of data and information obtained. On the other hand, active participation of private entity aiming at commercial profit enables national government to manage more effective control and supervision of those activities with a view to promoting national interests. Also, newly developed private rules and regulations are emerging in business relations about commercial space activities. Extended capacity of national government assuring its national interest in production and distribution of international resources that is outer space, and regulation of space activities by newly developed rules and customs provoke a concern about a identity problem of space law. The best way to summarize this perspective might consist in saying that non space law regulations, which are not assumed as aiming at the promotion of all mankind`s interest, are confirming their role about space related activities. For those reasous, we are now facing a developing status of space law as developments of commercial space activities continues.

드론 조종자의 전파간섭 회피 의무

신홍균 ( Hong-kyun Shin ) 한국항공우주정책·법학회 2020 한국항공우주정책·법학회지 Vol.35 No.4

While the possibility of collision or crash of drone caused by radio interference would not be completely excluded, the duty to keep the communication line safe is to be solved for the safety. The role of the radiocommunication regime is to ensure the rational, equitable, efficient and economical use of the radio-frequency spectrum by all radiocommunication services, including CNPC services, Current aviation safety regime, however, provides some stipulation aiming at the keeping the communication line safe without clearly ruling the duty to be free from radio interference. The penalty to the violation of that duty is a sort of forfeiture. It is required by the the basic law that the imposition of such penalty presupposes the intention or negligence on the part of drone operator. Safe communication free from radio interference, however, is never to be achieved in technological sense such that the duty to be free from radio interference may be the thing not to be fulfilled. That;s why the requirement of intention or negligence on the part of operator is not fit for drone operators’ duty. But in any other bands than the specific band distributed for drone CNPC on primary user right basis, the frequency use of drone is in principle not entitled to the protection from other harmful interference of any other frequency users. Stations of a secondary service shall not cause harmful interference to stations of primary services to which frequencies are already assigned or to which frequencies may be assigned at a later date; cannot claim protection from harmful interference from stations of a primary service to which frequencies are already assigned or may be assigned at a later date. In conclusion, the administrative penalty to be imposed upon the violator of the duty to be free from radio interference is not to be deemed as violation of the constitutional principle.

북한의 발사체발사에 따른 법적 쟁점: UN 안전보장이사회 결의의 성격과 한계

신홍균 ( Hong-kyun Shin ) 한국항공우주정책·법학회 2016 한국항공우주정책·법학회지 Vol.31 No.1

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.

북한미사일 실험의 국제법상 위법성에 관한 연구

신홍균 ( Hong Kyun Shin ) 한국항공우주정책·법학회 2009 한국항공우주정책·법학회지 Vol.24 No.2

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.

지구정지궤도의 사적 거래의 국제법상 지위에 관한 연구

신홍균 ( Hong Kyun Shin ) 한국항공우주정책·법학회 2014 한국항공우주정책·법학회지 Vol.29 No.2

The rights and obligations of the Member States of ITU in the domain of international frequency management of the spectrum/orbit resource are incorporated in the Constitution and Convention of the ITU and in the Radio Regulations that complement them. These instruments contain the main principles and lay down the specific regulations governing the major elements such as rights and obligations of member administrations in obtaining access to the spectrum/orbit resource, as well as international recognition of these rights by recording frequency assignments and, as appropriate, any associated orbits, including the geostationary-satellite orbits used or intended to be used in the Master International Frequency Register (MIFR) Coordination is a further step in the process leading up to notification of the frequency assignments for recording in the MIFR. This procedure is a formal regulatory obligation both for an administration seeking to assign a frequency in its network and for an administration whose existing or planned services may be affected by that assignment. Regulatory problem lies in allowing administrations to fulfill their “bringing into use” duty for preserving his filing simply putting any satellites, whatever nationlity or technical specification may be, into filed orbit. This sort of regulatory lack may result in the emergence of the secondary market for satellite orbit. Within satellite orbit secondary market, the object of transaction may be the satellite itself, or the regulatory rights in rem, or the orbit registered in the MIFR. Recent case of selling the Koreasat belongs to the typical example of orbit transaction between private companies, the legality of which remains doubtedly controversial from the perspective of international space law as well as international transaction law. It must be noted, however, that the fact is the Koreasat 3 and its filed orbit is for sale.

위성통신 , 방송 서비스영역의 확장 정책과 법적 문제 고찰

신홍균 ( Hong Kyun Shin ) 한국항공우주정책·법학회 1996 한국항공우주정책·법학회지 Vol.8 No.-

It is well observed in the satellite telecommunication policy of several States that legal constraints imposed upon the service coverage of satellite telecommunication as well as broadcasting are to be relaxed in a progressive way. Major aspects of such policy change lie in the adoption of policy refusing traditional concept of national frontier. In the case of direct broadcasting satellite service, while a debate upon the legal issues regarding the spill-over effect of that service is no more major concern of the States, many multinational enterprises are looking for strategic alliance for regional or global DBS project. On the other hand, an implementation plan for connecting the world through global mobile personal communication satellite system is being pursued by several joint effort of multinational firms. Legal issues arise regarding the regulatory competence of each State, Especially, a controversial issue is concerning the sovereign right well recognized upon the regulation of telecommunication. This study is focusing upon the evolution of such policy change for the purpose of allowing us to expect future development of worldwide satellite telecommunication policy environment.

동해상 공역의 법적지위에 관한 연구 - 배타적 경제수역의 설정 및 부대 시설 설치문제를 중심으로 -

신홍균 ( Hong Kyun Shin ) 한국항공우주정책·법학회 1997 한국항공우주정책·법학회지 Vol.9 No.-