국제규범의 형성과정과 그 촉진 · 장애 요인에 대한 고찰

Analysis of International Norm-Making Process and its Variables: Case Study of International Response to Unmanned Aircraft

The development and expanded use of the UAS (Unmanned Aircraft Systems), often called "drones", has presented challenges to the existing regulatory regimes both in the civil and military aviation sectors, which have so far assumed the presence of a pilot in the cockpit. This article examines and attempts to capture how the international community has been endeavoring to integrate this UAS into the current regulatory frame through the process and debate of international norm-making. In the field of civil aviation, the International Civil Aviation Organization (ICAO) has made steady headway in drafting and incorporating a set of new rules (SARPs: International Standards and Recommended Practices) into the Annexes of the 1944 Chicago Convention with a view to avoiding any disruption to aviation safety, in particular mid-air collision potentially arising from the introduction of UAS into non-segregated airspace. This smooth incorporation can be attributable to the agreed objective of navigation safety, the technical nature of the issues involved, and the constitutional arrangement under the Chicago Convention for international legislation. Among the theoretical frameworks for international law, the functionalist approach can best explain the ICAO process and its achievement, for the 'technical and non-political' cooperation is supposed to produce better results. On the military front, in contrast, the UAS technology gave rise to a different controversy of whether the targeted killing or aerial attack by combat drones may be justifiable under the framework of IHL (International Humanitarian Law) or IHRL (International Human Rights Law). While the US Government defends its practices of UAS-assisted targeted killings as part of legitimate combat action and also on the ground of self-defense doctrine, the NGOs and UN Special Rapporteur vehemently voice the concern that such practices could blur the framework and boundary of IHL. Although the UN Human Rights Council took up the issue by its Special Procedures, the chasm appears to be too deep to bridge at the moment. The relevant issue belongs to the realm of high politics and, compared to the ICAO machinery, the setting of UN Human Rights Council falls much short of any institutional arrangement for norm-setting. The stalemate up to now can be explicable by the perspective of realism. Those States which have virtual monopoly on the UAS technology will not sacrifice their 'real' security interests in exchange for the 'superficial' common good. This contrast between the civil and military sector illustrates the diversity of international norm-making process. It also enables us to identify the factors either facilitating or hampering such process. This article identifies, as major variables to such process, the nature of the issue (political vs. technical), the participants in the process, and the presence of any constitutional arrangement.