Criticism of the Government’s Justification

Clearly, those in favour of the balloon propaganda and those against it have rational arguments to support their beliefs. While attempting to improve the situation of North Korean Human Rights is crucial, the damage to South Korean inhabitants of the border line area should not be ignored.

Yet, in spite of the valid arguments from both parties, the justification of the South Korean government’s decision to ban the balloon campaign is questionable. South Korean citizens are divided over this Act, while human rights organisations at home and abroad criticise the government of the South for the ban.²⁷ Thus, the government’s justification of its ban is an important element to consider. The overview of the Act, issued by the Ministry of Unification, states that prohibiting the dissemination of leaflets is crucial for improving the relations between the ROK and the DPRK, and for ultimately fostering peace in the Korean peninsula.²⁸ However, prohibiting leaflets does not guarantee peace in Korea. This can be observed from history: even though leaflet propaganda halted when Kim Dae-jung established the Sunshine Policy based on “peaceful coexistence”, “peaceful exchange”, and “peaceful unification”, Kim’s approach did not succeed.²⁹ The policy attempted to follow the model of East and West Germany’s peaceful reunification. Yet the result was drastically different in the Korean peninsula: despite Kim’s attempts to appease the North, the DPRK made a surprise attack in 2002 in Yeonpyeong Island and initiated its first nuclear

27. King. “South Korea Bans Balloons Carrying Leaflets to the North.” https://www.csis.org/

analysis/south-korea-bans-balloons-carrying-leaflets-north-foreign-policy-problems-w ill-follow.

28. Ministry of Unification. “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets” 3.

29. Bae, Jong-yun and Jung-in Moon. 2014. “South Korea’s Engagement Policy: Revisiting a Human Rights Policy.” Critical Asian Studies 46(1): 15-38.

test in 2006. As such, history demonstrates that North Korea can and will find reasons to disturb the peace whether or not the South sends the balloon leaflets. In this case, the Moon administration’s reasoning indicates an overestimation of the likelihood of peace, and a vague hope for peace does not justify the Act’s ban on South Koreans’ freedom to express themselves.

In addition, the government provides a weak defence of its restriction of the freedom of expression, and fails to provide a satisfactory justification for its actions. The Ministry of Unification cites Article 19 of the International Covenant on Civil and Political Rights (ICCPR) in the Amendments of the Act which states that “freedom of expression can be subject to certain restrictions”. It also quotes Article 37 (2) of the Constitution of South Korea that states that the “freedom and rights of citizens may be restricted by law only when necessary for national security, the maintenance of law and order or for public welfare”, which is also stated in the ICCPR for the restrictions for freedom of expression.³⁰ The ICCPR states two situations when restrictions for freedom of expression are allowed: “(a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals”.

Although the Ministry of Unification mentions reason (a) and claims that the right to life of the residents of DMZ is at risk, the current situation does not fulfil the necessary criteria to justify restricting freedom of expression. The DMZ area is already a sensitive area, not because of the flying leaflets, but because of the nature of the two Koreas’ truce. There have been confrontations in the past which had nothing to do with the balloons. Banning the balloons does not protect national security as reason (b) states either. Obviously, there are national security risks along the border

30. Ministry of Unification. “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets.” 4-5.

regions, just as the supporters of the Act claim. However, as mentioned above, the threat to national security is fundamentally due to the current status of the two Koreas; halting the leaflets would not change the consequence of the underlying danger. Thus, it is the responsibility of the government to establish adequate policies to protect its citizens’ freedom of expression as well as their right to life because the real cause of danger here lies not in the balloons but in the unpredictable behaviour of the DPRK.

Especially in a region where there still lingers an ideological war, and in a country where citizens were deprived of civil rights for decades, freedom of expression should be restricted only in limited circumstances and only for the very best of reasons. South Korea has a dark history when the freedom of expression was neglected by the military governments. The media was controlled, and the people were not allowed to read certain books to be kept safe from “contamination” of thoughts. In such a country, any restrictions on the freedom of expression should be exercised only with extreme caution and in a very narrow sense in order to protect civil liberties.

The Ministry of Unification also asserted that imposing legal limitations on civilian organisations is necessary due to the agreement made by the leaders of both the South and the North in the Panmunjom Declaration.

Article 2 (1) of the Panmunjom Declaration stipulates that South and North Korea agree to cease “all hostile acts and eliminating their means, including broadcasting through loudspeakers and distribution of leaflets, in the areas along the Military Demarcation Line”.³¹ Nonetheless, legal experts maintain that the Panmunjom Declaration is not legally binding because it was not ratified by the National Assembly, nor does it specifically stipulate that individual actors should be bound to this clause. According to Ethan

31. The full text of Panmunjeom Declaration is available on The Korea Times website (https://www.koreatimes.co.kr/www/nation/2018/04/731_248077.html).

Hee-Seok Shin, it is illegal under international law to restrict the freedom of speech only based on such a treaty between countries, as the Panmunjom Declaration.³²

Furthermore, the Moon administration failed to persuade the nation regarding this matter. A survey about the government ban on leaflet propaganda held by Realmeter shows that 50% of the 500 respondents agreed with the government’s decision, while 41.1% disagreed.³³ Considering how controversial this issue is, the government should have taken more time and put in more effort for discussing and addressing ideas and concerns about this Act rather than enacting it as soon as the North’s demanded it. This decision was also criticised by the international community. US Congressman Chris Smith expressed his concern even before the prohibition of sending leaflets was legalised, mentioning that the ban on leaflet propaganda would be a severe threat to democracy in Korea. He saw this matter as the South Korean government’s failure to protect Civil and Political Rights.³⁴ Human Rights Watch, an international NGO, published a report voicing several concerns about the South Korean government’s action.

According to the report, the list of the banned items from the Amendments of the Development of Inter-Korean Relations Act is vague, which can elevate confusion. Besides, the punishment for the violation, which is

32. Kim, Subin. 2020. “The controversy surrounding the anti-North Korean leaflet: Human Rights versus Safety (대북전단을 둘러싼 ‘인권 대 안전’의 논란).” BBC.

https://www.bbc.com/korean/news-53103488 (accessed June 15, 2021).

33. “Enactment of anti-North Korean leaflet law, ‘Agree’ 50.0% vs. ‘Disagree’ 41.1%” (“대북 전단 금지법 제정 ‘찬성’ 50.0% vs. ‘반대’ 41.1%”). 2020. Realmeter.

http://www.realmeter.net/대북-전단-금지법제정-찬성50-0-vs-반대-41-1/ (accessed June 15, 2021).

34. Smith, Chris. “Rep. Chris Smith voices ‘serious concern’ over South Korea’s growing disregard of fundamental civil liberties, acquiescence to Communist North.” 2020.

U.S. Congressman Chris Smith. https://chrissmith.house.gov/news/documentsingle.aspx?

DocumentID=409071 (accessed June 15, 2021).

“imprisonment to up to three years and/or a fine of up to 30 million Korean won”, is too harsh.³⁵ This is not good for South Korea as a democratic country that should comply with the international standards of liberal democracy and human rights.