About 48 years ago, in 1972, the July 4th South-North Joint Communiqué came to force between the two Koreas during the Park Chung-hee administration. Both parties agreed not to slander each other. However, neglecting the agreement, there were some groups of people that sent anti-North Korea leaflets—which is considered to be psychological warfare—to the North. The National Assembly has been pushing legislative efforts to regulate this activity since 2008. Now that a mature the amendment is on the floor, it is time to act on it.

Freedom of expression is important, but the most important matter is to protect the Korean people’s lives and properties. Under the freedom of expression, the ‘balloon’ activities have been ignored, and as a result, in 2014, North Korea fired upon South Korean near-border territory. The North’s military action shows how the ‘balloon’ activities can provoke military action which can be easily escalated to local war or even full-scale war.

Following is part of a statement by Kim Yo-Jung, first deputy director of the North's ruling Workers' Party, on June 13, 2020, criticizing the leaflets that some North Korean defectors sent through balloons into North Korea, "Getting stronger day by day are the unanimous voices of all our people demanding for surely settling accounts with the riff-raff who dared hurt the absolute prestige of our Supreme Leader representing our country and its great dignity and flown rubbish to the inviolable territory of our side and with those who connived at such hooliganism, whatever may happen" she said in her statement. "Before long, a tragic scene of the useless north-south joint liaison office completely collapsed would be seen". The first deputy director hinted at the destruction of the South-North Joint Liaison Office.

Three days later, as Kim mentioned, the North destroyed the South-North Joint Liaison Office. It is still an unacceptable act committed by the North. However, North Korea had its own justification for their action: after the 4.27 Panmunjom Declaration, North Korea has been complaining that the promises have not been adequately delivered due to UN sanctions and opposition from the US.

The demolition of the liaison office might be a backlash from their frustration. North Korea did not receive food or medicine they wanted, but they did receive fake, semi-naked images of their leader—whom they consider as the highest dignity. Considering the distinctiveness of the North Korean regime, the distribution of anti-North Korea leaflets is a highly sensitive matter to the regime. In 2014, the North fired artillery shells toward the South's near-border territory where persons were sending balloons with anti-regime leaflets.

As a result, residents near the border in the South were not only afraid of their safety but also suffered a sharp drop in tourists, dealing a heavy blow to their livelihoods. Therefore, residents and local governments of the border area, as well as conservatives and progressives, petitioned the National Assembly to legislate a ban on the distribution of anti-North Korea leaflets.

In response, a revision bill to the Development of Inter-Korean Relations Act, which was drafted by myself as the Chair, was passed by the National Assembly's Foreign Affairs and Unification Committee last week and submitted to the plenary session for a vote. The People Power Party, the opposition party's lawmakers, are said to hold filibusters against the amendment. Assemblyman Ji Seong-ho, a former North Korean defector, went to the United States to deliver a more exaggerated version of the bill itself, and some US lawmakers are expressing concerns and critical views on the revision. I think most of the opinions of American lawmakers and civic groups are based on exaggeration or misunderstanding of the facts.

The need for the recent revision is pointed out by several inter-Korean agreements and Supreme Court precedents. The July 4 South-North Joint Communiqué came to force during the Park Chung-hee administration, a symbol of the nation's conservatism. According to the joint statement, "In order to ease tensions and foster an atmosphere of mutual trust between the South and the North, the two sides have agreed not to slander or defame each other, not to undertake military provocations whether on a large or small scale, and to take positive measures to prevent inadvertent military incidents." Also, chapter 3, clause 8 of the first Annex of the Agreement on Reconciliation, Non-Aggression, and Exchanges and Cooperation between South and North Korea (the South-North Basic Agreement), which was agreed upon by the Roh Tae-woo regime in 1991, states that "The South and the North shall not slander the other party through the press, propaganda leaflets and other means or methods." And clause 13 states that "The South and the North shall not slander the other party through broadcasting, visual media, or any other means in the Military Demarcation Line area."

In 2004, during the Roh Moo-hyun administration, the 6.4 agreement stated that "Both sides will suspend all propaganda activities in the Military Demarcation Line from midnight on June 15, 2004." Also, the 6.4 agreement said that "All propaganda activities through broadcasting, posts, electronic boards, flyers, etc., and the distribution of various items using balloons and equipment shall be stopped." The Moon Jae-in administration's Panmunjom declaration in 2018 stated that "for the present, they agreed to stop all the hostile acts including the loud-speaker broadcasting and scattering of leaflets in the areas along the Military Demarcation Line (MDL) from May 1, to dismantle their means, and further to transform the DMZ into a peace zone in a genuine sense."

According to the Supreme Court precedents during the Park Geun-Hye administration, "The act of flying anti-North Korea leaflets can be restrained in accordance with Article 5 (1) of the Police Officers' Duty Execution Act or Article 761 (2) of the Civil Act in order to counter such obvious and existing dangers as to the lives and bodies of the people, and unless the restrictions are excessive, these acts cannot be considered illegal." (Supreme Court Decision 2015Da247394 Decided on March 29, 2016)

As such, the above examples show the ban of anti-North Korean leaflets regardless of the political views, conservatives or progressives. South Korea cannot ask North Korea to abide by the agreements between the two Koreas while not itself abiding by the agreement. As per the agreement, North Korea has not carried out any acts of sending leaflets or broadcasting loud-speakers to the South. Currently, in South Korea, the opposition and conservative parties criticize the ban of the spread of anti-North Korea leaflets is a violation of freedom of expression.

Even if North Korean defectors' groups were to insult the South Korean president by calling him a "red man" and shouted, "Let's overthrow the regime," through broadcasts, statements and rallies, no one would go to jail. More than 150 groups that represent 33,000 North Korean defectors have been registered with the Ministry of Unification. Freedom of assembly, demonstration and expression is fully protected.

The amendment has a limited scope of punishment: it does not criminalize the action of sending leaflets and materials, but it is punishable only if the action of sending materials poses grave danger to the citizen’s ‘lives and bodies.’ In other words, corpus delicti, the facts and circumstances constituting a breach of law are limited to the casualties and damages to the people of Korean nationality, not the action itself. As some US lawmakers misunderstand, sending materials through a third country cannot be subject to the ban. The amendment’s mention of “a third country” is to be in accordance with the Development of Inter-Korean Relations Act’s statues, which already define the term of ‘movement of goods’ while mentioning ‘a third country’. The proposed regulation does not punish the actions of sending ‘balloons’ to the North from a third country if it does not pose a serious threat to ‘the lives and bodies’ of the people of Korean nationality.

In addition, if North Korea violates the inter-Korean agreements, the ban will lose its effect. Except for some campaigners and others who receive donations from foreign organizations for such political events as sending balloons, most North Korean defectors are also against sending anti-North Korea leaflets near the border. Why? Because sending leaflets to North Korea will intensify the crackdown on money and news delivered to relatives in the North through China, which will further lead to difficulties. When rice is put in a plastic bottle, and a dollar is sent to the North by balloon, most of them fall into rivers or mountains and are collected by North Korean authorities.

How much effect will sending balloons have? If you want to help North Koreans, you can actively help them through the UN's World Food Program or various NGO organizations. Humanitarian aid can be recognized as an exception to UN sanctions against North Korea. What North Korea does not need right now is the spread of leaflets criticizing the North, which could be misunderstood as an attempt to change the regime through psychological warfare.

The amendment to the Development of Inter-Korean Relations Act aims to protect the people of Korean nationality without criminalizing the activities of sending leaflets and materials itself and will pave the way for more feasible and tangible measures to better the livelihood of the people of North Korea.

It is important to strengthen humanitarian aid to help North Korean children and mothers who are still suffering from malnutrition and tuberculosis. The idea is to officially improve exchanges between the two Koreas based on trust in inter-Korean agreements. Rather than sending famous Korean singer Cho Young-Pil's album and K-drama with thumb drives via balloons, we should aim for staging singer Cho's concert at the Pyongyang Arena like during the Kim Dae-jung and Roh Moo-hyun administration, or even more, we should make it possible for the New York Philharmonic to perform in North Korea.

By Song Young-gil

The writer is the chairman of the Foreign Affairs and Unification Committee at the National Assembly. The views reflected in the article are his own. -- Ed.