Legal Opinion: Whether the Republic of Korea (ROK)’s Amendment to the Development of Inter-Korean Relations Act (“Anti-Leaflet Law”) violates ROK domestic or international legal obligations ~ HRNK Insider

Legal Opinion: Whether the Republic of Korea (ROK)’s Amendment to the Development of Inter-Korean Relations Act (“Anti-Leaflet Law”) violates ROK domestic or international legal obligations

Posted by Committee for Human Rights in North Korea with No comments

February 14, 2021

Authors:
HRNK Pro Bono Counsel
And
Amanda Mortwedt Oh, HRNK Human Rights Attorney

Summary

South Korea’s Amendment to the Development of Inter-Korean Relations Act (the “Amendment”) violates ROK domestic and international legal obligations, namely the Constitution of the Republic of Korea and the International Covenant on Civil and Political Rights (ICCPR). The Amendment to the law is flawed in its statutory construction, poses jurisdictional considerations, infringes on fundamental rights, is excessively punitive, and has implications on existing inter-Korean agreements. The Amendment also infringes on international human rights, including the freedoms of expression, thought, conscience and religion, and assembly and association. Ultimately, the Amendment unnecessarily targets North Korean escapee groups working to send information, goods, and remittances to their fellow people and families in the North. If entered into force on March 30, 2021, this Amendment will also create second-order effects on the already vulnerable and oppressed North Korean people under the totalitarian rule of Kim Jong-un.

Background

1. On February 10, 2005, the Democratic People’s Republic of Korea (“DPRK” or “North Korea”) under Kim Jong-il, Kim Jong-un’s father and son of Kim Il-sung, declared itself a nuclear state,[1] having developed nuclear weapons during ROK Presidents Kim Dae-jung and Roh Moo-hyun’s administrations. On December 29, 2005, the Development of Inter-Korean Relations Act was first enacted under President Roh, who had continued the Sunshine Policy of his predecessor Kim Dae-jung.[2] Current ROK President Moon Jae-In worked as President Roh’s chief of staff from 2007 to 2008.

2. On April 27, 2018, President Moon and Chairman Kim Jong-un signed the Panmunjom Declaration on Peace, Prosperity and Reunification of the Korean Peninsula (“Panmunjom Declaration”).[3]

Article 2 of the Panmunjom Declaration states:

2. The two sides will make joint efforts to defuse the acute military tensions and to substantially remove the danger of a war on the Korean peninsula.
Alleviating the military tension and eliminating the danger of war is a very important issue related to the destiny of the nation and a very crucial issue for ensuring peaceful and stable life of the Koreans.

① The two sides agreed to completely cease all hostile acts against each other in every domain including land, sea and air that are the root cause of military tension and conflicts.
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.

3. On September 19, 2018, President Moon and Chairman Kim Jong-un signed the Pyongyang Joint Declaration,[4]adopting the Agreement on the Implementation of the Military Consensus in the Panmunjom Declaration (“Comprehensive Military Agreement” (CMA) or “9.19 Military Agreement”) as an annex to the Pyongyang Declaration.[5] The Pyongyang Declaration’s stated purpose, in part, was to “assess the excellent progress” since the two leaders signed the Panmunjom Declaration.

4. The CMA is an inter-Korean bilateral agreement at a ‘military level’ to ‘ease tension’ and ‘build trust’ between North and South Korea in the Demilitarized Zone (DMZ). CMA paragraph 1 says the two sides agree to cease all hostile acts, and CMA Annex 4, 1(3)(3) specifically prohibits “psychological warfare” in the “maritime peace zone.”

5. On June 4, 2020, North Korean leader Kim Jong-un’s sister, Kim Yo-jong, “strongly criticized escapees living in the Republic of Korea for sending anti-leadership leaflets to the North. She also demanded that the Republic of Korea “at least make a law to stop the farce”, in accordance with the Panmunjom Declaration in which both sides agreed to cease all hostile acts, including the distribution of leaflets in the areas along the Military Demarcation Line.”[6]

6. On June 13, 2020, Kim Yo-jong stated that the DPRK would end the military agreement (CMA), “‘which is hardly of any value,’ while calling North Korean defectors who send leaflets from the South ‘human scum’ and ‘mongrel dogs.’”[7]

7. On June 16, 2020, North Korea blew up the joint liaison office in the Kaesong Industrial Complex. The liaison office was situated in North Korea’s territory but built with South Korean funds, designed to facilitate dialogue between the two countries. “North Korea claimed the leaflets violated the deal Kim Jong-un and South Korean President Moon Jae-in struck in 2018 at their first summit, when both leaders agreed to cease ‘all hostile acts and eliminating their means, including broadcasting through loudspeakers and distribution of leaflets’ along their shared border.”[8]

8. Four hours later, the ROK Blue House announced that it would investigate those who disseminated leaflets into North Korea and would continue to uphold the 4.27 Panmunjom Declaration and 9.19 Military Agreement.[9]

9. ROK National Assemblyman and ruling Democratic Party lawmaker Song Young-gil, chair of the Foreign Affairs and Unification Committee, proposed an amendment to the Development of Inter-Korean Relations Act. This Amendment was passed by South Korea’s National Assembly on December 14, 2020 and was signed into law by President Moon Jae-In on December 29, 2020. It will enter into force on March 30, 2021.[10]

10. According to North Korean human rights civil society organizations and former and current officials in South Korea, “The Song Young-Gil Amendment (North Korean Information Gag Law) criminalizes (1) broadcasting of loudspeakers and posting of placards directed at North Korea in the inter-Korean border area, (2) distribution of “leaflets, etc.” to unspecified multiple persons in North Korea for the purpose of propaganda, gifts, etc. without governmental approval, and (3) movement of “leaflets, etc.” to North Korea for the purpose of propaganda, gifts, etc., including simply moving “leaflets, etc.” via a third country, without governmental approval. While the first category applies only to activities in the inter-Korean border area, the latter two have no such geographical restriction. “The leaflets, etc.” are defined broadly and vaguely to include not only leaflets but also USB flash drives and CDs, books and other publications, humanitarian aid or money. All these offenses as well as attempted offenses are punishable up to 3 years imprisonment or 30 million KRW fine.” [approximately $27,173 USD][11]

11. According to Assemblyman Song Young-gil and Gyeonggi Province Governor Lee Jae-Myung, the Amendment is necessary to ensure the safety and security of Koreans living in the border area.[12]

ROK Domestic Legal Obligations

As written, the Amendment to the Development of Inter-Korean Relations Act gives rise to several legal issues. The key provisions of the Amendment are as follows:[13]

Article 4

(5) “Leaflets or other items” are defined as, items (including but not limited to advertising propaganda materials, printed materials, auxiliary memory units), cash and other property profits.

(6) “Dissemination” is defined as distributing leaflets to unspecified individuals in North Korea or moving them to North Korea (including the simple movement of leaflets and other items via a third country) without obtaining approval under Article 13 or 20 of “Inter-Korean Exchange and Cooperation Act” for the purpose of propaganda, donation, etc.

Article 24 (Prohibition of Violation of the Inter-Korean Agreement)

(1) No person shall harm the lives or bodies of the people or cause serious danger by doing any of the following activities:

1. Loudspeaker broadcasting toward North Korea in areas along the Military Demarcation Line.

2. Posting visual media (posts) toward North Korea in areas along the Military Demarcation Line.

3. Disseminating leaflets or other items.

(2) The Minister of Unification may, if necessary to prevent prohibited activities under each subparagraph of paragraph (1), request cooperation from the head of the relevant central administrative agency or the head of a local government. In such cases, the head of the relevant central administrative agency or the head of a local government shall cooperate, except in extenuating circumstances.

Article 25 (Penalty Provisions)

(1) Any person who has violated Article 24:

1. Shall be punished by imprisonment for not more than 3 years or by fine not exceeding 30 million won. However, the provision shall not apply when South-North Korean agreements are suspended (this shall be limited to actions prohibited by Article 24(1)) based on Article 23(2) and (3).

2. A person who has attempted any crime under paragraph (1) shall be punished.

I. Statutory Analysis & Jurisdictional Considerations

The first issue with these provisions as written pertains to the definition of “leaflets or other items” and how it is used in the context of Article 24. The ROK Ministry of Unification (the “MOU”) claimed that the Amendment had to be passed in order to protect its residents in the border region and improve inter-Korean relations and peace on the peninsula.[14] Indeed, the MOU announced that it would plan such legislation just hours after Kim Yo-jong’s blistering statements against the leaflets in the border region, evidently to meet North Korea’s demands.[15] Putting the political and policy-related merits of such a decision aside, the Amendment goes much farther than what it was seemingly intended to achieve.

Unlike Articles 24(1)1 and 2, the prohibition on disseminating leaflets or other items (Article 24(1)3) is not constrained to the “areas along the Military Demarcation Line” (MDL). The provided definition of “dissemination” explicitly includes “the simple movement of leaflets and other items via a third country.” A plain reading of Article 4 and 24 suggests that the dissemination of leaflets or other items from a location other than the MDL would also be criminalized by the Amendment. The MOU released an interpretive guidance of sorts after the Amendment was passed to explain that “‘leaflets sent to North Korea simply via a third county’ refers to an exceptional case in which leaflets and other items scattered from South Korea are sent to North Korea via a third country due to tidal current or air current.”[16]Geographical and logistical realities suggest that the only realistic location other than South Korea from which leaflets or other items can be sent into North Korea is China via its border with North Korea. It seems that any dissemination of leaflets or other items into North Korea through the Sino-North Korea border is also criminalized by the Amendment, which appears to overshoot the legislative intent.

Even beyond the lack of geographical constraints, the list of items that are included in the definition of “leaflets or other items” seems to go beyond the goal and stated purpose of the Amendment. The definition includes any printed materials, auxiliary memory units, cash and “other property profits,” and the MOU has explained that such items were included because many balloons that carry leaflets contain such items. But effectively, such prohibition would arguably include (but not be limited to) the following items, many of which were not the subject of Kim Yo-jong’s stated objections: books, foreign news publications, religious literatures, humanitarian aid such as food, medicine and clothing, mini-radios, and multimedia units such as VHS, CD/DVD, and cassette tapes. This means that parties like humanitarian workers, religious missionaries, civil society organizations, and even individuals that want to send cash remittances to family members in North Korea could get swept up by the Amendment.

As if the implications were not already massive enough, another layer of consideration is that the reach of the ROK’s criminal jurisdiction appears expansive. The general provisions in the ROK’s criminal code can be applied to “both Korean nationals and aliens who commit crimes in the territory of the Republic of Korea,”[17] “all Korean nationals who commit crimes outside the territory of the Republic of Korea,”[18] “aliens who commit crimes on board a Korean vessel or Korean aircraft outside the territory of the Republic of Korea,”[19] aliens who commit a specified list of crimes outside the territory of the Republic of Korea,[20] and “aliens who commit crimes […] against the Republic of Korea or her nationals outside the territory of the Republic of Korea.”[21] Especially as technological advances may allow for various kinds of electronic dissemination of “leaflets or other items” into North Korea in the future, Korean nationals and foreign nationals anywhere in the world may arguably be criminalized by the Amendment, and it is hard to justify prohibiting items and activities that have little to no implications for the inter-Korean border area.

The ROK government would likely say that many of these humanitarian or religious activities unrelated to leafletting would be exempt because they do not “harm the lives or bodies of the people or cause serious danger” in the same way that leafletting does. However, the same argument applies to leafletting. The dissemination of leaflets is arguably not the root cause of the harm or serious danger referenced by the Amendment, any more than the provision of humanitarian services or cash remittances is, and the Amendment seems to implicitly acknowledge this fact—as written, the dissemination of leaflets or other items seems to be a crime only if it results in such harm or serious danger. In actuality, the threat to national security, civilians’ safety, or public order that the ROK government seeks to mitigate stems from a byproduct of the leafletting: North Korea’s provocative statements and hostile postures in relation to the leafletting. In effect, the Amendment is not imposing a criminal punishment on a person for committing a specific act; instead, the criminalized act depends on a reaction from a third party. Indeed, the MOU’s interpretive guidance states that “punishment can be inflicted only when there is an action of disseminating leaflets, and when the actions pose serious danger to the lives and safety of our nationals.”[22]

As such, North Korea’s reactions to leafletting and any complaints and threats that it may communicate about other activities may very well be the biggest determinant in what is ultimately legislated and enforced as crimes under the Amendment—and given North Korea’s penchant for unpredictability and volatility, this is not a sound approach to criminal law. In fairness, the act of leafletting at the MDL did result in a skirmish in 2014 that involved North Korea firing an anti-aircraft gun to shoot down balloons from South Korea carrying leaflets and the ROK army firing back,[23] which cannot be said for most comparable humanitarian activities. However, this was an incident from over six years ago that is, tragically, not unfamiliar to the MDL, and it did not harm any South Korean citizens in the border regions. Though the MOU cites this incident as an important backdrop to the Amendment, this is not a strong justification given the rights that it infringes upon.

II. Infringement of Fundamental Rights

Because even if it were true, however, that the act of disseminating leaflets or other items is being punished by its own merits independent of a reaction from North Korea, this raises other issues. The ROK Constitution states that “all citizens shall enjoy freedom of speech and the press, and freedom of assembly and association.”[24] As the ROK government has noted in its defense of the Amendment,[25] however, such freedom of expression is not unlimited, as the ROK Constitution also states, “The freedoms 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. Even when such restriction is imposed, no essential aspect of the freedom or right shall be violated.”[26] The Amendment, however, is not an appropriate restriction and curtailment of the free expression rights guaranteed in the ROK Constitution, for many of the reasons outlined above and because it falls short of the long-standing international legal principles of necessity and proportionality as they pertain to restrictions on fundamental rights.[27]

The necessity of the Amendment is questionable and unclear. There is no declared emergency, and given the historical backdrop of inter-Korean relations, any current “tension” claimed by the ROK government is not beyond normal bounds; the last realized danger to lives and bodies due to leafletting took place in 2014 which resulted in zero injuries or casualties—there is no “direct and immediate connection between the expression and the threat.”[28] In fact, it seems that a separate law like the Amendment is not needed in order to maintain peace and order near the MDL. In the MOU’s defense of the Amendment, it cites a ROK Supreme Court ruling from 2016, which “ruled that freedom of expression cannot be guaranteed under the Constitution for the flying of leaflets which threatens the safety and lives of the people,”[29] and the ROK government claims that it is simply codifying this ruling into law. However, the fuller passage of the ruling presents far more nuance. The ruling, rather than endorsing the criminalization of leafletting by law, states that police officers and military personnel “may restrain the act of flying of balloons carrying anti-North leaflets in response to such a clear and present danger if it creates the said danger in accordance with article 5 (1) of the Act on the Performance of Duties by Police Officers or article 761 (2) of the Civil Code and, provided that the said restriction is not excessive, such restraining act cannot be considered unlawful.”[30] This ruling actually cuts against the ROK government’s argument, as enforcement personnel already have the authority to respond to any clear and present dangers, even without the Amendment.

But even if such a legislation were necessary, the Amendment also falls short of the proportionality principle. A central tenet of proportionality requires consideration as to whether any government restriction is the “least restrictive means” for achieving the relevant purpose.[31] As discussed above, the Amendment’s definition of “leaflets or other items” is left ambiguous and wanting: it essentially amounts to “items, cash, and other property profits” with “items” supplemented by a parenthetical of non-exhaustive examples and “other property profits” left vague. In addition, the leaflet-related prohibition lacks a tailored geographical scope, and these aspects combine to create a government response that is not the “least restrictive means.”[32]

III. Excessive Punishment

Even the prescribed punishments seem to be incongruent with the prohibited act. Article 25(1)1 prescribes a punishment “by imprisonment for not more than 3 years or by fine not exceeding 30 million won” for offenders of the Amendment. The MOU justifies this by explaining that it is “the same level of punishment applied to the unapproved taking out or bringing in of goods between the two Koreas based on the ‘Inter-Korean Exchange and Cooperation Act,’”[33] and the definition of “dissemination” specifically cites Articles 13 and 20 of the Inter-Korean Exchange and Cooperation Act. The issue, however, is that the acts being punished by the Amendment and the Inter-Korean Exchange and Cooperation Act are very different in nature. Article 13 relates to the taking out or bringing in of goods between the Koreas “for the purposes of sale, exchange, lease, loan for use, donation, use, etc.” (as specified by Article 2.3), and Article 20 relates to the operation of transportation equipment (defined as “any ship, aircraft, railroad vehicles, or motor vehicles, etc.”).[34] These relevant sections of the Inter-Korean Exchange and Cooperation Act deal with the transport of goods for mostly commercial purposes, which may justify a punishment that involves imprisonment and a hefty fine. On the other hand, the Amendment prohibits leafletting and the sharing of information, which is, at its core, an exercise of one’s right to freedom of expression. Tomás Ojea Quintana, the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea, states that the punishment of imprisonment may violate the proportionality principle, and such a penalty “seems to be excessive for actions which are based on the exercise of the freedom of expression, [a] cornerstone for [a] democratic society. The bill doesn’t provide reasons to justify the use of this criminal punishment instead of sanctions from other branches of the law.”[35]

IV. Implications of Existing Inter-Korean Agreements

The MOU also cites to various other inter-Korean agreements meant to promote peace on the peninsula and improve relations between the Koreas, to show that the two countries agreed to ban mutual slander and leaflet drops on multiple occasions and that the Amendment merely seeks to codify such existing inter-Korean agreements.[36] For example, Article 2.1 of the Panmunjom Declaration of 2018 states, “The two sides agreed to completely cease all hostile acts against each other in every domain including land, sea and air that are the root cause of military tension and conflicts. 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.”[37]

However, this argument is also problematic. For one, such agreements place obligations on the DPRK and ROK governments without reference to actions by private parties; it is not clear that such bilateral agreements can allow the ROK to opt out of its constitutional and international obligations to respect and observe fundamental human rights norms, such as the freedom of expression. But even if this were not an issue, the Panmunjom Declaration specifies the geographic scope of the countries’ respective obligations to the areas along the MDL. As discussed above, the Amendment provides no such limitation for leafletting.

ROK International Legal Obligations

In addition to the issues identified above–statutory and jurisdictional considerations, infringement on fundamental rights, excessive punishments, and implications of existing inter-Korean agreements–the Amendment gives rise to several international legal issues based on the ROK’s international human rights treaty obligations and United Nations (UN) membership.

V. Contravention of the Universal Declaration of Human Rights

As a UN Member State, South Korea has agreed to support the 1948 Universal Declaration of Human Rights (UDHR), recognizing that “the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”[38] Enshrined in the UDHR are the right to freedom of thought, conscious or religion (Article 18), the right to freedom of opinion and expression (Article 19), and the right to freedom of peaceful assembly and association (Article 20). As discussed in part above, the Amendment contravenes the right to freedom of opinion and expression by prohibiting “leaflets, etc.” from being “disseminated” to North Korea. In addition, for private citizens who are sending Bibles or religious materials to North Koreans–who have no right to practice their own religion or have their own beliefs–the Amendment infringes on the right to freedom of thought, conscious or religion. South Koreans or others imparting information or religious materials into North Korea are restricted from this practice in contravention of the UDHR. Moreover, the right to freedom of peaceful assembly and association is restricted by this Amendment. Organizations dedicated to gathering and sending information, goods, such as USBs, or financial support back home would be unable to safely carry out their activities under the Amendment as written.

VI. Violations of the International Covenant on Civil and Political Rights

On April 10, 1990, South Korea acceded to the ICCPR.[39] As a signatory to the ICCPR, the South Korean government is obligated to uphold and not violate certain human rights for South Korean citizens. The relevant provisions of the ICCPR are as follows:[40]

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(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.

Article 22

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.

As such, three fundamental human rights are infringed upon by the Amendment: (1) the right to freedom of thought, conscience and religion (Article 18); (2) the right to freedom of expression (Article 19); and (3) the right to freedom of association with others (Article 22). Like the arguments discussed in the domestic application of the Amendment, the South Korean state has a duty to uphold and protect these rights, and the justifications and responses by the ROK government are not adequate or appropriate here. While the original issue may have been, as alleged by North Korea, the content of leaflets, the Amendment overreaches in its response and application to North Korea’s illegal, escalatory, and threatening acts and statements. Other items, types of information, and remittances are sent into North Korea for the benefit of a vulnerable and severely repressed people. This often includes religious materials, and the ROK government’s blanket ban on “leaflets, etc.”, as a result, infringes on people’s rights in the South to freedom of religion.

Furthermore, North Korea has an “absolute monopoly on information and total control over organized social life,”[41] yet civil society organizations in South Korea and elsewhere seek to impart information on this repressed society, as they know the potential impacts information of the outside world may have on their North Korean brothers and sisters. People have a fundamental human right to express themselves without interference and to not only receive information, but to “impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.” This is what civil society organizations are doing when they send leaflets, however they may be perceived by a government.

As previously mentioned, South Korea may restrict such activity for national security or public safety reasons, but there has only been one incident or cause for alarm made by North Korea. As Special Rapporteur Quintana stated,

Limitations to freedom of expression further require to justify a clear necessity, in particular by establishing a direct and immediate connection between the expression and the threat. In this regard, the necessity to prevent harm to the life or bodies of people or serious damages in border areas is a legitimate purpose. However, it has not been demonstrated a direct and immediate connection between all cross-border actions of civil society organizations and that kind of threat, other than the scattering of leaflets some years ago.[42]

Likewise, the CMA clearly is a bilateral military agreement between North and South Korea, and as such, does not apply to private citizens sending in “leaflets, etc.” Nevertheless, while a State may impose certain restrictions “as necessary,” there are already restrictions in place in the MDL and a police force that has, at times, taken steps “as necessary” to prohibit leaflets from being sent into North Korea, as previously outlined above. There is no appropriate justification to now ban all leaflets, goods, and remittances from being sent into North Korea, especially since this overbroad and unnecessarily restrictive and punitive legislation infringes on fundamental human rights.

Necessarily, some of these activities to send in information, goods, and remittances, involve more than one person joined together in collective action to pursue their interests, which implicates the right to freedom of association. Groups, civil society organizations, and families may work together to send their loved ones in the North support, whether it be monetary or information based. Sadly, due to the severe human rights restrictions in North Korea, South Koreans and others have little choice in the means in which they send their love and support home, but they are often joined together in South Korea by their shared desire to improve the lives of their loved ones. This Amendment would restrict their ability to gather and associate under a common mission and spirit.

In addition, the Amendment’s Article 25 (Penalty Provisions) ensures a harm calculus based on North Korea’s acts, not on those of the information sender. Without question, this targets North Korean escapees and other private citizens, rather than addressing the fundamental issue—North Korea’s disrespect for its international and bilateral agreements and its severe restrictions on human rights, at times constituting crimes against humanity.[43] Moreover, the principles of proportionality and necessity are violated with the Amendment, as discussed in the domestic portion of this memo and by Special Rapporteur Quintana. South Korea already has means to restrict leaflets in the MDL as warranted, and this Amendment unnecessarily criminalizes such behavior deemed by the Amendment as illegal (and by North Korea as hostile).

Of course, the Amendment is not just about leaflets, as the National Assembly had to clarify that “leaflets, etc.” mean flyers, goods (including advertisements and propaganda materials, printed materials, auxiliary memory devices, etc.) and money or other property profits. In fact, while strong legal arguments have been made to argue that the Amendment violates ROK domestic and international legal obligations, this Amendment is largely a political issue and therefore a matter of policy. Not only does this Amendment hurt North Korean escapees and South Korean civil society organizations in its infringements on human rights guaranteed by the ROK Constitution and the ICCPR–which in itself should be too heavy of a price to pay for appeasing the North–it creates second-order effects on innocent North Koreans who depend on these goods and remittances to survive and on information to join the rest of the world—despite being born under a regime that views information and upholding human rights in general as a threat to regime survival.

Policy Considerations

The people working to send in information and to improve North Korean human rights, especially those who are North Korean escapees, are brave, creative, and resilient, but the North Korean human rights community will be forced to think of new ways to overcome the ROK's Amendment should it go into effect on March 30, 2021 as planned. As we have seen, there is great concern by the international community and human rights organizations that the Amendment goes too far and improperly infringes on fundamental rights, thus penalizing North Korean escapees and civil society organizations, rather than standing up for the application of freedom and justice and the oppressed North Korean people. Should South Korea bend in its typical staunch defense of democratic principles under threat by the Kim regime, this may signal a weakness and vulnerability to North Korea ripe for exploitation. Without question, this Amendment seems to show that South Korea is willing to trade its democratic principles and values for the hope of appeasement with a regime that never abides by its own agreements or has true concern or desire to peacefully unify the Korean peninsula.

In addition, the nature of the Amendment conflicts with the idea that South Korea and the United States have shared values, which potentially puts strain on a very important and otherwise resilient alliance that has operated now successfully for decades. The U.S. North Korean Human Rights Act, which is up for reauthorization again soon, will need to be reviewed more closely to find ways to manage this apparent issue.

This Amendment should be repealed before it goes into force on March 30, 2021.

Annex: References

1. Agreement on the Implementation of the Military Consensus in the Panmunjom Declaration (Referred to as the Comprehensive Military Agreement (CMA)), September 19, 2018, https://eastasiaresearch.org/2018/09/30/historic-panmunjom-declaration-in-the-military-domain-south-korea-north-korea-military-agreement-signed-on-2018-9-19/ (unofficial translation).

2. Pyongyang Joint Declaration of September 2018 [English], September 18, 2018, https://english1.president.go.kr/BriefingSpeeches/Briefings/322.

3. Panmunjom Declaration on Peace, Prosperity and Reunification of the Korean Peninsula, April 27, 2018, http://www.mofa.go.kr/eng/brd/m_5478/view.do?seq=319130&srchFr=&srchTo=&srchWord=&srchTp=&multi_itm_seq=0&itm_seq_1=0&itm_seq_2=0&company_cd=&company_nm=&page=1&titleNm=.

4. Amendment to the Development of Inter-Korean Relations Act [English, unofficial translation by NK Pro, December 13, 2020].

5. Inter-Korean Relations Development Act [English] (Act No. 7763, Dec. 29, 2005; Amended by Act No. 12584, May 20, 2014; Act No. 15431, Mar. 13, 2018), https://elaw.klri.re.kr/eng_mobile/viewer.do?hseq=47876&type=sogan&key=14.

6. Constitution of the Republic of Korea [English], https://elaw.klri.re.kr/eng_service/lawView.do?hseq=1&lang=ENG.

7. International Covenant on Civil and Political Rights (ICCPR), https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.

8. Policy Report from the Office of Tae Yong-ho, Anti-Leaflet Law in South Korea & Freedom of Expression in North Korea, January 5, 2021.

9. Citizens’ Alliance for North Korean Human Rights (NKHR), Justice For North Korea, Mulmangcho, Improving North Korean Human Rights Center, and the Transitional Justice Working Group (TJWG), UN Petition Concerning the Song Young-Gil Amendment to the Inter-Korean Relations Development Act (North Korean information gag law), December 30, 2021, https://en.tjwg.org/2020/12/30/un-petition-north-korean-information-gag-law/.

10. Gyeonggi Province Governor Lee Jae-myung, Letter to the Honorable Christopher H. Smith, Co-Chairman of the Tom Lantos Human Rights Commission, January 31, 2021, http://m.kmib.co.kr/view.asp?arcid=0015484894.

11. Former Gyeonggi Province Governor Kim Moon-soo, Open Letter to the US Congress Human Rights Commission by Governor Kim Opposing South Korea’s Anti-Leaflet Law Criminalizing Leaflet Sending to North Korea [English], February 3, 2021, https://eastasiaresearch.org/2021/02/08/open-letter-to-the-us-congress-human-rights-commission-by-governor-kim-opposing-south-koreas-anti-leaflet-law-criminalizing-leaflet-sending-to-north-korea/.

12. Report of the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea**, A/75/50326, October 14, 2020.

13. UN Human Rights Council, 43/... Situation of human rights in the Democratic People’s Republic of Korea, A/HRC/43/L.17, March 20, 2020.

14. Young-Gil SONG, “Understanding Recent Revisions to the “Inter-Korean Relations Development Act,” 38 North, December 20, 2020, https://www.38north.org/2020/12/ysong122120/.

15. UN Human Rights Council, Report of the detailed findings of the commission of inquiry on human rights in the Democratic People’s Republic of Korea*, A/HRC/25/CRP.1, February 14, 2021, https://www.hrnk.org/uploads/pdfs/A_HRC_25_CRP_1_ENG%20LONG.pdf.

16. Inter-Korean Exchange and Cooperation Act, https://www.law.go.kr/lsInfoP.do?lsiSeq=105245&viewCls=engLsInfoR#0000.

17. [단독]킨타나 “대북전단금지법, 국제 인권표준에 도전, dongA, December 17, 2020, https://www.donga.com/news/article/all/20201217/104482008/1 [in Korean, but it contains an official statement in English from Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea].

[1] “DPRK FM on Its Stand to Suspend Its Participation in Six-party Talks for Indefinite Period,” Korean Central News Agency, February 10, 2005,https://www.globalsecurity.org/wmd/library/news/dprk/2005/dprk-050211-kcna01.htm.

[2] Inter-Korean Relations Development Act [English], Act No. 7763, Dec. 29, 2005; Amended by Act No. 12584, May 20, 2014; Act No. 15431, Mar. 13, 2018, https://elaw.klri.re.kr/eng_mobile/viewer.do?hseq=47876&type=sogan&key=14.

[3] Panmunjom Declaration on Peace, Prosperity and Reunification of the Korean Peninsula, April 27, 2018, http://www.mofa.go.kr/eng/brd/m_5478/view.do?seq=319130&srchFr=&srchTo=&srchWord=&srchTp=&multi_itm_seq=0&itm_seq_1=0&itm_seq_2=0&company_cd=&company_nm=&page=1&titleNm=.

[4] Pyongyang Joint Declaration of September 2018 [English], September 18, 2018, https://english1.president.go.kr/BriefingSpeeches/Briefings/322.

[5] Agreement on the Implementation of the Military Consensus in the Panmunjom Declaration (Referred to as the Comprehensive Military Agreement (CMA)), September 19, 2018, https://eastasiaresearch.org/2018/09/30/historic-panmunjom-declaration-in-the-military-domain-south-korea-north-korea-military-agreement-signed-on-2018-9-19/ (unofficial translation).

[6] 조선중앙통신사, “김여정제1부부장 반공화국삐라살포에 북남군사합의파기 경고,” KCNA, June 4, 2020, http://www.kcna.co.jp/calendar/2020/06/06-04/2020-0604-004.html [in Korean]. Kim Yo-jong is a Vice-Director of the Workers’ Party of Korea’s Propaganda and Agitation Department (PAD) under the power Organization and Guidance Department (OGD). The PAD is “the organization that oversees the distribution of all information. Combined, the OGD and the PAD form a symbiotic relationship to violate fundamental human rights in North Korea, as they determine the information that can be seen and accessed by the population, and disseminate this information using the media, art, and group indoctrination sessions.” Since November 2017, she has been sanctioned by the United States Department of the Treasury for censorship activities. Robert Collins, The Organization and Guidance Department: Kim’s Control Tower of Human Rights Denial (Washington, D.C.: Committee for Human Rights in North Korea, 2019), XV, 83, https://www.hrnk.org/uploads/pdfs/Collins_OGD_Web.pdf.

[7] Kim Tong-Hyung, “Kim Jong Un’s sister threatens S. Korea with military action,” AP, June 13, 2020, https://apnews.com/article/d2156411d6b432afeef371ac27bca23d.

[8] Joshua Berlinger, Jake Kwon and Yoonjung Seo, “North Korea blows up liaison office in Kaesong used for talks with South,” CNN, June 16, 2020, https://edition.cnn.com/2020/06/16/asia/north-korea-explosion-intl-hnk/index.html. For a comprehensive background and discussion on the Moon administration’s targeting of North Korean escapee groups working in South Korea, see reference 9 in the Appendix.

[9] 박경준, “청와대 "삐라는 백해무익…안보위해에 단호 대응할 것,"”연합뉴스, June 4, 2020, https://www.yna.co.kr/view/AKR20200604085651001 [in Korean].

[10] Amendment to the Development of Inter-Korean Relations Act [English, unofficial translation by NK Pro, December 13, 2020].

[11] Citizens’ Alliance for North Korean Human Rights (NKHR), Justice For North Korea, Mulmangcho, Improving North Korean Human Rights Center, and the Transitional Justice Working Group (TJWG), UN Petition Concerning the Song Young-Gil Amendment to the Inter-Korean Relations Development Act (North Korean information gag law) (December 30, 2021). See also Policy Report from the Office of Tae Yong-ho, Anti-Leaflet Law in South Korea & Freedom of Expression in North Korea, January 5, 2021, and Former Gyeonggi Province Governor Kim Moon-soo, Open Letter to the US Congress Human Rights Commission by Governor Kim Opposing South Korea’s Anti-Leaflet Law Criminalizing Leaflet Sending to North Korea [English], February 3, 2021, https://eastasiaresearch.org/2021/02/08/open-letter-to-the-us-congress-human-rights-commission-by-governor-kim-opposing-south-koreas-anti-leaflet-law-criminalizing-leaflet-sending-to-north-korea/.

[12] Song Young-Gil, “Understanding Recent Revisions to the ‘Inter-Korean Relations Development Act,’” 38 North, December 20, 2020,https://www.38north.org/2020/12/ysong122120/; Gyeonggi Province Governor Lee Jae-myung, Letter to the Honorable Christopher H. Smith, Co-Chairman of the Tom Lantos Human Rights Commission, January 31, 2021, http://m.kmib.co.kr/view.asp?arcid=0015484894.

[13] “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets”, The Ministry of Unification, Republic of Korea, December 2020, https://www.unikorea.go.kr/eng_unikorea/news/releases/?boardId=bbs_0000000000000034&mode=view&cntId=54255.

[14] Id.

[15] “South Korean balloons: Plans to stop people sending cross-border messages”, BBC, June 4, 2020, https://www.bbc.com/news/world-asia-52917029.

[16] “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets”, The Ministry of Unification, Republic of Korea, December 2020, https://www.unikorea.go.kr/eng_unikorea/news/releases/?boardId=bbs_0000000000000034&mode=view&cntId=54255.

[17] Criminal Act, Part I, Ch. I, Art. 2, Korea Legislation Research Institute, Korea Law Translation Center, https://elaw.klri.re.kr/eng_service/lawView.do?hseq=28627&lang=ENG.

[18] Id. at Art. 3.

[19] Id. at Art. 4.

[20] Id. at Art. 5.

[21] Id. at Art. 6.

[22] “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets”, The Ministry of Unification, Republic of Korea, December 2020, https://www.unikorea.go.kr/eng_unikorea/news/releases/?boardId=bbs_0000000000000034&mode=view&cntId=54255.

[23] Cho, Joohee, “Koreas Trade Gunfire as Kim Jong-Un Mystery Deepens,” ABC News, October 10, 2014, https://abcnews.go.com/International/koreas-trade-gunfire-kim-jong-mystery-deepens/story?id=26097426.

[24] Constitution of the Republic of Korea, Ch. II, Art. 21(1), July 12, 1948, https://www.refworld.org/docid/3ae6b4dd14.html.

[25] “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets”, The Ministry of Unification, Republic of Korea, December 2020, https://www.unikorea.go.kr/eng_unikorea/news/releases/?boardId=bbs_0000000000000034&mode=view&cntId=54255. See also, Byun, Duk-kun, “FM says freedom of expression can be limited over leafleting ban,” Yonhap News Agency, December 17, 2020, https://en.yna.co.kr/view/AEN20201217001000325.

[26] Constitution of the Republic of Korea, Ch. II, Art. 37(2), July 12, 1948, https://www.refworld.org/docid/3ae6b4dd14.html.

[27] Callamard, Agnes, “Freedom of Expression and National Security: Balancing for Protection,” Columbia Global Freedom of Expression, December 2015, https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2016/01/A-Callamard-National-Security-and-FoE-Training.pdf.

[28] [단독]킨타나 “대북전단금지법, 국제 인권표준에 도전, dongA, December 17, 2020, https://www.donga.com/news/article/all/20201217/104482008/1[in Korean, but it contains an official statement in English from Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea].

[29] “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets”, The Ministry of Unification, Republic of Korea, December 2020, https://www.unikorea.go.kr/eng_unikorea/news/releases/?boardId=bbs_0000000000000034&mode=view&cntId=54255.

[30] “UN Petition concerning the Song Young-Gil Amendment to the Inter-Korean Relations Development Act (North Korean Information Gag Law)”, Transitional Justice Working Group, December 30, 2020, https://en.tjwg.org/2020/12/30/un-petition-north-korean-information-gag-law/.

[31] Callamard, Agnes, “Freedom of Expression and National Security: Balancing for Protection”, Columbia Global Freedom of Expression, December 2015, https://globalfreedomofexpression.columbia.edu/wp-content/uploads/2016/01/A-Callamard-National-Security-and-FoE-Training.pdf.

[32] [단독]킨타나 “대북전단금지법, 국제 인권표준에 도전, dongA, December 17, 2020, https://www.donga.com/news/article/all/20201217/104482008/1[in Korean, but it contains an official statement in English from Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea].

[33] “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets,” The Ministry of Unification, Republic of Korea, December 2020, https://www.unikorea.go.kr/eng_unikorea/news/releases/?boardId=bbs_0000000000000034&mode=view&cntId=54255.

[34] Inter-Korean Exchange and Cooperation Act, https://www.law.go.kr/lsInfoP.do?lsiSeq=105245&viewCls=engLsInfoR#0000.

[35] [단독]킨타나 “대북전단금지법, 국제 인권표준에 도전, dongA, December 17, 2020, https://www.donga.com/news/article/all/20201217/104482008/1[in Korean, but it contains an official statement in English from Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea].

[36] “On the amended provisions of ‘the Development of Inter-Korean Relations Act’ for disseminating leaflets,” The Ministry of Unification, Republic of Korea, December 2020, https://www.unikorea.go.kr/eng_unikorea/news/releases/?boardId=bbs_0000000000000034&mode=view&cntId=54255.

[37] “Panmunjom Declaration for Peace, Prosperity and Unification of the Korean Peninsula (2018.4.27),” Ministry of Foreign Affairs, September 11, 2018, https://www.mofa.go.kr/eng/brd/m_5478/view.do?seq=319130&srchFr=&srchTo=&srchWord=&srchTp=&multi_itm_seq=0&itm_seq_1=0&itm_seq_2=0&company_cd=&company_nm=&page=1&titleNm=.

[38] Universal Declaration of Human Rights, December 10, 1948, https://www.un.org/en/universal-declaration-human-rights/index.html.

[39] Ratification Status for Republic of Korea, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=141&Lang=EN.

[40] International Covenant on Civil and Political Rights, Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49, https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx.

[41] UN Human Rights Council, Report of the detailed findings of the commission of inquiry on human rights in the Democratic People’s Republic of Korea*, A/HRC/25/CRP.1, February 14, 2014, https://www.hrnk.org/uploads/pdfs/A_HRC_25_CRP_1_ENG%20LONG.pdf.

[42] [단독]킨타나 “대북전단금지법, 국제 인권표준에 도전, dongA, December 17, 2020, https://www.donga.com/news/article/all/20201217/104482008/1[in Korean, but it contains an official statement in English from Tomás Ojea Quintana, Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea].

[43] Id.

Categories: analysis, crimes against humanity, Human Rights, North Korea, Pro Bono

February 19, 2021