Study on Issue of Aerial Leaflet Dissemination to North Korea

Recently, both South Korea and North Korea have dropped propaganda leaflets or trash balloons to each other. The leafleting has caused various problems. This paper attempts to find a solution by looking at the changes in legal systems and precedents related to the leafleting. First, I examined the actual state of leafleting, and reviewed the establishment of, and changes in, the legal systems and precedents, and discussed relevant countermeasures. Given that the leaflet dropping is a symbolic incident revealing conflicts arising from the division between the Koreas, this issue is distinguished from any other event where fundamental rights generally concern issues arising within South Korean society. This issue should be considered from a constitutional perspective. Issues to consider as a whole include the realization of the constitutional spirit pursuing peaceful unification, the right to pursue happiness, the freedom of expression of those who intend to disseminate leaflets, security guarantees against North Korea's responses, the safety issue of the entire nation arising from trash balloons, and the conflict between fundamental rights. How the law regulating leaflet drops will be amended should be reviewed as well. Since 2000, non-military organizations have led leafleting to North Korea, and its purpose is to criticize the North Korean regime and its leaders to induce internal resistance. Unlike the trend of modern psychological warfare, where most of warfare venues have been moved online, characteristically, the traditional leafleting method has been maintained, and the effect of the leaflet drops by South Korea is small. The side effect of this less impactful leafleting to North Korea would be direct infringement on the safety of South Korean residents. In the event of a conflict between fundamental rights, such as the freedom of expression and the right to safety, the higher fundamental rights (such as the right to life) should be preferentially protected. Even in the context of harmony with norms, emphasis should be on the duty to realize the goal of peaceful unification and the right to pursue happiness under the Constitution more than the freedom of expression through the distribution of leaflets. It would be a violation of the state's duty to take safety measures to neglect a scenario where neglecting leaflet dropping with unclear effects will clearly lead to damage. The Development of Inter-Korean Relations Act should be amended respecting the Constitutional Court's decision. Given not only the legal principles examined above, but also leaflet dissemination’s inconsistency with the existing South-North agreement prohibiting mutual slander, and South Korea’s current superiority over North Korea by 60 times, it would be an effective direction toward unification for South Korea, the much advanced state, to put into practice the spirit of mutual respect by preemptively prohibiting the leaflet dissemination.