The South Korean National Assembly last week approved legislation that imposes stiff fines and jail terms for sending leaflets, USB sticks, Bible verses, and even money across the 38th parallel into North Korea via balloons. Under the legislation, South Koreans could face fines of up to $27,000 (30 million South Korean won) and up to three years in prison for violating the law.

The legislation was adopted by the National Assembly in a partisan vote supported overwhelmingly by the ruling Democratic Party but boycotted by the opposition party. Opposition lawmakers refused to participate in the vote as a symbol of protest after attempting to delay passage of the legislation by delivering nonstop speeches against the bill. Assemblyman Tae Yong-ho, who had been a North Korean diplomat and was deputy chief of mission at the North Korean embassy in London before he defected to the South, spoke for 10 hours. Tae said the law was “aimed a joining hands with Kim Jong-un and leaving North Korean residents enslaved for good.” But the Democratic Party used its three-fifths parliamentary supermajority to stop the speeches and bring the issue to a final vote.

The legislation now awaits the signature of President Moon Jae-in, and there seems to be little doubt he will sign it. The National Assembly is dominated by Moon’s political party, and his government has voiced its support for the bill. Foreign Minister Kang Kyung-wha defended passage of the legislation arguing that freedom of expression should be limited because balloon leaflets “endanger the safety of people living in border regions.” She said, “Freedom of expression, I think, is absolutely vital to human rights, but it’s not absolute. It can be limited.”

Despite some claims that the balloons risked the safety of those living in the border region, little concrete evidence has been supplied about the danger. In recent years, in fact, the most common danger reported along the border has been North Koreans firing into the South to prevent a soldier from defecting or simply harassing South Korean border troops.

North Korean Pressure to End Balloon Launches

North Korea’s leaders are adamantly opposed to the balloons carrying leaflets and other information. In their April 2018 meeting, President Moon and North Korean supreme leader Kim Jong-un agreed to end their psychological warfare and lower animosity at a time when both sides seemed positive about the possibilities of reconciliation.

Six months ago, Kim’s powerful sister Kim Yo-jong gave a furious denunciation of “South Korea’s inability to halt civilian balloon leafleting and demanded it ban the activity.” She called North Korean defectors involved in the balloon leafleting “human scum” and “mongrel dogs,” and she challenged the South to deal with the problem: “Now that the mongrel dogs are doing others harm, it is time to bring their owners to account. I would like to ask the South Korean authorities if they are ready to take care of the consequences of evil conduct done by the rubbish-like mongrel dogs who took no scruple to slander us while faulting the ‘nuclear issue’ in the meanest way at the most untimely time.”

Kim Yo-jong threatened that should Seoul not act as Pyongyang demands, it “had better get themselves ready for the possibility of the complete withdrawal of the already desolate Kaesong Industrial Park following the stop to tours of Mt. Kumgang, or shutdown of the north-south joint liaison office whose existence only adds to trouble, or the scrapping of the north-south agreement in military field which is hardly of any value.” [In North Korean usage, “south” and “north” are never capitalized in reference to the two Koreas.]

Just hours after Kim Yo-jong issued her tirade against the leaflet balloons, the South Korean government responded that it would take immediate action to prohibit the sending of fliers via balloon because they caused “tension” with the North. The spokesperson of the Ministry of Unification said, “most leaflets have been found in our territory, causing environmental pollution and increasing burden on local people to get rid of them.”

But the real risk for the Moon government is that by responding so quickly to the derisive dressing down from Kim Yo-jong, it may give Seoul the appearance of being overly eager to accede to Pyongyang’s demands. Such a response weakens South Korea’s ability to negotiate with the North. The quick capitulation by the South only encourages Pyongyang to take a tougher stance in the future.

North Korea underlined that it was less interested in rapprochement with the South than in getting its own way by force when a few days after these events, the North destroyed the large building in Kaesong built by the South Korean government as a joint liaison office where the two Koreas could maintain offices for better communication and cooperation. The two-year-old building reportedly had cost the South some $70 million, but it was, in the words of the North Korean official media, “tragically ruined with a terrific explosion.” The “tragic” action was, in fact, deliberate North Korean action.

The South Korean National Assembly took six months to adopt the legislation prohibiting balloons on the border, but it is clear that both the Kim family in the North and Moon in the South are concerned that time is short to make progress on reconciliation. Moon was chief of staff to South Korea’s president Roh Moo-hyun (February 2003-February 2008). Roh held his only summit with North Korea’s then-supreme leader Kim Jong-il in October 2007, and his term as president ended four months later. Moon himself has been anxious to make progress with North Korea so that he will not find himself out of time. His single five-year term ends in May 2022—in just 18 months. The sense of urgency appears to be driving the South Korean government.

The Impact of Balloons in Getting Information to the North

Balloons carrying leaflets, USB flash drives, and money are periodically launched into the North by South Korean human rights organizations. Their effectiveness is debated. Proponents argue that balloons are an important way of getting external information into the North, while opponents argue that they are an environmental problem and can be dangerous. The North’s crocodile tears for the environmental damage caused by balloon-carried leaflets are not matched by concern for the economic impact on the environment in the North.

A RAND Corporation study of publicly available information assessed the state of balloon and drone technology for delivering information into North Korea. The study compared efforts in Korea with early Cold War efforts using balloons to deliver information in Central Europe. Based on modeling, it concluded that balloons launched under favorable wind conditions could potentially penetrate deep into North Korea, but based on anecdotal reports, they do not get far beyond the border region. The study suggested that balloons are “saturating” the border area with leaflets, but they do not reach further into the country.

Studies conducted by U.S. international information organizations have assessed how North Koreans are getting external information based on interviews with refugees and travelers recently arrived from North Korea. There are limitations on access to information because of North Korean hostility to anyone seeking information about the country, but these studies represent the best currently available sources of information. This first study was done in 2012, but more recent information continues to suggest that balloon-delivered leaflets are not a principal source of external information.

The balloon launch events do have value to North Korean human rights groups in South Korea. They provide valuable media attention with frequent photographs and video images of huge balloons carrying information leaflets and other information to the North. For such groups, the media events are very useful in calling attention to their cause. The fact that the two North Korean defectors who have been elected to serve in the National Assembly were very vocal in their support of the balloons indicates their view of the value of such actions. While they may not be the best means of getting external information into the North, they do serve a very important role in the North Korean human rights community in the South.

Negative Reaction against the Ban in the United States and Elsewhere

South Korea is obviously sharply divided over the issue of banning balloons, but vocal disapproval from South Korea’s allies has been harsh. The United States, which by tradition has given particular emphasis in its political culture to freedom of speech and expression, has been most critical of the legislation. There have been no statements of support from the United States for stopping balloon launches.

Reportedly, U.S. Deputy Secretary of State Stephen Biegun confidentially expressed concern about the balloon prohibition during his recent visit to South Korea. Due to the strong alliance relationship between the two countries, however, the former U.S. special representative for North Korean policy did not express these concerns publicly, but several sources indicate that he did convey them in private to senior South Korean officials. U.S. Ambassador to South Korea Harry Harris also reportedly expressed U.S. concerns to South Korean officials. South Korean newspapers have covered such expressions of concern.

In response to a press query on the leafleting ban, a State Department spokesperson said on December 21, “With regard to the DPRK, we continue to campaign for the free flow of information into the DPRK,” and “As a global policy, we advocate for the protection of human rights and fundamental freedoms.” While South Korean government officials have argued that the balloon ban does not infringe on freedom of expression, the legislation is clearly identified that way by opponents and some foreign governments.

Justice Michael Kirby of Australia, the former chair of the UN Commission of Inquiry on Human Rights in the DPRK, also suggested that the incoming Biden administration is likely to have similar freedom of information concerns about prohibiting balloons. In an interview, Kirby cited Americans’ strong commitment to the freedom of information even when individuals disagree with what is being said. The Australian jurist expressed his opinion that the incoming U.S. president is “likely” to strongly oppose limiting freedom of expression.

Members of Congress have also spoken out critically of South Korea’s ban on balloons, including Representative Gerald Connolly (D-VA), a senior member of the House Foreign Affairs Committee and co-chair of the Congressional Caucus on Korea, an organization of members who are generally very supportive of the South. Representative Michael McCaul (R-TX), another senior member of the House Foreign Affairs Committee, issued a statement saying that the legislation could “deepen the brutal isolation imposed on millions of North Koreans by the dictatorship in Pyongyang.” Representative Chris Smith (R-NJ), the Republican co-chair of the Tom Lantos Human Rights Commission of the U.S. House of Representatives, said that the Commission will hold hearings on the South Korean law in the next few weeks.

Leaders of U.S. human rights organizations have likewise expressed concern about the new South Korean legislation. Manpreet Singh Anand, regional director for Asia-Pacific programs at the National Democratic Institute, said, “Criminalizing those who are merely facilitating access to information can do irreparable harm to human rights defenders and will likely embolden the regime in Pyongyang to make more anti-democratic demands.”

Critics of the balloon ban legislation, in addition to Justice Michael Kirby of Australia, include Lord David Alton, an important human rights voice who is a member of the British House of Lords. Alton in a letter to the British foreign secretary said that “The purpose of this bill is to silence North Korean human rights and religious activities and voices from South Korean soil, in pursuit of the development of improved inter-Korean relations.”

Unfortunately, the balloon legislation has become a partisan political issue in South Korea rather than a serious effort to deal with North Korean human rights abuses or the inter-Korean relationship. There is no assurance that even with the silencing of freedom of expression in banning balloons that the North Koreans will take any action to improve inter-Korean relations. The consequence, however, could be erosion of the South Korean relationship with the United States, which is important for the people of both countries. If previous experience gives us any expectation for the future, the North is more likely to blow up another building, even if balloon-carried information is halted, than it is to make a significant positive gesture toward reconciliation with the South.