Foreign Relations Law

I. Introduction

This Comment addresses the rapidly changing legal landscape of South Korean leafleting: the practice of sending pamphlets into North Korea. Since its inception during the Korean War, the practice has been used both by the South Korean government and private parties as a propaganda device. In recent years, however, privatized leafleting has become an increasingly politically divisive instrument and its legal status has vacillated between presidential administrations.
This Comment begins by examining the historical development of leafleting (Section II) and the legal arguments regulating its practice in an effort to demonstrate the relatively high administrative cost of current regulations (Section III). The modern rendition of leafleting—as a privatized practice that sends anti-North Korean materials, religious documents, and aid supplies—is traced from its military origins and new trends, specifically a growing international interest in leafleting, is examined. Section III discusses the current regulatory landscape with a particular focus on the last five years. This Comment argues that despite these changes and a seemingly new change in direction at regulating leafleting under the new presidential administration, several underlying themes (invocation of national security concerns and regulation via amending existing frameworks rather than proposing completely new laws) reveal legal consistency.
Next, the Comment delves deeper into the existing legal scholarship regarding leafleting by focusing on the constitutional issues that supporters of leafleting allege are infringed by the new regulations (Section IV). This begins broadly with the general legal implications arising from privatized leafleting and narrows to specific constitutional issues (free speech and freedom of religion) before returning to the current state of leafleting due to the most recent laws (leafleting is essentially on a hiatus).
In Section V, this Comment assumes that the current administrative laws regulating leafleting are insufficient and instead highlights both a potentially new loophole with the use of non-Korean actors and the underreported emergence of foreign influence on leafleting. Rather than offer a polemical or apologetic argument for the legality of leafleting, this Comment proposes an alternative regulatory regime that focuses on the funding behind leafleting operations, rather than the mechanism or practice of leafleting itself. This Comment argues that regulating foreign funding for leafleting under the classification of “political activity” would more efficiently restrict the practice while also following precedential themes of national security and amending existing legal frameworks rather than creating new ones.

The concept of “Networked multilateralism” has recently emerged, particularly within the UN framework, as a compelling vision of future global governance, calling for stronger cooperation among the numerous institutions and actors within the fragmented global governance system. This essay develops this concept against the backdrop of conventional theories of fragmentation in International Law scholarship and regime complexity in International Relations scholarship, with a focus on cooperation between IOs as pivotal global governance actors. It identifies three key challenges: the cooperation dilemma facing IOs when confronting multisectoral, cross-border problems; the need for mechanisms that foster proactive inter-IO cooperation; and the necessity of revisiting perceptions of global governance, IOs, and multilateralism. The essay argues that existing theoretical and governance frameworks inadequately address these challenges and proposes a shift towards networked multilateralism. This approach recognizes IOs as independent-yet-interdependent actors within a broader global governance network, rather than as isolated structures governing discrete sectors of international affairs. Effective networked multilateralism, therefore, requires reconceptualization and practical reforms to IOs’ mandates and operations. By expanding traditional notions of multilateralism and emphasizing inter-IO cooperation, this approach seeks to enhance the ability of international law and its institutions to deliver coordinated responses to multisectoral challenges, thus better meeting the complex demands of the 21st century.

This Comment discusses the recent and ongoing substantial expansion of the Foreign Direct Product Rule (FDPR) and evaluates the extent to which, as the scope of the FDPR expands, it is increasingly in tension with both international and domestic law. This Comment analyzes the viability of the available legal and procedural mechanisms, both international and domestic, to challenge or halt the FDPR’s expansion. Finally, this Comment cautions that the low likelihood of companies seeking and prevailing on such relief suggests that further expansion of the FDPR is particularly troubling.