Written by: Yvonne Ng and Qianyu Wang
This article will outline the key regulations for Covid-19 control and prevention in China, then provide a critical analysis of China’s Covid-19 related regulations. Two main questions will be further explored. First, the legal basis and development of China’s Covid-19 policies. Second, whether China’s Covid-19 policies violate human rights. For example, China’s strict border control and unreasonable test result requirements caused many Chinese who are living abroad unable to return home.
Background of the Pandemic
In December 2019, the first case of Covid-19 was found in Wuhan, China. The virus then spread across several cities at an unprecedented speed by the following months.[1] On 30th January 2020, the World Health Organisation (WHO) had categorically announced in the Coronavirus disease 2019 (Covid-19) Situational Report that Covid-19 is a ‘public health emergency of international concern’.[2] In the same month, China had implemented social distancing measures including restrictions to limit movements for more than 930 million people.[3] Necessary auxiliary arrangements such as the supply of daily necessities were carried out to citizens who were strictly quarantined at home.
At the peak of coronavirus cases proliferating in China, on average, a single day had a spike of 3800 new cases.[4] By 28th February, the death toll was at 2791.[5] On the same day, WHO raised the level of Covid-19 risk from high to very high at a global level.[6] As people who were infected may not realise and report their infections due to the lack of symptoms, the Chinese government realised that they had to lay out stern regulations to keep the outbreak under control.[7]
Since 29th March, the Civil Aviation Administration of China (CAAC) has implemented a ‘five-one policy’ which limits and reduces the number of international flights inbound and outbound of China.[8] The daily number of inbound flights decreased drastically by 80% since the enforcement of the policy.[9] While most of the cities are now classified as ‘low-risk’, China remains persistent about using the strict ‘isolate-and-track’ strategy in high-risk areas.[10] Nucleic acid nasal swab tests must be obtained with a negative certificate before Chinese Embassies would decide that the testing conditions are met and safe for travel.[11] These regulations were traditional responses to cutting off the channels of human-to-human transmission, as there was insufficient time to develop an effective drug or vaccine.
Analysis of the Legal Basis of Covid-19 related policies in China
The lawful exercise of powers and ruling the country according to law (依法治国) have been a great focus of the Chinese government for the past 23 years. In the 15th National Congress of the Chinese Communist Party, ruling the country according to law was deemed to be China’s fundamental ruling strategy.[12] During China’s first and only wave of Covid-19 (January to March 2020), numerous Covid-19 prevention and control policies were published by the government. However, no law has been passed during that period for these Covid-19 related policies. Therefore, some argue the Chinese government’s regulations are unlawful.[13] This part of the essay will analyse whether China’s Covid-19 control policies have legal standing.
The Legal Standing of Notices
Before announcing any lockdown measures, the UK passed the Health Protection (Coronavirus) Regulations 2020 and the Coronavirus Act 2020, which provide legal bases for government orders of lockdown and quarantine.[14] Contrasting China’s practice with the UK, even though numerous policies have been published serving as the bases for lockdown measures, these policies are titled as “Notice” (通知). Notices are a special form of legally binding government order in China, which were often made by the Epidemic Prevention and Control Headquarters in provinces or cities. These headquarters are leading the Covid-19 response and are usually led by the head of the local government.[15] As such, they are not executive governmental bodies, thus not qualified to make governmental rules, especially when the orders exceeded what was authorised by the State Council’s National Public Health Emergency Response Plan.[16] Yet, in reality, Notices issued by such headquarters have been implemented and enforced.
The legality of these Notices was challenged, since they were not passed through legislative procedures and were often made by non-executive bodies.[17] However, it should be noted that these Covid-19 related Notices are based on Article 25 of the Law of PRC on Prevention and Treatment of Infectious Diseases (传染病防治法), which was passed early in 1989:[18]
“In the event of an outbreak or a prevalence of an infectious disease, the local government shall immediately get people organised to control them and cut off the route of transmission; when necessary, it may take the following emergency measure, subject to reporting to and decision by the local government at the next higher level:
(1) Restricting or suspending fairs, assemblies, cinema shows, theatrical performances and other types of mass congregation;
(2) Suspension of work, business and school classes;
(3) Provisional requisition of houses and means of transport; and
(4) Closing public drinking water sources contaminated with the pathogen of infectious diseases.”
According to Article 25, flexible discretionary powers are given to various levels of governments and institutions. Yet, these discretions were exercised arbitrarily at times.[19] Some arbitrary measures could be attributed to the PRC key principle of “localised” responsibility during emergency response, that is, each level of government is responsible for their own regions as stated in Article 4 of the Emergency Response Law (突发事件应对法).[20] Some cities and counties set up checkpoints at highway exits and denied entry of people who were not permanent residents of their region.[21] This shows local governments’ desire to protect their own region and eliminate risks from the outside, but these measures exceeded the powers given to local governments by Article 25.
Many Chinese cities implemented a “closed residential communities” rule, which required residents to present a permit to leave or enter their own residential compounds.[22] Checkpoints were set up at entrances to take temperatures and limit the frequency and the number of people entering and exiting the compound.[23] This could be a result of anxious self-governing bodies implementing measures beyond what is permitted by law. In extreme cases, residential compounds have denied entry to people who could not show ownership of the apartment, such as tenants.[24]
The scepticism towards the legal basis of China’s Covid-19 measures’ is unfounded. The law left room for discretionary powers that can be exercised by local governments to contain the pandemic. While powers were sometimes misused, and the legality of the orders could be questionable at times, it is necessary for a country with close to 1.4 billion population to quickly and effectively combat Covid-19.
Development of Biosecurity Laws in China
China used this opportunity to develop its law in relation to biosecurity at the later stage of the pandemic. On 17th October 2020, the Standing Committee of the National People’s Congress (NPCSC) passed the Biosecurity Law of the PRC (中华人民共和国生物安全法).[25] Article 88 stipulates that the law will take effect on 15th April 2021.[26] The following are some of the aims of this law,[27] which is not an exhaustive list:
“1. Prevention and control of new infectious diseases;
2. Giving the state capacity to effectively respond to biological factors (such as incorporating technological advancements);
3. Management of biological laboratories;
4. As well as ensure the continued safety of citizens in a relatively safe and threat-free status.
5. Biodiversity protection and precautions to prevent biological attacks by terrorist;
6. Laying out risk monitoring and warning systems, track and trace mechanisms.”
The exigency of passing this Biosecurity Law of the PRC was reflected through a leapfrog appeal process. This meant that the legislation was given top priority and was expediated through one round of the review process.[28] While normal legislation has to follow strictly to an entire Parliamentary process, passing such laws in light of an emergency accelerated by Covid-19 have to be sped up, thus leaping over some unnecessary red-tape.[29] Noticeably, human rights were not incorporated into the legislation. However, passing of the new biosecurity law was seen as an improvement from the previous Laws enacted by the NPCSC,[30] namely:
- Law on Prevention and Treatment of Infectious Diseases 1989
- Law on Emergency Responses 2007
The newly enacted Biosecurity law works in conjunction with previous regulations and measures targeted to combat fatal viruses, such as those virus-related regulations from the SARS epidemic of 2002/2003:
- Regulation on Responses to Public Health Emergencies 2003, issued by State Council
- Administrative measures on information reporting and monitoring of infectious diseases and Public Health emergencies, issued by Ministry of Health
- Plan for Information disclosure on epidemics of infectious diseases and public health emergencies, issued by Ministry of Health
China seized the opportunity to develop a more comprehensive and improved version of previous biosecurity legislations. Such reform could better prepare the country for later stage Covid-19 control and also for future biosecurity related events.
Human Rights Analysis
This part of the article will examine how the Chinese government implemented Covid-19 regulations while trying to seek a balance of keeping citizens safe and not grossly violating human rights such as freedom of movement between boarders of one city of china to another.
The outbreak of Covid-19 has contributed to international chaos and disorder.[31] When the outbreak first emerged in Wuhan, the city of 9.7 million people was entirely cut off from the rest of China. Thousands of people were ‘suspected’ of being positive of Covid-19 and were placed in quarantine as a result.[32] Most notably, this concerned restrictions on the freedom of movement in light of the lockdown. However, after conducting 320,000 nasal swab tests, only 0.47% of those tests were Covid-19 positive.[33]
Despite this virus appearing to be relatively perilous, states need to remember that the rule of law and international legal obligations still continue to apply, even in times of a pandemic.[34] Public health emergencies should not be used as an excuse to account for extreme courses of actions that encroach on human rights.[35] Academics like Professor Simon Wessely and Professor Neil Greenberg have argued that there are psychological impacts of prolonged quarantine, including stressors such as confusion, anger, frustration and boredom.[36]
Though China’s coordination and comprehensive approach had allowed thousands to be saved from Covid-19 infection,[37] some of these extreme measures have inevitably infringed on basic human rights. However, it should be noted that authorities in China define ‘freedom’ differently as most other organisations and countries.[38] The ‘Four Cardinal Principles’ (四项基本原则) are often deemed more superior by the PRC as opposed to individual citizenship rights.[39]
A noteworthy instance of possible infringement of human rights was when the Chinese government took drastic measures to ‘silence and punish whistle-blowers’ who were trying to warn the public about a ‘SARS-like virus’ back in December 2019.[40] Doctor Li Wenliang, an ophthalmologist in Wuhan, received harsh reprimands from the Wuhan police when he tried to inform the public about the possibility of the spread of a cluster of new lethal virus.[41] Such drastic censorship needs to be questioned as credible information could possibly inform and educate the public accurately and in advance, instead of concealing the severity of the virus which eventually confused citizens and led to fatalities.
Despite criticisms for the draconian restrictions of movement in and around China, the Chinese government has shown support to its economy, especially SMEs, through a range of policies. The Chinese central bank announced a reduction in the bank’s mandatory reserve ratio, freeing up 550 billion Yuan (70.6 billion euros).[42] This could be a result of a more economically focused government rather than one who prioritises human rights.
Conclusion
Overall, careful considerations need to be made. Do unprecedented times justify using unprecedented measures? Arguably, this could be reasonable when trying to regulate 1.4 billion people.[43] The key lies in proportionality when issuing and enforcing emergency measures. The Chinese has proven with their foresight that a temporal sacrifice would, in return, exchange for freedom in the long run. China has reportedly improved from being the epicentre of the pandemic to now representing less than a fraction of global cases.[44]
Disclaimer: The opinions expressed in this post are those of the authors, and do not reflect the views or opinions of the Durham Asian Law Journal.
[1] Hengbo Zhu, Wei Li and Ping Niu, ‘The Novel coronavirus outbreak in Wuhan, China’, (2020) 5(6) Glob Health Res Policy 1 [2] World Health Organisation, ‘Coronavirus disease 2019 (COVID-19) Situation Report 43’ (3 March 2020) < https://apps.who.int/iris/handle/10665/331354> accessed 17 November 2020 [3] ‘How China contained the Coronavirus after early blunders’ The Economic Times (13 March 2020) <https://economictimes.indiatimes.com/news/international/world-news/how-china-contained-the-coronavirus-after-early-blunders/what-did-china-do-to-contain-the-coronavirus/slideshow/74606870.cms> accessed 17 November 2020 [4] World Health Organization, ‘China shows COVID-19 responses must be tailored to the local context’ (3 April 2020) <https://www.who.int/news-room/feature-stories/detail/china-shows-covid-19-responses-must-be-tailored-to-the-local-context> accessed 23 November 2020 [5] ibid [6] Youngmee Jee, ‘WHO International Health Regulations Emergency Committee for the COVID-19 outbreak’ (2020) 42 Epidemiology and Health 2020 1 [7] Yinghui Jin and others, ‘A rapid advice guideline for the diagnosis and treatment of 2019 novel coronavirus (2019-nCoV) infected pneumonia (standard version)’ (2020) 7(4) Military Medical Research 1 [8] Zoey Zhang, ‘China’s Travel Restrictions due to COVID-19: An Explainer’ China Briefing (23 September 2020) <https://www.china-briefing.com/news/chinas-travel-restrictions-due-to-covid-19-an-explainer/> accessed 17 November 2020 [9] Tianqiong Jia and Wei Han, ‘Flying to China Still a Challenge as Authorities Extend Restrictions’ Caixin (23 May 2020) <https://www.caixinglobal.com/2020-05-23/flying-to-china-still-a-challenge-as-authorities-extend-restrictions-101557791.html> accessed 18 November 2020 [10] ibid [11] ‘List of Countries Where China-bound Passengers Are Required to Obtain COVID-19 Negative Certificates Before Boarding’ <https://hr.cs.mfa.gov.cn/help_two/help-two/gj.html> accessed 20 November 2020 [12] Zemin Jiang, ‘Hold High the Great Banner of Deng Xiaoping Theory for an All-round Advancement of the Cause of Building Socialism with Chinese Characteristics to the 21st Century’ (12 September 1997) <http://academics.wellesley.edu/Polisci/wj/308S/Readings/jzm15CCP.htm> accessed 14 November 2020 [13] ‘Coronavirus: China admits “shortcomings and deficiencies”’ BBC News (4 February 2020) <https://www.bbc.co.uk/news/world-asia-china-51362336> accessed 23 November 2020 [14] Alun Milford, ‘The legal basis for quarantine’ (Kingsley Napley, 1 April 2020) <https://www.kingsleynapley.co.uk/insights/blogs/criminal-law-blog/covid-19-the-legal-basis-for-quarantine> accessed 14 November 2020 [15] Simiao Chen and others, ‘COVID-19 control in China during mass population movements at New Year’ (2020) 395(10226) The Lancet 764, 764-5 [16] Ruiping Ye, ‘The legal basis of China’s Covid-19 response’ (The China Story, 21 May 2020) <https://www.thechinastory.org/the-legal-basis-of-chinas-covid-19-response/> accessed 14 November 2020 [17] Chenguang Wang, ‘Legal Tools Used in China in the COVID-19 Emergency’ (Bill of Health, 12 May 2020) <https://blog.petrieflom.law.harvard.edu/2020/05/12/china-global-responses-covid19/> accessed 14 November 2020 [18] ‘Law Of The People's Republic Of China On Prevention And Treatment Of Infectious Diseases (2013 Amendment), June 29, 2013’ (USC US-China Institute, 29 January 2020) <https://china.usc.edu/law-peoples-republic-china-prevention-and-treatment-infectious-diseases-2013-amendment-june-29-2013> accessed 14 November 2020 [19] Ye (n 16) [20] ‘Emergency Response Law of the People's Republic of China’ (PreventionWeb) <https://www.preventionweb.net/english/professional/policies/v.php?id=52004> accessed 14 November 2020 [21] ‘Zunhua sets up checkpoints at highway exits to measure body temperature’ Xinhuanet (26 January 2020) <http://www.xinhuanet.com/english/2020-01/26/c_138735122.htm> accessed 14 November 2020 [22] Huizhong Wu, ‘Sealed in: Chinese trapped at home by coronavirus feel the strain’ Reuters (22 February 2020) <https://www.reuters.com/article/us-china-health-quarantine-idUSKCN20G0AY> accessed 14 November 2020 [23] ibid [24] ‘How does China combat #coronavirus: 7,148 residential communities in Wuhan are on lockdown’ Xinhuanet (11 March 2020) <http://www.xinhuanet.com/english/2020-03/11/c_138867074.htm> accessed 14 November 2020 [25] Guo Rui, ‘China passes first biosecurity law in wake of COVID-19 pandemic’ South China Morning Post (Guangzhou, 20 October 2020) <https://www.scmp.com/news/china/society/article/3106174/china-passes-first-biosecurity-law-wake-covid-19-pandemic> accessed 19 November 2020 [26] ‘Biosecurity law’ Xinhuanet (18 November 2020) <http://www.xinhuanet.com/politics/2020-10/18/c_1126624481.htm> accessed 22 November 2020 [27] Yunfeng Jing and Jia Li, ‘Biosecurity Law – A Landmark Law to Be Released Soon’ (China Law Insight, 20 October 2020) <https://www.chinalawinsight.com/2020/10/articles/biolaw/biosecurity-law-a-landmark-law-to-be-released-soon/> accessed 19 November 2020 [28] ibid [29] ibid [30] Zhiqiong June Wang, ‘Law in crisis: a critical analysis of the role of law In China’s fight against COVID-19’ (2020) Griffith Law Review 1 [31] Ayhan Kose and Ceyla Pazarbasioglu, ‘Unprecedented damage by COVID-19 requires an unprecedented policy response’ (Brookings, 10 July 2020) <https://www.brookings.edu/blog/future-development/2020/07/10/unprecedented-damage-by-covid-19-requires-an-unprecedented-policy-response/> accessed 20 November 2020 [32] Vageesh Jain, ‘Coronavirus outbreak: quarantining millions in China is unprecedented and wrong’ (The Conversation, 31 January 2020) <https://theconversation.com/coronavirus-outbreak-quarantining-millions-in-china-is-unprecedented-and-wrong-130565> accessed 20 November 2020 [33] Epidemiology Working Group for NCIP Epidemic Response, ‘The Epidemiological Characteristics of an Outbreak of Novel Coronavirus (COVID-19) in China’ (2020) 41(2) Zhonghua Liu Xing Bing Xue Za Zhi 145 [34] Fatemah Albader, ‘Coronavirus and the resurgence of Sinophobia’ (2020) 12(2) Tsinghua China Law Review 289 [35] ibid [36] Samantha K Brooks and others, ‘The psychological impact of quarantine and how to reduce it: rapid review of the evidence’ (2020) 395(10227) The Lancet 912 [37] Matt Ho, ‘Coronavirus: social distancing could save millions of lives, study says’ South China Morning Post (31 March 2020) <https://www.scmp.com/news/china/society/article/3077646/coronavirus-social-distancing-could-save-millions-lives-study> accessed 18 November 2020 [38] David Shambaugh, The Modern Chinese State (CUP 2000) 184-5 [39] ibid [40] Jianhang Qin and others, ‘Chinese whistle-blower doctor who died fighting coronavirus only wanted people to know the truth’ The Straits Times (7 February 2020) <https://www.straitstimes.com/asia/east-asia/qa-whistleblower-doctor-who-died-fighting-coronavirus-only-wanted-people-to-know-the> accessed 23 November 2020 [41] Stephanie Hegarty, ‘The Chinese doctor who tried to warn others about coronavirus’ BBC News (6 February 2020) <https://www.bbc.com/news/world-asia-china-51364382> accessed 23 November 2020 [42] KPMG, ‘China: Government and institution measures in response to COVID-19’ (17 June 2020) <https://home.kpmg/xx/en/home/insights/2020/04/china-government-and-institution-measures-in-response-to-covid.html> accessed 23 November 2020 [43] ‘China Population’ (Worldometer) <https://www.worldometers.info/world-population/china-population/> accessed 20 November 2020 [44] World Health Organisation, ‘China Shows COVID-19 responses must be tailored to the local context’ (3 April 2020) <https://www.euro.who.int/en/health-topics/health-emergencies/coronavirus-covid-19/news/news/2020/4/china-shows-covid-19-responses-must-be-tailored-to-the-local-context#:~:text=China's%20first%20phase%20of%20public,over%20the%20long%20term> accessed 24 November 2020