Abstract: COVID-19 prevention and control is a great test of the governance system and governance capability of our country. People of all ethnic groups and regions are helping one another to fight the epidemic together under the leadership of the Communist Party of China, and demonstrate the remarkable advantages of the socialist system with Chinese characteristics. But governing NIMBY behavior in the epidemic prevention and control work by rule of law is not only an important subject to promote the modernization of national governance capacity but also upholds the rule of law to protect human rights. It’s a complex system mechanism that requires emergency management and rule of law advocacy working together, the implementation of good laws and flexible law enforcement moving forward together, and legal incentives and legal sanctions used together.

 

Keywords: epidemic prevention and control    NIMBY behavior    violations of civil rights    governance from the rule of law

 

The current era is threatened by crises, risks and uncertainties. How to cope with public emergencies is an important topic confronting people. COVID-19 is a public health emergency on the way to the great rejuvenation of the Chinese nation. It poses a major test to China’s governance system and capacity. People of all ethnic groups and in different regions have been working together with one heart to prevent and control the spread of the novel coronavirus, manifesting the excellent traditions of the Chinese nation as a community with a shared future; demonstrating their sense of unity and willingness to help each other and the remarkable advantages of the national system in protecting civil rights and safeguarding social justice. Nevertheless, the not in my backyard (NIMBY) mentality that emerged during the epidemic shows that the chronic thought of benefiting oneself at others’ expense still exists among some. The illegal behaviors displayed not merely damaged the civil rights of others but also weakened the power to fight the epidemic and influenced the overall situation of the fight. The decision passed at the Fourth Plenary Session of the 19th Central Committee of the Chinese Communist Party pointed out: “Legal protection for human rights should be strengthened to guarantee the people enjoy extensive rights and freedom and fulfill their obligations according to the law.”¹ It is required to comply with the requirements to comprehensively promote law-based governance in the new era, “persistently work for epidemic prevention and control by law-based thinking and methods,”² implement legal governance of NIMBY behavior and provide institutional guarantees for civil rights in a national health crisis such as the current one.

 

 

NIMBY behaviors refer to resistance by people to something because of their worries about it posing risks to the life and property of themselves, their families and even neighbors or community. The phenomenon of “crisis transference” due to such selfishness and perception of risks germinated in ancient times and this notion of benefiting oneself at the expense of others has persisted into modern times. Mencius — Gaozi II records “You are wrong. King Yu tamed the flood following the way of flowing water, so he made the seas as the ravines to store the water. But now, you make the neighboring countries as the ravines to store the water.” This way of thinking has not disappeared and it still has some influence on people’s behavior in modern society. The NIMBY behaviors in modern society mainly with regard to the environment. “Such problems as sustainable economic growth, ecological environmental protection and civil society entwined with economic benefits, project risks and environmental responsibility as well as ‘Chinese-style NIMBY dilemma’ have captured more attention.”³ But some phenomena in the COVID-19 prevention and control work in the country have shown that NIMBY behaviors are not exclusively related to environmental issues but are also likely to happen during a public health emergency. Classifying the NIMBY behaviors in the epidemic prevention and control work may help prevent and handle such phenomena in the future.

 

 

To prevent epidemic transmission, some residential communities adopted self-imposed “lockdowns” and refused to allow medical workers who had been fighting the epidemic on the front line to return home. The local department of epidemic prevention and control promptly corrected such wrong behavior.⁴ The NIMBY behavior of disallowing medical workers fighting on the front line of the epidemic to return home reflected some people’s irrationality in the face of the epidemic and ignorance of law. On the one hand, the medical workers were disinfected before getting off work and there was no need to view the medical staff returning home to be an infection risk. On the other hand, the medical workers, like anyone else, have the right to live and rest in their homes. It is a right protected by the law and should not to be arbitrarily deprived them by others.

 

 

In some rural areas, to prevent epidemic transmission, some people put up banners persuading the fellow villagers not to return to their village and others built barricades using paving stones, or built brick walls across roads and even dug ditches to block the traffic from entering villages.⁵ On January 28, 2020, the Ministry of Public Security of the People’s Republic of China held the first meeting of the Leading Group of the CPC Central Committee for COVID-19 Prevention and Control, namely, the videoconferencing of the public security organs nationwide. Minister Zhao Kezhi stressed: “The illegal behavior of setting up checkpoints and blocking the traffic without approval should be immediately reported to the Party committees and governments and be properly handled according to law to guarantee normal traffic order.”⁶ On January 29, 2020, “The Traffic Guarantee Section of Hubei Province COVID-19 Prevention and Control Headquarters issued an urgent notice and stressed prohibiting blocking road traffic and channels to transport emergency anti-epidemic supplies and related staff by means of digging roads and setting up forced permanent isolation, etc.”⁷ At a news conference held by the National Health Commission (NHS) on January 30, 2020, spokesperson Wu Chungeng of the Ministry of Transport of the People’s Republic of China required all the local departments of transport to “formulate schemes to guarantee transportation” and “ensure normal transportation of supplies for production and living.”⁸

 

 

In the panicky, anxiety-filled atmosphere, “the invisible virus should be prevented” but the danger of the groups of people related to the virus was exaggerated “so that people treated them as the virus” and changed the target of prevention measures from virus to “the people possibly carrying the virus.”⁹ In some places, some people from some specific areas were prohibited from checking into hotels. What’s worse, the vehicles with some specific license plate numbers were restricted or prohibited from using the roads. The media called for stopping such labeling and preventing “secondary disasters” such as privacy disclosure and the stigmatizing of patients.¹⁰

 

 

The inherent logic of NIMBY behaviors can be discussed from the perspective of “psychology — behavior” or “cognition — practice” and the realistic soil for its formation from the perspective of “state — society” or “collective — individual.” To comply with the requirements of the times for the overall law-based governance of the country and set foot on the topic of the times to strengthen legal guarantee for public health, it is necessary to analyze the NIMBY behaviors in epidemic prevention and control work from the jurisprudence perspective. COVID-19 is characterized with strong transmissibility, infectiousness in its incubation period and threat to people’s health and even life. Therefore, it is imperative to isolate the infected, suspected cases and their close contacts. But only when legal measures are taken can the unification of epidemic prevention and control and civil rights protection be realized. Nevertheless, NIMBY behaviors in epidemic prevention and control not merely went against the consciousness of the Chinese nation to help each other as a community with a shared future and impeded the overall situation of regional joint prevention and control and fighting the epidemic together but were also illegal actions infringing on the rights of others and resulting in bad social consequences.

 

 

People’s behaviors are the externalization of humanity. In this sense, jurispru- dence analysis of NIMBY behaviors must be done on the basis of humanity. Humanity is the fundamental characteristic of human beings. From the perspective of the modes of human existence, it is composed of individuality and sociality which are not always harmonious in guiding people’s behaviors. Conflicts often occur. On the one hand, the sociability of humanity guides people’s behavior to mutual help and cooperation. “If one side is in trouble, support comes from all sides.” It is the realistic reflection of human sociality. Medical teams from other parts of China raced against the clock to assist Hubei including Wuhan, which was the specific practice of mutual help and the lively reflection of the Chinese people to help each other as members of a community of a shared future based on human sociality. On the other hand, the individual element of humanity results in selfishness causing individuals to “consider their own desires and requirements, realize them at the expense of others and conquer all the obstructions to realize them.”¹¹ Amid the risks of endangered life and property safety, it is the first human reaction to keep away from these risks and protect the life and property safety. Selfish departmentalism arises from people’s selfishness extending to the recognition and handling of different interest relationships. Chairman Mao Zedong once said: “Any practice of benefiting oneself at others’ expense without considering other departments, other areas and other people is selfish departmentalism.”¹² The long-standing small-scale farm economy in the Chinese history laid a solid economic foundation for rural society. People established social relations with others and set up the “differential pattern” of self-centered networks, with oneself at the center of kinship or geographical relationship. “The most important kinship in our society features the property of concentric waves that are increasingly thinner as they are farther.”¹³ Such social structures overlaid with such factors as administrative division and market competition provide the space for the existence of local selfish departmentalism. People care more about the local interests relating to their own interests. In the conflicts of the interests of their local areas and other areas, unless the central committee makes unified and coordinated arrangement, it is often their priority consideration and first choice to safeguard their local interests. In epidemic prevention and control, some local governments kept a self-perpetuating mentality, simply started from their own local interests, conducted discrimination under the disguise of prevention and control and benefited themselves at others’ expense. The NIMBY behaviors were practice of local selfish departmentalism based on selfishness.

 

 

The NIMBY behaviors in different domains have different properties which can be perceived from different perspectives. Those in epidemic prevention and control are perceived to be illegal from the legal perspective. Article 84 of the General Provisions of Civil Law stipulates: “The neighboring right holders of real estate should handle neighboring relations on the principles of being helpful for production, facilitating life, consolidation and mutual help, fairness and reasonableness.” The practice of preventing medical workers fighting on the front line of epidemic prevention and control to return to their homes went against the General Provisions of Civil Law. The setting up of checkpoints and blocking of traffic in some rural areas were obviously illegal. In the face of the severe epidemic prevention and control situation, a great majority of provinces activated first-level public health emergency response which however only restricted the right of way in specific areas and the restrictions were to only be imposed and enforced by the authorities. Pursuant to the Law of the People’s Republic of China on Prevention and Control of Infectious Diseases and the Emergency Response Law of the People’s Republic of China, the law-making authorities such as the people’s governments above a county level can adopt measures for prevention and control such as traffic control, health quarantine for traffic and lockdown of the epidemic areas according to law when the epidemic breaks out. The Law of the People’s Republic  of China on Road Traffic Safety clearly stipulates the responsibilities for breaking the  law: Whoever breaks the road without approval should be ordered by the department  in charge to stop the illegal actions and fined according to law and should restore the road; whoever arbitrarily digs up the road, blocks traffic and generates personal and property damages of others or other serious consequences should be held accountable by law. These laws and regulations indicate that the villagers’ NIMBY behaviors of digging up the roads and blocking the traffic without the approval of the authorities were illegal. Behavior, such as disclosing the personal information of those returning from Hubei, including Wuhan, abusing the people of Hubei, including those from Wuhan, and conducting obstructions and interceptions of vehicles with a license plate number beginning with “e (Hubei) A” were illegal by violating the following stipulations of the General Provisions of Civil Law: “The personal freedom and dignity of a natural person should be protected by law” (Article 109); “The personal information of a natural person should be protected by law” (Article 111). Besides, “some areas and enterprises restricted the employees from Hubei from returning to work, or explicitly refused to employ people from Hubei whose ID number began with 42. Even worse, infected employees were fired by their companies after their recovery. Such practices not just harmed the emotions of the employees from Hubei but also touched the red line of law, becoming the illegal behavior of employment discrimination”¹⁴.

 

 

The NIMBY behavior in epidemic prevention and control are people’s stress reactions to the risks of becoming infected due to any contact so as to protect the physical health and personal safety of themselves, their fellow villagers and the locals. However, in the sense of jurisprudence, the sense of justice of the purpose shall not be the reason to defend the unjust behavior. Chinese laws explicitly stipulate: “The exercise by citizens of the People’s Republic of China of their freedoms and rights may not infringe upon the interests of the state, of society and of the collective, or upon the lawful freedoms and rights of other citizens.” (Article 51 of the Constitution of the People’s Republic of China) and “The civil subjects should not abuse the civil rights to infringe upon the interests of the state, the public interests of the society, or upon the lawful freedoms and rights of other citizens.” (Article 132 of the General Provisions of Civil Law). The injustice of the NIMBY behaviors in epidemic prevention and control is that the transfer of risk to other parties not merely violates the law but also causes infringement on the rights of others. On the one hand, NIMBY behaviors infringed upon others’ rights. The residence communities disallowed the medical staff to return home, infringing on the right to habitation of the medical staff. It was logically concluded in the stipulation of Article 117 of the Real Right Law of the People’s Republic  of China: “Where an immovable or movable is owned by someone else, a usufruct  rights holder is entitled to possess, utilize and seek profit from it in accordance with  the law.” The people blocked by those digging the roads might be infected or suspected cases and healthy ones. Even if they were infected or suspected cases, they had “the right to take road transport in some space and time.”¹⁵ The NIMBY behavior of blocking the traffic infringed on people’s rights to roads including the right of travel and the right of way. The rights of the citizens should be cut down as required by epidemic prevention and control. However, the rights of privacy, equality and personal dignity of the citizens, infected cases or those of Wuhan, should not be curtailed. Registering the information of the people returning from Hubei including Wuhan was originally aimed to keep the authorities informed of the situation and make a response. However, disclosing their information violated the rights of names, portrait, privacy and personal information of the citizens protected in General Provisions of the Civil Law; the discrimination against the people from Hubei in work resumption and recruitment violated the stipulation in Article 3 of the Employment Promotion Law of the People’s Republic of China: “The laborers have the rights of equal employment and independent choice of profession.” On the other hand, NIMBY behavior did not benefit coordinated, joint action for epidemic prevention and control and jeopardized the rights of health and life of more people. Epidemic prevention and control is a systematic project that call for overall plans, taking all factors into consideration and implementing coordinated, joint actions. Nonetheless, the NIMBY behavior of digging and blocking the roads resulted in the consequences that some local governments did in their own way, set barriers between different departments and regions, impeded unified coordination and distribution of anti-epidemic supplies and daily supplies, influencing the treatment of those infected cases and the realization of the “right of appropriate standard of living” of the healthy people. ¹⁶

 

 

COVID-19 prevention and control is not just a test of the governance system and its capabilities but a good opportunity to promote human rights and legal construction. That the medical staff from other parts of China raced against the clock to assist Hubei including Wuhan, the epicenter and the severely-afflicted areas, showed the obvious advantages of the national system and the governing competence system to “stick to the centralized, unified leadership of the CPC” and “ensure a coordinated national response, mobilize the enthusiasm of all parties and centralize the strength to tackle major problems”;¹⁷ the NIMBY behaviors in epidemic prevention and control in some areas showed the shortcomings and weaknesses of handling emergencies. Eliminating the NIMBY behavior in epidemic prevention and control can be governed by forging the awareness of a community of a shared future for the Chinese nation and enhancing the morality of working together and helping each other in emergencies through the education of socialist core values. However, legal governance should be enhanced to eliminate the violation of laws and infringement on rights of NIMBY behaviors. It is the practical choice to guarantee the full realization of civil rights by eliminating the NIMBY behaviors in epidemic prevention and control by means of the law as required by the new era to “enhance legal protection of human rights and guarantee the people to enjoy extensive rights and freedom according to the law”¹⁸. Zang Tiewei, director of the Research Office of the Supervisory and Judicial Affairs Committee of the National People’s Congress of the People’s Republic of China, pointed out: “The local governments should, according to the requirements of the CPC Central Committee, ensure a coordinated national response, prevent and control the epidemic according to the law and in a sound manner, comprehensively handle the relations of epidemic prevention and control, economic and social development and the production and life of the people, curb illegal behaviors without any delay and do not benefit oneself at others’ expense.”¹⁹ Governance of NIMBY behaviors by the rule of law in epidemic prevention and control is a complicated, systematic project. Macroscopic and micro- scopic efforts should be made in the following three aspects.

 

 

COVID-19 is of high toxicity and it has proved difficult to find a specific medicine that is efficacious; the virus transmits at a high speed and people’s movements expose them to higher risks of infection; the media’s sensational reporting of the epidemic surely fueled people’s panic. In such circumstances, people’s NIMBY behavior was an external manifestation of their selfishness but also their instinctive desire to protect themselves. Therefore, to solve the problem of NIMBY behavior in epidemic prevention and control, we should not simply depend on the people themselves. The Chinese government “boasts strong appeals, mobilization, infinite cohesion, centripetal force, affinity and charisma”²⁰ and must carry out work for epidemic prevention and control in a good order, fill the people with confidence and hopes and prevent the people from engaging in NIMBY behaviors due to panic. The fundamental solution to governing NIMBY behavior in epidemic prevention and control by rule of law is that the government should activate the emergency management mechanism according to the law. “Since SARS in 2003, China’s emergency management has obtained considerable progress and registered effective development in emergency plans, emergency system and mechanism and legal institution.”²¹ Nonetheless, it is still an important topic of the legal construction of the future public crisis management mechanism to improve the national emergency management mechanism and optimize the national emergency management system. In epidemic prevention and control, the government conducted emergency management according to the law, adhered to the principles of “unified leadership, integration of departments and regions at different levels,” “reliance on science, quick response,” “social mobilization, people’s participation,” “information disclosure, public opinion guidance,” and “prevention first, combination of treatment and prevention” and formed a seamless prevention and control network of all factors with the joint participation of the whole of society. The government should ease people’s fears through effective emergency management and orderly epidemic prevention and control so that the people will not engage in NIMBY behavior out of fear.

 

Due to the illegal property of NIMBY behavior in the epidemic prevention and control, which should be conducted according to the law, it is necessary to enhance the people’s awareness of rule of law through popularization and education of rule of law. General-Secretary Xi Jinping pointed out: “It is imperative to strengthen popularization of rule of law in epidemic prevention and control, organize primary-level popularization of the law for epidemic prevention and control, guide the people to boost their awareness of rule of law, support and cooperate with the work for epidemic prevention and control according to law, improve legal services for epidemic prevention and control and eliminate conflicts during the epidemic.”²² The executors of popularization of rule of law should not be restricted only to governmental departments concerned, law groups should carry out “Popularizing Laws to the Countryside” and “Popularizing Laws to the Ordinary People” campaigns; the popularization of laws for epidemic prevention and control should not only be held during the epidemic but also in ordinary times; the contents should be prioritized according to specific conditions, generally speaking to popularize legal knowledge and cultivate humanism. Provincialism is deep-rooted in China. “The concepts of ‘insiders’ and ‘outsiders’ prevail in village communities. Their distinction is the important behavior logic of the peasants”²³. Therefore, the humanism of law including equality, freedom and human rights is of great importance and should be vigorously popularized. Especially, attention should be paid to cultivating the civic awareness so that the people can realize: As the citizens of the same country, all the people have equal legal status, people of all ethnic groups and regions should help each other and conquer the difficulties together, and the “behaviors benefiting oneself and the neighbors” but not the NIMBY behaviors should be implemented.

 

 

The Fourth Plenary Session of the 18th Central Committee of the Communist Party of China pointed out: “Law is a powerful weapon for managing state affairs and good laws are the premise of good governance.”²⁴ China’s existing laws are the  laws to abide by to handle NIMBY behaviors in epidemic prevention and control and they need to be improved in some respects. For instance, such issues as “How to coordinate the issues of hierarchical report and warning information disclosure of the epidemic?...How should information go faster than new rumors?” in the Emergency Response Law of the People’s Republic of China and the Law of the People’s Republic of China on Prevention and Control of Infectious Diseases²⁵ still await clear answers. Perfection of the law plays a leading role and only good law can provide a full basis for eliminating NIMBY behavior in epidemic prevention and control. The state organs of all levels and sorts should adhere to the principle of unified rule of law and improve the law on epidemic prevention and control according to the legitimate authority and procedure. As to prevention and governance of NIMBY behaviors in epidemic prevention and control, attention should be paid to the following aspects to improve laws: Establish the epidemic warning mechanism for early detection and eliminating the hidden dangers of NIMBY behaviors; set up a nongovernmental communications mechanism for epidemic prevention and control to facilitate communication between NIMBY behavior doers and receivers for mutual respect, understanding and tolerance and keep the NIMBY behavior doers rational about such behaviors; build the neighborhood watch system to give immediate help to those in trouble in epidemic prevention and control; set up the compensation system for the behaviors benefiting the neighbors so that people won’t engage in NIMBY behavior for fear of losses to themselves; establish a legal obligation system for discrimination so that everyone can enjoy equal treatment and provide a legal basis for punishing the NIMBY behaviors including health discrimination and regional discrimination according to Article 16 of Law of the People’s Republic of China on Prevention and Control of Infectious Diseases: “No organization and no one is allowed to discriminate against patients, carriers and suspected cases of infectious diseases.”

 

Only when good laws are implemented in epidemic prevention and control can they eliminate NIMBY behaviors. Enhancing law enforcement is the key thereto. On the one hand, strict law enforcement should be adhered to. The Ministry of Justice explicitly pointed out in Suggestions for Powerful Legal Guarantee for Strict, Standard, Fair and Civilized Law Enforcement in Epidemic Prevention and Control issued on February 24, 2020: “Stick to strict law enforcement... ensure that laws are strictly observed and lawbreakers are brought to justice.”²⁶ The NIMBY behaviors in epidemic prevention and control were illegal and should be curbed and called to account strictly according to law. On the other hand, flexible law enforcement must be done. After all, the NIMBY behaviors in epidemic prevention and control were different from other sorts of action violating the law. In a sense, they were behaviors for self-protection based on a perception of risk. The law-enforcing organizations and law-enforcers should adopt humane, flexible law enforcement, fully understand the people’s mentalities of anxiety, worry, impatience and fear, and show them more humane care. Some NIMBY behaviors featuring severe subjective culpability of the mind and gross violation, like refusing to restore the roads destroyed by them and bringing severe harm to epidemic prevention and control should be cracked down according to law; those of less subjective culpability of the mind and gross violations, like encircling vehicles with license plate numbers beginning with “e A,” should be receive a verbal warning and education.

 

 

The law is a great invention of mankind, which enables people’s behavior to be effectively regulated and the society to be orderly. Now, the rule of law is universally advocated for its functions of “stopping disputes,” “prohibiting wickedness,” “pacifying the good and doing away with the cruel,” “safeguarding equality,” “safeguarding human rights” and “promoting justice.” Governance of good law has become the basis of China’s national governance modernization in the new era. To eliminate the NIMBY behaviors in epidemic prevention and control work to realize governance of good law therein macroscopically depends on law improvement and enforcement under the leadership of the Communist Party of China and microscopically requires legal incentives and legal sanctions be used together. Legal incentives refer to the legal measures to give material or spiritual benefits to law-abiding people as affirmation and encouragement for law-abiding behavior. The NIMBY behaviors in epidemic prevention and control in this way can be eliminated in the following two ways: First, the state can grant material compensations, rewards or awards for altruistic behavior such as people provide help for the vehicles and people otherwise being discriminated against; the government can grant financial subsidies or favorable conditions to the companies recruiting the migrant workers from severely-afflicted epidemic areas; second, the authorities concerned can give a lesser punishment, reduce punishment or spare punishment to those who violate the law in epidemic prevention and control and commit NIMBY behaviors but repent and mend their ways according to the specific circumstances.

 

Legal sanctions should be used to negate and sanction illegal behaviors by the legal means of damaging or depriving the material or spiritual interests of lawbreakers. Those who engage in NIMBY behaviors in epidemic prevention and control should be held accountable and sanctioned for their dissolution according to law. The health administrative departments of the people’s governments above the county level should instruct the epidemic prevention and control organizations, violating the stipulation on “purposeful disclosing related information and data involving the privacy of the patients, carriers, suspected patients and close contacts of infectious diseases” in Article 68 of the Law of the People’s Republic of China on Prevention and Control of Infectious Diseases to correct their wrong behaviors, circulate a notice of criticism and give warnings to them. The infringed can demand the infringer take liability for the tort in accordance with the Tort Liability Law? The related departments can instruct any party, making NIMBY behaviors, violating the stipulation in Article 16 of Law of the People’s Republic of China on Prevention and Control of Infectious Diseases: “No organization and no one is allowed to discriminate the patients, carriers and suspected cases of infectious diseases,” abusing or bringing shame on the people in high-risk affected areas or rejecting and discriminating the healthy migrant workers from high- risk affected areas, to make corrections or instruct the infringer to take liability for the tort in accordance with the Tort Liability Law? Whoever arbitrarily digs up a road, blocks traffic and generates personal and property damages for others or other serious consequences should be held accountable by the law.

 

(Translated by JIANG Lin) 

 

* HE Shiqing ( 何士青 ), Professor of the Institute for Human Rights Law of Huazhong University of Science  and Technology. The paper is part of the “Research on the Fundamentals of Law for Forging the Awareness  of a Community of a Shared Future for the Chinese Nation” Project of the Research on the Fundamentals of  Law for Forging the Awareness of a Community of a Shared Future for the Chinese Nation Special Project for  2020 (Project No.: 2020WKZX003) and an initial achievement of the “Research on the Socialist Core Values  and the Improvement of the Educational Legal System” of the Major Project of “The National Social Science  Fund of China” (Project No.: 19VHJ010). 

 

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