Abstract: Against the background of a complicated global pandemic situation and normalized pandemic prevention and control in China, leading human rights scholars from China, North America and Eurasia conducted fruitful discussions on the human rights jurisprudence during pandemic through the lens of the proportionality principle at the Sixth Session of the International Seminar Series on “Global Pandemic Prevention and Control and Human Rights Protection”,which was organized by the Center for Human Rights Studies of Renmin University of China, under the guidance of the China Society for Human Rights Studies. Focusing on the pandemic-related human rights conditions and legal challenges in global context, participating scholars examined the role of the proportionality principle during the containment of COVID-19 in six topical dimensions, including the normative utility, practical logic, reasonable limits, necessary measures, balancing of interests, and proportional jurisprudence in the post-pandemic era. In oder to cohere human rights jurisprudence for the development of a global community of health for all, this international seminar fostered five fundamental proportionality consensuses from five interrelated perspectives, involving “human rights — rule of law — balance — contexts — trends”.

 

Keywords: COVID-19 prevention and control · principle of proportionality · human rights protection · a global community of health for all · human rights jurisprudence

 

On June 20, 2020, an international webinar on “The Role of the Proportionality Principle for Human Rights Protection During Pandemic Prevention and Control”, directed by the China Society for Human Rights Studies and hosted by the Center for Human Rights Studies of Renmin University of China, was successfully held. This webinar was the sixth session of the international conference series on “Global Pandemic Prevention and Control and Human Rights Protection” under the guidance of the China Society for Human Rights Studies. The seminar was held online across different countries in two languages — English and Chinese — and with two parallel sessions, one for China and the United States and one for China and Eurasia, so as to provide more flexible and compatible agenda for experts and scholars in the field of human rights from different countries and regions. Nearly 40 human rights experts and scholars from China, Australia, Germany, Italy, Nepal, Singapore, the United Kingdom, the United States, and other countries, shared their anti-epidemic practices and experience, and held in-depth discussions on how to seek a reasonable balance between epidemic containment and human rights protection as well as possible human rights-related challenges in the post-pandemic era, and reached a number of consensuses.

 

Professor Han Dayuan, director of the Human Rights Research Center at Renmin University of China, said at the opening session that mankind is facing unprecedented challenges because of the COVID-19 pandemic. Governments around the world have taken various measures to protect their citizens’ lives, health and safety. In doing so, they should seek a balance between freedom and order, the right to life and other rights from the perspective of human rights protection, and summarize their experiences to jointly promote human rights protection in the post-pandemic era and build a community with a shared future for human beings. In his opening speech, Professor Fu Zitang, vice president of the China Society for Human Rights Studies and president of Southwest University of Political Science and Law, emphasized that the principle of proportionality is an important principle that needs to be adhered to during epidemic containment and human rights protection according to law. He summed up China’s application of the principle of proportionality in the current epidemic containment process in four words — “addition, subtraction, multiplication and division”: first, “add” law-based containment measures to provide a strong guarantee for epidemic prevention and control; second, “subtract” properly from liberties and freedoms by taking unusual actions to address the unusual situation; third, “multiply” and rally strength by uniting the whole nation to combat the epidemic with unstoppable momentum; fourth, uphold the supremacy of life, in that the right to life is the first and foremost human right and the fundamental premise for access to all the other human rights.

 

 

Participating scholars focused first on the proportionality principle as a principle of rule of law, and its human rights function in epidemic prevention and control. Professor Lawrence Gostin, director of the O’Neill Institute for National and Global Health Law at Georgetown University Law Center, highlighted the three major measures and the three human rights issues behind epidemic prevention and control¹: (1) Basic civil liberties. At present, lockdown measures taken by governments in various countries, including the United States, have caused human rights violations to a certain extent. The key point is not to prove with evidence how effective those lockdown measures are in terms of health control, but to apply the principles and procedures of the rule of law (in both domestic and international dimensions) to navigate and ensure the realization of the expected containment effect with minimal restrictive actions. The more urgent the situation is, the more attention should be paid to human rights. (2) Protection of privacy. In modern society, citizens face numerous challenges to their privacy. For example, social media, data sharing, real-time monitoring, location tracking and other technologies significantly encroach upon the private lives of people. Governments must consider both the voluntariness (whether they are used for ulterior purposes) and the necessity (whether they are necessary and urgent) of such technical measures while protecting the lives and health of their citizens. (3) Fair access to medical resources. Treatment measures, including vaccines and medicines, are distributed unevenly on a large scale across different economic and social strata. Vulnerable and marginal groups, including the poor and the elderly, face greater livelihood pressures and health risks.

 

Governments must apply treatment measures in a way that is more heavily weighted toward those groups. Professor Gostin also talked about one of his concerns, that is, the current health regulations of international organizations tend to place human rights in a disadvantaged position compared to public health and trade. There has been too much needless finger-pointing and not enough international cooperation, and the global pandemic prevention and control efforts require more respect for human rights and the rule of law.

 

Professor Glenn Cohen, director of the Petrie-Flom Center for Health Law Policy,Biotechnology and Bioethics at Harvard Law School, discussed the human rights risks during COVID-19 period in the West using examples of “immunity passes” and “contact tracing.”² First, Professor Cohen pointed to the risk of human rights violations posed by the “immunity passes” or “health passes” currently being promoted or proposed by Western countries. While such restart measures are aimed at reviving economies,a number of issues remain unresolved. First, the antibody test results are not entirely accurate, as there are false positive cases. Second, it is uncertain what immunity the antibodies will produce and how long the antibody test results will be valid. Third, there are differentiated motives among testers, such as resistance to lockdown, low awareness of protection against the epidemic among young people, and discrimination disputes caused by testers’ qualifications. Professor Cohen talked about the issue of “epidemiological survey” or “contact tracing” as part of containment measures, especially the human rights issue involved in infection reporting or close contact reporting. He offered two typical tracking modes, as examples. One is the decentralized tracking model represented by the United States and Europe, that is, to allow Google, Apple and other technology companies to collect and process personal information such as the user’s name, ID and geographical location. The problem here is that the ability of these technology companies to protect personal privacy is questionable. The other is the government-led centralized tracking model practiced in China, South Korea and Singapore, which also raises the question of whether government tracking measures will violate people’s privacy. Meanwhile, the corresponding quarantine measures will further undermine people’s freedom of movement. All those concerns come down to one question: whether the current legal and policy regulation measures can strike a proper balance between epidemic control and human rights protection, which partly depends on public confidence in the law. However, in times of a public health emergency, it is quite difficult to achieve a real balance between different demands.

 

Professor Wang Chenguang, director of the Health Law Research Center of Tsinghua University Law School, focused on an analysis of the role of law in the prevention and control of COVID-19.³ Professor Wang put forward three points of legal thinking. First, the law should be the main, not the secondary tool in the current epidemic prevention and control. With effective vaccines and drugs still under development, social distancing has become the most effective containment measure for the time being. The behavior regulation function of the law should play a dominant role.

 

Second, at a critical moment of public health governance, trading off and balancing rights are equally important. In the current global pandemic crisis, protection of public health security — the right to health of the majority of the population — must be prioritized, but we should also balance it with other rights it encroaches upon. For example, in terms of privacy protection, the government is obliged to release or disclose the activity record and resident community of confirmed patients, but not their personal privacy such as ID information and home address. Third, there is no golden rule in prioritizing various relevant rights, which needs to be based on legal principles and specific circumstances. This concerns the nature of human rights and the role of law.

 

In his review, Professor Wang Xixin of Peking University Law School put forward three issues worthy of attention. First, the relevant concepts involving human rights, the rule of law and the principle of proportionality are often used to solve legal problems in normal times, and it is not clear yet as to how to use those concepts in times of emergency such as during an epidemic prevention and control period. Second, a credible analytical framework is lacking on how to balance conflicting rights. Third, in the process of balancing rights, there are two methodology-related risks: one is a lack of flexible methods adapted for different contexts; the other is the problem of proving the correctness of methods purely based on results. For example, there are cases where any measure that can be effective in epidemic control is taken, even though there is the possibility of violating human rights.

 

 

The participating scholars shared their views on the normative logic embodied in the proportionality principle, as a policy-based principle, in the practice of epidemic prevention and control. Professor Adrienne Stone, director of the Centre for Compar-ative Constitutional Studies at the Melbourne Law School, University of Melbourne,Australia, focused on the role of the courts in responding to political protests in the COVID-19 era.⁴ At present, the global pandemic prevention and control poses a great challenge to citizens’ freedom of speech and assembly. Professor Stone found that some 108 countries have restricted their citizens’ freedom of speech and assembly in some way, particularly in the past few months of protests. This, in turn, has spurred thinking about the proportionality between civil liberties and public health. In Australia, for example, there is a very tricky issue of balance between indigenous rights campaigners and local governments that protect public health. Professor Stone has analyzed several human rights trends in the COVID-19 era. As for negative trends, the government has employed containment measures to suppress political opposition, thus triggering a problem of selective law enforcement. At the same time, the epidemiological survey measures adopted by the government, especially monitoring measures, are overshadowed by human rights violations. In terms of positive trends, the court has begun to play an active role in the review of unconstitutional epidemic prevention and control measures; around the world the law has gradually been strengthened to better protect human rights during epidemic prevention and control, especially in the proportional protection of civil liberties; some governments have begun to introduce isolation measures amid political protests. Professor Stone noted that while the proportionality principle is very difficult to apply in an outbreak scenario, this by no means indicates that public health can override or sacrifice basic rights that conflict with it without limits. Although the application of the proportionality principle needs to be based on specific cases, the government has the obligation to realize the balanced protection of public health and civil liberties.

 

Professor Chen Jinghui of Renmin University of China Law School made a philosophical analysis on whether the proportionality principle can justify the restriction of basic rights.⁵ The realization of basic rights is mainly subject to the level of economic and social development and the level of science and technology and medical treatment in a country, but the social constraints on basic rights cannot justify the restriction of such rights. In an “emergency” situation, when an incident involves two or more basic rights that are in an incompatible conflict, the government must choose to protect one of them by restricting the other. For example, in the case of COVID-19, life (health) is suffering severe and urgent damage, which requires governments to protect life (health) by “restricting freedom.” In the event that an emergency constitutes a justification for governments to restrict basic rights, Professor Chen laid out several necessary conditions for any restrictions: First, a basic right is suffering such severe and urgent damage that the damage must be removed by restricting one or more other basic rights. Second, governments should exhaust all means of protecting other rights from violation, since their core obligation is to fully realize basic rights,not to restrict them. Third, emergencies should be neither too broad, nor too long in duration. Fourth, the proportionality principle is applied to prevent governments from imposing excessive restrictions on basic rights in good faith or ill will. The reasoning chain of proportionality principle is premised on the previous three applicable conditions, and the proportionality principle alone cannot constitute a justification for restricting basic rights. A trickier problem is that if the first three conditions are included in the proportionality principle, the moral independence of basic rights will be undermined,and the so-called “four-stage” theory will also, in practice, provide a special avenue for governments to arbitrarily restrict basic rights.

 

 

The participating scholars discussed the limits imposed on government power by the proportionality principle during epidemic prevention and control work according to law. Professor Wang Xigen, dean of the Human Rights Law Institute at Huazhong University of Science and Technology, discussed the issue of rights derogations in the context of COVD-19 prevention and control from the perspective of international human rights law.⁶ For an accurate interpretation of the “necessity” of reasonable limitation of human rights in a state of emergency as defined in the International Covenant on Civil and Political Rights, the United Nations Committee on Spiritual Rights specially developed the “Siracusa Principles on the Limitation and Derogation Provisions.”

 

In this regard, Professor Wang believes that as part of public health legal ethics,this principle requires that when it comes to restricting or interfering with individual rights — even for the sake of public’s interest — the government should keep the restriction on individual rights within minimum limits and the affected individuals should receive necessary compensation. However, there are ambiguities and logical insufficiency with this provision. Concerning the degree of limitation on human rights,the Siracusa Principles only prescribes that “in applying a limitation, a state shall use no more restrictive means than are required for the achievement of the purpose of the

limitation” (Article 11). However, in the analysis of causality between purpose and means, it is illogical to directly compare means and purpose in different sequences. Instead, two steps should be taken: comparison between results and comparison between causes. With regard to the limitation of human rights derogation, it should be emphasized that: first, from the perspective of international human rights law, the subject of the obligation of equal protection of human rights is generally the state, not the civil society or individual citizens; second, during a pandemic emergency, the right to life and health should be protected to a much higher degree and at a much higher proportion than other human rights, which can and should be liable to the highest degree of restriction; third, the protection of non-derogable rights is a statutory duty of everystate, which is true even for states that are not parties to the International Covenant on Civil and Political Rights.

 

Professor Wang Jinyuan from the School of Law of Southeast University highlighted the limitation of rights in response to the pandemic.⁷ In response to the pandemic, the government has to take a series of emergency measures to restrict human rights, which may give rise to three problems: the restrictive norms on human rights are too principle-based and abstract; the provisions on compulsory emergency response and punishment in local documents do not conform to the law retainment principle; emergency measures taken by law enforcement personnel violate the principle of proportionality. The scope of human rights restrictions in epidemic response involves two aspects: (1) Unrestricted human rights. The right to life, human dignity,private life, freedom of thought, conscience and religion, the right to material assistance, the right to medical assistance, the right to information and the right to legal remedies shall not be restricted in general, irrespective of the enumeration, generalization or differentiation method adopted by international human rights law and the constitutions of many countries. (2) Restrictable human rights. For example, the constitutions of many countries provide, by means of permission and enumeration,that personal freedom, inviolability of the home, privacy of correspondence, freedom of speech, freedom of scientific research, literary and artistic creation, freedom of peaceful assembly, the right to strike, etc., may be suspended under a state of emergency. At the same time, the protection of sub-rights in a given human right needs to be interpreted in context. This can be based on two points: (1) Sub-rights not suitable for restrictions, such as the right to survival in the right to life, the freedom to act in personal freedom, the employment right in the right to labor, and the right to learning in the right to education, etc. (2) Sub-rights that should not be restricted, for example,freedom of action at home in an emergency situation, the right to adequate housing required for survival, and freedom of speech about true epidemic situation, etc.

 

Meng Tao, an associate professor at Renmin University of China Law School, focused on the application of the proportionality principle in public health emergencies.⁸ In response to an argument that in a state of special emergency and a state of war, considering the urgency of time, it is absolutely impossible to apply the proportionality principle, Associate Professor Meng conducted an analysis for refutation from three perspectives.

 

First, China and the United States have a different conceptual understanding of what is an “emergency”, that is, an “emergency” in China is similar to a “major disaster” in the United States, but more serious in nature. Second, the understanding of the proportionality principle in Chinese jurisprudence circles is deeply influenced by German law. The proportionality principle in German law is composed of three parts: the suitability principle that stresses conformity to the legal purpose, the necessity principle emphasizing the minimal infringement, and the balancing principle of proportionality between purpose and means. The constitution theory of common law recognizes these three principles and adds a principle of proper purpose. Third, the proportionality principle applies to states of general emergency, special emergency and states of war. This judgment is not only consistent with the historical course, but also reflects the current reality that with the development of cost-benefit analysis, risk assessment and science and technology, the scope for governments and courts to apply the proportionality principle to emergency measures will become increasingly broad during an epidemic period.

 

Dr. Guo Xiaoming, a researcher at the Human Rights Research Center of Renmin University of China, put forward two concerns: the first is how to translate the proportionality principle from an international law concept into domestic law provisions; the second is that policies and laws are playing an equally important role in the current epidemic prevention and control process, and that more important than the proportionality principle as a legal principle is the proportionality theory as a governance technique.

 

 

The participating scholars focused their discussions on the role of the proportionality principle in the protection of citizens’ basic rights in the epidemic prevention and control measures taken by governments of various countries. Dang Heping, a lecturer at the School of Humanities and Social Sciences at the Chinese University of Hong Kong (Shenzhen), analyzed the anti-discrimination measures in China’s epidemic prevention and control mechanism from the perspective of international human rights law.⁹ In China, the first country in the world to identify cases of COVID-19, panic and fear among the public bred discriminatory words and deeds against different groups, especially those originating from the worst-hit region. From the domestic response to the discrimination phenomenon in epidemic prevention and control, we can see a turn in mainstream media’s anti-discrimination reports from delayed coverage in the early stage to the current positive guidance. Meanwhile, the government’s anti-discrimination measures have been constantly improved. In view of the anti-discrimination experience and principles of international human rights law, it is necessary to emphasize the role of legislative measures (legal measures and publicity measures), the role model of government officials or opinion leaders, and the responsibility of social autonomy norms (social organizations, trade associations and educational institutions) in the development of China’s anti-discrimination measures. In view of the situation that Chinese citizens and even ethnic Chinese suffer discrimination abroad, the right of anti-discrimination supervision of all parties, citizens’ right to mental health and public education responsibility of governments of all countries should be emphasized.

 

Professor Stefan Korioth from the Law School at the University of Munich, Germany,explored the basic rights issues in Germany during the outbreak,¹⁰ focusing on a range of legal issues concerning the epidemic prevention and control in Germany,particularly the balance between freedom and security.

 

According to the provisions of the Basic Law of Germany, there is a gap between the state of emergency clause and the epidemic prevention and control requirements. In any case, the epidemic prevention and control measures must comply with the provisions of the Basic Law of Germany. The legislation of epidemic prevention and control in Germany emphasizes efficiency over democracy and violates citizens’ basic rights (especially freedom of action, assembly, religion and employment). Professor Korioth set out the two basic logics of the German constitutional court: first, the state must not interfere with individual liberties unless it is in the public interest, and all measures should be coherent with the principle of proportionality. It is not the duty of the individual to justify his liberty, but the duty of the state to justify its action on the grounds of the public good. Second, it is the responsibility of the state to protect individual rights, in particular freedom to health and personal development. Thus, even for public health reasons, the basic rights of citizens cannot be absolutely prohibited.

 

Professor Wang Jianxue from the Law School at Tianjin University shared the latest developments of France in the current epidemic prevention and control from the perspective of comparative law,¹¹ introducing the background and circumstances of the No. 2020-800 DC decision of May 11, 2020 of the French Constitutional Council and emphasizing the frequent invocation of the proportionality principle by the French Constitutional Council in this case. The French Constitutional Council employed the proportionality principle to conduct a constitutional review of epidemic prevention and control measures, which mainly included three aspects: the restricting of personal freedom by isolation measures; technical measures relating to the collection and sharing of personal data; and the procedural measures in the epidemic prevention and control process. Under the impact of COVID-19, the French Constitutional Council has focused on upholding two constitutional principles: one is the principle of basic human rights, and the other is the principle of separation of powers. Among them, with regard to the review of the principle of basic human rights, the Constitutional Council makes full use of proportional review, requiring that all measures taken to address the health emergency be proportional to the risks. The epidemic prevention and control measures taken by France fully apply the proportionality principle in terms of procedural guarantee, privacy protection and the degree of restriction. The proportionality principle has sufficient, not just a certain space of application in a health emergency.

 

Professor Li Zhongxia, deputy director of Shandong University Human Rights Research Center and deputy dean of the Law School, explored the protection of basic rights in epidemic prevention and control.¹² Epidemic prevention and control is characterized as a risk society and a state of emergency. The current epidemic prevention and control is burdened with three paradoxes: consequence orientation and behavioral risk, flexible policy and the rule of law, scientific judgment and political decision-making. The rule of law weighs more in the epidemic prevention and control. The law should maximize the guarantee of behavioral expectations and science orientation in epidemic prevention and control, and the rule of law should maximize the human rights protection and systematic functions of epidemic prevention and control. During the epidemic period, even in a state of emergency, even under a first-level, second-level or third-level response situation, there is still an issue of minimum protection of basic rights.

 

 

The participating scholars conducted extensive discussions on ex-post assessment,judicial analysis, legislative operation and balanced judgment concerning the proportionality principle during epidemic prevention and control measures. Martin Scheinin, professor of international law and human rights at the Law School of European University Institute, Italy, shared the results of his recent proportionality assessment of human rights interventions.¹³ Professor Scheinin objected to two analytical approaches of the proportionality principle: first, he opposes any non-analytical talk on the proportionality principle, such as an abstract analysis of appropriateness, necessity, balance and other vague concepts, or the collective purposes such as national security or public health being placed above any individual rights unconditionally. Second, he objected to a rule-based analysis of proportionality, which argues that the human rights issue is subject to an insuperable red line determined by the rule of law, and that human rights are either fully protected or not protected at all. According to Professor Scheinin, there are rule-based red lines such as torture, reprimand, post-publication administrative review and the core parts of any human rights, but equal attention needs to be paid to the principle-based range of proportionality that exist within human rights. Professor Scheinin advocates an evidence-based, specific approach to proportionality analysis that quantify the assessment of the purpose, effectiveness and potential costs of human rights interventions (under the epidemic prevention and control). This specifically includes five analytical procedures: (1) Off-limits: whether a particular intervention is prohibited by red lines, such as whether it violates any core human rights; (2) Purpose: what legitimate purpose a particular intervention is intended to achieve; (3) Effectiveness: through the evidence-based quantitative assessment, how effective a particular intervention can be in comparison to the legitimate purpose it is intended to achieve; (4) Impact: what impacts will a particular intervention haveon human rights, such as who will be affected, what aspects will be affected and to what extent. The evidence-based assessment of human rights interventions can be considered as a product of the impacts on human rights in various aspects by a particular level of intervention; (5) Balancing: through proportionality testing, if the effectiveness outweighs the impact, the interventions are proportionate and legally feasible; if not, the interventions, even if they can achieve the legitimate purpose, are rough,arbitrary and harmful to human rights.

 

Professor George Letsas, co-director of the Institute for Human Rights at University College London, advocates a motivation-based, interpretive-oriented approach to proportionality analysis.¹⁴ Professor Letsas believes that there are a number of operational difficulties with the evidence-based quantitative proportionality analysis: first,uncertainty on the level of positive science: there is a lack of necessary criteria for the selection of different models, which often leads to different test results; meanwhile,policy experts usually lack sufficient and definite importable information; second, the ethicality or even political nature of values on the level of policy implementation: the government’s epidemic prevention decisions in times of emergency involve complex value trade-offs between multiple stakeholders, which sometimes even leads to moral dilemmas that cannot be resolved by science; third, conflicts between the same rights of different subjects: for example, there is a conflict between the right to life of COVID-19 patients and the right to life of other patients in hospitals, and there is a conflict between the right to life and the right to freedom of citizens themselves during the epidemic.

 

Based on the above-mentioned difficulties, Professor Letsas proposed that the quantitative proportionality analysis advocated by Professor Scheinin would not be able to provide a reliable solution for a court to balance the rights in the epidemic period, and science-oriented proportionality analysis might be reduced to a numerical comparison based on the maximization of the interests of the majority. Thus, what should be explored is whether the real motivation (not out of populism or consolidation of power) behind the government’s epidemic control measures is lawful and justified. For example, the UK government’s disallowing hospitals to share treatment experience on social media during early outbreaks may have covered up its own mistakes by restricting the freedom of speech of medical staff.

 

Huang Mingtao, associate professor at Wuhan University School of Law, analyzed the acceptance and application of the proportionality principle in China from the perspective of China’s legislative context.¹⁵ In China, the proportionality principle was first disseminated and promoted in academic circles, and then gradually applied in practical departments such as law enforcement and justice. At the legislative level, the proportionality principle has not been unified and standardized in its expression in China. At present, the proportionality principle is mainly applied in China’s legislation in two forms: first, the representation of proportionality in relevant legislation, such as

the provisions on science-based legislation in the Legislation Law. This is of guideline significance to China’s legislation on epidemic prevention and control. Second, human rights protection clauses in relevant legislation, such as the provisions regarding “respect and guarantee human rights” in the Constitution. This is crucial to the establishment and implementation of the human rights dimension in China’s legislation on epidemic prevention and control. The proportionality principle needs to be further conceptualized in China before it can be promoted for application, for example, through the improvement of legislative technical measures (especially in the aspect of delegated legislation).

 

Liu Quan, associate professor of the School of Law of Central University of Finance and Economics, explored the theory and application of the rule of balance in the proportionality principle.¹⁶ There are four main views on the status of the proportionality principle in review measures: (1) The non-review theory: to avoid confusion or difficulty in value judgment, the proportionality principle shall exclude a review of the legitimacy of purpose; (2) The preparatory stage theory: the review of purpose legitimacy can be used as a pre-analysis prior to the rationality analysis; (3) The appropriateness analysis theory: the review of purpose legitimacy is included in the analysis of the appropriateness principle; (4) The balance analysis theory: the review of purpose legitimacy is included in the balance analysis. According to Associate Professor Liu Quan, the review of purpose legitimacy should be taken as the primary sub-principle of the proportionality principle for three reasons: first, to limit the set discretion for the purpose; second, to facilitate the protection of human rights; third, to improve the quality of democracy.

 

The content of a purpose legitimacy review should include formal constitutionality and formal legality, while there should be a substantive review in the application of the balancing principle, as are also drawbacks such as abuse of subjective discretion,insufficient measurement of objective interests and “result-oriented” analysis, which means it is necessary to concretize the balancing principle. This can be done through two models: one is the mathematical calculation model from the perspective of the balancer, and the other is the question-of-fact-based negotiation model from the perspective of the parties concerned. To add legitimacy to decisions related to epidemic prevention and control requires balancing the overall costs, such as the cost of rights damage and fiscal expenditure, against the public interest benefits enhanced. Whether in peacetime, emergency, or wartime, proportionality is only one of the prerequisites for a legitimate restriction of rights. The principle of proportionality is not a panacea for all problems. The epidemic decision-making is often political, with many other factors to be counted in.

 

 

To respond to human rights challenges in the “post-pandemic era”, the participating scholars respectively looked into potential application issues of the proportionality principle in the normalized epidemic prevention and control measures from the perspectives of international law, ASEAN law, local law and policy law. Dr. Pedro Villarreal, senior fellow at the Max Planck Institute for Comparative and International Private Law of Germany, examined the role of the World Health Organization (WHO) in the current epidemic response from the perspective of international health law.¹⁷ He believes that international authorities are playing an increasingly critical role in the current global pandemic response compared to domestic government organizations. The WHO has made three major contributions, including the elaboration of a regulatory framework, the declaration of the 2020 health crisis as an international emergency, and the provision of detailed advice to governments not to ban travel. The most critical feature of the WHO is its human rights stance in response to the global pandemic, that is, its technology-oriented recommendations for epidemic prevention and control provide authoritative guidelines for countries to develop their own proportionality testing measures.

 

Tan Hsien-Li, assistant professor and co-director of the ASEAN Law and Policy Programme at the Centre for International Law at the National University of Singapore, looked at some of the legal challenges facing the members of the Association of Southeast Asian Nations arising from the current COVID-19 outbreak based on regional international law.¹⁸ She pointed out that it is necessary to put the proportionality principle in different national contexts, because the United States, European and Asian countries and their people have different attitudes toward epidemic prevention and control measures.

 

For example, people in the United States tend to resent or resist social distancing measures, while in ASEAN countries (especially Southeast Asian countries), people pay less attention to the right to information (especially privacy) and the right to freedom (such as religious freedom). The need to balance the containment measures against the economic and social rights of citizens (such as the right to education and the right to life), as well as the large gap between rich and poor at international and domestic levels, are all specific contexts in which ASEAN countries (mainly governments and courts) will respond to the epidemic.

 

Dr. Bipin Adhikari, dean of the Kathmandu University Law School of Nepal,shared the current state of the fight against COVID-19 in Nepal and four relevant legal issues.¹⁹ First, due to a lack of comprehensive legislation on the prevention and treatment of infectious diseases, the legal basis for the government to implement preventive measures is weak, which will have undue impacts on people’s production and living. Second, local governments have limited enforcement and public service capacity. Third, there is a shortage of medical and transportation resources. Fourth, the government has insufficient capacity for providing material supplies to support people’s livelihoods. Although there are some laws on disaster prevention and mitigation, Nepal needs more for such an epidemic and cannot rely on laws alone. Ethics or policies can also be aligned with the goals of epidemic prevention and control.

 

Professor Chang Jian, director of the Center for the Study of Human Rights at Nankai University, shared his risk analysis on the application of the proportionality principle in epidemic prevention and control measures.²⁰ The novel coronavirus outbreak is a public health security risk with high uncertainty. In the face of the high uncertainty of the risk, there is a challenge arising from a lack of defined reference indicators when applying the proportionality principle in the derogation to the national obligation for human rights protection. This is because of the variability of the epidemic itself, the progressive knowledge about the epidemic situation, and the difference in epidemic research conclusions, among other factors. Therefore, it is necessary to adopt a time-varying strategy for the application of the proportionality principle according to the variation pattern of the epidemic risk uncertainty, namely, appropriate tightening of restrictions in the initial stage, timely adjustment of restrictions in the middle stage, and targeted imposition of restrictions in the later stage.

 

Lu Haina, associate professor and executive director of the Human Rights Research Center at Renmin University of China, pointed out in the closing ceremony that the webinar fostered a certain degree of consensus in many aspects. When discussing the proportionality of a particular epidemic prevention and control measure, it is important to fully recognize the limitations of our current understanding of the virus. The COVID-19 pandemic is a challenge facing all mankind. We should cooperate with each other at the international level instead of blaming each other, and work together to build a global community of health for all through academic collaborations.

 

 

Through extensive discussions during this webinar, Chinese scholars and human rights experts from North America, Europe, Asia and Oceania exchanged their views on the human rights protection role of the proportionality principle during epidemic prevention and control measures. As fellow academics from different countries discussing human rights issues related to epidemic prevention and control via an internet platform as it unfolds, two aspects were identified as crucial.

 

On one hand, at the practical level, prevention and control measures to contain the virus are a common challenge that must be addressed in current global public health governance. Although epidemic prevention and control is, to a large extent, the top priority of domestic public health governance, international anti-pandemic cooperation is becoming the current governance consensus recognized by the international community. As stated in the white paper Fighting COVID-19: China in Action, “In the face of a novel coronavirus that poses a worldwide threat to human lives and health, the most urgent task is to defeat it through solidarity and cooperation. The common enemy of humanity is this virus, not any particular country or any particular race.”²¹ On the other hand, on the research level, “In every era, people have carried out theoretical justification of human rights based on practice.”²² At present, it is urgent to accelerate the integration of scientific experience in epidemic prevention and control measures and the norms and principles of human rights protection, especially to enhance the academic synergy at the cross-border, trans-regional and trans-disciplinary levels. In this regard, human rights experts and scholars from human rights law, health law and other interdisciplinary fields share the same academic mission and the same theoretical topics. Based on the speeches of participating experts and scholars, we believe that academic consensuses on the value, utility and practical application of the proportionality principle in the prevention and control of COVID-19 have been fostered, featuring a certain degree of universality, inclusiveness and feasibility, involving the five judgments under the five dimensions of human rights, rule of law, balance, context, and trends.

 

Human Rights: The immediate purpose of epidemic prevention and control measures is to prevent, control and eliminate the virus, and their fundamental purpose is to protect the lives and health of citizens, regardless of whether the latter is viewed in the form of human rights or public interests.

 

Rule of Law: In developing pandemic containment measures, attention should be paid to the behavior-regulating function of the law and the human rights protection function of the rule of law. Even in a state of emergency, the application of the proportionality principle cannot be absolutely ruled out. Global pandemic prevention and control require a concerted response from the international community and respect for the authoritative guidance of the World Health Organization.

 

Balance: The core of pandemic containment measures is to strike a reasonable balance between public health and human rights protection. Even for the sake of public health security, citizens’ basic rights should not be absolutely prohibited. Among them, the value of human rights and the principle of the rule of law are the core benchmark to determine the degree of restriction of civil rights.

 

Context: Pandemic containment measures are manifested in varying ways depending on the place, time, situation and individual cases. On the whole, real-time changes in epidemic risk, the ability of a government to cope with the epidemic and the specific human rights culture are important contextual factors.

 

Trends: With the changing pandemic containment situation and the government’s improved response capacity, the scientific assessment of containment measures, the soft legal regulations in administrative decision-making, the role of courts in the unconstitutionality review, and the burden of proof in proportional reasoning will play an important role.

 

(Translated by NIU Huizi)