Human Rights Protection in Crisis Management Improvement
Measures and Experience in Dealing with Public Health Crisis in China
Huang Yong
School of Law, University of International Business & Economics
It has been predicted that after the mankind has, following the ecological
environment crisis, the heavy load of regional wars and overpopulation, stridden into
the new century, it will face a world war of global ecological environment.
Unfortunately, this pessimistic prophecy comes true when the mankind has just
approached into the 21st century. In recent years, more than 30 kinds of newly
discovered infectious diseases have been identified successively worldwide, and some
died out infectious diseases revived again, the global public health crisis has been
increasing (see appendices 1), which constituted a great threat to the life security of
human beings and to the economic development. China defines the public health
crisis as: ‘the events that happen suddenly, have caused or may cause the serious
infectious diseases, unidentified diseases in a certain group, major food and
vocational poisonings that seriously injure public health and other events that may
seriously affect the public health. ’ Obviously, the public health crisis is a natural
enemy of human rights because it seriously threatens the health and life security of the
public, and exerts a negative influence on social economic development; However,
coping with the crisis may possibly restrict human rights. Then, how to protect human
rights in the process of dealing with the crisis? How to approach a balance between
settlement of the crisis and human rights protection ? The followings are my
understandings of the above-mentioned problems.
1. Introduction of the Crisis Management
The public health crisis is one kind of crisis, and counter-measures are some kind
of systematical engineering that incorporates administrative measures, medical
treatment measures, legal measures, etc., which fully possess the forms and
characteristics of the crisis management. In relation to the several public health crisis
over the recent years in China (see appendices 2), especially SARS in last year, the
Chinese Government has presented its outstanding crisis control ability, and perfected
the relevant institutionalized measures too. The more important is that the measures
for guaranteeing the fundamental rights of its citizen that the Chinese Government has
taken fully reveals the standpoint for human rights protection. In the SARS crisis, the
Chinese Government paid close attention to the long-term strategic interests with an
aim to ensure the life security of the public, took prompt and adequate measures to cut
off all sorts of ways that the epidemic situation spreads, and has decreased possible
losses in property and economic development that SARS might produce. The
conclusion being drawn from this practice is that from the perspective of human rights
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protection, measures taken to counteract the public health crisis should give priority
attention to the right to life and the right to health, meanwhile to promote the social
welfare on the basis of protecting economy and right to development.
2. Measures for Dealing with the Public Health Crisis in China
The suddenness, risk and complexity of the public health crisis determine the
complexity and comprehensiveness of counter-measures. Frankly speaking, before
SARS crisis comes, the preparation of Chinese Government is not so abundant,
therefore in the initial stage of the crisis, certain losses are caused to the society. But
the government has realized the problem in time, has remedies, and made great efforts
for controlling the situation, which include the followings:
(1) Including the crisis management into the legal system. Facing the outburst of
epidemic situation, the Chinese Government enacted ‘Regulations for Dealing with
the Public Health Crisis’ and ‘Prevention and Management Methods for Infectious
SARS ’ based on the ‘Infectious Diseases Prevention and Treatment Laws’, which
includes measures for dealing with the public health crisis into the legal system track,
offering basis for protecting the fundamental rights and reflecting respect for rule of
law. The ‘Regulations for Dealing with the Public Health Crisis’ includes preventive
and preparations, reporting and information publicity, emergency treatment and legal
responsibility, etc., mainly regulating management methods and obligations and
responsibilities of the parties concerned during the public health crisis.
(2) General mobilization of the whole society. Crisis such as SARS is sudden,
threatening and emergent, it will bring about disorders or even disasters to the society
if it is not dealt with promptly. The Chinese Government has taken the measures for
mobilizing the whole society to control the situation, which are different from the
‘mass movement’ under the planned economic system as they are within the set legal
frame regulations and are carried out according to certain legal norms. It has
strengthened social cohesiveness, and lessened government's burden to a certain
extent as well and it is an effective way to fully mobilize social forces to participate in
dissolving crisis.
(3) Setting up comprehensive information sharing mechanism. This mechanism
should be set up on transparency of government's decision making system, and shall
publicize resolution and decision making intention of the government when the public
falls into fear, doubt and panick so as to make the public and government fight against
hand in hand. The transparent decision-making mechanism is designed to give two
kinds of information to the public : (a) the situation of the crisis, for example, in
SARS crisis, the government gave official report on the crisis in order to avoid
irresponsible grapevine news ; (b) the information about the actions the government
has adopted in the crisis and why those measures are taken. This kind of open and
transparent mechanism has realized a real coordination between government's actions
and the public's awareness.
(4) Paying attention to the guiding the public thinking. The public is uncertain
about the future in case of crisis, and their worries about the life and property loss will
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constitute enormous psychological pressure. The Chinese Government actively guides
the public , helps the public to dispel psychological fear and pressure. For example,
the hot-line service in the radio station is offered for the people to give vent to the fear
sense in the heart on the telephone; those persons worthy to be respected mostly are
propagated to let the strength of the human nature overcome coward. The similar
measures have greatly encouraged confidence and courage of the public to overcome
the crisis.
(5) Coordination and centralization of the public resources. When SARS crisis
threatens the security of life and safety of properties of the public and the social
development, the government concentrated power and social resource, fully utilized
various kinds of forces, adopted unified paces and order, and got the whole society to
see through the temporary difficulty with the authority and high efficiency by
ignoring the system design of decentralization under normal conditions. In the process
of crisis management, two methods were taken in order to guarantee the fast
concentration and utilization of the power and resource: (a) way of persuading. For
example, the government advises the public not to go out so often on festivals or
holidays, to try one's best to reduce the probability of personnel contact; (b) way of
forcing. For example, before the flood comes, the residents are forced to leave the
flood areas in order to assure their safety. During the SARS crisis, key area is chosen
to be isolated by force, key locations are implemented with mandatory quarantine.
This concentration provides possibility for ensuring the public health and life security
in the face of a public health crisis, though some restrictions or even deprivation of
some individual rights.
3. Experiences for Human Rights Protection in Crisis Management Improvement
in China
The Chinese Government has made some effective methods and systems in
dealing with the public health crisis, and accumulated comparatively abundant
experience for the human rights protection in the crisis management.
(1) Power expansion of the government and the protection of individual's
fundamental rights in times of crisis. In case of the crisis, the government’s first
choice for the crisis management is to control the crisis and put an end to the state of
emergency as soon as possible. Overcoming the crisis and resuming the normal civil
order is in accordance with the people's fundamental interests and common interests
of the society. The rights and interests of individuals were put after the public order
and public interests temporarily, and the government's power was expanded. In
relation to the right of citizens, the power for crisis administration designated to the
government has greater legal authoritativeness, which can easily limit the citizen's
right and freedom than normal times. Due to the possible abuse of the measures for
limitation of the rights and freedom of the citizens by the government, the
constitutions and laws of some countries and some international conventions
established the minimum standard for the rights of citizen under the state of
emergency to various degrees---some fundamental rights, such as the right to life, the
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right to use language, the religious belief, etc. can't be limited or deprived of; some
basic rights such as the right to property can not be limited immoderately or even be
deprived of.
With regard to how to assure the fundamental rights of the citizens in the time of
crisis, it has not been clearly reflected in the Chinese laws. At present, the Chinese
Government is making efforts to make laws with an aim to include the human rights
protection in crisis management into the legal system track. The relevant provisions
regarding with the state of emergency have already been included in the amendment
of the Chinese Constitution of 2004, and the ‘State of Emergency Law’ is under
preparation too. Adoption of these laws will offer the basis for the guarantee of the
fundamental rights of Chinese citizens in the time of crisis.
(2) Establishment of Open, Transparent and Accountability Politics is Essential.
The constitution basis for open information is the right to information freedom,
which itself is a basic human right. It has been accepted in a series of international
legal documents, but the constitution foundation for the right of the public to have
access to information provided by government is usually the right to free expression.
The right to free expression includes the right to look for, receive and spread
information and ideas. The 59(1) resolution adopted at the first United Nations
Assembly in 1946 recognized the right to information freedom as a basic right. It
declares: ‘the right to information freedom is a basic human right and it is a
foundation stone for all freedoms that the United Nations pursues too. ’
SARS crisis has greatly promoted the development of the information openness
of the Chinese Government. From the fact of concealing the situation at the very
beginning, to delayed reporting later on and to daily prompt reporting on the epidemic
situation, it showed that the Chinese authorities was making great efforts to change
the traditional practice. Being interviewed, Hanker Beckbame, Chief delegate of
World Health Organization Mission in China said: ‘it is very encouraging that
information is disclosed, and it is also necessary for fighting against SARS. ’
‘Semi-Annual Report on Chinese Economy’ newly published by World Bank states
that honest and transparent information is essential for building up trust of the public
into the government, and for bringing losses to the minimum level. So only based on
the open information and transparent administration can the mutual trust relation
between the government and the public be established. A latest survey indicates the
satisfaction degree of the public about the reporting of SARS information and
prevention and treatment measures for SARS taken by the government exceeds 90%.
In addition, official statistics show that 120 officials from the central level and
provincial and city levels in 15 provinces and cities were punished due to their
inadequate work during SARS crisis, and two ministerial level officials were fired
because of their negligence of duties. Such practice is the first time in the history over
50 years since the founding of the People's Republic of China, which shows
accountability politics is being established gradually. The accountability politics has
really improved the government's authority and public trust, and has gained public
confidence.
(3) Basic Function of Rule of Law Administration in Crisis Management
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‘Regulations for Dealing with Public Health Crisis’ adopted by the Chinese
Government on May 9, 2003 not only provides operational legal basis for the
prevention and treatment of SARS in accordance with the laws, but helps for further
setting up and improving an unified, effective, and authoritative mechanism for
dealing with the public health crisis. It provides effective and solid legal guarantee for
assuring the public health and life security and maintaining normal social orders,
which indicates that dealing with the public health crisis has been put on the legal
track in China. The Regulations includes up more than 20 systems, including some
emergent measures that might affect citizen's fundamental rights, however they are
within the scope of designation of the constitution and laws, and reflect the
consistency of the rule of law administration and protection of the citizen's rights and
interests.
The breakout of SARS has affected Chinese Criminal Law, Labor Law, Press
Law, Economic Law, Insurance Law. For example, how to regulate the unusual
fluctuation of market price caused by SARS, what kind of obligations shall News
media undertake in the time of crisis, if there is any conflict with press freedom. If
these issues were not provided in the department laws, it will bring about difficulties
in the application of laws and in making forecast of behaviors by the public. This will
undoubtedly hinder the protection and respect of human rights in time of crisis. The
Chinese Government has made great efforts for interpretation and supplementation of
related department laws: the revised draft of ‘Laws for Prevention and Treatment of
Infectious Disease’ has been presented by the State Council to the Standing
Committee of the National People's Congress for review; in matching with the
‘Regulations for Dealing with Public Health Crisis’, ‘Rules for National Border
Quarantine for Public Health Crisis’ was adopted by the General Meeting of National
Quality Surveillance and Quarantine, which establishes a solid foundation for the
recent bird flu; ‘Rules for Traffic Management for Dealing with Public Health Crisis ’
jointly issued by Ministry of Public Health and Ministry of Communications;
‘Interpretations on Application of some Specific Legal Provisions for Criminal Cases
Involving Prevention and Control of Sudden Infectious Diseases ’ jointly issued by
the Supreme People’s Court and the Supreme People's Procuratorates, which gives
firmer blow to the criminal offence in the time of crisis, effectively guarantees the
safety of life and property of the public, and played an active role in maintaining the
social stability.
The ‘Regulations for Dealing with Public Health Crisis’ and ‘Management
Methods for Prevention and Treatment Infectious Diseases’ have been carried out
effectively all over China. In areas such as Guangdong, Inner Mongol, Shanxi,
Beijing, Anhui, Tianjin where SARS is most serious, regulations and implementation
rules for dealing with public health crisis were enacted according to actual conditions
based on the ‘Regulations for Dealing with Public Health Crisis’ issued by the State
Council, which provides a basis for reaching a common understanding, centralized
management and effective control of SARS (see appendices 3). Shanghai and
Zhejiang have done best works in fighting against SARS, making detailed
implementation rules for all measures provided in the ‘Regulations for Dealing with
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Public Health Crisis’.The implementation of the local regulations assured the
effective implementation of the crisis management in the course of operation from top
to bottom, thus guaranteed legal rights of citizens.
(4) Improve the Public Health System and Assure the Public Health and Life
Security
The Chinese medical service system and preventive system at grassroots level
are adequate. Since the founding of the People's Republic of China, the government
has increased its spending on the medical services and preventive system, especially
that in rural areas, which played a great role in prevention and controlling of the
public health crisis. It was the best illustration that China has eliminated infectious
diseases, such as cholera, smallpox, etc.
At present, the defect of Chinese public health system mainly lies in preventing
and preparing for the public health crisis, which mainly reflected by inadequate
command system, emergency pre-warning, the treatment and treatment ability of
medical institutions and disease preventing and controlling system and inadequate
reporting network. China has started setting up the individual's medical system, public
health system for groups, health financing system, health products related law
enforcement and monitoring system, and life scientific research system, and is
working hard for their interdependence, cooperation and supporting of each other in
order to protect and improve health of the public. The Chinese Government has
implemented ‘Plan for Setting up National Public Health Monitoring Information
System’ and ‘Plan for Establishment of the Medical Treatment System for Dealing
with Public Health Crisis’, set up and improved pre-warning and emergency system
for public health crisis, disease prevention and control system and health law
enforcement supervision system with an aim to further improve the basic health care
conditions for urban and rural population.
At the same time, government and market perform their own functions. The
government plays a leading role in the scientific research and education of public
health, medical institutions reform, ensuring the effective and fair operation of
medical service market and basic medical security system construction in cities and
towns; the function of the market mechanism is introduced and strengthened in the
fields of medical services and medical business insurance. These measures will
greatly help long-term plan and development of the public health system greatly.
(5) Emphasis on the International Cooperation and Exchanges.
During worldwide SARS crisis, there was a very good cooperation between
Chinese Government, South Korea , India, U.S.A. and Germany. China has kept close
ties with WHO in the progress in dealing with SARS and WHO has provided a large
amount of information and help to China for system construction to prevent and treat
SARS patients. Ms. Wu Yi, both as Chinese Vice Premier of the State Council and
Minister of Ministry of Public Health stressed at the 56th World Health Conference
last year a basic experience in fighting against SARS in China: ‘giving full play to the
role of World Health Organization in worldwide health affairs, strengthening
international cooperation, promoting and strengthening bilateral cooperation at the
same time ’. The Chinese Government jointly with its surrounding countries set up
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epidemic situation reporting mechanism, and developed the crisis information
reporting network. This will guarantee that the diffusion of epidemic situation is
prevented effectively, and ensure most citizens' life security conscientiously.
4. Conclusion
The human rights protection in crisis management improvement is on the basis
of protecting citizen's most fundamental right in accordance with the law, at the cost
of limiting or even depriving rights of a few people, aiming at guarantee fundamental
rights of majority people. Rousseau has said: People are born in freedom but usually
live in chains. The base for human rights protection is to seek a kind of dynamic
balance in the long-term development of the society. From the measures and
experience of dealing with public health crisis by the Chinese Government, we can
see that the government has not stayed in the human rights slogan of nihility , but
have made a responsible government's due efforts in assuring public health safety
and relevant human rights protection on the basis of understanding national conditions
in an all-round way, in order to ensure people's greatest interests and safeguard
citizen's legal rights and interests.
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