The Head of State and the security of the Government - finding a balance in the run-up to the COVID-19 pandemic (at the time of the decision) of the Government of the People's Republic of China)
The article examines the features of legal regulation of the observance of citizens' rights in the context of the introduction of restrictive measures during the COVID-19 pandemic (epidemic), highlights the main forms of control (monitoring and tracking) of contacts of infected citizens, shows the main problems and positive results in the activities of state (municipal) authorities of the People's Republic of China in an emergency situation when introducing restrictions on the rights of citizens with symptoms of COVID-19.
Keywords: state security, state authorities, municipal authorities, public safety, human rights, the right to health, pandemic, infectious diseases, epidemic, COVID-19, China, restrictions on rights and freedoms, surveillance, control, surveillance, "surveillance society", panopticon.
The right to health is a universally recognized human right. The Charter of the World Health Organization proclaims that "the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being, regardless of race, religion, political beliefs, economic or social status" <1>. Protecting the health of citizens is a legal obligation enshrined in the International Covenant on Economic, Social and Cultural Rights and other international treaties <2>.
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<1> The Charter of the World Health Organization.
<2> Promotion of the right to health: the vital role of the law. World Health Organization, 2017.
Therefore, state (municipal) authorities are responsible for the realization of the right to public health and, in the event of a pandemic, are obliged to prevent, treat and control infectious diseases, as well as take measures such as screening, contact tracing of sick citizens, their isolation and quarantine.
In connection with the emerging threats in the field of health, States may declare emergency situations in order to consolidate a number of additional measures entailing restrictions on the rights of citizens. Thus, during the outbreak of coronavirus, the powers of public authorities in the field of surveillance, control and tracking of contacts of infected citizens were significantly expanded.
Nevertheless, it is necessary to find the necessary balance between the security of the state and the freedom of individual citizens, since the fight against infectious diseases can violate freedom of movement, the right to property and other personal rights. The closure of schools can violate the right to education, the termination of the activities of large and small enterprises can lead to high unemployment, infringement of the economic and social rights of the population. Therefore, emergency powers should not be used in an arbitrary manner. The State should try to minimize the imbalance between State and public security and the personal rights of citizens.
The World Health Organization (WHO) has defined a set of ethical principles, including reasonableness and effectiveness of measures, proportionality, equitable distribution, trust and transparency <3>. In particular, the principle of proportionality requires the State to strive to ensure "a reasonable correspondence between the coercive measures imposed on individuals and the public health benefits they wish to receive." Therefore, the measures taken should be accessible, reasonable and least burdensome to reduce the risks under consideration in this area <4>.
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<3> Ibid. pp. 153 - 154.
<4> Ibid.
Restrictions on human rights are considered legitimate and necessary in emergency situations, but the extent of these restrictions depends on the characteristics of a particular State.
Therefore, measures to slow the spread of infectious diseases, as a rule, range from complete isolation and closure of educational institutions to restrictions on movement and bans on mass events. State (municipal) authorities and private companies use surveillance technologies to track contacts of sick citizens, which contributes to a return to normal life, preventing the spread of the pandemic, and helps in analyzing the effectiveness of the restrictive measures introduced and identifying potential violations.
Serious outbreaks of infectious diseases can have devastating consequences for the entire State, as well as for the legitimacy of government and social cohesion. Against the background of fear and uncertainty caused by the novelty of the virus, it is difficult for the state to accurately assess the level of external and internal threats <5>. Therefore, infectious diseases are often considered as threats to the security of the state, capable of destabilizing the internal situation in the country and weakening its position in the international arena <6>.
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<5> In the same place.
<6> Andrew Price-Smith. Infection and chaos: diseases, ecology and national security in the era of globalization. Cambridge, Massachusetts: MIT Press, 2009.
The scale of the alleged threats determines how serious the State's response measures will be, applied in order to protect public health and ensure the security of the State as a whole. For example, in China, at the initial stage of the spread of the infectious disease COVID-19, the intrusive and ineffective use of surveillance, control and tracking systems for contacts of infected persons revealed the dysfunction of government management structures.
In the early stages of the pandemic, China's automatic communications surveillance mechanism became one of the biggest obstacles to resolving the health crisis. Through monitoring and controlling Chinese social media, the government initially restricted the activities of "political dissidents and activists" and censored any fake topics on the Internet. For example, on December 30, 2019, Li Wenliang, an ophthalmologist from Wuhan, sent a personal message to his fellow doctors. In a group on the WeChat app, he warned that the virus was similar to severe acute respiratory syndrome (SARS), which led to the coronavirus outbreak in 2003. <7> Four days later, he was called to the Public Security Bureau, where he signed a statement calling his message "an illegal and unfounded rumor" <8>. Dr. Lee was one of eight doctors reprimanded by the authorities for "serious violation of public order".
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<7> Li Wenliang: Death of Wuhan doctor from coronavirus causes anger // BBC. 2020. February.
<8> Buckley Chris. A Chinese doctor who was silenced after warning of an outbreak dies of coronavirus // The New York Times. 2020. February 6.
<9> Li Wenliang // BBC.
Later, when Chinese scientists quickly identified the virus, on January 12, 2020, they shared the genome sequences with the World Health Organization <10>. And on January 20, on state television, Dr. Zhong Nanshan said that the coronavirus spreads through contact with people and its symptoms are similar to acute respiratory illness <11>.
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<10> China publishes a schedule for the exchange of information on COVID-19 and international cooperation // Xinhua. 2020. April 6th.
<11> Chris Buckley and Stephen Lee Myers. As the new coronavirus spread, China's old habits postponed the fight // The New York Times. 2020. February 1.
The scale of quarantine and restrictive measures in China has become unprecedented. On January 23, 2020, China imposed quarantine in Wuhan, the epicenter of the outbreak, by order, which provided for the suspension of public transport, all foreign trains and flights <12> to "effectively prevent the spread of the virus" and "ensure the safety and health of the population" <13>. A ban on the movement of buses, subways and ferries within the city was also introduced, which was later extended to all private vehicles <14>, thereby restricting the freedom of movement of citizens in the strictest form. The order was made public a few hours before it came into force, while it did not specify specific contingency measures and mechanisms for the protection of human rights.
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<12> Qin Amy and Wang Vivian. Wuhan, the center of the coronavirus outbreak, is closed by the Chinese authorities // New York Times. 2020. January 22.
<13> In the same place.
<14> Coronavirus: China imposes stricter restrictions in Hubei Province // BBC. 2020. February 16.
In distant lands, the Chinese authorities have developed and introduced a "health code", or QR code, which has become available to all users. infected faces and contacts. First introduced in Hangzhou and then deployed nationwide, the QR code was created in Alipay by a mobile application that is linked to the user's national identity card, e-health, social security cards and financial systems <15>. Citizens were assigned a color code that serves as an indicator of their health status. The green code allows unlimited movement in public places, the owners of the yellow code may be required to leave for a week of isolation, and the red code means a two-week quarantine <16>. The QR code was scanned when entering or leaving a public place <17>.
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<15> Xinhua Headlines: Seven things China has done it is right to fight the coronavirus // Xinhua. 2020. March 13.
<16> Mozur Paul, Jun Raymond and Aaron Rabbit. As part of the fight against coronavirus, China gives citizens a color code with red flags // New York Times. 2020. March 1.
<17> Jun Raymond and Mozur Paul. To tame the coronavirus, Mao-style social control engulfs China // New York Times. 2020. February 15.
The scale of cooperation and information exchange between public and private organizations in China is impressive. Technology companies used information about coronavirus infections and other government information to send warnings to users who were in close contact with infected people, for example on an airplane, train or bus <18>. The state media (hereinafter referred to as the media) explained to the population that instead of filling out health reporting forms, the use of "health codes" facilitates registration and operation of checkpoints and "allows for contactless checks to reduce the risk of virus transmission" <19>. However, the subtleties of the system's operation and the criteria by which it puts citizens at risk remained unclear <20>.
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<18> In the same place.
<19> Xinhua Headlines: Seven Things China Has Done Right to Battle Coronavirus // Xinhua. 2020. 13 March.
<20> Mozur, Zhong and Krolik. In Coronavirus Fight, China Gives Citizens a Color Code.
According to some experts, the "health code" will outlive its original purpose and become "a template for a new form of automatic social control" <21>. During a pandemic, the powers of the State are expanded in order to achieve the public good, but in the absence of appropriate control, harsh measures can blur the line between public and private space. And together with the growing reach of tracking systems, a unified system can gradually and imperceptibly change the behavioral standards of the population and create new safety standards.
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<21> Ibid.
In addition to high-tech tools, most of the surveillance tactics in China have been implemented precisely at the district (municipal) level through mass mobilization. During the crisis, local (municipal) authorities were given expanded powers: for example, public workers monitored the presence of COVID-19 symptoms in residents, conducted screening, quarantine supervision and guarded checkpoints from outsiders <22>. The public health crisis has contributed to the strengthening of the "sectoral governance" system, dividing the country into separately monitored and controlled tiny sections.
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<22> Qin Amy and Wee Sui-Lee. In China's War on the Coronavirus, a Community Is Besieged // The New York Times. 2020. 28 February.
The Government of the People's Republic of China had a serious impact on the performance of official duties and quarantine requirements by officials, which led to a change in the policy of mitigating the effects of the pandemic from overly conservative to radical <23>. Local authorities sometimes went to extreme lengths to reduce the number of infected people. In an emergency situation, such decentralization led to the fact that some citizens could not return to their apartment buildings if they left the city. Railway stations blocked people from entering cities if they could not confirm their residence there. Such arbitrary and inflexible measures have exacerbated the collateral damage and human rights violations.
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<23> Zhong and Mozur. Mao-Style Social Control Blankets China.
The goal of the Chinese government was to completely stop the spread of the virus and eliminate all new cases of infection. At the same time, the virus was positioned as an enemy, which means that a state of emergency is equivalent to war, and the number of confirmed cases became the only measure of success.
However, the use of military strategies and concepts in a health emergency can be dangerous and have far-reaching consequences, as they emphasize the need to expand State powers, while blurring their limits and limiting the work of human rights protection mechanisms.
To preserve legitimacy, the Chinese Government has emphasized victory and progress. Chinese state media often used military slogans to highlight the seriousness of the situation and justify emergency measures. On January 26, Xinhua news agency wrote that China had "strengthened national defense," prioritized "people's lives," and would "win the battle against the virus at any cost." President Xi Jinping stressed that the residents of Hubei and Wuhan are "heroic people who have never been crushed by any difficulties and dangers in history."24 While conducting an inspection in Wuhan, President Xi "vowed to fight for victory in the war" against COVID-19 and to consider the prevention and control of the pandemic as a "task of paramount importance" <25>.
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<24> Focus Xi. Xi Vows to Win People's War Against Novel Coronavirus // Xinhua. 2020. 11 February.
<25> Update. Xi in Wuhan Vows Victory over Coronavirus // Xinhua. 2020. 10 March.
The Chinese Government has repeatedly stressed the effectiveness of the measures taken to prevent and mitigate the consequences. Xinhua listed China's main "right actions" to combat the virus - the isolation of Wuhan and the "selfless sacrifices" of the Chinese people to maintain stability and public health <26>. In particular, science and technology were called "the most powerful weapon" in the fight against diseases that "make life easier and safer" <27>. Further, Wuhan reported a zero increase in both confirmed and suspected cases, which was achieved thanks to "strict measures, mass mobilization and dedication of millions of Wuhan residents" <28>.
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<26> Xinhua Headlines: Seven things China has done right to battle coronavirus // Xinhua. 2020. 13 March.
<27> In the same place.
<28> Yuan Yao and Lu Cheng. Xinhua Headlines: No New Coronavirus Cases in Wuhan Sends Encouragement to World // Xinhua. 2020. 19 March.
In its response to emergencies, China sought to demonstrate the superiority of the Chinese model. President Xi announced plans to publish a book in six languages about mobilization in emergency situations, progress in the prevention of pandemics (epidemics) and the advantages of the Chinese-style socialist system <30>. China's representative to the UN, Zhang Jun, called the prevention and control measures in China "the most comprehensive, rigorous and thorough", demonstrating "the strength of a unified Chinese nation and the power of the Chinese system" <31>.
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<29> Hernandez Javier C. China Spins Coronavirus Crisis, Hailing Itself as a Global Leader // The New York Times. 2020. February 28.
<30>
<31> Envoy underscores China's progress in COVID-19 fight, efforts to meet development targets // Xinhua. 2020. 4 March.
While COVID-19 was actively spreading around the world, China began to position itself as a world leader in the fight against the pandemic. International experts have stated that the Chinese government's "strict top-down response" has more successfully stopped the outbreak compared to many other countries <32>. Therefore, Chinese officials have called on other countries to take strict measures, arguing that China has provided valuable lessons and experience in the fight against the pandemic. However, most Western countries have adopted a different "curve smoothing" strategy aimed at achieving the same number of infected over long periods of time.
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<32> Wang Vivian. China's Coronavirus Battle is Waning. Its Propaganda Fight Is Not // The New York Times. 2020. 8 April.
<33> Some Countries Slow to Respond to Virus // Global Times. 2020. 23 February.
Thus, the system of surveillance, control and tracking of contacts of infected persons during the pandemic by the Chinese Government has affected all aspects of private life. From a bus ride and lunch at a restaurant to the entrance to a residential complex or office building, a person leaves information about their movements everywhere. The QR code provides comprehensive documentary evidence of daily activities, categorizes citizens and defines norms of acceptable behavior <34>.
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<34> Lyon David. The electronic eye: The rise of surveillance society. University of Minesota Press, 1994. P. 7.
The health crisis has strengthened cooperation between public authorities, private organizations and citizens, which has contributed to the creation of a unified system for the prevention and control of the pandemic (epidemic).
The COVID-19 pandemic has unexpectedly changed the entire modern society. In just three months, the coronavirus outbreak in Wuhan, China, has turned into a pandemic, causing more than 2.5 million cases worldwide. Such a massive infectious disease has shown that the global health crisis can jeopardize the economic growth, stability and security of any state.
Health emergencies allow the State to more actively apply measures to restrict the rights of citizens. At the same time, finding a balance between the health of the nation, the economy, the security of the state, and the rights and freedoms of citizens has become an extremely difficult task. Since the information collected within the framework of ensuring the security of the state can be used for other purposes or become the subject of abuse.
One of the possible measures related to restrictions on human and civil rights is the tracking and monitoring of contacts of infected persons, which contributes to the development of control and surveillance systems. But in the absence of state (judicial, prosecutorial) and independent public supervision, the future of the "surveillance society" may look like a panopticon, where every citizen is watched by an invisible central authority. In this regard, it is necessary to improve the legal regulation of state (municipal) and public control in the field of restriction and protection of citizens' rights and freedoms.
