The principle of proportionality: summary and consensus in the 6th International Conference on Human Rights Protection under Pandemic Prevention and Control, Beijing (China) 2020

• Author: Guo Xiaoming
• Position: (???) Post-Doctoral Researcher in Law and Development, McGill Faculty of Law, Montreal, Canada; Research Fellow, Human Rights Center, Renmin University of China, Beijing 100872, China. Contact: gxmfaxue@163.com
• Pages: 122-141

FRONTIERS OF LAW IN CHINA

VOL. 16 MARCH 2021 NO. 1

DOI 10.3868/s050-010-021-0007-4

FOCUS

PROTECTION OF VULNERABLE GROUPS DURING COVID-19

THE PRINCIPLE OF PROPORTIONALITY: SUMMARY AND CONSENSUS IN THE 6TH

INTERNATIONAL CONFERENCE ON HUMAN RIGHTS PROTECTION UNDER

PANDEMIC PREVENTION AND CONTROL, BEIJING (CHINA) 2020

GUO Xiaoming∗

Abstract Against the backdrop of the COVID-19 pandemic and China’s regularized

pandemic prevention and control, leading legal scholars from China, North America, and

Eurasia participated in The 6th International Conference on Human Rights Protection

under Pandemic Prevention and Control. Participants engaged in fruitful discussions on

the normative necessity and practical relevance of the principle of proportionality in

justifying their current governments’ anti-pandemic measures. Focusing on

pandemic-related human rights conditions and rule of law challenges in global contexts,

this article summarizes the participating scholars’ speeches through the integrated lens of

human rights and the jurisprudence of health law in the COVID-19 containment phase.

Speeches can be divided into six topical dimensions, involving normative utility,

governance logic, reasonable limits, constitutional criteria, viable approaches, and

post-pandemic challenges with respect to the principle of proportionality. To provide a

more policy-relevant and theoretically sound framework for a community of common

health for mankind, this article succinctly concludes with a series of overlapping

consensus on the application of the principle of proportionality in the fight against the

pandemic. This consensus, tentatively named the “Renmin Human Rights Consensus,”

builds on five interrelated elements and generates five human rights assertions and a

series of specific principles of health law.

Keywords anti-pandemic measures, COVID-19 containment phase, community of

common health for mankind, proportionality analysis, human rights jurisprudence, Renmin

Human Rights Consensus

∗ (󲷂󰌨󰋣) Post-Doctoral Researcher in Law and Development, McGill Faculty of Law, Montreal, Canada;

Research Fellow, Human Rights Center, Renmin University of China, Beijing 100872, China. Contact:

gxmfaxue@163.com

This paper was revised and translated based on the original version published in Human Rights (󰐘),

Issue 4, 2020. It was funded by the Key Programme Project of Renmin University of China (2020), No.

20XNLG02. For the sake of pertinence and brevity, most panel commentaries and the Q&A session were

omitted. The author would like to express his gratitude to Professors HAN Dayuan and Nandini Ramanujam

for providing academic guidance and institutional support.

2021] THE PRINCIPLE OF PROPORTIONALITY 123

INTRODUCTION .................................................................................................................... 123

I. THE NORMATIVE UTILITY OF THE PRINCIPLE OF PROPORTIONALITY IN THE

CONTAINMENT OF COVID-19................................................................................ 124

II. THE GOVERNANCE LOGIC OF THE PRINCIPLE OF PROPORTIONALITY IN THE

CONTAINMENT OF COVID-19................................................................................ 126

III. REASONABLE LIMITS TO THE RESTRICTION ON HUMAN RIGHTS IN THE

CONTAINMENT OF COVID-19................................................................................ 128

IV. CONSTITUTIONAL CRITERIA FOR THE PROTECTION OF HUMAN RIGHTS IN THE

CONTAINMENT OF COVID-19................................................................................ 130

V. VIABLE APPROACHES TO THE REALIZATION OF HUMAN RIGHTS IN THE

CONTAINMENT OF COVID-19................................................................................ 133

VI. HUMAN RIGHTS CHALLENGES FOR THE REGULARIZED APPLICATION OF THE

PRINCIPLE OF PROPORTIONALITY IN THE POST-PANDEMIC ERA ........................... 136

CONCLUSION........................................................................................................................ 139

INTRODUCTION

In December 2019, the novel coronavirus cases emerged in Wuhan, China. On

January 30, 2020, the World Health Organization (WHO) officially declared the spread of

the disease a public health emergency of international concern. On February 11, 2020, the

WHO named the novel coronavirus disease “COVID-19” and declared its spread a global

pandemic on March 11, 2020. At this moment, the ongoing pandemic situation in China is

becoming significantly better and the governance capacity for law-based pandemic

prevention and control has considerably improved.1 However, the global pandemic

continues to heighten on an unprecedented scale, which poses pressing human rights

challenges with a keen focus on the role of the rule of law in the government’s

pandemic-related emergency and security measures.2 It is against the backdrop The 6th

International Conference on Human Rights Protection under Pandemic Prevention and

Control was held on June 20, 2020 in Beijing, China. This international webinar, hosted

by the China Society for Human Rights Studies and organized by the Human Rights

Center at Renmin University of China, focused on the proportionality logic underlying

human rights law in the global context of COVID-19 containment.

1 See Xi Stresses Law-Based Infection Prevention, Control, available at www.xinhuanet.com/

english/2020-02/05/c_138758520.htm (last visited Jul. 1, 2020).

2 The United Nations asserted that the best pandemic response is “one that aims to respond

proportionately to immediate threats whilst protecting human rights under the rule of law.” See United

Nations, COVID-19 and Human Rights: We Are All in This Together, available at https://www.un.org/

sites/un2.un.org/files/un_policy_brief_on_human_rights_and_covid_23_april_2020.pdf (last visited Jul. 1,

2020).