During the COVID-19 outbreak, there are cases of Chinese nationals get unfair treatment due to the stigma attached to the virus. We have seen foreign tourist hotels and restaurants with notice refusing hosting Chinese travellers. For the time being, many Chinese nationals resident in the United States and in Europe share concerns over themselves when the global pandemic is still on the rising for on average 100,000 cases per day. They wonder they get similar access to medicine, security or cure just as locals, if bad things happened?
When it comes to China, admittedly, there were also reports of cases of non-Chinese-nationals get differentiated treatment during frontier quarantine, city governance and medical treatment. One of the most high-profile case happened recently that causes diplomatic drama was when Nigerian nationals complaining discriminative actions against them by Chinese health officers. Reconciliation was finally reached after diplomatic consultation between the two countries.
Indeed, the treatment of non-nationals during international pandemic is an issue of universal concern and rightly constitutes a necessary part of building a shared future for mankind proposed by President Xi Jinping. After all, everyone is non-national to a foreign country; everyone could be an island in a foreign country. Every non-national has reasonable concern over fair treatment towards them in a foreign country, especially during pandemic time when medical resources are overwhelmingly limited and when social order is more or less in chaos.
With heated discussions in society of equal treatment to non-nationals and the urgent need of curbing transnational contagion, the National People’s Congress is considering amendment to the existing Frontier Health and Quarantine Law to better fulfil China’s treaty obligation. Our institute is very honoured to be consulted by the NPC on this matter and carried out some primary research. We have submitted a comprehensive report of legislative advices according to the existing international human rights law. This piece is about the advices concerning the human rights and non-discrimination against non-nationals during the frontier health quarantine practices.
As we know, the principle of promoting equality and eliminating discrimination is central to all international human rights instruments. Article 2 of Universal Declaration of Human Rights provides that “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” My understanding of this article Especially for the non-derogable human rights such as right to life, non-nationals shall enjoy the same right to life without distinction on the basis of their nationality.
Additionally, China is a party state to International Covenant of Economic Social and Cultural Rights(ICESCR), International Convention on the Elimination of All Forms of Racial Discrimination(ICERD) and International Health Regulation(IHR) in the same time. These international treaties bind China with state obligation to respect, fulfill and realize the human rights prescribed, not only to citizens and nationals, but also to non-nationals For example, Article 2.2. of ICESCR（China ratified 2001）prescribes that “the States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” To my understanding, this non-discrimination provision against non-nationals is naturally applied when party state is fulfilling the obligation of right to health provided by Article 12.2. According to General Comment No.14 of the The Committee on Economic, Social and Cultural Rights (CESCR), the state obligation to fulfill the right to health contains prevent, treat and curb contagious diseases. My understanding of this interpretation is that the discharge of the state obligation to ensure right to health shall also be in a way that is not discriminative against non-nationals.
Article 2 of International Convention on the Elimination of All Forms of Racial Discrimination (China ratified 1981) obliges “States Parties to condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms, and promoting understanding among all races.” Also, Article 32 of IHR says “In implementing health measures under these Regulations, States Parties shall treat travellers with respect for their dignity, human rights and fundamental freedoms and minimize any discomfort or distress associated with such measures.” Article 42 further says “Health measures taken pursuant to these Regulations shall be initiated and completed without delay, and applied in a transparent and non-discriminatory manner.”
According to the above mentioned international human rights instruments ratified by China, the National People’s Congress finds that it is necessary to amend the existing Frontier Health and Quarantine Law of China in order to better fulfil China’s treaty obligation and in the same time, improve the governmental capacity of curbing transnational pandemic.
Amongst many other general and detailed suggestions provided by the comprehensive legislative report of amendment we have submitted, topic-wise speaking, we have suggested that the Frontier Health and Quarantine Law of China amendment to incorporate the China-ratified international human rights treaties. To be specific, we suggested:
Art. 1 object and purpose part of the law to be amended as following:
This Law is enacted for the prevention, resistance and control of transnational spread of diseases, for the implementation of border health and quarantine measures, for the protection of right to health and right to life to nationals and non-nationals, and for the national public health security.
Art. 15 to be amended as following:
Border health and quarantine authorities shall monitor infectious diseases for persons entering or leaving the country, and shall take necessary prevention and control measures. Prevention and control measures shall treat travellers with respect for their dignity, human rights and fundamental freedoms and minimize any discomfort or distress associated with such measures. Prevention and control measures should be based on scientific evidence, scientific principles and transparency. During the quarantine measures, travellers should not be treated differently on the basis of nationality, colour, sex and other factors not directly related to infectious diseases to avoid discrimination.
Article 16 to be amended as following:
The border health and quarantine organ shall have the right to require persons entering or leaving the country to fill out a health declaration card and produce a certificate of vaccination, health certificate or other relevant document for an infectious disease. Such request should be made on the basis of scientific evidence, scientific principles and transparency, and shall not be made on the basis of nationality, colour, sex and other factors not directly related to the infectious disease.
Article 17 to be amended as following:
Health information collected or received by border health and quarantine department involving individuals with identifiable information shall be kept confidential and treated anonymously in accordance with national law.
These are the parts of the amendments advices that concerns equal treatment to non-nationals. We hope that the NPC will pick up the message and take our suggestions on incorporating international human rights law in the amendment.
About the author:
Dr. Qinxuan Peng is researcher at International Law Institute of Wuhan University, editor of Wuhan University International Law Review, part-time researcher at the Cross Culture Human Rights Center at Free University of Amsterdam and a visiting scholar to the Norwegian Centre for Human Rights(NCHR) of University of Oslo. She obtained her PhD of law at the Netherlands Institute of Human Rights Research (SIM) of Utrecht University under the supervision of Prof. Jenny Goldschmidt and Prof. Tom Zwart, with a book on migrant workers’ rights protection to be published by VU Press. She is in charge of National Social Science Fund Key Research Project, Ministry of Justice Fund Research Project, several China Top Think Tank Research Projects and etc. She has published dozens of academic papers on international law and human rights law both in Chinese and in English, the latter includes those published by IJGR, JSEAHR, and Kluwer Law. She is often interviewed by CGTN, Global Times, China Daily and other international media.
