Lessons from the Budayeva and Others vs Russia Case
December 28,2020   By:en.humanrights.cn
Dec.28,2020 -- en.humanrights.cn: The rights to life and health have always been considered as basic human rights in both theory and practice. In this battle against COVID-19, our country has prioritized people's rights to life and health and protected basic individual rights so as to ensure that people's basic human rights are respected and safeguarded. Today, we are pleased to have Professor Tang Yingxia from the Center for Human Rights Studies at Nankai University. She will share with us her thoughts on the state's obligation to safeguard the right to life during the pandemic.
en.humanrights.cn: Hello, Ms. Tang!
Tang Yingxia: Hello, Puyu!
en.humanrights.cn: The coronavirus pandemic has made us realize how valuable life is and the tremendous efforts that our country has made to safeguard the right to life. We often speak of the right to life, but what exactly is it? Could you explain it to us?
Tang Yingxia: The right to life is one of the most important and basic of human rights. General Secretary Xi Jinping has said that we ought to put people’s safety and health first. Academician Zhong Nanshan recipient of the "Medal of the Republic" also commented "People's lives are the most important human right. We have saved so many lives which demonstrates how much we value human rights". 
Let’s take a look at the early stage of the international law on human rights. The Universal Declaration of Human Rights adopted in 1948 was the first international document clarifying the definition of the right to life. It states, "Everyone has the right to life liberty and security of person". The right to life is stipulated again in the 1966 International Covenant on Civil and Political Rights. Article 6 says, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life". Similar provisions are found in some other regional human rights covenants such as the European Covenant on Human Rights, the American Convention on Human Rights and, the African Charter on Human Rights and People’s Rights. The UN Human Rights Committee declares in its General Comment on the right to life (Article 6 of the International Covenant on Civil and Political Rights) that the right to life is the supreme right. No derogation of it is permitted even in situations of armed conflicts and other public emergencies that threaten the nation. The right to life is the prerequisite and foundation for the enjoyment of all other human rights. 
en.humanrights.cn: In dealing with COVID-19, our country has drawn on lessons learned from the SARS epidemic and done a good job in preventing and controlling the virus. From a human rights perspective, what obligations do you think that the state has when it comes to safeguarding the right to life? 
Tang Yingxia: The protection of the right to life should not be interpreted in a narrow sense. First of all, we should have a legislative framework under which the state administers protection. The nation has the obligation to protect the right to life from all foreseeable threats including large-scale or society-wide infringements upon the right to life, for example, environmental deterioration extreme poverty, malnutrition and epidemics. In terms of the protection of the right to life, the state should take all possible proactive measures instead of just reactive and defensive ones.
en.humanrights.cn: Are there any adjustments to the state's obligation to protect the right to life during a public health emergency like COVID-19?
Tang Yingxia: I would like to give you an example. In 2008, the European Court of Human Rights tried the Budayeva and Others vs Russia case. The village where Budayeva lived was struck by a sudden mudslide which destroyed her house and killed her husband. The government gave her a house for free together with an emergency relief fund but the government defined the incident as an accident to which she didn't agree. So she appealed to the European Court of Human Rights which held that the protection of the right to life should not be interpreted in a narrow sense. To protect the right to life, the state needs not only to avert acts of violence but also to take proactive actions like legislative and administrative measures. 
This case is inspiring. As for the protection of the right to life in emergencies such as natural disasters or epidemics, we should prevent the damage from the third party. It is traditionally understood that the third party, which jeopardizes the right to life would be a person, a company or enterprise or some other entities. In emergencies, the damage might be caused by natural forces like mudslides and the virus we are facing now. So, should viral threats be included in the scope of the state's obligation to administer positive protection? This is a slightly controversial issue. According to the General Comment No. 36 of the UN Human Rights Committee that we just mentioned, the answer is affirmative. 
So, when faced with a public health emergency like coronavirus, the state's obligation to administer protection should at least include three levels. In terms of legislation, legislative bodies should formulate laws to prevent destruction as much as possible. In terms of administrative agencies, first, administrative bodies should not pose a direct threat to the right to life. In the event of a public health emergency, administrative bodies should effectively use all administrative resources and take active measures to deal with unexpected incidents. The judiciary department should also take effective measures to give judicial relief. 
The Budayeva case is illuminating in many other respects as well. It shows that the state's obligation to protect human rights in the event of public health emergencies is restrictive, not infinite or absolute. It can not be guaranteed that a person will never be affected by the virus at all. The state can only try its best to deal with all the foreseeable matters. 
en.humanrights.cn: During the pandemic, our country has taken highly effective measures to curb the spread of the virus. But some of these measures might have incurred criticism and dispute in certain western countries, for example, mandatory quarantine and lockdowns. What do you make of that?
Tang Yingxia: Two different sets of values are behind these different prevention measures. When it comes to human rights protection, there have always been arguments over how we should prioritize the right to life and the right to liberty. It is correct to say that both the right to life and the right to liberty are basic human rights that should be protected. But when we deal with the challenges posed by a public health emergency and an unexpected deadly virus, which right comes first, the right to life or the right to liberty? This is a matter of value. 
Theoretically, life is the most precious because every one can only has it once and its loss cannot be reversed. Life is paramount. It's the basis of all our actions and liberty. How can you enjoy liberty without life? So, in this sense, the right to life is the foundation of the right to liberty and provides all the preconditions for the latter to be exercised. 
The values that we uphold have been reflected in our anti-pandemic measures such as lockdown and quarantine that you just mentioned. General Secretary Xi Jinping often says that "life is paramount". We put people's safety and health first. China has been able to fight the pandemic successfully because of this guiding principle. The spread of the virus has been effectively contained. The safety and health of the vast majority of the people have been safeguarded. In the US, the situation is quite the opposite. Americans even take issue with something as elementary as wearing a mask, not to mention other measures. The US's failure to enforce anti-pandemic measures has caused large death toll and growing infection rate. We can also compare the two distinct sets of values in terms of the outcomes. 
en.humanrights.cn: Now that we have talked a lot about the right to life, what do you think of our country's performance in protecting people's right to life during the pandemic?
Tang Yingxia: We have largely contained the spread of the pandemic. I would like to talk about it from three aspects of human rights protection. 
The first is the state's obligation to respect human rights. This requires that the state restrains itself from encroaching upon the citizens' right to life. For example, in terms of legislation, the state must not adopt laws that jeopardize the right to life. Instead, it should introduce laws to ensure that the protection of the right to life is included in the legal framework and that such protection is administered without discrimination. Not long ago, our country has adopted the first Civil Code to include provisions on the protection of the right to life. This is a huge step forward. 
The second is its obligation to protect human rights which we mentioned earlier. The state should take measures to protect the right to life from external threats and infringements. When the city of Wuhan was placed under lockdown in the early stage of the pandemic, our government pooled large quantities of medical resources and dispatched teams of experts and medical workers for assistance. Apart from that, we raced against time to build makeshift hospitals for treating confirmed and suspected COVID patients such as Huoshenshan Hospital and Leishenshan Hospital. The makeshift hospitals were set up in various areas, effectively cutting off transmission and bringing COVID 19 under control within a very short period of time. The patients enjoyed free medical care and were treated without discrimination. 
The obligation to realize human rights mainly refers to the state helping individual citizens when they are incapable of realizing the right to life on their own. In order to achieve this, some measures need to be taken. During the later stages of our fight against COVID-19, with pandemic prevention and control becoming part of our daily routine, we started to resume work and production and introduced a number of tax and financing relief policies for small and medium-sized enterprises. 
en.humanrights.cn: The right to life is a basic human right which constitutes the prerequisite and foundation for all other human rights. The protection of the right to life requires not only infringement prevention but also all possible actions to protect it. In the face of a public health emergency like the pandemic, China has actively fulfilled its obligations and tried its best to safeguard people's right to life. Thank you for watching. See you in our next program.


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