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Soft Law in the Prevention and Control of the COVID-19 Pandemic in China: Between Legality Concerns and Limited Participatory Possibilities

Published online by Cambridge University Press:  09 February 2021

Xiezhong CHENG
Xiezhong CHENG*
Affiliation:
Professor, School of Law, China University of Political Science and Law; email: chengxiezhong@vip.163.com.
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Abstract

As a previously unknown virus, the spread of the coronavirus challenged not only medical science and public health systems, but also public governance in all countries. In order to tackle the COVID-19 crisis in China, public authorities at various levels have issued a large number of measures that have no legally binding force, but produce practical effects. A closer look at selected COVID-19 measures in China shows that both the advantages and drawbacks of soft law are brought to the fore by the pandemic. This contribution, focusing on Chinese experiences with COVID-19 soft law, argues that the lack of legal bindingness and consequently of legal enforcement does not make soft law measures ineffective. On the contrary, these “defects” ease the adoption of soft law and ensure its availability to both public authorities and citizens, hence increasing its effectiveness in combating the pandemic. Yet problems remain in realising participatory possibilities and ensuring respect for legality.

Type
Articles
Information
European Journal of Risk Regulation , Volume 12 , Special Issue 1: Special Issue on COVID-19 and Soft Law , March 2021 , pp. 7 - 25
Copyright
© The Author(s), 2021. Published by Cambridge University Press

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References

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8 L Yiwei, “The Effect of Soft Law” (Doctoral Dissertation, Peking University 2020).

9 The Law on the Prevention and Treatment of Infectious Diseases, was enacted in 1989 and revised in 2004 by the National People’s Congress. It stipulates mainly the types of infectious diseases, prevention, reporting and publicity, epidemic control, medical treatment, supervision and legal responsibilities, totalling 80 articles.

10 The Emergency Response Law, adopted by the National People’s Congress in 2007, mainly stipulates the types of emergencies, the prevention and preparation of emergencies, monitoring and early warning, emergency response and rescue, recovery and reconstruction after the event, and includes a total of 70 articles.

11 The Regulation on Emergency Response to Public Health Emergencies is an administrative regulation formulated by the State Council in 2003 to effectively prevent, timeously control and eliminate the hazards of public health emergencies, safeguard public health and safety, and maintain normal social order.

12 The Administration Regulations on the Circulation of Vaccines and Vaccination are an administrative regulation formulated by the State Council in 2005 to strengthen the supervision of vaccines.

13 Report of the Law Enforcement Inspection Team of the Standing Committee of the National People’s Congress on inspecting the implementation of the “Law of the People’s Republic of China on the Prevention and Control of Infectious Diseases” (Xinhuanet, 30 August 2020) <www.xinhuanet.com/politics/leaders/2018-08/30/c_1123355848.htm> (accessed 1 October 2020).

14 All the regulations can be found on website of the Ministry of Justice of the People’s Republic of China <http://en.moj.gov.cn/lawsandregulations.html> (accessed 20 November 2020).

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16 The Law on Prevention and Treatment of Infectious Diseases, Art 3.

17 P Zhao, “The Power and Law in Prevention and Control of Epidemic” (2020) 460 Legal Science 94.

18 ibid.

19 See J Klabbers, “Undesirability of Soft Law” (1998) 67 Nordic J Intl L 381; J Klabbers, “Redundancy of Soft Law” (1996) 65 Nordic J Intl L 167.

20 The Regulation on Responses to Public Health Emergencies is promulgated by Order No 376 of the State Council of the People’s Republic of China on 9 May 2003; amended in accordance with the Decision of the State Council on Abolishing and Amending Some Administration Regulations by the Order No 588 of the State Council of the People’s Republic of China on 8 January 2011.

21 The General Office of National Health Commission and Office of State Traditional Chinese Medicine Administration of the People’s Republic of China, “Notice on the Diagnosis and Treatment Protocol for Severe and Critical Novel Coronavirus Pneumonia Cases (Trial Version 2)” (1 April 2020), National Health Commission of the People’s Republic of China <www.nhc.gov.cn/yzygj/s7653p/202004/c083f2b0e7eb4036a59be419374ea89a.shtml> (accessed 1 October 2020).

22 H Song and J Niu, “How Are the Guiding Documents Formulated and Evolved?” (2020) 75 Journal of Public Administration 43.

23 See General Office of National Health Commission and Office of State Traditional Chinese Medicine Administration of the People’s Republic of China, “Notice on Issuing the New Coronavirus Pneumonia Diagnosis and Treatment Plan (Trial Version 8)” (19 August 2020) National Health Commission of the People’s Republic of China <www.nhc.gov.cn/yzygj/s7653p/202008/0a7bdf12bd4b46e5bd28ca7f9a7f5e5a.shtml> (accessed 1 October 2020).

24 The General Office of National Health Commission and Office of State Traditional Chinese Medicine Administration of the People’s Republic of China, supra, note 21.

25 See C Sabel and J Zeitlin, Experimentalist Governance in the European Union: Towards a New Architecture (Oxford University Press 2010).

26 See <bgs.satcm.gov.cn/gongzuodongtai/2020-01-23/12504.html> (accessed 20 November 2020).

27 World Health Organization, “Advice on the Use of Masks in the Context of COVID-19: Interim Guidance, 5 June 2020” (World Health Organization 2020) <apps.who.int/iris/handle/10665/332293> (accessed 1 October 2020).

28 The General Office of National Health Commission and Office of State Traditional Chinese Medicine Administration of the People’s Republic of China, “Notice on the issuance of guidelines for the protection of people at different risks of new coronavirus infection and guidelines for the use of pneumonia masks to prevent new coronavirus infection” (1 January 2020), see <www.nhc.gov.cn/jkj/s7916/202001/a3a261dabfcf4c3fa365d4eb07ddab34.shtml> (accessed 1 October 2020) (emphasis added).

29 ibid.

30 See <www.sohu.com/a/369051639_119778> (accessed 20 November 2020).

31 “A minor who refused to wear a mask and refused to cooperate was administratively punished according to law” (Baidu, 16 February 2020) <https://baijiahao.baidu.com/s?id=1658706067872421554&wfr=spider&for=pc> (accessed 1 October 2020).

32 H Zhao, “Detention Caused by Not Wearing a Mask: What Is the Legal Ground?” (Surging News, 1 March 2020) <www.sohu.com/a/376938851_260616> (accessed 1 October 2020).

33 World Health Organization, “Coronavirus disease (COVID-19) advice for the public: When and how to use masks” (World Health Organization, 5 August 2020) <https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/when-and-how-to-use-masks> (accessed 1 October 2020).

34 The joint prevention and control mechanism of the State Council is a multi-ministerial coordination mechanism platform at the level of the Central People’s Government launched by the Chinese Government in response to the outbreak of the new crown pneumonia epidemic in early 2020, with 32 member units. It is a temporary institution with no clear legal basis or statutory authority.

35 Local governments have taken various measures to ensure the supply of masks, eg by providing subsidies for production enterprises and severely punishing businesses selling masks at high prices; or restricting the availability of masks for purchase using a lottery or booking system.

36 The Guidelines for Enterprises and Institutions on Resuming Work and Production Amidst Epidemic Control is a document issued by the joint prevention and control mechanism of the State Council. The purpose of this document is to guide enterprises and institutions to implement COVID-19 prevention and control requirements, and promote enterprises and institutions to resume production in a steady and orderly fashion.

37 This is the second guide for resumption of work and production issued at the national level. Compared with the first edition of the Guidelines, the most significant feature of this edition is that local governments are required to take differentiated prevention and control measures according to the different levels of the epidemic, avoiding a one-size-fits-all approach. According to the requirements of epidemic prevention at the national level, local governments can issue epidemic prevention guidelines with different requirements according to different risk levels.

38 Fitness venues, cinemas, travel agencies and other special industries all returned to normal in early August.

39 Shi Guilu, deputy to the National People’s Congress and vice president of the All-China Federation of Industry and Commerce, a business owner, pointed out in a 19 February report entitled “Problems and Suggestions in the Resumption of Work and Production of Enterprises”, that at present, the government departments are not very clear about the conditions for the resumption of work and production of enterprises, resulting in most enterprises being unable to resume work. See <www.acfic.org.cn/zt_home/zcmq2020/zcmq2020_ck/202002/t20200219_157093.html> (accessed 20 November 2020). Incidentally, the Center for Rural Governance Research of Wuhan University has completed a survey report on the labour mobility of 104 zero-epidemic villages in 98 counties of 14 provinces (excluding Hubei). This report points out that before the end of mid-February 2020, the flow of rural labour force was in a frozen state, and the average proportion of cross-regional flow of the village labour force in 12 provinces with labour outflow was less than 10 per cent. At that time, the overly strict epidemic prevention and control system seriously restricted the flow of labour, making it difficult for the economy and society to return to normal. See <www.thepaper.cn/newsDetail_forward_6275361> (accessed 20 November 2020).

40 X He, “Understanding China’s National Conditions from the Prevention and Control of the COVID-19 Pandemic” (2020) 402 Journal of Social Development 18.