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      Conflict and Balance Between the Right to Life and Other Rights
      October 14,2020   By:CSHRS
      Conflict and Balance Between the Right to Life and Other Rights

      HAN Dayuan *

      Abstract: The global COVID-19 pandemic is changing the international order and transforming the lifestyle of the mankind. pandemic prevention and control has posed new challenges to the traditional system of basic rights. Conflicts between the right to life and other rights, arising from the pandemic prevention and control measures adopted by governments, have triggered academic debates. Governments have taken stringent pandemic prevention and control measures to protect the life, health and safety of the public, including restricting their per-sonal freedom, freedom of religious belief as well as freedom in other spheres, with a view to safeguard the right to life. In order to prioritize the right to life among the basic rights, its legitimacy basis should be researched on and a reasonable balance should be struck among the right to life, the right to dignity and other freedoms. In the post epidemic era, we should carry forward the human rights culture, optimize the system and mechanism that defend the value of the right to life, and endow the right to life with new connotation and mission.

      Keywords: COVID-19 epidemic  · right to life  · right to dignity · conflicts of basic rights

      I. Introduction of the Issue

      Humankind is facing severe challenges now in the fight against the most widespread and persistent global pandemic over the past century. People feel anxious, confused and worry about the future.

      The history of human civilization tells us that the more we encounter severe challenges and difficult choices, the more we need to show the strength of humanity, light up our lives, build social consensus and jointly respond to the challenges. At this moment, the international community should cherish the community of life and enhance its awareness of a Community with a Shared Future for Human Beings, since a dignified life is the premise for building a community of life. Although the G20 Leaders Summit on 26 March, 2020, failed to achieve the expected outcomes, the goal of “protecting life” set out in the Declaration adopted by the Summit has become the consensus of all countries. In the fight against the pandemic, most countries take the protection of human life as top priority and are trying to limit their citizens suffering. This is the moral basis for the anti-epidemic cooperation of the international community, and the basic requirement for upholding justice, rule of law, human rights and peace. Therefore, countries should act responsibly and set their differences aside for the time being and work together to win the fight against the pandemic and uphold the dignity of human life.

      II. Quality of Life and value of the Right to Life

      Nothing is more precious than life. Life is the premise for the value and dignity of human beings. Life is the essential foundation for the existence of human civilization, and the progress of civilization is based on the origin and continuation of life.

      The highest ideal of life means that the value of life is more precious than anything else. The concept features five elements: the sanctity of life, the significance of life, the preciousness of life, the inevitability of life, and the fragility of life. Moreover, the concept refers to not only to respect for the life of those who live, but also respect for the life of the deceased.

      The right to life is a right formed on the basis of life and is endowed with priority in the modern constitution. In terms of constitutional development process, life and the right to life are different concepts. Life may not necessarily be accompanied by the right to life, while the latter is generated on the basis of life. For example, we emphasize the highest ideal of life not to deny dignity or exclude freedom. However, without the support of the right to life, the dignity and value of life cannot be guaranteed. The physical existence of human beings is the premise of spiritual existence and social existence. In this sense, discussing other values regardless of the preferential protection of life either ignores the value of individuality or confuses the levels of value.

      The evolution from life to the right to life is a great achievement of constitutional civilization. The constitutional system has made possible the right to life based on life, and thus the right to life serves as the constitutional basis for the sanctity of life as the premise of basic rights. As the fundamental law of the state, the Constitution stipulates the development goals of the state, procedures for the exercise of state power and basic rights of citizens, which embodies human dignity, freedom and a happy life.

      The right to life is the right that embodies the natural meaning of human existence. It has the ultimate attribute with the meaning of natural law and embodies the subjectivity and purpose of human beings, namely, the realization of the right to life is the supreme value of the state and society. The state has the moral and legal obligation to guarantee the right to life of every member of society.

      The right to life evolved from life, including the following five elements. The first goes to the right to defense. The essence of the right to life is to defend against all behaviors that infringe upon life, and to prevent the state from taking the right to life as a means to achieve the state’s purpose. Second is the equality of the right to life. The object of the right to life is life, and everyone equally enjoys the value of life. Third, the right to claim for the protection of life, that is, when the right to life is violated, citizens have the right to request the state to protect them. The state should not only prevent the abuse of public power, but also wield the power to protect and realize the value of life. Fourth, the right to life is the basis of human dignity and the origin of all rights, and the individual’s right to life also has the essential characteristics of the social community value order. Therefore, infringement on an individual’s right to life is equal to an infringement on the value of constitutional order. Fifth is the unrepeat- ability of the right to life. Once lost, it cannot be restored, which is also the justification for giving priority to the protection of the right to life.

      Therefore, the right to life has a priority in the constitutional system. Only when the right to life gets respected and guaranteed can the national goals stipulated in the Constitution be realized, and other basic rights and freedoms have significance. The spirit of the Constitution, with the highest ideal of life as the core, requires all public powers to respect, protect and revere life, and fulfill the constitutional obligations to protect life. After all, life is more than the right of being “alive”. It has dignity, which calls for respect and the care of public power.

      III. Conflict Between the Right to Life and Other Rights

      A. Conflict of basic rights during the COVID-19 pandemic

      Confronted by the emergency triggered by the COVID-19 outbreak, all countries have taken different kinds of anti-epidemic measures, varying from the mandatory wearing masks, closure of some public places, businesses and public service facilities, to traffic barring and regional travel bans, involving all sorts of rights restrictions. For the public purpose of epidemic prevention, measures for the protection of the right to life have widely restricted such basic rights as personal freedom, business freedom and freedom of religious belief. As for the various measures for the preferential protection of the right to life, some people hold that the value of the right to life justifies these restrictive measures, while others insist that we should not focus only on the value of right to life, since restarting the economy and the guarantee of freedom are also very important. Therefore, conflicts among basic rights have arisen.

      Given the strong contagiousness of the virus and the uncertainty of its mutation, the limitations of scientific knowledge and medical technology, and the differences in national capacities and policy consideration, there is no prospect of the pandemic being conquered within a short time. For example, the United States and Brazil are still at the epicenter of the epidemic, and the death toll of the epidemic in the United States has exceeded 100,000, so its targets of prevention and control and intensity of measures are obviously different from those in East Asia and Europe to some extent. Developing countries are also under great pressure to prevent and control the epidemic. As the epidemic prevention and control becomes the new normal, the intensity of conflicts among basic rights is also very high. Germany and France have already seen some typical constitutionality disputes. This is of great significance for us to understand the right to life and reflect on the value balance of basic rights.

      We can see that different economic policies and epidemic prevention policies will result in different outcomes, not only in terms of social welfare policies, but also in the evaluation of the value of life. Based on the understanding the value of life, we should try our best to balance and integrate the right to life with other basic rights in the wake of the post-epidemic period.

      B. Conflict types of the right to life and other basic rights

      In the face of the pandemic, China has been building a social consensus on the highest ideal of life, revealing its concept of human rights to defend the dignity of life, and responding to the call for the highest ideal of life with practical actions.

      1. The right to life and the national development goals

      The relentless outbreak poses various challenges to national development. The interests protected by the state are diversified. When it is impossible to take all of them into consideration, how to determine the priority? When the highest ideal of life and economic development were in conflict, the Communist Party of China and the Chi-nese Government, held high the banner of life, proposing “never give up any life”, and they sought to minimize the mortality rate to the greatest extent. President Xi Jinping stressed that the people’s lives and health are the first priority and we should spare no efforts to save every life. Human life prevails over everything. When people’s lives, health and safety are exposed to the threat of the virus, the People’s Republic of China dedicated itself to the cause of standing up for life. In the face of disasters brought about by natural calamities and man-made misfortunes, the state is required to balance various interests, including national investment, economic development, the lives of people and national development, etc. The unprecedented epidemic has tested different national systems, national capabilities and different views on human rights. In some countries, economic activity has been prioritized compared with prevention and control measures due to the needs of national economic development, even though such choice may increase the number of deaths. In contrast, China would rather slow down the speed of economic growth under the pressure of economic downturn, and firmly choose to save, respect and revere life. China would cost what it may to protect equally the lives threatened by the virus, and defend life steadily and make solid progress, to make people feel the sanctity and dignity of life.

      In order to achieve the value goal of prioritizing the right to life, we have made inputs regardless of the cost. As of May 31, China’s governments at all levels had allocated a total of 162.4 billion yuan ($23.79 billion) for epidemic prevention and control, and the number of confirmed COVID-19 hospitalized patients nationwide totaled 58,000, with the total medical expenses as much as 1.35 billion yuan, roughly 23,000 yuan per person. Among that, the per capita medical expenses of severe patients has exceeded 150,000 yuan, while that of some critically ill patients is hundreds of thousands of yuan or even millions of yuan, costs that have been all borne by the state. 1 For example, to save the life of an elderly patient over 70 years old requires three months and more than 1.4 million yuan, all subsidized by the state. In Wuhan, more than 3,600 people over the age of 80 have recovered, with the recovery rate of more than 70 percent. When some countries have declared that patients should pay for medical treatment and thus some patients have no choice but to give up treatment due to the high cost, the Chinese Government has promised that the treatment for COVID-19 patients and suspected patients will be free. In order to fulfill the duty of protecting the right to life, all the resources available are allocated to save lives first. It is race against death, to save one fresh life after another, and let people feel the strength of life.

      2. Conflict between the right to life and the value of freedom

      In this pandemic, conflict between constitutional freedoms and those enshrined in International Human Rights Convention varies from county to country. Due to the differences in history, culture and tradition, people have different understandings of human rights. For historical reasons, Western countries have been holding the right to interpret human rights and hey hold a skeptical and even critical attitude toward the legitimacy and historical tradition of human rights of non-Western countries. However, in the face of the epidemic that knows no borders, the traditional theory of human rights, the theory of basic rights, the relationship between public interests and individual freedom, the relationship between people and community, and the relationship between freedom and order are facing new challenges. In order to protect life and the defend the dignity of life, countries have to take the most stringent prevention and control measures, including declaring a state of emergency, issuing stay-at-home orders, and restricting personal freedom, freedom of demonstration and freedom of employment, etc.

      In terms of the protection of freedom, order and life, the Western world has to change some traditional concepts and adopt various restrictive measures, requiring individuals to sacrifice some freedoms. Some Western scholars also acknowledged that, through the test of the epidemic, western countries need to re-understand cultural plu- ralism and reflect on the relationship between society and individuals in non-Western countries, as well as the value of collectivism, including the social security system, national security and the proportionality principle in the limitation of basic rights. When life is threatened by virus, should the state put first the fulfillment of its obligation to protect life? How to balance the relationship between freedom and order in the protection of life? The purpose of order is to guarantee freedom, and the guarantee of freedom is inseparable from the establishment of reasonable order. In the fight against the epidemic, Western and non-Western countries should seek a basic consensus on the protection of human life, make human rights a value shared by humankind, advocate dialogue and diversity, and change the double standard adopted by Western countries on human rights issues.

      3. Conflict between the right to life and the right to equality

      All persons are created equal, equal in freedom and dignity. However, given the different understandings of the value of life, can there be a reasonable difference in the value of life when faced with public health crisis, especially when medical resources are scarce? This is a realistic problem in the aftermath of the epidemic. Is there a hierarchy of human rights? Some wonder if the human rights constituting jus cogens and the “non-derogable human rights” rank higher than other human rights due to their close relationship with the common interests of mankind. 2 As stated in Part II, Paragraph 3, of the 1993 Vienna Declaration and programme of Action, all human rights are universal, indivisible, interdependent and interrelated. The subjects of human rights should be put on an equal footing and paid equal attention to. In the practice, we need to follow the principle of equality for all subjects of human rights, and adhere to the equal protection of the right to life. However, in this epidemic, there is an imbalance between the principle of equality and national medical capabilities, which has posed a test for many countries. For example, in Italy, due to the limited supply at the very beginning, not all patients needing one had access to a ventilator. Some elderly people voluntarily gave the hope of life to young people and left the risk of death to themselves, resulting in a relatively high rate of death among the elderly. In some countries, with limited medical resources, age has to be taken as a criterion for the provision of medical services.

      From the principle that the value of life should be equally protected, this is a choice that human beings have to make. The conflict between rationalism and utilitarianism would reduce the value of human life from objective perspective. The right to life, as stated in Article 6 of the International Covenant on Civil and political rights, is a right of which people cannot be derogated or arbitrarily deprived. 3 The right to life is the most basic human right, which is the basic consensus of the international community and the basis for maintaining the human consensus in the conflict between the right to life and other rights. In a sense, the capability to protect life and health is the basic function of a modern state. In the fight against the novel coronavirus, China has been faced with the conflict between life and the right to equality as well. Equality is a basic principle enshrined in the Constitution. However, the epidemic is ruthless, and how to equally protect people’s lives is a big test of China’s national capability. In the face of the unprecedented epidemic, the Chinese government has always upheld the principle that life is above all else. Thus the national medical resources were allocated to support Wuhan, so all patients could receive timely treatment and equal protection was granted to all patients. From newborn babies to the elderly over 100 years old, they were all viewed equally when it came to receiving treatment, which shows concern for life and respects the dignity of each individual.

      IV. Balance Between Freedom and Order Based on Safeguarding the Right to Life

      Based on the value and spirit of the right to life, the state should strive to realize the coordination between freedom and order based on the guarantee of the right to life, instead of taking life itself as some object that can be weighed, and clarify the goal and value of prioritizing the right to life.

      A. The integration of the right to life and the right to dignity

      When the right to life and the right to dignity conflict, how to strike a balance? The balance between the right to life and the right to dignity has recently been discussed in German academic circles. The main focus has been, is it legitimate for the right to life to be valued above the right to dignity? On 1 May 2020, Hans-Jürgen Papier, the former president of the Federal Constitutional Court, and Christine Lambrecht, Germany’s minister of justice, were interviewed by Der Spiegel to discuss the legality of the anti-epidemic restrictions. Papier said that the emergency order during the epidemic prevention in Germany is realized through administrative regulations and administrative act, which may be in conflict with the democratic principles of countries under the rule of law. Therefore, the way, scope and time limit of the restrictive measures should be adopted through formal laws, with the parliamentary voting procedure to be made. Lebrecht said that human dignity is the supreme legal interest, which exists in the protection of life, and the fundamental rights should not be placed in any particular order. The state has a special obligation to protect human life, which is the highest value of the constitutional order. In the fight against the epidemic, this is not an abstract measure of legal interest but a deliberate choice in exceptional circumstances, where many lives are at stake. The fundamental rights affected must therefore be balanced as much as possible. Wolfgang Schäuble, Chairman of the Der Deutsche Bundestag, holds that the assertion that all must give way to the protection of life is wrong. If there is an absolute value in the basic law, it is human dignity. His views have been debated and criticized by some. Article 1 of the Basic Law of Germany clarifies the clause of human dignity. Many people believe that dignity is the highest value of the Basic Law, so they propose that the value of the right to life should not be absolute.

      Then, can the right to life and the right to dignity be integrated? In India, the integration is realized by the judicial decisions, namely by expanding the connotation of the right to life in the Constitution and incorporating the right to dignity into the right to life. For example, the Supreme Court of India has expanded the connotation of the right to life by interpreting the term “life” in Article 21 of the Constitution. In the early interpretation of the right to life, “life” was “the physical existence of human or the existence of human as animal.” 4 However, in a 1978 judgment, the Supreme Court held that the meaning of the word “life” did not simply refer to the existence of human as animal, and the right to life contains the value of dignity, which means that people should live with dignity. In the a judgment in 2008, the Supreme Court further expanded the meaning of the word “life”, arguing that personal reputation should also be included in the right to life. 5

      In China, although the right to life has not been written into the Constitution, 6 Article 33 of the Constitution contains the state obligation to protect the right to life in the clause on human rights and the relevant clauses of basic rights. Meanwhile, the protection of the right to life is constantly expanded through human rights practice. Through the expanded interpretation of the concept of the right to life, human dignity, reputation and other values are integrated into the right to life. Of course, due to different constitutional cultures and systems, there are different forms of protection of the right to life in the Constitution, but the internalization of dignity in the system of the right to life is the development trend of constitutions in various countries.

      B. The right to life and the right to health

      The right to life and the right to health are organic and indivisible. With regard to the protection of the right to health, the International Covenant on economic, Social and Cultural rights (ICESCR) explicitly obliges States parties to fully realize the right to health. 7 The obligation of protection is divided into three levels: respect, protection and fulfillment. Like the value of the right to life, the right to health has the attribute of priority protection and has been a key part of the state protection obligation. Respect for the obligation means that governments shall not directly or indirectly interfere with citizens’ exercising the right to health; The obligation to protect means that governments should take measures to prevent third parties from interfering with the guarantees provided for in Article 12 of the ICESCR. The obligation to fulfillment means that States parties are required to take appropriate legal, administrative, budgetary, judicial, promotional and other measures for the comprehensive realization of the right to health. The protection of the right to health is an important basis for safeguarding the value of the right to life. Through the epidemic, people have become more aware of the importance of health and life, and have put forward higher requirements for the state obligation of protection.

      C. The right to life and personal freedom

      Due to the epidemic, countries have taken extensive measures to restrict personal freedom, especially the freedom to travel. In order to prevent and control the epidemic, it is widely believed that the restriction of personal freedom is a necessary measure to ensure people’s safety and in line with the proportionality principle when it comes to the restriction of human rights. The quarantining and monitoring of patients and pathogen carriers shall also be a means of restricting their personal freedom. The restriction or cessation of group activities, the closure or restriction of the use of places where people gather, and the imposing of quarantines also affect the personal freedom of individuals. When there is a conflict between the right to life and personal freedom, the priority should be given to the protection of the right to life, because the premise of the existence of personal freedom is the existence of living individuals, and the right to life actually contains elements of personal freedom, which become an integral part of the value system of the right to life.

      D. The right to life and the right to property

      In the prevention and control of the epidemic, for the requirement of protecting the right to life, the restrictions on the right to property have been wide ranging from the closure of restaurants and shops, to the shutdown and closure of enterprises, etc., which objectively limit the economic freedom enjoyed by legal persons and individu-als. As a basic right stipulated in the Constitution, the right to property, together with the right to life and the right to safety, constitutes three basic rights, and is also a key part of civil liberty. However, when it conflicts with the value of the right to life, it is the consensus of all countries that the right to property, including individual’s right to business freedom, should be subjected to restriction
       
      E. The right to life and the freedom of religious belief
       
      In order to protect the right to life, restrictions on the freedom of religious belief are included in the restrictive measures the government has taken, such as the restriction or cessation of public worship and other gatherings. As a kind of inner belief, the protection of religious freedom is very important, but in the value system of rights, although different religions have different understandings of life, consensus has been reached on the protection of individual life in the community, and the religious belief of citizens should follow the culture of the community. Therefore, with reasonable restrictions on the freedom of religious belief, the life of individuals is protected while the life and health of the rest of the community are also under protection.
       
      V. Cultivate the Culture of Respect for Life
       
      In the post-epidemic period, how to construct the basic rights system with the right to life as the core is a question that needs thinking about. When there is a conflict between fundamental rights, the Constitution should construct a good mechanism to give priority to the right to life and make it the highest form of rights. In real life, sometimes we ignore the sanctity, supremacy and non-restorability of life. How does the Constitution provide an effective safeguard mechanism when individual lives are threatened by natural disasters, infectious diseases, wars and other conflicts? The highest value of human civilization is the equality of individuals, and there is no difference in lives. In the system of basic rights, we should enhance the significance of life in the constitutional system.
       
      In this epidemic, it is based on the understanding that protecting the right to life has priority that the Chinese government has adopted such measures as free treatment for the COVID-19 patients, a prioritized epidemic prevention and control system, the most wide-ranging social mobilization system, and the emphasis on medical resources and material support nationwide. Despite the enormous pressure of its poverty alleviation efforts, China has always adhered to the concept of “life first”. In his Government Work Report delivered on May 22, Premier Li Keqiang frankly acknowledged the negative growth of the economy, pointing out that “life is the top priority, and this is a price that must be borne and is worth paying.” We need to take the culture of respect for life developed during the epidemic as the culture of human rights in the whole society, and make respect for life our way of life.

      In the protection of the right to life, we should adopt the governance mode of emphasizing both prevention and relief. Unlike other rights, the right to life cannot be taken back after being infringed. More consideration should be given to how to realize more effective protection of the right to life under the new normal of epidemic prevention and control. The preventive function of protecting the right to life should be strengthened, risk assessment and regulation should be introduced, and a balance maintained among conflicting interests in individual cases. A more diverse and inclusive human rights culture should be strongly advocated, and a social consensus should be reached to respect and protect the right to life.
      (Translated by Xu Chao)

      * HAN Dayuan ( 韓大元 ), Director of Human Rights Research Center and Professor of Law School, Renmin University of China.
      1. the State Council Information Office, White paper on China’s response to CoVID-19 (Beijing: People’s Pub-lishing House, 2020).
      2. Editing Group of Public International Law, public International Law (key textbook of Marxist Theoretical Re- search and Construction project) (Beijing: Higher Education Press, 2016), 260.
      3. Yang Yuguan et al., united nations Human rights Treaty Bodies and Their Comments (Beijing: The People’s Public Security University of China Press, 2005), 178.
      4. Han Dayuan, The Constitutional Logic of the right to Life (Nanjing: Yilin Press, 2012), 10.
      5. Ibid., 11.
      6. Some scholars have proposed that the right to life should be constitutionalized, mainly because everyone en- joys the right to life, the state should respect and protect human rights, and the death penalty can only be pre-scribed by law to punish extremely serious crimes that intentionally infringe on life. See Shangguan Piliang, Constitution and Life (Beijing: Law Press, 2010), 100.
      7. Yang Yuguan et al., united nations Human rights Treaty Bodies and Their Comments, 132.

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