Preconceptions can be found in legislation passed by Governments. They are the most difficult to challenge and to get changed for lawyers, because behind them are often political choices and priorities other than the right choice from an objective third party point of view.
Here is one example of preconceptions affecting particularly the free movement of people across borders. It involves Switzerland – Singapore and China.
Switzerland wants to enforce any restrictions on travel to and from foreign countries without discriminating or favoring any countries, maintaining a strict neutrality and sticking as much as possible to strict scientific evidence. To do this, Switzerland has issued an ordinance (Ordonnance COVID-19 mesures dans le domaine du transport international de voyageurs du 2 juillet 2020), which describes the zones that represent a particular high risk in terms of imported Covid-19 infections:
The ordinance lists three independent criteria, and it is enough if one of them is met to be on the list of high-risk countries / zones:
1) an objective mathematical formula – more than 60 new infections per 100000 inhabitants,
2) unreliable figures about infections or other indications of high risk of getting infected,
3) several times during the past 4 weeks infected persons arrived in Switzerland coming from that risk area.
Based on these figures Singapore ended-up on the high risk country list despite an extremely low community spreading figure – often less than 10 cases per day, with excellent contact tracing in place, while no part of China for instance is on that high risk country list, despite recent flare-ups that were identified in some regions during the last weeks.
The reason why Singapore is on this list despite virtually no risk of infected traveller from Singapore entering Switzerland is only due to the government’s policy of presently testing aggressively all its foreign workers, who live in dormitories. These massive tests have revealed more than 400 new cases per day of otherwise often asymptomatic individuals. And these foreign workers have therefore led to an average daily infection rate in Singapore of more than 60 new infections per 100000 inhabitants.
The Swiss ordinance does not permit to adjust the mathematical result of the above formula, for instance to consider special circumstances like the fact that the foreign workers did not mingle with locals, which would allow the Swiss government to disregard the defined threshold.
If a country hits the mathematical threshold, set based on scientific evidence of high risk of contamination, the country must be on the high-risk list. This is to avoid having to chose between countries on the basis of more subjective elements.
The preconception that the country-wide ratio would reflect adequately the prevailing risk for persons returning to Switzerland from such countries is therefore very difficult to correct. One would need to persuade the government to introduce some flexibility.
But, by doing so, the government would immediately expose itself to pressure from big trading partners to be removed from the list, despite obvious Covid-19 risks.
This example highlights the need for the WHO to get its member countries to agree on what minimal data to collect, how to collect it and how to categorize it, to make the basic data comparable across the globe, taking into account the different capabilities of the various countries. It illustrates also the need for the various countries to improve the way they collect the relevant data, to have a common set of figures, to which more information could then be added by each country, as needed for domestic purposes.
This would help remove some erroneous preconceptions or even misconceptions. Such an approach would fit perfectly with the Swiss, Chinese, and Singaporean policy of strengthening the international organisations as much as possible. In the meantime, the only thing that a lawyer can do, is to call his government’s attention to the obviously erroneous results to which the present ordinance leads, in the hope that the government will find a way to correct its approach. This is critical to reopening the international air travel across the globe. The Swiss ambassador in Singapore has confirmed that he has personally done the utmost to contribute to facilitated travel between Switzerland and Singapore! Let me thank him here, as lawyer, for his efforts to correct misconceptions at the state level!