When governments put too much trust in clarity

原文始发于微信公众号(瑞中法协):When governments put too much trust in clarity

Preconceptions can be found in government legislation. They are themost difficult for lawyers to challenge and get changed, because they are oftenbacked by political decisions and priorities that conflict with what might seemright from the perspective of an objective third party.


Let me discuss just one example of preconceptions affecting the freemovement of people across borders. It involves Switzerland – Singapore andChina.


Switzerland wants to enforce any restrictions on travel to and from foreigncountries without discriminating or favoring any countries. The country ismaintaining a highly neutral outlook and sticking, as far as possible, tostrict scientific evidence. To do this, Switzerland has issued an ordinance whichdescribes the zones that represent a particular high risk in terms of importedCovid-19 infections (‘OrdonnanceCOVID-19 mesures dans le domaine du transport international de voyageurs du 2juillet 2020’).


The ordinance lists three independent criteria, and it is enough ifone of them is met to list a country or zone as high-risk:


1)    an objective mathematicalformula – more than 60 new infections per 100,000 inhabitants,

2)    unreliable infections figuresor other indications of high infection risks,

3)    several instances in the past fourweeks infected persons arrived in Switzerland from the area in question.


The penalty for unambiguity


Based on these criteria Singaporeended up on the list of high-risk countries. This was despite an extremely lowcommunity infection rate – often less than ten cases per day and excellentcontact tracing. Meanwhile no part of China, for instance, is on that high-risklist, despite recent flare-ups identified in some regions.


The reason why Singapore was addedto this list despite virtually no risk of infected traveller from thereentering Switzerland is due only to the government’s policy of aggressively testingall its foreign workers, who live in dormitories. These massive tests revealedmore than 400 new cases per day of otherwise often asymptomatic individuals. Theseforeign workers have caused an average daily infection rate in Singapore ofmore than 60 new infections per 100,000 inhabitants.


The Swiss ordinance does not permit themathematical result of the above formula to be adjusted. Not even with regardto special circumstances, like the fact that the foreign workers did not minglewith locals, which would allow the Swiss government to modify their definedthreshold.


Placing faith in the politics of statistics


If a country hits the Swissmathematical threshold, based on the scientific evidence of contagion rates, itmust be consigned to the high-risk list. This is to avoid having to chosebetween countries on the basis of more subjective elements.


The preconception that the country-wideratio would adequately reflect the prevailing risk for persons returning toSwitzerland from such countries is therefore very difficult to correct. Onewould need to persuade the government to introduce some flexibility.  


But, by doing so, the governmentwould immediately expose itself to pressure from big trading partners to beremoved from the list, despite obvious Covid-19 risks.


This example highlights the need forthe WHO to get its member countries to agree on what minimal data to collect,how to collect it and how to categorize it. Such standards would make the basicdata comparable across the globe, taking into account various countries’ differentcapabilities. It also illustrates the need for states to improve how theycollect relevant data and have a common set of figures, to which moreinformation could be added by each country, according to domestic requirements.


This would help remove someerroneous preconceptions or even misconceptions. Such an approach would match Swiss,Chinese, and Singaporean policies of strengthening international organisations perfectly.In the meantime, all a lawyer can do, is to call his government’s attention tothe obviously erroneous results caused by the present ordinance, hoping that theywill correct it. This is critical to reopening global air travel. The Swissambassador in Singapore has confirmed that he has personally done the utmost tocontribute to facilitated travel between Switzerland and Singapore. Let me, asa lawyer, thank him here for his efforts to correct misconceptions at the statelevel.  

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