By Rob van den Hoven van Genderen
On the initiative of Greece European, countries are discussing the enactment of a ‘vaccination passport for Covid-19’, in the first place to allow vaccinated person to visit the starving European tourist destinations. Will this be the start of a societal partition within Europe and the Netherlands between ‘free traveling’ vaccinated people and locked down ‘non vaccsers’?
The new chapter in the fight against Covid-19 has started, the vaccination, hopefully the beginning of the end, although there are not enough vaccines delivered by the producers because we wanted to have a bargain and are one of the last to be delivered to. The over-organized Netherlands is the last in Europe to begin with vaccination anyway. The Netherlands is so well organized that decision-making is stranded by the segmented organization. Who determines the policy: the Minister, the security region, the laboratories, the State Health institution (RIVM,) OMT or the Municipal Health Service (GGD)? Which group first: the elderly or start with the 1st line medical care staff?
In addition to these selection problems, which category of the population will be given priority in vaccination, social and constitutional problems will also arise. We are already accustomed to anti-corona regulations restricting our fundamental rights unequally: no freedom of demonstration, no family gatherings or free association and assembly except when it comes to religious events. In the latter case, the participants may infect each other unmasked and singing. The restrictions that may be imposed by the government, also constitutionally underpinned, to protect public health apparently do not always have the same objectives. The vaccinations that will have to stop corona can be considered also a violation of physical integrity and requires the consent of the person concerned and a firm formal legal basis. A vaccine is a weakened, artificial form of infection that triggers the production of antibodies if one is infected. It is currently estimated that about 70% of the Dutch will get vaccinated, 30% will not. The government portrays this group of non-vacs as negative, almost a-social. The opposition though, cannot be explained solely by mistrust in the effect of the vaccine, religious considerations, possible side effects or an a-social attitude of the population. There are now millions of people who already have been infected by corona and the majority have already developed antibodies in a natural way and for whom vaccination therefore has no added value. There has been a failure to register those healed persons (with permission). In addition, there is a large group of people who were not tested for corona in the spring – and also during the last wave – due to the lack of testing capacity but, given the symptoms, did have corona. This group cannot be found at all. It would therefore be wise to test for antibodies, as this is the goal to be achieved by vaccination. To vaccinate all these people as an embarrassment solution is a waste of vaccines – maybe welcomed by the pharmaceutical industry – and, moreover, contrary to the fundamental right to physical integrity. The policy is aimed at isolating the people who are potentially at risk of infection. A negative test statement is often required for entry to foreign travel. Not a watertight, but a logical and acceptable measure. But a vaccination statement or passport could also provide for this. The question is whether such an explanation could be required beyond touristic destinations for more general access to all kinds of social, cultural and commercial environments such as government institutions, theatres and shops, excluding unvaccinated individuals.
“It is likely that the government will be happy to ignore this problem.”
In principle, private parties may themselves determine which access requirements are set as long as this is not in conflict with the law. Can we accept a dichotomy in society between people who have proof of vaccination and people who have not been vaccinated against Covid-19? Is this a form of discrimination that can be justified in the context of public health and therefore not in violation of the prohibition of discrimination, as laid down in Article 1 of the Constitution? When a vaccination certificate becomes necessary for access to cinemas, shops, concerts and travel abroad – and those who do not have the certificate are banned from doing so – there is a dangerous precedent. Who should issue such a statement? The Communal Health Services (GGD) and GPs? And what form should that statement take? Can it be securely linked to the digital identification? Already massive leaks of personal data were discovered within the Covid testing system (by GGD). In any case, if there were to be a registration, it requires a different approach than the simplistic distribution of a paper and easily falsified vaccination certificate in order to regain ‘normal’ access to society in all its aspects. An obvious requirement of catering and event organizations for such a vaccination certificate may not be accepted by the government without further ado. A careful and more carefully considered access policy for risk-free persons to public and enclosed spaces and activities is required in the return to a ‘normally’ accessible society. In doing so, the step of simply creating a dichotomy between a vaccinated and an unvaccinated part of society should be avoided. It is likely that the government will be happy to ignore this problem. I consider a careful policy based on yet another amendment to the corona emergency law to create a basis for both the registration of vaccinees and the exchange of sensitive data between health institutions and relevant third parties extremely unlikely. With a vaccination coverage of 60% with voluntary vaccination, the chance of further spread of the pandemic is extremely small in view of the foregoing, and a separation of society between vaccinated and unvaccinated becomes completely unnecessary and not acceptable. It is extremely important that a harmonized European position on this issue will be achieved so that not every country sets its own rules. Schengen will have to be applied again as it is intended. But that will turn out to be wishful thinking.
About the author
Robert van den Hoven van Genderen is professor AI Robotlaw at the University of Lapland, director of the Centre for Law and Internet at the Law Faculty of the Vrije Universiteit and president of the Netherlands Association for AI & Robotlaw. Before his academic positions he worked a.o. as director Regulatory affairs in the Telecommunications industry.