One thing is certain: you keep your hands off aid workers, the police, doctors, the Red Cross. Apparently not everyone is fully aware of this yet, so we have to write the message with advertising planes in the sky. Hands off police officers and nurses.
Other than that, not many things are fixed. When lawyers and ethicists think about a 2G system that would ban unvaccinated people from restaurants and shops, they don’t easily agree. The weighting of fundamental rights is a difficult job, rights are open standards, say the experts. For testing in practice you need case law and case law. No, the experts haven’t decided yet.
Justice is a structure, I say it myself, it collapses if you randomly pull out stones. Especially if those stones are part of the foundation. Nevertheless, here and there there seems to be a shift in thinking about law. Under the influence of the pandemic, professor of health law Brigit Toebes sees individual rights shifting from their place: they are expected to make way for health care.
Apart from the pandemic, the Dutch commitment to human rights is also under pressure. Our Minister of Foreign Affairs says in an interview that human rights and the rule of law are not absolute categories: the Netherlands must realize this in its dealings with Qatar. In other words, the workers in Qatar have rights, just like the unvaccinated in the Netherlands, but there are also other interests. And, yes, it is.
Should we immediately throw all individual rights overboard? No of course not. We have to make a trade-off and such a trade-off is always a tragic decision. So take her very, very seriously. Move the stones expertly. Carefully. Ask yourself what world you want to wake up in a few years from now. About corona, health law expert Corrette Ploem says: “I don’t know myself whether we should move towards a world in which we sacrifice things in the long term for infectious disease control.”
And I? I think there’s so much going on right now under the influence of pandemic, climate change, globalization and digitalization that you have to be very, very, very, very, very careful about what you’re left with in terms of freedoms and civil rights. It is therefore frightening to read the enormity of what some opinion voices allow themselves to be. That the individual must always conform to the collective. That objection to this amounts to ‘damaging protection of fundamental rights’. That unvaccinated people have no right to healthcare.
Please be as careful and precise with rights as with infections. The right to integrity of the body is not just a basic right that we grant to people who are not in their right mind at most, with a smile on their face, with rolling eyes.
In an educational piece in The green writes Coen van de Ven that in the near future the House will have to decide ‘where rights begin and end’. Who will have to give up freedom of movement for whom? This is not a matter of course: in a democracy, a majority cannot automatically grant itself more rights than the minority. Even if some liberal parties think so.
Something is going to shift. The discussion we are currently having about corona is an exercise for discussions that we will have in the coming years about surrendering other rights. Think of the achievements that we have to give up for the sake of the climate. Think of expropriation of agricultural land.
Something is going to shift and that is not without objections and dangers. Certainly not if the country is groaning under “the creation of an almost permanent crisis management”, in the words of professor of constitutional law Wim Voermans. And if companies have geared up to make digital tools for everything during that permanent crisis. Such a combination of crisis management and crisis interest is not necessarily favorable for the rights of citizens.
The combination alone threatens the principle of independent and public justice, writes professor of law Marijke Malsch. In the corona era, the suspect will at most see a judge from a distance. Yes, it is very convenient, an online session. Good for infectious disease control. But it is also a matter of shifting individual rights and you have to be really careful with that tinkering with the foundations of the law.
Then it is not useful if loud voices in the opinion section have already knocked the cans out from under the building by shouting that the collective always comes first.
A version of this article also appeared in NRC in the morning of November 30, 2021