Dear Editor,

  It has been a tough year, and the scientific medical world is telling us that the vaccine for COVID-19 is going to bring us back to as close to normal as possible. This proposed solution poses legal questions and dilemmas. One of legal questions that has been in the news in different countries is “Can an employer force an employee to take the COVID-19 vaccine?”. There is one simple answer to that question in our jurisdiction. That answer is “no”. But depending on circumstances, not taking a COVID-19 vaccine can be of influence on the employment relationship between employee and employer.

  One key factor is, that at the moment, there is no caselaw on this topic. Employment law experts use the existing caselaw in regard to testing by the employer for drug and alcohol or other type of blood testing required by the employer to sketch a legal framework for the COVID-19 vaccine question.

  There are different fundamental rights of the employee involved in regard to compulsory medical tests, or in this case vaccination. The rights involved are the right to private life and the right to inviolability of the body, which are both protected in the Constitution of St. Maarten. The European Convention of the Human Rights, that also applies to St. Maarten, also guarantees the protection of private life. The freedom of religion by the European Convention of the Human Rights and the Constitution of St. Maarten may also play a role if the employee does not want to be vaccinated for religious motives. These rights are not absolute. There are legal criteria on circumstances where these fundamental rights can be infringed on. The criteria are if the infringement has a legitimate purpose, foreseeable, proportional and if the same result cannot be achieved with less stringent measures.

  In the case of drug and alcohol testing at the Hyatt Hotel in Aruba, the Supreme Court ruled in two cases that the immediate dismissals of the employees were lawful. The first case was in the case of an employee that tested positive for drugs and did not want to submit herself to the mandatory drug treatment imposed by Hyatt. As drug treatment is a medical treatment, compulsory drug treatment is an infringement on the right on private life. The second Hyatt case was of an employee that did not want to submit to testing. The higher court in S’Hertogenbosch upheld an immediate dismissal because a firefighter would not submit himself to a safety blood test to establish if he was exposed to lead.

  In these abovementioned cases the employer had a legitimate purpose, the measures were foreseeable, proportional and the same result could not be achieved with less stringent measures. The circumstance of the COVID-19 vaccine is not comparable with the earlier discussed case law, because we are in unprecedented times, and it entails that the employee would have to use a newly-developed vaccine or risk losing his job.

  However, the employer has the legal duty to provide a safe work environment for all his employees. In addition to that, the employer should provide a safe environment for its clients. Furthermore, every time that there is an outbreak of COVID-19 at the business, the business is compromised and frequent absences of personnel due to sickness, quarantine or isolation disturb the organization of the employer.

  Depending on the interest the employer has for employees to be vaccinated (in certain parts of the organization), the employer could request the employee that does not want to be vaccinated to change to a position or work circumstances in which such requirement is not necessary. If such changes are not possible and there is no other solution, the employer may decide to seek termination of the employment agreement. If such circumstances are sufficient to justify termination of the employment agreement is highly dependent on the industry of the employer and all circumstances of the case.

  Clear examples of organizations of which the clients are particularly vulnerable for sickness caused by COVID-19 are hospitals, ambulance personnel, and nursing homes. The employer’s duty to care for these vulnerable clients may require that the personnel must be vaccinated, to be able to do their job without putting the clients at risk.

  Although employers cannot compel employees to get the vaccine, they can motivate employees. Certain companies have decided to offer bonusses to employees that take the COVID-19 vaccine. Others have created internal campaigns or give employees free time to get vaccinated.

  For employers it is important to know that the ordinance regarding the protection of personal data prohibits employers to register and process medical information of employees. Therefore, the employer cannot register if employees are vaccinated or not.

  If an employer wishes to introduce a COVID-19 vaccination policy in his company, it is important to seek (legal) advice or consult an occupational doctor, as this is a complex matter. The expectation is that the (legal) discussion on this matter will keep evolving.

Suhendra T. Leon

By Li Yigang

Hong Kong is among the most familiar Chinese cities to many people. As an international financial center, news about Hong Kong often appears in the press. After its return to the motherland, I worked in Hong Kong for 3 years, and have been paying close attention to Hong Kong’s development since leaving. I would like to introduce Hong Kong’s system and reform development to local friends in Dutch Caribbean.

  Over the past two decades since its return to the motherland, Hong Kong has retained its previous capitalist system and way of life under the practice of “One Country, Two Systems”. The people of Hong Kong now run their local affairs within the purview of autonomy of the Hong Kong Special Administrative Region (HKSAR), and enjoy more extensive democratic rights and freedoms than at any other time in history. Hong Kong’s ties with the mainland have grown increasingly close, and the economy is further integrated. It has successfully withstood the Asian financial crisis in 1997 as well as the global financial crisis in 2008, and has increased external interactions and raised its international profile.

  Besides emerging stronger as an international financial, shipping and trading center, Hong Kong has made substantial advances in various programs and the path of development has become broader. The practice fully demonstrates that the concept of “One Country, Two Systems” provides the best solution to the historical question of Hong Kong and the best institutional arrangement to ensure Hong Kong’s long-term prosperity and stability. There is no doubt that “One Country, Two Systems” has a strong vitality and an institutional superiority.

  I. Upholding and Improving “One Country, Two Systems”

“One Country, Two Systems” is a great political initiative pursued by China that has no precedent to follow. Its implementation is not always smooth sailing, but requires exploration, improvement and development in practice. In the year 2019, starting from the turbulence over proposed legislative amendments, under blatant external interference in Hong Kong’s affairs, Hong Kong has witnessed rampant “Hong Kong independence” rhetoric and actions, social unrest and economic downturn. It has grossly trampled on China's national sovereignty, security and development interests, and exposed the huge risks that Hong Kong has in maintaining national security, posing severe challenges to “One Country, Two Systems”.

  In order to maintain the stability of Hong Kong and the well-being of Hong Kong people, on June 30, 2020, the plenary meeting of the 20^th session of the 13^th National People's Congress (NPC) voted to adopt the Law of the People's Republic of China on Safeguarding National Security in the HKSAR. It’s Hong Kong’s turning point from chaos to stability and demonstrates that the central government bears the most important and the ultimate responsibility for safeguarding national security. Since the implementation of national security law, Hong Kong’s social order is getting back on track. “One Country” is upheld and “Two Systems” is guaranteed. The national security law legislation ensures sound and sustained implementation of “One Country, Two Systems”.

  II. Improving the Electoral System to Safeguard Hong Kong’s Democracy

  Under the colonial rule, there was no democracy to speak of in Hong Kong. Since its return, China’s central government, in accordance with China’s Constitution and the Basic Law of the HKSAR, guarantees the exercise of democratic rights by residents of the SAR as with the law. However, the anti-China and disrupting-Hong Kong rioting that occurred in Hong Kong’s electoral platforms and legislature in recent years reveal that the existing electoral system in Hong Kong has clear loopholes and deficiencies.

  The NPC is China’s highest organ of state power and top legislature, and it has the power and responsibility to improve Hong Kong’s electoral system. On March 11, 2021, at the fourth session of the 13^th NPC, it adopted a decision on improving the electoral system of the HKSAR, follow by the amended Annex I and Annex II to the Basic Law of the HKSAR during the 27^th session of the Standing Committee of the 13^th NPC on March 30. It is another important move to uphold and improve the “One Country, Two Systems”. It aims to develop, in a gradual and orderly manner, a democratic system that is in line with the constitutional order of Hong Kong and suited to its actual situation. The new electoral system will help improve the governance efficacy of the HKSAR, and help foster a better political, social, legal and business environment and usher in brighter development prospects for Hong Kong.

  III. “Hong Kong People Administering Hong Kong” and “Patriots Administering Hong Kong”

  “Hong Kong People Administering Hong Kong” is a principle based on the “One Country, Two Systems” framework. To implement that, the “Patriots Administering Hong Kong” must always be upheld to ensure the steady practice of “One Country, Two Systems”. To ensure the country or the city being administered only by people who love it is a common practice for almost all countries around the world, and patriotism is what any country would expect of its public servants. Therefore, “Patriots Administering Hong Kong” is in fact the minimum standard for “Hong Kong People Administering Hong Kong”.

  Hong Kong is a special administrative region of China. Loving the motherland and loving Hong Kong are consistent requirements. Improving Hong Kong’s electoral system and implementing the “Patriots Administering Hong Kong” can effectively prevent anti-China forces entering into Hong Kong’s governing system and causing political and social turmoil. The purpose of “Patriots Administering Hong Kong” is to safeguard national security and development interests, promote Hong Kong's development through good governance, and continue to increase the sense of gains, happiness and security of Hong Kong people.

  July 1 of this year marks the 100^th anniversary of the founding of the Communist Party of China, and it is also the 24^th anniversary of the return of Hong Kong to the motherland. Hong Kong has strong support from the central government, and enjoys the concerted dedication of Hong Kong people in all sectors. Hong Kong has the “One Country, Two Systems” framework as the broadest common ground of society, and has gained 24 years’ development and reform experience since its return as well as the trust and confidence of the international community, Hong Kong will be able to overcome all difficulties and challenges and have a bright future.

  ~ Li Yigang is Consul General of the People’s Republic of China in Willemstad, Curaçao ~

Dear Editor,

  I write this article on the day I received my last COVID-19 vaccination. Before registering myself for the vaccine via the governmental registration page of Sint Maarten, I tried to read up on the facts about this vaccine. A topic that I found interesting from a professional point of view is if COVID-19 vaccines should be compulsory. Here in this article, I will discuss the legal aspects of a mandatory vaccination. It is important to know though, that at the day I write this article, the government of St. Maarten strongly advises receiving your vaccine, but it remains the free decision of all inhabitants.

  Before I get there, I’ll first explain what compulsory vaccination could entail. Vaccination can directly or indirectly be made compulsory. Direct mandatory vaccination would, for example, be if a healthcare professional accompanied by a police officer would knock on your door, and if you do not wish to open the door, force their way in, grab your arm, put out a needle and jab it forcefully in your arm. Or you could risk getting arrested because being non-vaccinated is turned into a felony. Luckily, this is not what is suggested when people suggest compulsory vaccination, and it is also a bit of a farfetched scenario in a democratic society such as St. Maarten with the rule of law.

  However, certain measures may have as an effect that people’s choices are guided in a certain direction. For example, if by law you have to pay a small but significant fee, when you do not wish to receive vaccine, or if you by law you would be banned from participating in activities such as going to school, to work, to practice your favorite sports or to go out, if you refuse your vaccine, your choice to get the vaccine might not be made on an entirely free basis. When measures put in place, exert a strong pressure to choose for receiving a vaccine, people still might feel pushed into taking the vaccine. This kind of indirect compulsory vaccination – what still is a severe limitation of fundamental rights – is a way less farfetched scenario than the directly compulsory vaccination.

  After all, this COVID-19 pandemic already made us familiar with several severe freedom-restricting measures under the guise of the protection of public health. Think about the lockdown, curfew, the closing of non-essential businesses and wearing mouth-masks in public. Interestingly, these measures, although being severe, (eventually) survived in the Netherlands against several injunction procedures initiated by interest groups who liked these drastic measures to be removed. The court in these cases acknowledged that dramatic times may legitimize drastic matters.

  But times do not even have to be necessarily dire. Many fundamental rights such as the inviolability of the body, right of private life or the freedom of philosophy of life or religion may (and most are) limited by laws supported by just a parliamentary majority. Based on this principle, indirect compulsory vaccination is something what is already out there in several democratic countries and what is debated in many others. The European Court of Human Rights recently ruled, for example, in a case against the Czech Republic that on the one hand compulsory vaccination (for children against contagious childhood diseases such as measles), as an involuntary medical intervention, is an interference of physical integrity and thus it concerns the right to respect for private life.

  On the other hand, the court recognized that the Czech policy – where parents who without good reason do not vaccinate their children are fined and where such non-vaccinated children are not accepted in nursery school – pursued the legitimate aims of protecting health as well as the rights of others. It noted that vaccination protects both those who receive it and also those who cannot be vaccinated for medical reasons and are therefore reliant on herd immunity for protection against serious contagious diseases.

  Also, the high Dutch Council of State (Raad van State), a few months before said ruling from the European Court of Human Rights, formulated in an advice to the Dutch government – pertaining to questions from the health ministry to make vaccination for children a condition for going to nursery schools – that the protection of public health in a broader sense may be a legitimate goal for compulsory vaccination by law. However, it also emphasized that compulsory vaccination is only an option when it meets the criteria of proportionality and subsidiarity. Meaning that there is no (more) less invasive measure (proportionality) and the measures may not be more invasive than reasonable in the light of the situation (subsidiarity). It therefore reasons that compulsory vaccination should only kick in when the vaccination coverage drops to such a low point that children who cannot (yet) receive vaccination are in inaudible danger.

  The argument of the protection of public health and the proportionality and subsidiarity is also relevant when considering compulsory COVID-19 vaccinations. Professor emeritus Dute, prominent Dutch legal scholar in the field of health law, argued in January of this year in his blog that – in the Netherlands – it was way too early to think about compulsory vaccination for COVID-19 there. I believe that he is right, and that many of his arguments are also relevant for St. Maarten.

  Professor Dute rightfully states that we should overestimate the abilities of the vaccine. After all, what do we so far know about the vaccine so far mostly used by the St. Maarten government, namely Pfizer-Biontech? According to our government, RIVM and WHO, this vaccine is well-tested, and although it may – as most other vaccines – rarely cause serious side-effects, it is considered as very safe. So, according to experts, these vaccines do not pose an unacceptable risk for the (healthy) individual. The vaccine protects adults very well against developing serious COVID-19 related symptoms such as serious lung damage and breathing difficulties that are related to that. Therefore, vaccinations are expected to ease the pressure on the hospitals and intensive care units, what in itself is beneficial to the overall healthcare accessibility. This serves public health. The WHO expects the more people get vaccinated, the more the virus circulation will decrease, which also will then lead to fewer mutations of the virus.

  On the other hand, a large group of the society cannot be vaccinated yet. After all, the vaccine has not yet been tested sufficiently on children below 16. This group can still transmit the virus. What we also do not know yet – since these vaccines, contrary to vaccines for children’s diseases, are relatively new – is how long this vaccine protects us against the virus. More importantly, at this moment we do not yet sufficiently know if vaccinated people are still able to transmit the disease to others. Recent provisional findings from the European Center for Disease Prevention and Control are hopeful, though, and suggest that vaccines at least limit the chance of transmission and therefore a relaxation of measures is suggested for them there.

  In short, we know that the vaccine for the individual helps to avoid developing a severe case of COVID-19. Also, there are promising signals that vaccination might also be beneficial for unvaccinated people that surround the vaccinated person. However, we do not yet fully understand how much or how long vaccines protect public health, and therefore if they are really the key to normalcy that we all hope for. As long as there is considerable doubt about how much effect COVID-19 vaccines have on the public health, we have to be careful with making such vaccines mandatory.

  On top of that, a government and legislator thinking about compulsory vaccination have to look to less invasive alternative measures first. Perhaps the public health might also be sufficiently protected by preventive testing with so-called rapid COVID-19 tests?

  The strongest argument, however, why compulsory vaccination at this moment does not yet have to be considered is that voluntary vaccination, in combination with an urgent advice from the government to get vaccinated, seems to be working so far. According to the website of the government, 13,042 persons in St. Maarten on April 22, 2021, already received their first jab and 6,370 were fully vaccinated. This while a month earlier only 5,000 people had received a shot. This looks to me that St. Maarteners on average are willing to get vaccinated when they have the opportunity to do so.

  That is comforting, since compulsory vaccination might break more than it heals. After all, making vaccination compulsory by governmental actions could very well feed rumors, and with that undermine the trust of the public in this new vaccine. People that already have concerns about this vaccine, might be even more daunted to take this vaccine and could prefer to dig their heels in.

  In conclusion. It is preferable if people freely choose to get vaccinated and it is also preferable to persuade doubters with arguments instead of pressuring them. Compulsory vaccination is a heavy-handed solution that should only be considered by the government and legislator if public health is at stake and voluntarily vaccination does not do the trick (anymore) and other solutions such as preventive testing are not an (sufficient) option. Indirect compulsory vaccination against COVID-19, although legally a possibility, at this moment should not be considered yet. For now, it is better to inform all St. Maarteners about the availability of the vaccine, and to honestly inform them about its benefits and side effects.

  This also means that we as citizens all have the great responsibility to inform ourselves with information from renowned sources, so we all can make an informed decision. Because of this, I urge everyone who did not yet get vaccinated to look at all the information that is out there and make up their mind.

Rogier Wouters

Dear Editor,

  Citizens of the Caribbean are fully aware of the challenges we face. They know that governments across the region are financially stretched which has been further accentuated by the COVID-19 pandemic. Our citizens also know that we have limited access to either overseas development assistance or concessional financing from global financial institutions and that our options are limited in accessing finance for business development. Our people are clear on what they want – a brighter future for themselves and their children. More specifically, those with whom I speak have an overwhelming interest in either getting jobs or preserving the ones they have so they can take care of themselves and their families.

  We, at the Caribbean Export Development Agency (Caribbean Export) also recognize these constraints and hear the voices of our Caribbean people. The question is how, as a region, can we emerge from this stranglehold. For us, the solution is obvious – attracting increased levels of local investment and foreign direct investment (FDI). Governments and other stakeholders across the Caribbean must have a singular focus on steering investment our way. To achieve resilience and economic transformation we need to significantly ramp up and draw investment to our shores.

  But first, we must understand the trends and challenges so we can position ourselves accordingly. Globally, there has been a decline in FDI flows, with the United Nations Conference on Trade and Development reporting a 42 per cent decline in global foreign direct investment in 2020 in its January 2021 Report. The same report went on to note that one of the most affected regions is Latin America and the Caribbean which saw a decline of 38 per cent in investment inflows from external sources. On the other hand, Asia and Africa witnessed declines of only 18 per cent and 4 per cent, respectively. Further weakness in FDI flows is expected for the rest of the year and for our countries, if we continue with business as usual, the future will be a dim one.

  The outlook for the tourism sector continues to be pessimistic. The World Tourism Organization reports that travel experts surveyed are expecting a return to pre-pandemic levels only by about 2023 (January 2021 report). Therefore, sitting and waiting for tourists to return in the numbers of yesteryear or for global prospects to drive up our export earnings cannot and will not lift us out of this economic quagmire. This is why increasing local investment and getting foreign direct investment to our shores is most critical.

  For the Caribbean to be successful in attracting investment, new thinking in these unprecedented new times is required.

  Firstly, we cannot continue to compete with each other as individual investment destinations, given our limited resources and populations. This approach cannot achieve the scale required to attract serious money our way. In view of this, we at Caribbean Export are working closely with the Caribbean Association of Investment Promotion Agencies (CAIPA) to support our countries in preparing investment projects that can be packaged and promoted as “regional” proposals with more than one country being promoted as an investment destination for a specific venture. This gives much needed scale, and the pooling of resources helps a wider group of countries.

  Secondly, we need to focus on investment that can help propel a new economy, driven by climate-friendly business and digitalization. The world is going green and embracing digitalization and so must we. Therefore, we need to make a concerted effort to bring companies to our shores that are at the forefront of green technologies in areas such as solar and wind. This means an investment approach that is targeted and forensic in focus.

  Linked to the emphasis on the “new economy” is the leveraging of technology in key sectors such as agriculture. The Caribbean is one of the most food-insecure regions on the planet, and this has been more eloquently demonstrated by COVID-19. A new emphasis on agriculture is required. However, this time around, it has to be about using technology to take Caribbean agriculture forward into the 21^st century where our young people also see it as a viable business opportunity. This is precisely why Caribbean Export, in partnership with the CAIPA, has identified Agrotech or Agriculture Technology as a priority sector for us in the region. It connects all the dots in helping us to become more food-secure; treats agriculture as an entrepreneurial activity; and as one region we can offer the scale required for larger investors.

  We at Caribbean Export recognize that innovation is imperative for our survival and must be central to our regional investment promotion strategy. As a matter of fact, we have already engaged the services of an alternative finance adviser with experience in raising capital across emerging and frontier markets for entrepreneurs and SMEs with high growth potential. We intend to fast-track support to the packaging and promotion of regional investment projects and focus on steering investment to sectors that are vital to what will be the new economy whether by focusing on Agrotech, digitalization or the climate-friendly investments.

  We are acutely conscious that the future of our region and the prosperity of our people ride on the actions we take now for business to be a driver and central player in advancing a transformational agenda for our region. At Caribbean Export, we intend to do just that, with the attraction of local and foreign investment being a central pillar of our work in the years ahead.

Deodat Maharaj

Executive Director of the Caribbean Export Development Agency

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