Currently, vaccines are not generally available. It is a rather unanimous opinion that in such a situation it would be unfair to provide more extensive rights and freedoms to people who have been vaccinated in comparison to those who have not been vaccinated. In the future, however, we must be prepared to make decisions and preparations are in progress on all levels both in the public sector and in the private sector.
What is a vaccine passport?
WHO has launched the Smart Vaccination Certificate project focused on establishing an internationally standardised vaccination certificate. Inter alia, the project involves guidelines on acceptable areas of application.[1] With the support of the European Commission, on 27 January 2021, the Member States of the EU adopted Guidelines on Proof of COVID-19 Vaccination for Medical Purposes.[2] For the time being, it has been agreed that such passports are to be used only for medical purposes. For example, when a person wants to get the second dose of a vaccine in a different country, the healthcare provider in that country can verify the first vaccination, or when a patient develops side effects in another country, information concerning vaccinations is necessary for the provision of healthcare services. Other purposes for which proofs of vaccination could be used, may be decided by the Member States; however, depending on the developments, other purposes of use can be coordinated as well. Nationally, Estonia seeks to intensify the introduction of digital immunization passports for medical purposes. Various airlines and private sector enterprises consider vaccine passports as prerequisites for the provision of services or already put this idea to the test.
Which fundamental rights are affected by vaccine passports?
What is most problematic, is the conformity of the use of vaccine passports for non-medical purposes with the fundamental right of everyone to equal treatment, i.e., non-discrimination. In addition to the fundamental right to equal treatment, vaccine passports raise many questions concerning the right to privacy and protection of personal data. These are the main fundamental rights that must be considered, and issues related to them must be untangled.
In the case of the fundamental right to equal treatment, two things must be verified: whether the right has been impaired, i.e., negatively affected, and whether the infringement is justified, i.e., whether such public interest exists which overrides the infringement. If the infringement is not justified, the fundamental right to equal treatment has been violated and in such a case, granting more extensive rights to people who have been vaccinated is not grounded. Whether the fundamental right to equal treatment has been impaired, and how serious the infringement is, may, inter alia, depend on the following criteria:
- Whether and to what extent a person can affect circumstances. In the context of vaccinations—if a person has no access to vaccines and, thus, (s)he does not receive a vaccine passport, the infringement is greater than in a situation where persons have free access to vaccines. However, the intensity of the infringement may not be affected by the refusal to vaccinate—a person may have medical reasons for not vaccinating and (s)he has the right not to disclose those reasons. Thus, the Parliamentary Assembly of the Council of Europe [3] has highlighted that it must be ensured that no one is discriminated against for refusing to vaccinate.
- The extent of the infringement also depends on what the person is being deprived of. If it is an important public good (e.g., access to healthcare, education, etc.), the infringement is more serious than in the case of restrictions concerning participation in cultural or sporting events. The situation regarding travelling is more complex. On the one hand, vaccine passports have been used in international travel before (e.g., in the case of yellow fever). On the other hand, movement within the European Union is one of the fundamental freedoms of the EU, i.e., its restriction means a more serious infringement of the fundamental right to equal treatment. Therefore, a distinction must, most likely, be made between travelling within the EU and outside the EU.
- Restrictions, e.g., on travelling, which apply when a person does not have a vaccine passport, may last for several years, i.e., are very extensive with regard to time as well.
Does public interest override infringement of fundamental rights?
Let us now move from the infringement of fundamental rights to the justification of the infringement. The main goal of vaccine passports is, above all, health protection as a public interest. In the health protection field, the State has extensive rights but also obligations to take an active role. For example, the Estonian Chancellor of Justice has found that the State has a preventive healthcare obligation. Whether compulsory vaccination against coronavirus complies with fundamental rights is being decided in the European Court of Human Rights. In the ECHR’s earlier practice, the possibility of compulsory vaccinations has been affirmed under certain conditions. Thus, it cannot be ruled out that the ECHR reaches the same conclusion regarding vaccinations against coronavirus. Protection of the fundamental rights of persons who have been vaccinated can also be seen as one of the goals of vaccine passports. For example, a person who has been vaccinated may raise a justified question as to why (s)he needs to go through the discomfort of getting tested each time when crossing a border when (s)he is already vaccinated.
Upon assessing the justification of the infringement, the intensity of the infringement must be weighed against the importance of the purpose which balances the infringement. During a pandemic, public interest in ensuring health protection is more important than ordinarily. The State’s freedom to make decisions is also increased. Those factors indicate that infringement of fundamental rights that accompanies the establishment of specifications based on vaccine passports would, most likely, be allowed under certain circumstances. However, there are also counterarguments. It may be extremely disputable whether vaccinations and issuing of passports are suitable for achieving health protection purposes—there is no scientific proof that vaccination keeps people from spreading the virus and infecting others, how long different vaccines protect against COVID-19, etc. Also, there are other means to ensure the protection of health that do not restrict fundamental rights as widely as vaccine passports—mass testing, monitoring the spread of the virus, self-isolation requirements, etc. Scientific data and testing solutions evolve constantly and upon decision-making, alternative measures must be considered as well.
Since countries have decision-making authority in their own country, it is possible that rights related to vaccine passports may, at least initially, differ from one country to another. The Constitution of the Republic of Estonia protects only Estonian citizens’ and residents’ fundamental right to freedom of equal treatment. Ensuring equal treatment of everyone at the global level can hardly be achieved. Unfortunately, there are signs that the pandemic further deepens inequalities between residents of different countries. Just like countries have imposed different restrictions to prevent the spreading of the virus, they may reach different conclusions regarding vaccine passports when weighing different interests.
Conclusions and risks
The use of vaccine passports for non-medical purposes, e.g., for determining the extent of travelling rights or other goods, requires thorough legal and ethical consideration. Depending on the epidemiological situation, scientific information, and the existence of alternative measures (inter alia, developments in testing solutions), a reasonable balance must be found between various fundamental rights and public and private interests.
We can all see that the COVID-19 crisis changes the world and creates trends that will affect our lives even after the crisis is over. For as long as possible, classification of people based on vaccinations and implementation of life which is based on vaccine passports should be avoided. It cannot be ruled out that this paves the way for other digital identity systems which place people into different groups (for example, we can recall China’s social credit system). Such systems require an extremely broad public debate, possibilities for which are limited during the pandemic.
[1] https://www.who.int/groups/smart-vaccination-certificate-working-group
[2] https://ec.europa.eu/health/sites/health/files/ehealth/docs/vaccination-proof_interoperability-guidelines_en.pdf
