16 March 2021
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“Covid Passports” – the New Normal?

It is clear now that the COVID-19 pandemic has completely changed the way we go about our daily lives. The expression “new normal” is a hark back to the global economic crisis. However, it seems to have “come to the fore” once again as the global pandemic forces us all to learn how to live in new, vastly different circumstances.

2020 – “Year of the Virus”

The world has become a “global village” [1] where it takes just a few hours to travel thousands of kilometers, or for “a trip around the globe”.  With humans the main transmitters of infectious diseases, viruses travel with us. Amesh Adalja, an expert from the Johns Hopkins University said: “Viruses used to spread at the speed of speedboats, today at the speed of a jet plane [2]“.

2021 – “Year of the Vaccines” but also…?

A year on from the start of the pandemic, several types of vaccines have been manufactured and immunization programs are being rolled out.  Travel that had turned into the stuff of nightmares due to the pandemic should now be significantly easier. Nevertheless, there is now a drive for “Cross-Border Vaccination Monitoring”.  What is the idea behind it?

In short, this is about introducing “Covid passports”, or immunity passports. Having one will enable passengers to prove that they have been vaccinated, i.e. that their trip does not pose a risk of spreading the COVID-19 epidemic further given that they have antibodies. This is not the first time that “Covid passports” have been mentioned. Despite the pros and cons having already been discussed in the spring of 2020 when the World Health Organization argued against the introduction of such passports, it seems that they could now become the “new normal”.

In this regard, European Commission President Ursula von der Leyen has announced that Brussels will put forward a draft law this month to create so-called vaccine passports.  This Digital Green Pass will include details such as the vaccination status of the individual, as well as previous COVID-19 test results and medical reports.

However, a distinction must be drawn between the “Covid passports” that were being discussed in the spring of last year (vaccines were but a speck on the horizon at that time) and the “Covid passports” that are now under consideration. Namely, the idea is to record the act of vaccination, which presumes the existence of antibodies in passengers, who can then cross the border and enter the country where this protocol has been introduced.  Of course, this is exclusively reserved for travel to foreign countries – one the passenger is not a citizen of, since according to the general rules of international human rights law, states may not prohibit their citizens from entry.

The need to introduce a “Covid passport” has been voiced by many countries, as well as some airlines.  Hence, in the fall of last year, Estonia signed an agreement to exchange information on vaccination with the World Health Organization, and many other countries have expressed interest or are working to launch “Covid passports”, for various political or other reasons. For example, in France, they believe that this will encourage the population to get vaccinated. Poland allows travelers who have a vaccination certificate to enter the country without additional restrictions, Denmark is in the process of creating a digital passport that will serve as proof that a person has been vaccinated, Iceland is starting to issue vaccination certificates to people who have received two doses of vaccine, and other countries such as Spain, Portugal, Greece, Cyprus, and Belgium also support immunity passports that would allow people who have been vaccinated to enter these countries without any additional restrictions [3]. 

The question arises as to how reliably it can be assessed whether a person poses a risk of further infection, while on the other hand, the risks related to discrimination and misuse of recorded data, as well as restrictions on freedom of movement are being examined. 

Personal data protection

The introduction of such a covid passport is possibly open to debate from the point of view of personal data protection. Namely, the duty to protect personal data did not disappear with the outbreak of the COVID-19 pandemic.

At the European level, personal data are protected within the European Union by the General Data Protection Regulation (“GDPR“). According to Article 9 of the GDPR, health-related data are classified into a separate category of personal data and subject to more stringent safeguards. The processing of data not labeled as “separate” is usually prohibited even where one of the legal grounds is met, apart from the case of a prescribed exception. GDPR prescribes the exception from this rule. Sensitive data can be processed, for example, if this is in the interest of public health, such as safeguarding against serious cross-border health threats, the protection of vital interests of society, or to comply with other legal obligations.

From the aspect of European law, it is necessary to consider the provisions of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, which the Republic of Serbia has ratified. Under this Convention, personal data relating to health may be processed automatically only if the domestic law provides appropriate safeguards.

From the aspect of the laws of the Republic of Serbia, the Constitution, as the highest legal act, guarantees the protection of personal data.

What is more, the Personal Data Protection Act (the “Act”) prohibits the processing of personal data that would disclose health data.  However, the Act lists several exceptions to this rule, and among them prescribes the situation when data processing is in the public interest in matters related to public health, such as protection from severe cross-border threats to public health. The question arises as to how broadly this exception should be interpreted, and whether the disclosure of vaccination or antibody data constitutes an unjustified and unlawful invasion of the privacy of an individual.

Prohibition of discrimination

The introduction of such passports may be particularly controversial, given the principle of non-discrimination, which is clearly expressed both internationally and nationally, and which lies (and should be) at the foundation of modern society.  

The principle of non-discrimination is clearly stated in the Universal Declaration of Human Rights, but also guaranteed in the International Covenant on Civil and Political Rights.  Additionally, it should be emphasized that the European Convention for the Protection of Human Rights and Fundamental Freedoms (the “ECHR“), which Serbia has ratified, prohibits any discrimination in the exercise of the rights and freedoms prescribed by the ECHR. In addition, the ECHR in Article 1, Protocol no. 12 prescribes a general prohibition on discrimination, in the enjoyment of any and all rights and freedoms regulated by law. As we highlighted, the prohibition of discrimination may be particularly called into question when it comes to the freedom of movement, i.e. restriction of freedom of movement in line with the ECHR.

Restriction of freedom of movement

Freedom of movement is guaranteed by Article 2, Protocol no. 4 to the ECHR, which states that any person can leave any country, including his/her own. Restrictions that may be imposed must be in accordance with the law, necessary in a democratic society and, among others, introduced to protect health.  The Constitution of the Republic of Serbia also guarantees the freedom of movement.

Freedom of movement is one of the four fundamental principles of the European Union, which guarantees the citizens of the member states, and above all employees and members of their families, equal opportunities to achieve living and working conditions and to promote their own values.  

Travel and “Covid passport” 

The proposal, tabled by Greece, divided the members of the European Union into those for and those against the introduction of any kind of vaccination or immunization certificates. In addition to restricting the freedom of movement, opponents point to discrimination against people who cannot or simply do not want to be vaccinated.

It remains to be seen whether the EU’s point of view will hold steady or will it change track. Until then, travel to foreign countries is regulated at the individual level by specific entry protocols. This means that depending on the destination, entry into a particular country will be subject to the rules set out by that country.

Additionally, the debate has revolved around the assortment of vaccines that will be covered by covid passports. The question is whether only vaccines approved by the European Medicines Agency will apply when entering countries within the European Union. An answer to this question is also expected soon.

In addition to human rights concerns, the issue of introducing special immunity passports also poses both a legal and a political dilemma. Namely, any decision on “Covid passports” will not only have an impact on how we travel and exercise our generally recognized rights but may have a far-reaching impact across the board on the tourism and financial sectors of the countries in question, in addition to the costs of implementing such a project.

[1] A term is taken from   McLuhan, H. M., The Gutenberg Galaxy: The Making of Typographic Man, 1962.
[2] From: https://www.slobodnaevropa.org/a/historija-bolesti-zaraza-pandemija-kuga-kolera-grip/30478110.html. 

[3] Euronews, What is a vaccine passport and which countries are asking for them? 05.02.2021. [https://www.euronews.com/travel/2021/01/19/what-is-the-vaccine-passport-and-what-does-it-mean-for-the-future-of-travel]