Author: Anirudh Agrawal, III year of B.A.,LL.B from Hidayatullah National Law University, Raipur.
Co-author: Aditya Rai, III year of B.A.,LL.B from Hidayatullah National Law University, Raipur.
With vaccination occurring in some capacity throughout the world, numerous countries and organisations, including the World Health Organization, have discussed the possibility of a "vaccine passport" or "risk-free certificate" that would allow individuals to travel or return to work assuming they are protected against re-infection.
Such passports would rely heavily on the passport holder having sufficient COVID antibodies to avoid re-infection. A person's antibody threshold is primarily established after he or she has been vaccinated and produces the necessary antibodies.
This essay will make two arguments against the concept of such vaccine passports. To begin, it will argue that such an arrangement violates the equality theory with respect to freedom of movement. Second, the paper will argue that such an arrangement will result in vaccine nationalism, in which certain states will reject vaccine passports issued by other states on the grounds that the vaccine is inefficient or has not been approved by that state's health regulator.
Passports as a Status Indicator
A passport is a fundamental right. Article 12 of the International Covenant on Civil and Political Rights states that "everyone shall have the freedom to leave any country, including his own"; however, this right is subject to reasonable restrictions compatible with other ICCPR rights. As a result, any restriction aimed at protecting public health must be compatible with other ICCPR-guaranteed rights, such as the right to equality.
To go overseas, citizens must adhere to an established system that is updated on a regular basis. This system, which enables a citizen to travel freely and safely between States, is based on the State issuing an identification to its citizens, which is generally referred to as a passport. Passports are a citizen's fundamental identification; they become the finest tool to demonstrate citizenship to a State. Thus, a passport inevitably becomes a symbol and affirmation of a State's citizenship.
In many developed and developing democracies, the right to a passport, which entails the right to life, equality, and freedom of movement, is protected in part but not entirely, as passports can be revoked by appropriate authorities following due procedure.
For example, Article 21 of India's Constitution ensures that "no individual will be deprived of his life or personal liberty except in accordance with the law." In the historic decision of Maneka Gandhi v Union of India, the Indian Supreme Court decided that the right to leave the nation and go abroad is a component of one's personal liberty. As a result, the court determined that the state cannot arbitrarily bar a citizen from travelling overseas to exercise his or her right to free speech and expression or to pursue his or her profession. This also implies that the courts recognised travel as a fundamental right.
Similarly, in the United States, despite the fact that the 14th Amendment guarantees citizenship as a natural right, citizenship is cancelled in some instances. Such instances include, but are not limited to, committing an act of treason. The passport cancellation is the usual operational procedure when cancelling or revoking citizenship.
Passports as a Symbol of Formal Egalitarianism
H. Marshall connected social class with citizenship, arguing that citizenship is a sort of formal equality; denying this formal equality would result in inequality, according to J. S. Mill's definition of formal equality. This viewpoint is bolstered further by Article 12 of the ICCPR and Article 13 of the UDHR, which both stipulate that
"Everyone has the right to leave any nation, including his own, and to return."
Thus, passports, which are used to exercise an individual's right to freedom of movement, become inherent to that individual's freedom of movement.
Given that a passport is a symbol of formal equality and citizenship, the question arises as to whether the State discriminates against an individual on the basis of socioeconomic or other considerations while issuing a passport.
This type of discrimination violates Article 26 of the ICCPR, which guarantees substantive equality and forbids discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.
In 2017, the Indian government proposed color-coding passports for individuals with an 'Emigration Check Required' status, who would receive an orange jacket, and those with a 'non-Emigration Check Required' status, who would receive a blue passport. Orange passports would be given with the intention of assisting and protecting underprivileged labourers who travelled abroad to work in Gulf countries from exploitation.
Oommen Chandy, a former chief minister of the southern state of Kerala, opposes this idea on two grounds: that it would result in discrimination and would violate the Indian Constitution's formal guarantee of equality.
Thus, if such a proposal is rejected on the basis of a violation of formal equality, the question arises as to whether vaccine passports would remain valid within the framework of formal equality.
Passports for Vaccines as a Violation of Formal Equality Due to Unequal Opportunity
“Vaccine passports are not just permitted under international health standards; they currently exist,” Tasnime Osama adds. The World Health Organization accepts certificates attesting to yellow fever immunisation for entrance into specified nations. In contrast to immunity passports, which may inadvertently promote infection, vaccine passports promote vaccination, a global public good associated with numerous favourable outcomes, including individual and population immunity.”
However, with regard to such vaccine passports, there is an option for everybody who wishes to be vaccinated, as sufficient vaccines are available for everyone. This position is diametrically opposed to the current situation, in which there are insufficient vaccines to go around.
As is the case throughout the world, the Indian government is implementing vaccinations in phases, beginning with front-line personnel and progressing to the population at risk, which is classified by age.
This is due to a vaccination scarcity. According to certain vaccine producers, everyone on the planet will have access to vaccines and the opportunity to be vaccinated by late 2022. This is because production levels and demand are out of sync, resulting in an excess of demand. As a result of this misalignment of market forces, states are rigorously regulating vaccinations and attempting to optimise them.
This means that the COVID vaccination is not available on an equitable basis. As a result, there would be no equal opportunity to get vaccine passports. This would surely violate the formal equality provided by citizenship and passports.
Additionally, the potential of a cultural and structural division based on inequality exists with the concept of vaccine passports, since persons in better economic positions would bypass the queue to get vaccinated, aggravating the inequity and unequal access to vaccines already experienced by the poor. As Marshall noted and cautioned, this would also create a class difference based on citizenship and passport.
The WHO warned against such a scenario in an interim position statement on the subject, stating, "Given the scarcity of vaccinations, preferential immunisation of travellers may result in insufficient vaccine supplies for priority populations at high risk of severe Covid-19 disease."
Nationalism of the Vaccine
Another significant issue is the absence of a common regulator who would ensure that the numerous vaccines created are confirmed and accepted globally. The WHO may perform such a function. Due to the lack of such a regulator, states have refused to recognise vaccines and have required international travellers exercising their right to freedom of movement to get vaccinated with their preferred vaccine.
China is one country that has implemented such a policy, with the WHO noting that it risks forcing countries to accept Chinese vaccines and establishes a hazardous precedent that, if replicated, might result in the globe being divided into vaccine-based silos.
As a result of the lack of consensus among States over the efficacy of particular vaccines, such as the Chinese and Russian vaccines, vaccines have surely been politicised, and thus vaccine passports have become politicised.
While vaccine passports appear to be an excellent idea for encouraging immunizations and are also permissible under international law, there are several difficulties that must be addressed. The issue of unequal access to vaccines, which is currently occurring due to a global shortage of resources and, consequently, vaccine production. This will result in unequal access to vaccination passports, which will need to be addressed, and hence vaccine passports should be introduced only once equitable access is achieved for all.
Additionally, there should be a centralised regulatory agency that authorises vaccines and issues vaccine passports. As previously said, the WHO should fulfil this function. This would avert vaccine nationalism and facilitate the rollout of vaccine passports more efficiently.
Unless and until these difficulties are resolved, vaccine passports for international travel are not a viable option; a vaccine passport scheme would surely violate the ICCPR, the UDHR, and recognised norms of human rights law.