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With greater numbers of people being vaccinated and countries looking to reopen borders safely, the introduction of some form of vaccine passport (opens in a new tab) seems increasingly likely.
For New Zealand, where the elimination strategy has been largely successful but which remains vulnerable to border breaches, proof of vaccination may well be a condition of entry.
Health Minister Chris Hipkins has said this would be “almost an inevitability (opens in a new tab)” within the next year. Air New Zealand (opens in a new tab) is one of a number of airlines already trialling the IATA travel pass initiative.
Some countries are also requiring “health passes (opens in a new tab)”, mandatory proof of vaccination or a negative test, including for indoor events (such as sports games and concerts) and hospitality — triggering anti-restriction protests in the process.
In Britain, the Royal Society (opens in a new tab) has warned of the potential of vaccine passports to restrict the freedoms of some individuals, or to create a distinction between individuals based on health status.
Furthermore, vaccine passports use sensitive personal information, and recent cyber attacks (opens in a new tab) on health sectors in New Zealand and overseas (opens in a new tab) are a reminder that data security is not always guaranteed.
Vaccine passports aren’t new
We should remember, however, that freedom of movement across borders has been routinely regulated throughout history. Modern passports for international travel have been in use for over 100 years.
Proof of vaccination is nothing new, either. Some countries have required certificates for yellow fever vaccination (opens in a new tab) for a number of decades, and the World Health Organization’s “yellow card” vaccination document is familiar to many international travellers.
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France’s Covid health pass raises serious ethical questions (opens in a new tab)
In New Zealand, immunisation registers (opens in a new tab) document vaccination records for public health purposes. And in Australia, a “No Jab No Play/No Jab No Pay (opens in a new tab)” policy governs eligibility for child welfare payments.
Rights and freedoms in a public health emergency
The right to freedom of movement is recognised in the Universal Declaration on Human Rights (opens in a new tab) and the International Covenant on Civil and Political Rights (opens in a new tab), as well as in other core UN human rights treaties (opens in a new tab) that New Zealand has accepted.
The New Zealand Bill of Rights Act (opens in a new tab) also includes the right to freedom of movement.
But border closures and lockdowns clearly demonstrate that this right can be limited, although this “must be necessary and have a legitimate aim, be proportionate and be based in law”.
In reality, any requirement that citizens use vaccine passports or passes will involve balancing various rights.
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Before we introduce vaccine passports we need to know how they'll be used (opens in a new tab)
Competing rights and duties
Limiting the right to freedom of movement can be justified on the grounds of
public health (opens in a new tab). The International Covenant on Economic, Social and Cultural Rights (opens in a new tab) actually requires states to prevent, treat and control epidemic diseases as one means of ensuring the right to the highest attainable standard of health.
Because the New Zealand Bill of Rights Act (opens in a new tab) also permits demonstrably justifiable restrictions on the right to freedom of movement, the various COVID-19 measures adopted by the government under the Health Act had to meet that requirement.
And Te Tiriti o Waitangi (opens in a new tab) underpins the principle (opens in a new tab) of active protection that “requires the Crown to act, to the fullest extent practicable, to achieve equitable health outcomes for Māori”.
While the New Zealand Bill of Rights Act does not contain a right to privacy, one of aims of the Privacy Act (opens in a new tab) is to give effect to international obligations and standards, including the International Covenant on Civil and Political Rights.
No grounds for discrimination
Any initiatives to introduce vaccine passports or health passes must be underpinned by the right to be free from discrimination, as provided for in international human rights law, as well as the New Zealand Bill of Rights Act. The Human Rights Act prohibits discrimination on the basis of physical illness (opens in a new tab).
These requirements extend to the private sector, with particular rules at play around the provision of goods and services (opens in a new tab) and access by the public to places, vehicles and facilities (opens in a new tab) — an exception to the latter being the risk of infecting others with an illness.
Read more:
Are COVID-19 vaccine passports fair? (opens in a new tab)
But it’s not only a question of avoiding discrimination. Just as there have been questions about equitable access to COVID-19 vaccines themselves, universal access to the digital technology underpinning passports or passes presents a challenge.
More generally, as a recent UN report warned (opens in a new tab), “big data and artificial intelligence are entrenching racial inequality, discrimination and intolerance”.
Ultimately, it will be a balancing act, not a case of absolutes.
Digital vaccination certificates will help in the effort to reopen borders and protect public health. But there are significant implications for our rights as individuals. Careful and transparent decisions will be crucial.
Claire Breen (opens in a new tab), Professor of Law, University of Waikato (opens in a new tab)
This article is republished from The Conversation (opens in a new tab) under a Creative Commons license. Read the original article (opens in a new tab).
