May 23, 2020 Volume 395 Number 10237 p1587-1668, e90-e97
COVID-19 immunity passports and vaccination certificates: scientific, equitable, and legal challenges
Alexandra L Phelan
… When larger scale international travel recommences, countries might require travellers to provide evidence of immunity as a condition of entry. Under the International Health Regulations (2005) (IHR), states can implement health measures that “achieve the same or greater level of health protection than WHO recommendations”; however, such measures must have a health rationale, be non-discriminatory, consider the human rights of travellers, and not be more restrictive of international traffic than reasonably available alternatives.11 Given current uncertainties about the accuracy and interpretation of individual serology testing, immunity passports are unlikely to satisfy this health rationale evidentiary burden 12 and are inconsistent with the WHO recommendations against interference with international travel that were issued when the WHO Director-General declared COVID-19 a Public Health Emergency of International Concern (PHEIC). 13 Given the discriminatory impact of immunity passports, any changes to WHO’s recommendations should be considered in the context of the IHR’s human rights protections.
Immunity passports have been compared to international certificates of vaccination, such as the “Carte Jaune” for yellow fever.14 However, there are significant differences between the two types of documents, occasioning fundamentally different burdens on individuals’ health risk and bodily integrity, the public health risk, and an individual’s capacity to consent and control. The main distinction between the two is the nature of the incentive. Vaccination certificates incentivise individuals to obtain vaccination against the virus, which is a social good. By contrast, immunity passports incentivise infection. Under the IHR, states can require travellers to provide vaccination certificates, but this is limited to specific diseases expressly listed in Annex 7, which currently only includes yellow fever, and if included in WHO recommendations, such as those issued following the declaration of a PHEIC as is the case for polio.11 Once, and if, a vaccine is developed, COVID-19 vaccination certificates could be included in revised WHO recommendations for the COVID-19 PHEIC, while member states could consider requesting standing recommendations or revising the IHR’s Annex 7 for the longer term…