C Explanatory memorandum by Ms Carmen
Leyte, rapporteur for opinion
1. I would like to welcome the
timely report by Mr Damien Cottier (Switzerland, ALDE) for the Committee on
Legal Affairs and Human Rights. With some forms of “Covid passes”
already being rolled out in some member States, and others planning
to follow suit soon, it is important for the Assembly to take a
clear position on this matter to ensure that our member States protect
fundamental human rights – including the most fundamental right
of all, the right to life – when “reopening” their economies following
15 months of pandemic-induced crisis. This is particularly important
considering that the European Parliament and Council have reached
an agreement on the European Commission proposal for an EU Digital
COVID Certificate which is due to be formally adopted and enter
into force by 1 July 2021, with a phasing-in period of six weeks
for the issuance of certificates for those Member States that need
additional time.
Note
2. We are in a difficult situation: This pandemic has turned
the world upside down, causing millions of deaths and much suffering.
The stress on our health systems is enormous and has even led to
their collapse in some countries. We have had to take stringent
public health measures for infection control, such as lockdowns
and shutdowns. This has led to significant economic damage, in particular
in countries such as mine, Spain, where tourism accounts for more
than 14% of GDP.
3. It is thus fully understandable that we are all longing for
measures which will allow us to open our economies safely again
to avert economic catastrophe. The economic crisis sparked by the
pandemic is already having its own knock-on effects on public health,
since extreme poverty is an even bigger killer than Covid-19 in
the long term.
4. We should take care to open our economies in an ethical and
human-rights compliant manner. The report of Mr Cottier shows very
well how this can be done, and I fully support his vision. Mr Cottier
has done an excellent job of evaluating the human rights and legal
implications of “Covid passes or certificates”, and I particularly
commend his analysis on the issue of discrimination. I do not intend
to second-guess any of his conclusions, which are in line with the
statements made by various Council of Europe bodies,
Note and
with which I fully agree.
5. However, opening our economies with “Covid pass” regimes needs
to be done safely from a public health point of view: we cannot
afford a fourth wave of Covid-19 in Europe. The public health dimension
is also grounded in human rights, in particular the right to life
and the right to the highest attainable standard of health, on which
the enjoyment of all other rights effectively depends. In the middle
of a deadly pandemic, the primary duty of member States and the
number one public health goal are thus infection control.
6. Already in June 2020, the Assembly adopted
Resolution 2329 (2020) and
Recommendation
2174 (2020) “Lessons for the future from an effective and rights-based
response to the Covid-19 pandemic”, based on the report of my colleague
Mr Andrej Hunko (Germany, UEL), giving valuable guidance on how
to address the ongoing and future public health crises. The Assembly
stressed that rapid, evidence-based, effective and human rights-compliant
measures are crucial. They should be communicated clearly and applied
fairly. Co-ordination of action at national, regional and international
levels, and European and international solidarity, is equally important
in the face of a global public health crisis.
7. The Assembly’s past analysis and recommendations were vindicated
by the report published on 12 May 2021 by the Independent Panel
for Pandemic Preparedness and Response.
Note Indeed, in an accompanying op-ed
in the newspaper
The Guardian,
the Panel’s co-chairs, Helen Clark, former prime minister of New
Zealand, and Ellen Johnson Sirleaf, former President of Liberia,
pointed out: “Simultaneously, every national government must implement
proven public health measures to stop the spread of the virus. The rollercoaster
of patchy controls and premature lifting of restrictions is not
working.”
Note
8. From a public health point of view, “Covid passes” can be
problematic precisely because they are not a proven public health
measure to stop the spread of the virus and can lead to premature
lifting of restrictions. Many countries plan to allow restrictions
to be lifted for people who have been vaccinated, previously infected or
tested negative. Each of these bases pose their own challenges from
a public health point of view.
9. Regarding vaccination:
as Mr Cottier rightly points out, the vaccines against Covid-19
were developed in order to reduce the likelihood for severe illness
or death, not to prevent a person from becoming infected with the
SARS-CoV-2 virus, or from transmitting the infection to another
person. Their efficacy varies significantly, also in relation to
infection by the original virus form, or by different variants.
According to the World Health Organization (WHO), there is “limited
(although growing) evidence about the performance of vaccines in
reducing transmission,”
Note but
its International Health Regulations (2005) Emergency Committee
has so far judged this evidence to be too weak to make requiring
proof of vaccination as a condition of entry admissible. The European
Centre for Disease Prevention and Control (ECDC) evaluated “the
risk of developing severe Covid-19 disease for an unvaccinated adult
who has been in contact with a fully vaccinated person exposed to
SARS-CoV-2 infection (…) moderate in older adults or persons with
underlying risk factors (limited evidence so far).”
Note This translates into ineffective
infection control for member States of the Council of Europe with
a high share of unvaccinated persons at a higher risk of severe
illness or death from Covid-19. Luckily, the vaccination campaigns
in most of our member States are currently gathering steam, in particular
in the most vulnerable population categories, thus mitigating this
risk.
10. The US Centers for Disease Control and Prevention (CDC) is
reported to have received 10 262 reports of breakthrough infections
after vaccination from 46 states and territories by the end of April
2021, when some 101 million Americans had been vaccinated. This
small number is, however, very likely to be a substantial undercount
by the CDC’s own admission. Some 995 of those with breakthrough
infections are known to have been hospitalised, and 160 died (though
not always because of Covid-19, with the median age of those who died
at 82).
Note These numbers suggest that the vaccines
in use in the USA (mostly mRNA vaccines) are highly effective at
preventing severe illness and death in those fully vaccinated, but
that breakthrough infections can occur.
Note This
remains a problem for the health of individuals, but less of a problem
for public health, as hospital strain massively decreases if most
breakthrough infections do not lead to severe illness. It is for
this reason that on 1 May 2021, the CDC decided to stop systematic
surveillance of all breakthrough cases, investigating only the most
severe.
Note
11. Regarding past infection: as
Mr Cottier again rightly points out in paragraph 19 of his explanatory memorandum,
“The state of scientific knowledge concerning immunity to Covid-19
acquired through past infection, and the potential for such acquired
immunity to prevent an individual from acting as a transmission vector,
is also uncertain.” Indeed, some variants, such as P-1, have proven
very adept at avoiding immunity acquired through infection with
the original coronavirus, as the situation in Manaus (Brazil) has demonstrated.
Note It is also uncertain how long any
immunity lasts, whether acquired through past infection or through
vaccination.
12. Regarding tests: as
Mr Cottier again rightly points out, a negative test result is only
indicative of a historical situation, which can change at any moment
after the sample is taken. In addition, some tests are more reliable
than others (depending not only on the nature of the test, but also
on whether they are self-administered or administered by trained
professionals, and on which day after exposure the test is taken).
Even those considered to be the “gold standard”, PCR tests, can
give false negative results in 21% of cases even when taken at the
optimal time for testing, eight days after exposure.
Note
13. In short, from a public health point of view, it is clear
that we should thus only introduce “vaccine passes” when we have
the evidence that they will not pose too high a risk from the public
health point of view. I am cautiously optimistic that we will have
this evidence before this report is debated in the hemicycle during
the June 2021 part-session. In particular, member States (and the
European Union) would be well advised to defer to the judgment of
WHO – after all, all member States of the Council of Europe are
members of WHO, and the International Health Regulations apply to
all of our States. With this in mind, I would like to propose the
following five amendments to the draft resolution.
14. The truth is that not all situations which may, at one point,
require a “Covid pass” are created equal. As pointed out in paragraph
7 of the draft resolution, it could be problematic if the holder
comes into contact with people who have no immunity against Covid-19
(for example, young children who have not yet been vaccinated, say,
in the context of a concert/theatre play for children). But it could
be even more problematic if those people are at a higher risk of
severe illness or death from the illness (for example, when visiting
an old-people’s or nursing home whose inhabitants have yet to be
fully immunised) (Amendments A and
E).
15. Similarly, it is not only the local presence of easily transmissible
or possibly vaccine-resistant variants which matters in such situations,
but also whether the holder of the passport could introduce them
(for example, if a person from an area where such a variant is rampant
visits their unprotected relative in a nursing home in a different
part of the country or in another country) (Amendment B).
16. This is the most important amendment of all: The first 12
paragraphs of the draft resolution rightly make clear why member
States of the Council of Europe should refrain from instituting
Covid passport or certificate regimes until clear and well-established
scientific evidence exists that such regimes lower the risk of transmission
of the SARS-CoV-2 virus to an acceptable level from a public health
point of view. This should be pointed out in the operative part
of the text, as well, namely in the recommendations made to member
States in paragraph 13 (Amendment
C).
17. The Assembly’s
Resolution
2361 (2021) “Covid-19 vaccines: ethical, legal and practical considerations”, laid
down how to allocate Covid-19 vaccines in its paragraph 7.2. Of
particular relevance with regard to the question of principle of
equitable access is sub-paragraph 7.2.1. which urges member States
and the European Union to “ensure respect for the principle of equitable
access to healthcare, as laid down in Article 3 of the Oviedo Convention,
in national vaccine allocation plans, guaranteeing that Covid-19
vaccines are available to the population regardless of gender, race,
religion, legal or socio-economic status, ability to pay, location
and other factors that often contribute to inequities within the
population”. In other words, simply stipulating that there should
be “an objective and reasonable justification, which should not
include ability to pay, for prioritising certain groups over others”
in sub-paragraph 13.3.1. of the draft resolution, is not enough
(Amendment D).
18. I would like to conclude my explanatory memorandum with a
call not to prioritise “Covid passes” over international solidarity
in overcoming the pandemic everywhere. As has often been pointed
out, none of us are safe until all of us are safe. We should thus
be ensuring that the Assembly’s
Resolution 2361 (2021) “Covid-19 vaccines: ethical, legal and practical considerations”
is fully applied, including its recommendations with respect to
the allocation of Covid-19 vaccines within and between countries,
such vaccines being treated as a global public good, and with respect
to ensuring a high vaccine uptake.
