Preventing vaccine discrimination
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 14 October 2022 (34th sitting) (see Doc. 15608, report of the Committee on Legal Affairs and Human
Rights, rapporteur: Ms Thórhildur Sunna Ævarsdóttir; and Doc. 15625, opinion of the Committee on Social Affairs, Health
and Sustainable Development, rapporteur: Ms Carmen Leyte). Text adopted by the Assembly on
14 October 2022 (34th sitting).See also Recommendation 2240 (2022).
1. The Parliamentary Assembly recalls
its work carried out in response to the Covid-19 pandemic and the measures
taken to counter it, in particular the following resolutions:
Resolution 2329 (2020) “Lessons
for the future from an effective and rights-based response to the
Covid-19 pandemic”,
Resolution
2338 (2020) “The impact of the Covid-19 pandemic on human
rights and the rule of law”,
Resolution
2383 (2021) “Covid passes or certificates: protection
of fundamental rights and legal implications”,
Resolution 2361 (2021) “Covid-19 vaccines:
ethical, legal and practical considerations”,
Resolution 2424 (2022) “Beating
Covid-19 with public health measures” and
Resolution 2455 (2022) “Fighting
vaccine-preventable diseases through quality services and anti-vaccine
myth-busting”.
2. The Assembly recalls that during the Covid-19 pandemic, Council
of Europe member States have imposed various measures to restrict
access to their territories (such as the use of Covid passes, quarantine or
self-isolation, bans on entering their territories, the obligation
to register or to carry out Covid-19 tests shortly before or after
arrival). Some of them also decided to restrict access to public
venues (such as bars, restaurants, sport and leisure facilities,
event venues and others) or even to some means of public transportation.
3. The Assembly recalls that, in accordance with the European
Convention on Human Rights (ETS No. 5, the “Convention”), while
public health may constitute a legitimate purpose justifying restrictions
on the rights to respect for private and family life (Article 8),
freedom of assembly and association (Article 11) and freedom of movement
(Article 2 of Protocol No. 4 to the Convention, ETS No. 46), any
restrictions on the aforementioned rights must be “prescribed by
law”, “necessary in a democratic society” and proportionate to the
legitimate aim pursued.
4. The Assembly notes that compulsory vaccination can raise issues
under international human rights standards, in particular the right
to respect for private life (Article 8 of the Convention) and the
right to give free and informed consent to any intervention in the
health field, which is enshrined in the Convention for the protection
of Human Rights and Dignity of the Human Being with regard to the
Application of Biology and Medicine: Convention on Human Rights
and Biomedicine (ETS No. 164, the “Oviedo Convention”). The Assembly
notes that the starting position is that a vaccine should not generally
be mandatory, but that mandatory vaccination may sometimes be appropriate,
for example for specific professions such as those exposed to vulnerable
populations. The Assembly also notes the cases pending before the
European Court of Human Rights concerning mandatory vaccination
for specific workers.
5. The Assembly recalls the information document “Protection
of human rights and the ‘vaccine pass’” issued by the Secretary
General of the Council of Europe, the “Statement on human rights
considerations relevant to ‘vaccine pass’ and similar documents”
issued by the Council of Europe’s Committee on Bioethics (DH-BIO)
and the statement “Covid-19 vaccination, attestations and data protection”
issued by the Council of Europe’s Consultative Committee of the
Convention for the Protection of Individuals with regard to Automatic Processing
of Personal Data (T-PD).
6. The Assembly notes that the use of Covid passes, and in particular
of vaccine certificates, entails risks of infringement of human
rights and fundamental freedoms. These risks are further exacerbated
when there are inequalities in access to vaccination against Covid-19.
In this regard, the Assembly welcomes the United Nations General
Assembly Resolution A/RES/76/175 “Ensuring equitable, affordable,
timely and universal access for all countries to vaccines in response
to the coronavirus disease (COVID-19) pandemic”. Moreover, the introduction
and the use of Covid passes have in many instances led to a difference
in treatment between persons who have been vaccinated against Covid-19
and those who have not, as well as to possible discrimination between
persons who have been vaccinated with different vaccines. This may
amount to unlawful discrimination within the meaning of Article
14 of the Convention if it does not have an objective and reasonable
justification. The Assembly recalls that any inequality in treatment
must pursue a legitimate aim and be proportionate; proportionality
requires a fair balance between protecting the interests of the
community (the legitimate aim) and respect for the rights and freedoms
of the individual.
7. Referring to its
Resolution
2383 (2021), the Assembly again stresses that measures
such as the introduction of a Covid pass must be applied only in
the context of fighting the pandemic and in compliance with the
European Convention on Human Rights. There should also be clear
and well-established scientific evidence showing that the adoption
of such measures lowers the risk of transmission of SARS-CoV-2 to
an acceptable level from a public health point of view. Any system
of Covid passes should be limited in time according to the requirements
of the public health emergency. Moreover, as stressed in the Assembly’s
Resolution 2424 (2022),
vaccination certificates should primarily be used for “their designated
purpose of monitoring vaccine efficacy, potential side effects and
adverse events”.
8. The Assembly recognises the introduction of the European Union
Digital COVID Certificate as an instrument for facilitating freedom
of movement within the European Union in the context of the various
travel restrictions during the Covid-19 pandemic and that this type
of system has also been used by numerous Council of Europe member
States which are not members of the European Union and other States.
9. The Assembly further notes that the European Union Digital
COVID Certificate was also used to limit and to grant freedom of
movement in the European Union and in some public venues. It is
concerned that such practices may lead to discrimination and other
violations of human rights and fundamental freedoms.
10. The Assembly notes that although the European Medicines Agency
(EMA) has granted conditional authorisation for the marketing of
only six vaccines, some member States of the Council of Europe have administered
other vaccines, including those listed only by the World Health
Organization (WHO) under its Emergency Use Listing Procedure or
approved by national authorities. The Assembly is worried that the
use of Covid and vaccine passes may lead or might have led to discrimination
in travelling and access to public venues between persons vaccinated
with different vaccines, including those which have been approved
only by the EMA and those which have been listed only by WHO.
11. The Assembly notes with satisfaction that the recognition
of WHO-listed vaccines is now becoming more widely accepted within
the European Union. However, European Union member States are free
to limit access to public venues and to impose additional restrictions
on non-European Union citizens’ access to their territory, which
may lead to discrimination.
12. In the Assembly’s view, vaccination against Covid-19 has made
a major contribution to overcoming the pandemic. This has facilitated
the lifting of various restrictions related to Covid-19 and therefore
indirectly restored the full enjoyment of many fundamental freedoms.
Nevertheless, the pandemic is not yet over and new public health
measures may be necessary in the future which risk leading to infringements
on human rights and fundamental freedoms. The Assembly therefore
calls on all member States to:
12.1 refrain
from imposing further restrictions on individuals’ human rights
and fundamental freedoms, unless it is strictly necessary to achieve
the legitimate aim pursued. All restrictions must be compliant with
the requirements stemming from the Convention and the case law of
the European Court of Human Rights, namely that they must be prescribed
by law; be in force for the shortest possible time; be proportionate
to the pursued aim; and be effective;
12.2 take full account of the latest scientific evidence and
expert knowledge, including that from WHO, when deciding on the
imposition of restrictions on human rights and fundamental freedoms
or on the relaxation of such restrictions;
12.3 treat equally all people vaccinated against Covid-19 with
a vaccine that is either approved by the EMA or listed by WHO, whose
evaluation under the Emergency Use Listing Procedure enables a thorough
assessment of the quality, safety and effectiveness of vaccines;
12.4 mutually recognise Covid passes issued by other Council
of Europe member States;
12.5 refrain from preventing individuals from exercising their
human rights and fundamental freedoms because they have not been
vaccinated or because they have been vaccinated with a vaccine which
is not approved by the EMA;
12.6 avoid discrimination between those who have been vaccinated
against Covid-19 and those who have not or cannot be vaccinated,
whether for medical or other reasons;
12.7 refrain from imposing restrictions that undermine the
right to seek asylum, which is a basic human right, and replace
the requirement to have a valid Covid pass with testing, quarantine,
access to vaccination and/or other reasonable and proportionate
measures;
12.8 follow WHO advice and refrain from imposing blanket travel
bans, which have proven to be ineffective from a public health perspective
and which may interfere with the right to family life and, in cases
concerning children, with the best interests of the child, and disproportionately
affect individuals and families from countries that have not been
given equitable access to vaccines;
12.9 discontinue the use of Covid passes for uses other than
those which are strictly necessary to achieve a legitimate public
health purpose;
12.10 work together with organisations dealing with undocumented
migrants to ensure that they have equal access to vaccination, with
particular regard to the challenges which undocumented migrants
may face, such as not having a social security number, a national
identity number or, in some cases, a home address. Due consideration
should also be given to the situation of undocumented migrant children
who are unaccompanied or separated from their parents, bearing in
mind the need for their informed consent. The Assembly calls on
member States to adopt specific safeguarding policies to ensure
that personal data is not transmitted to immigration authorities;
12.11 ensure that the design and implementation of national
vaccination plans and rollouts secure an ethical and equitable distribution
of vaccines and avoid any discrimination on the basis of age, health, gender,
race, religion, legal or socio-economic status, ability to pay,
location and any other factor. Priority access should be given to
groups in vulnerable situations, including persons over 65 years
old and those under 65 with underlying health conditions.
13. The Assembly calls on Council of Europe member States which
have not yet ratified the Oviedo Convention and/or Protocol No. 12
to the European Convention on Human Rights (ETS No. 177) to do so without
delay.
14. The Assembly also calls on Council of Europe member States
which do not belong to the European Union to recognise the European
Union Digital COVID Certificate.
15. The Assembly invites the European Union and its member States
to:
15.1 refrain from imposing additional
restrictions on free movement, including on that of European Union
Digital COVID Certificate holders, unless these are strictly necessary
to achieve a legitimate public health purpose;
15.2 require the use of the European Union Digital COVID Certificate
only as a measure of last resort and reassess its usefulness on
a regular basis in the light of an epidemiological assessment;
15.3 draw up common standards as regards the length of validity
of the European Union Digital COVID Certificate;
15.4 respect the fundamental rights enshrined in the Charter
of Fundamental Rights of the European Union when implementing Regulation
(EU) 2021/953 of the European Parliament and of the Council of 14 June
2021 on a framework for the issuance, verification and acceptance
of interoperable Covid-19 vaccination, test and recovery certificates
(European Union Digital COVID Certificate) to facilitate free movement
during the Covid-19 pandemic, and other related legal acts of the
European Union;
15.5 develop the necessary technical solutions to recognise
proof of recovery from Covid-19 where that proof comes from a country
other than that of a person’s usual place of residence.
16. Finally, the Assembly calls on all Council of Europe member
States and other States to:
16.1 ensure
proper funding to WHO;
16.2 submit their national regulatory systems to the WHO Global
Benchmarking Tool in order to allow them to become WHO-listed authorities.
