Date of publication: 25 January 2021
Alla Tsymanovska, Attorney at Law
Source: Ukrainian Pravda
The introduction of a certificate of vaccination against coronavirus is now being actively discussed in Ukraine. For the Ukrainian population, unlike the residents of other countries, such a certificate is something of a novelty. Our goal is to understand what an International Certificate of Vaccination against COVID-19 is and why is it needed.
What is an International Certificate of Vaccination?
The International Certificate of Vaccination is a document that contains a list of vaccines and the number of vaccinations received. The certificate indicates the full name of the vaccinated person, his/her date of birth, passport details and registration address. The certificate of vaccination is envisaged by the International Health Regulations approved by all Member States of the World Health Organization. This document has been in use since 2005. The International Certificates of Vaccination against COVID-19 are issued to those persons vaccinated with the WHO approved vaccine only. As for Ukraine, the issue of certificate introduction will be considered after the information on the impossibility of coronavirus spreading by a vaccinated person is confirmed, since so far the study of medicines against coronavirus has focused only on the mortality reduction and alleviation of disease.
Why Do You Need an International Certificate of Vaccination Against COVID-19?
The purpose of the COVID-19 vaccination certificate is to have an opportunity to present this document to quickly identify yourself as vaccinated. In addition, this certificate must be provided to border control authorities when entering certain countries (at their request).
Can the State Restrict the Travel Rights?
The State cannot oblige to have vaccination without fail and cannot restrict the provision of certain services to unvaccinated persons. For example, as related to the provision of public transportation services. The private companies, on the other hand, have the right to mandate the vaccination of their employees or even customers. For instance, certain airlines have already announced that they are currently considering amending the passengers servicing rules and in the future they will refuse the provision of services to passengers on international flights in the absence of appropriate vaccinations. David Powell, Medical Adviser to the International Air Transport Association, also suggested that in the future information on the availability of vaccinations is likely to be required not only by the airlines, but also by the governments of those countries to which passengers will travel.
Can the Government Restrict the Education Rights?
As for the provision of educational services, at the moment the State cannot refuse its citizens to visit public kindergartens or schools in the absence of vaccination, since the right to education is guaranteed by the Constitution of Ukraine. Despite this, according to Article 15(1) of the Law On Protection of the Population from Infectious Diseases, the children who haven’t received preventive vaccinations according to the immunization schedule are not allowed to visit child care facilities. In addition, in September 2020, the draft Law On the Public Health System was registered. If adopted by the Verkhovna Rada, some restrictions will be imposed upon the unvaccinated population in Ukraine. For instance, the children who have not been vaccinated according to the immunization schedule will be prohibited from visiting educational institutions, health improvement and recreation facilities (Article 32(6)). The draft law also provides that vaccination according to the immunization schedule should be conducted at the expense of the state or local budgets, as well as from other sources not prohibited by the Ukrainian legislation. But it says nothing about what to do in the absence of vaccines. The problem is that in order to ensure the mandatory vaccination, the State must ensure the purchase of high-quality reliable vaccines, which involves significant economic costs Ukraine is not ready for. At the same time, certain provisions of the said law are unconstitutional, since the Constitution guarantees every citizen the right to education, and complete general secondary education is compulsory (Article 53).
Can the State Oblige to Uptake a Compulsory Vaccination?
The Law On Protection of the Population from Infectious Diseases provides for the immunization schedule, which establishes a list of mandatory vaccinations and the optimal timing of their uptake (Article 1). The immunization schedule was approved by the Order of the Ministry of Health of Ukraine No. 595 dated 16 September 2011. Its goal is to ensure the epidemic well-being of the Ukrainian population and to prevent the infections controlled by specific prophylaxis means. All types of vaccinations defined in the order are called ‘mandatory preventive vaccinations’ and are mandatory. Article 12(2) of the Law On Protection of the Population from Infectious Diseases establishes the obligation of employees of certain professions, industries and organizations to uptake preventive vaccinations against other infectious diseases. In case of refusal or evasion, such employees are suspended from work. This situation violates the principle of equality, as well as the citizens’ rights to health, freedom and convictions. At the same time, Article 12(6) of the above law establishes the need – upon provision of the objective information – to get a consent from an individual or his/her legal representatives to vaccination. I.e., a doctor has no right to perform involuntary vaccinations. When refusing mandatory vaccinations, an individual is subjected to a number of restrictions regarding the further exercise of his/her civil and constitutional rights. That is, the State created conditions where vaccination is pseudo-voluntary, and the right to use it is transferred to the category of individual’s obligations. The situation with COVID-19 vaccination is quite similar. In order for the State to oblige its citizens to uptake mandatory vaccination, it is necessary to make certain decisions at the legislative and constitutional levels.
Experience of Other Countries
During the pandemic, many countries established additional requirements for the foreign citizens crossing the state border, aimed at stopping the spread of coronavirus. In addition, some countries plan to replace the insurance policies and PCR tests with International Certificates of Vaccination against coronavirus. The Ukrainian Government is currently studying the experience of introduction and use of such vaccination certificates. This step will be taken upon introduction of identical certificates in the European Union and other countries, since certain countries may prohibit entry to those persons who haven’t been vaccinated against coronavirus.
In my opinion, vaccination in the developed country should be voluntary. Article 19 of the Universal Declaration of Human Rights declares that everyone has the right to freedom of opinion and expression. Paragraph 11 of Part 1 of the European Social Charter proclaims the right of every person to benefit from any measures enabling him to enjoy the highest possible standard of health attainable. Therefore, on the one hand, the mandatory vaccination will restrict the citizen’s right of choice; on the other hand, it will deprive citizens of the opportunity to live a full-on life in the event that certain restrictions are introduced for those people who haven’t been vaccinated.