Digital Health Certificates For Air Travel - Some Issues

There are two questions that come to mind: Why should airlines carry the responsibility for these certificates if the State of arrival or departure requires them and why not responsibility devolve upon the State in which the passenger is a national? and what information should these health certificates contain?

by Dr. Ruwantissa Abeyratne in Montreal-April 15, 2021

The purpose for a Global Strategy on Digital Health is to promote healthy lives and wellbeing for everyone, everywhere, at all ages. ~ World Health Organization 

It is heartening to note that we are making progress in trying to resuscitate air travel which took a serious hit from the pandemic.  The International air Transport Association IATA – the ever proactive association of airlines - has announced : “Following the successful trials by Singapore Airlines, the Singapore health and border control authorities will accept the IATA Travel Pass as a valid form of presentation of COVID-19 pre-departure test results for entry into Singapore. The information presented on the IATA Travel Pass will be in a format that satisfies Singapore’s prevailing COVID-19 pre-departure test requirements for entry into Singapore”. 

Lexology in an article titled Digital Health Passes: Ready for Take-off? By McCarthy Tétrault LLP  reports that “Several countries have already implemented varying degrees of digital health passes, with many others contemplating their use. Israel introduced a digital health pass, known as the “Green Pass” this February. Vaccinated people and certain recovered COVID-19 patients can download an app (or print a certificate with a QR code) which certifies their health status to gain entry into various facilities and venues throughout the country. On March 17th, 2021, the European Commission proposed a Digital Green Certificate, similar to Israel’s to facilitate movement throughout the European Union. China recently launched its version of a digital health pass for its citizens traveling across borders. Canada’s Prime Minister acknowledged on March 12th that Canada is one of many countries exploring COVID-19 vaccination requirements for international travelers, but is reluctant to introduce digital health passes within Canada. Canada has not made any commitments. Other countries including Denmark, Sweden, Greece, Malaysia and Bahrain have signaled their intention to introduce digital health passes”.

There are two questions that come to mind: Why should airlines carry the responsibility for these certificates if the State of arrival or departure requires them and why not responsibility devolve upon the State in which the passenger is a national? and what information should these health certificates contain?

The first question can be answered with some ease as it is a regulatory issue but the second, being reposed in science, leads to deterministic definition. The answer to the first question lies in international treaty law, or to be specific, the Chicago Convention (the long title being Convention on International Civil Aviation) which was adopted in 1944.   Article 13 of this treaty says that the laws and regulations of a State as to the admission to or departure from its territory of passengers, crew or cargo of aircraft, such as regulations relating to entry, clearance, immigration, passports, customs, and quarantine “shall be complied with”  by or on behalf of such passengers, crew or cargo upon entrance into or departure from, or while within the territory of that State.

This provision is ambivalent as it does not specify who should be responsible for furnishing the information required.  However, the reference to “passengers and crew” leads one to the conclusion – which can be reached with some logical reasoning – that seemingly, it has to be the airline carrying such persons.  This leads to the ineluctable issue raised by the second question as to what information should be carried in the digital health certificate. Since the prerogative of accepting a passenger into its territory lies with the State concerned, a State has the right to prescribe its own internal laws with regard to passenger clearance and leaves room for a State to enact laws, rules, and regulations to ensure the security of that State and its people at the airport.

However, this absolute right is qualified so as to preclude unfettered and arbitrary power of a State, by Article 22 of the Convention which makes each Contracting State agree to adopt all practicable measures , through the issuance of special regulations or otherwise, to facilitate and expedite navigation of aircraft between the countries.  Supplementing the basic requirement of Article 13 is Annex 9 (Facilitation) to the Chicago Convention which contains various Standards and Recommended Practices calculated to reduce paperwork, standardize internationally the documents that were to accompany traffic between States, and simplify the procedures required to clear aircraft, passengers and cargo. It was—as it still is—recognized that delays due to cumbersome formalities must be reduced, not just because they are unpleasant but, in practical terms, because they are costly to all of the “customer groups” in the community and because they interfere with the success of everyone.

The above notwithstanding, there are three rights of privacy relating to the display and storage and use of personal data: The right of an individual to determine what information about oneself to share with others, and to control the disclosure of personal data; the right of an individual to know what data is disclosed, and what data is collected and where such is stored when the data in question pertains to that individual; the right to dispute incomplete or inaccurate data; and the right of people who have a legitimate right to know in order to maintain the health and safety of society and to monitor and evaluate the activities of government.

It is incontrovertible that the data subject has a right to decide what information about oneself to share with others and more importantly, to know what data is collected about him. This right is balanced by the right of a society to collect data about individuals that belong to it so that the orderly running of government is ensured.

As for the second question: what information should be contained in the digital health certificate?  The IATA certificate or “travel pass” as it is sometimes called, is deemed to cover four aspects: a global registry of health requirements for entry into different countries; a global registry of testing and vaccination centers; an app that enables authorized labs and test centers to securely share results with passengers; and, a contactless travel app that passengers can use to share their health results and verify that they meet the necessary health requirements for entry to their destination.

One view is that such a health certificate should contain one of three facts: that the holder has been vaccinated; has tested negative for the virus or has recovered from it. IATA has stated that in this process, passengers need to have access to accurate information on test requirements, where they can get tested or vaccinated, and the means to securely convey test information to airlines and border authorities and that airlines need to have the ability to provide accurate information to their

passengers on test requirements and verify that a passenger meets the requirements for travel.  Furthermore, governments need to be able to verify the authenticity of tests and the identity of those presenting the test certificates, and laboratories need to be able to issue certificates that will be recognized by governments.

The last aspect, of international recognition of health certificates, particularly in the COVID-19 context, has been stressed by the International Civil Aviation Organization (ICAO) – the United Nations specialized agency addressing international civil aviation – which has strongly supported the use of a health certificate to be carried by international air travelers. There is only one issue that remains:  after all the above requirements are satisfied, the implementation must be globally carried out without the infringement of privacy rights of the certificate holder and without clogging the air transport system with another bureaucratic obstacle.  If this were not to happen, the entire purpose of the lofty ideals of Annex 9 to the Chicago Convention on facilitation of air transport would be rendered nugatory.

Dr. Abeyratne is former Coordinator, Air Transport Programs and Senior Legal Officer at ICAO.  Currently a Senior Associate at Aviation Strategies International, he teaches aviation law and policy at McGill University. Dr. Abeyratne is the author of 35 books on aviation and aerospace law as well as over 440 journal articles published over a 40 year career in air transport.  His latest book is Aviation in the Digital Age.