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2021 | OriginalPaper | Chapter

8. Digital Health Certificates for Air Travel: Some Issues

Author : Ruwantissa Abeyratne

Published in: Air Transport and Pandemic Law

Publisher: Springer International Publishing

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Abstract

As this chapter was being finalized in early May 2021, the latest figures released by the World Health Organization (WHO) were that “globally, there were 153.7 million confirmed cases of COVID-19 infections with 3.2 million deaths recorded and 1047 million vaccine doses administered. The numbers were growing daily as on 21 April 2021 the figures showed that new COVID-19 cases had increased for the ninth consecutive week, with nearly 5.7 million new cases reported in the week earlier – surpassing previous peaks. The number of new deaths had increased for the sixth consecutive week, with over 87 000 new deaths reported”.

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previous chapter Public Health and the Law

next chapter Conclusion

World Health Organization, COVID-19 Weekly Epidemiological Update Data as received by WHO from national authorities, as of 25 April 2021, 10 am CE.

The International Air Transport Association (IATA) is the trade association for the world’s airlines, representing some 290 airlines or 82% of total air traffic. IATA’s mission is to represent, lead, and serve the airline industry.

IATA works toward improving the air transport industry’s understanding and awareness of the benefits that aviation brings to national and global economies. IATA also advocates the interests of airlines across the globe, and challenges unreasonable rules and charges, hold regulators and governments to account, and strive for sensible regulation.

There will be a discussion on the IATA Travel Pass later in this chapter.

Digital Health Passes: Ready for Take-off? McCarthy Tetrault LL.P, March 18, 2021. See https://www.mccarthy.ca/en/insights/blogs/mccarthy-tetrault-moves/digital-health-passes-ready-take.

ICAO is funded and directed by 193 national governments to support their diplomacy and cooperation in air transport as signatory states to the Chicago Convention (1944). ICAO’s mission is to serve as the global forum of States for international civil aviation. ICAO develops policies and Standards, undertakes compliance audits, performs studies and analyses, provides assistance and builds aviation capacity through many other activities and the cooperation of its Member States and stakeholders. Its vision is to achieve the sustainable growth of the global civil aviation system.

The dark web is a part of the internet that isn't indexed by search engines. See Darren Guccione, What is the dark web? How to access it and what you'll find, The State of Cybersecurity, November 18, 2020, at https://www.csoonline.com/article/3249765/what-is-the-dark-web-how-to-access-it-and-what-youll-find.html.

See Vicky Karantzavelou, The Loyalty Security Association urges caution implementing “Covid-19 Passports” due to fraud and security concerns, Travel Daily News, 13 April 2021. See https://www.traveldailynews.com/post/the-loyalty-security-association-urges-caution-implementing-covid-19-passports-due-to-fraud-and-security-concerns. See also Loyalty Security Association, Press Release, Glasgow, April 12th, 2021.

Travel Daily News, Ibid.

Joe Tidy, Covid-19: Vaccines and vaccine passports being sold on darknet, BBC News 23 March 2021. See https://www.bbc.com/news/technology-56489574.

WHO claims that the Smart Vaccination Certificate approach is “focused on establishing key specifications, standards, and a trust framework for a digital vaccination certificate to facilitate implementation of effective and interoperable digital solutions that support COVID-19 vaccine delivery and monitoring, with intended applicability to other vaccines. With WHO, a number of agencies including UNICEF, ITU and the European Commission are contributing to this initiative through a multi-sectoral working group, focused on joint-learning and supporting use of the finalized specifications and standards for digital vaccination certificates, architected for linkage to national and cross-border digital systems”. See https://www.who.int/groups/smart-vaccination-certificate-working-group.

See https://www.atn.aero/#/article.html?id=79823.

The IATA Travel Pass has multiple modules covering four functions: enabling passengers to find information on travel, testing and vaccine requirements for their journey; enabling passengers to find testing centers and labs at their departure and/or arrival location that can conduct COVID-19 tests in accordance with the type of test required for their journey; enabling authorized labs and test centers to securely send test results or vaccination certificates to passengers; and enabling passengers to create a ‘digital passport’, verifying their test/vaccination meets the regulations and shares test or vaccination certificates with authorities to facilitate travel. The Travel Pass will function in a manner that comports with ICAO’s overall policy that the industry should not block interoperability with proprietary global passenger facilitation schemes based on digital identity credentials.

A subgroup of the ICAO New Technologies Working Group (NTWG) has developed three different implementation types for DTCs, each based on the biometrics embedded in ICAO-compliant passports. Type 1 DTC checks consist of a DTC ‘Virtual Component’ only, with the electronic Machine-Readable Travel Document (the eMRTD, or ePassport) as a physical authenticator. Data is extracted from the physical credential and stored in a digital container, such as on the smart phone. The physical document acts as a back-up credential. Type 2 is made up of a DTC-VC and DTC ‘Physical Component’ in addition to the eMRTD, with data extracted from the issuer database and digitally signed by the issuing authority. A digital container is the primary backup, the physical document a secondary back-up. Type 3 implementations involve no eMRTD, but only the DTC.

GUIDELINES: Visible Digital Seals (“VDS-NC”) for Travel, ICAO Technical Advisory Group on Travel Related Identification Programme. At https://www.icao.int/Security/FAL/TRIP/PublishingImages/Pages/Publications/Guidelines%20-%20VDS%20for%20Travel-Related%20Public%20Health%20Proofs.pdf.

ICAO defines interoperability as the capability of inspection systems (either manual or automated) in different States throughout the world to obtain and exchange data, to process data received from systems in other States, and to utilize that data in inspection operations in their respective States. Global interoperability is a major objective of the standardized specifications for placement of both eye readable and machine readable data in all eMRTDs.

Ibid.

56. N.E. 89 (Ind.1900).

Id. 93.

6 Am law T. Rep, 476 (C.C.E.D. pa. 1873).

70 N.Y. 530 (1877).

Speakman et al. (2017), p. 1022. See https://www.sciencedirect.com/science/article/pii/S0168851017302221.

197 U.S.11 (1905).

Id. 25.

See Martin (2009), pp. 247–254. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7119056/.

Roadmap to a Single European Transport Area – Towards a Competitive and Resource Efficient Transport System, COM (2011), 144 (final) March 28 2011.

See Sarah Jane Fox, An Obligation to Provide Air Travel in the Covid-19 Era (A European Perspective), Issues in Aviation law and Policy, Vol. 20, Autumn 2020 Number 1, 27-70 at 28.

Eur. Coom’n, Public service Obligations (Aug. 25, 2000). https://ec.europa.eu/transport/themes/pso_en. It must be acknowledged that some words and phrases have been borrowed from the article of Sarah Jane Fox. Id.

Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008, on common rules for the operation of air services in the Community. See Official Journal of the European Union, 31.10.2008.

Overview of the State aid rules and public service obligations rules applicable to the air transport sector during the COVID-19 outbreak, at 6. It must be noted that this overview was a working document prepared for discussion within the European Commission and is by no means an official policy statement. Nonetheless, one cannot discount the possibility of implementation of the principle in emergency situations. See https://ec.europa.eu/competition/state_aid/what_is_new/air_transport_overview_sa_rules_during_coronavirus.pdf.

Herve Asquin, European rights court says forced vaccination ‘necessary in democratic society, The Times of Israel, 8 April 2021. See https://www.timesofisrael.com/european-rights-court-says-forced-vaccination-necessary-in-democratic-society/.

Ibid.

Free West Media Staff, Council of Europe: No compulsory vaccinations and no discrimination against the unvaccinated, WordPress, February 9, 2021. See https://coronanews123.wordpress.com/2021/03/21/european-council-no-discrimination-against-the-unvaccinated/.

The Council of Europe is an intergovernmental European cooperation organization with 47 Member States, which, despite its name and the same flag, is separate from the EU. Its resolutions are not legally binding, but recommendations to Member States are almost always complied with.

Felix Salmon, Europe to set a global vaccine passport standard, Yahoo News, 27 April 2021. See https://news.yahoo.com/europe-set-global-vaccine-passport-093044024.html. It must be noted that on 13 January 2021 On 15 January, European Commission President Ursula von der Leyen stated that she supported the idea of common vaccination certificates, calling for agreements at the European level, as European Council President Charles Michel warned that it should not be introduced too soon. See EU divided on Covid-19 ‘vaccination passports’ for travel, The Brussels Times, Thursday, 11 February 2021. See https://www.brusselstimes.com/news/eu-affairs/154120/eu-divided-covid-19-vaccination-passports-travel-commission-von-der-leyen-michel-mandatory-airlines-who/.

Ibid.

ECLI:EU:C:2017.

See Alex Stein, Vaccine Liability in Europe: A New Development, Bill of Health 22 June 2017 at https://blog.petrieflom.law.harvard.edu/2017/06/22/vaccine-liability-in-europe-a-new-development/.

Ibid.

Business in the time of COVID-19: US Cybersecurity and Privacy Issues for You to Consider Tuesday, The National Law Review, March 24, 2020. See https://www.natlawreview.com/article/business-time-covid-19-us-cybersecurity-and-privacy-issues-you-to-consider.

Hacking Still Leading Cause of 2015, Health Data Breaches, Snell E, editor. http://healthitsecurity.com/2015.

Ponemon Report—Fifth Annual Benchmark Study on Privacy & Security of Healthcare Data. 2015.

Ponemon Fifth Annual Study on Medical Identity Theft. 2015.

15 U.S.C. 45(a)(1), Chapter 1 Section 5.

White House Consumer Data Privacy in a Networked world: A Framework For Protecting Privacy and Promoting Innovation in the Global Digital Economy, (Feb 2012), app.A.

Pub. L. No. 104-191, 110 Stat. 1936 (1996).

45 C.F.R. SS 160.103.

18 U.S.C. § 1030.

Section 104(d)(2).

Section 103(b)(1)(E).

The Cybersecurity Act of 2015: A Brief Overview and What’s Next, Litigation Blog, March 14, 2016, at http://www.smsm.com/blogs-litigationblog,the-cybersecurity-act-of-2015-a-brief-overview-and-what-s-next.

Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013on attacks against information systems and replacing Council Framework Decision 2005/222/JHA, Official Journal of the European Union. The EU considers cybercrime to be borderless and three pronged: crimes specific to the internet, such as attacks against information systems or phishing (e.g. fake bank websites to solicit passwords enabling access to victims' bank accounts); online fraud and forgery on the basis that large-scale fraud can be committed online through instruments such as identity theft, phishing, spam and malicious code, illegal online content, including child sexual abuse material, incitement to racial hatred, incitement to terrorist acts; and glorification of violence, terrorism, racism and xenophobia.

Regulation (EU) 2019/881 of The European Parliament and of The Council Of 17 April 2019 on ENISA (the European Union Agency for Cybersecurity) and on information and communications technology cybersecurity certification and repealing Regulation (EU) No 526/2013 (Cybersecurity Act).

The effects doctrine has been robustly applied in the United States, particularly in the field of antitrust legislation. The Third Restatement of Foreign Relations Law of The United States provides that a State may exercise jurisdiction based on the effects in the State when the effect or intended effect is substantial and the exercise of jurisdiction is reasonable. Reasonableness is based on the extent the enacting State limited its jurisdiction to obviate conflict with the jurisdiction of the State affected to the extent possible.

https://www.who.int/campaigns/world-health-day/2021.

This is how new Covid-19 variants are changing the pandemic, BBC, 27 January 2021. See, https://www.bbc.com/future/article/20210127-covid-19-variants-how-mutations-are-changing-the-pandemic.

Covid: Brazil has more than 4000 deaths in 24 h for first time, BBC 7 April 2021, See https://www.bbc.com/news/world-latin-america-56657818.

Joyce Hakmeh, Emily Taylor, Allison Peters and Sophia Ignatidou, The COVID-19 pandemic, and trends in technology in governance and society, Research Paper, Chatham House, February 2021. See https://www.chathamhouse.org/sites/default/files/2021-02/2021-02-16-covid-19-trends-technology-hakmeh-et-al.pdf.

Article 14 of the Convention on International Civil Aviation states: “ Each contracting State agrees to take effective measures to prevent the spread by means of air navigation of cholera, smallpox, yellow fever, plague, and such other communicable diseases as the contracting States shall from time to time decide to designate, and to that end contracting States will keep in close consultation with the agencies concerned with international regulations relating to sanitary measures applicable to aircraft. Such consultation shall be without prejudice to the application of any existing international convention on this subject to which the contracting States may be parties. See ICAO Doc 7300, 9th Ed.:2006.

Martin R (2009) The role of law in pandemic influenza preparedness in Europe. Public Health 123(3):247–254CrossRef

Speakman EM, Burris S, Richard C (2017) Pandemic legislation in the European Union: fit for purpose? The need for a systematic comparison of national laws. Health Policy 121(10):1021–1024CrossRef

Title: Digital Health Certificates for Air Travel: Some Issues
Author: Ruwantissa Abeyratne
Publisher: Springer International Publishing
Book: Air Transport and Pandemic Law
Print ISBN: 978-3-030-80884-6

Electronic ISBN: 978-3-030-80885-3

Copyright Year: 2021
DOI: https://doi.org/10.1007/978-3-030-80885-3_8

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