Aviation and Vaccination Law

There are several aspects at play when considering consolidated action against the pandemic spread. 

by Dr. Ruwantissa Abeyratne in Montreal

“We must not be enemies. Though passion may have strained, it must not break our bonds of affection. The mystic chords of memory will swell when again touched, as surely they will be, by the better angels of our nature.” Abraham Lincoln

They are the unseen faces from far away lands; voices unheard and sorrows not shared.  Their existence is mere knowledge and information to us: their future, negligible and unimportant.  It matters not how many of them are crowded in the same fragile shelter exposing them to contagion.  It only matters if we know of them and speak grandiloquently of them in the media. Perhaps this makes us feel human for a fleeting moment until we get back to “we first”. As one Nobel Laureate once said: “ a wealth of information means a poverty of focus”. 

Right now, when our focus should be on empathy and attention, we are consumed by ordering millions of vaccines more than are necessary to stockpile so that we can, first and foremost, protect ourselves – we who are better equipped with the essentials and luxuries of life than those to whom we owe an explanation as to why they are in the desperate and hopeless misery caused by our own feckless insouciance of a lack of leadership.

Leadership, as someone said, is not being in charge but looking after those in our charge. 

Emanuela-Chiara Gillard of Chatham House says: “According to ICRC (International Committee of the Red Cross) estimates, some 66 million people currently live in areas controlled by organized armed groups, beyond state control. Frequently displaced, malnourished, deprived of access to medical care and adequate sanitary facilities, and often living in overcrowded settlements or accommodation, they are among the most vulnerable to COVID-19.

'No-one is safe until everyone is safe' has been the WHO director-general’s mantra throughout the COVID-19 pandemic. What does this mean for the provision of vaccines to people living in areas under the control of armed groups?” The United Nations High Commission for Refugees (UNHCR) has stated that its “primary goal is to ensure that refugees are included in the national COVID-19 surveillance, preparedness, and response activities. UNHCR’s preparedness measures will protect refugees, displaced people, and their host communities before, during and after this global health emergency” adding that it cannot do this alone. The rationale offered by UNHCR is that “ensuring refugees are included in the vaccine rollout is key to ending the pandemic. Excluding refugees, other displaced people or non-nationals from vaccination plans carries the risk of ongoing transmission in these populations, with spillovers into the national population.

There are tangible protection risks associated with excluding refugees, ranging from consequences for their health, access to services, work, education and livelihoods, freedom of movement and freedom from discrimination”.

To add a seemingly disparate consideration to this discussion one could say that at no time in human history has air transport been challenged to show its priorities.  To start with, unlike other modes of transport, air transport is a mirror image of the State because all aircraft registered in a State have the nationality of that State. Therefore, a certain symbiosis can be attributed to the State and its air transport.  Inasmuch as the World Food Programme, which was decorated with the Nobel Peace Prize last year for endeavouring to provide the essential food and drink to hapless victims, world leaders have an obligation to ensure that the 66 million desperately in need of health services in the face of the pandemic, as they are the most vulnerable group of humanity right now,  together with front line workers,  receive vaccines first, before we, the more privileged receive ours.

States in which those in urgent need of vaccinations should allow relief flights which are regulated under The Chicago Convention, Annex 9 to which provides that States must facilitate the entry into, departure from and transit through their territories of aircraft engaged in relief flights performed by or on behalf of international organizations recognized by the UN or by or on behalf of States themselves and must take all possible measures to ensure their safe operation. Such relief flights are those undertaken in response to natural and man-made disasters which seriously endanger human health or the environment, as well as   situations where UN assistance is required. Such flights must be commenced as quickly as possible after obtaining agreement with the recipient State. According to its Internationally Agreed Glossary of Basic Terms Related to Disaster Management, the United Nations Department of Humanitarian Affairs considers an emergency to be “a sudden and usually unforeseen event that calls for immediate measures to minimize its adverse consequences”, and a disaster to be “a serious disruption of the functioning of society, causing widespread human, material or environmental losses which exceed the ability of the affected society to cope using only its own resources”.

A State (“country” as some refer to a State) should not be measured by its achievements but by its compassion.  State Sovereignty no longer involves merely looking after the nation concerned but involves State responsibility to the outside world in need. The pandemic is a global problem which requires States to transcend local boundaries to seek a global solution as enunciated by the United Nations Millennium Declaration, which is contained in General Assembly Resolution 55/2 of 8 September 2000, which recognizes that, in addition to separate responsibilities of States to their individual societies, they have a collective responsibility to uphold the principles of human dignity, equality and equity at the global level.

There are several aspects at play when considering consolidated action against the pandemic spread.  The most important is global cooperation and an equitable distribution of vaccinations.  At the time of writing, WHO had complained and warned against the “me first” attitude of wealthy States trying to “grab” available vaccines for their citizenry and amidst a prediction that this trend would deprive 95% of at least 67 developing States of ever getting their hands on a vaccine.  This portends an ominous regression in the progress globally of eradication efforts against the vaccine.  Under this overall umbrella of genuine and honest global cooperation, and in fairness to air transport, it has two major concerns – revival of the aviation industry and its economic health as indeed the WHO has established – that any health measure should not unduly affect trade and travel. 

COVID-19 and the universal lockdown kick started our moribund capacity for empathy. We are getting stronger at our three cognitive capabilities: cognitive appreciation – knowing how our family members see the world and their views of the world; cognitive empathy -understanding their worries and concerns; and cognitive proactivity – the self-activation to do something about them. If this cognitive awareness does not extend to our brothers and sisters who are in the depths of depravity elsewhere, the better angels of our nature would forever be silent.