Authors: Ann Bugeja & Aleandro Mifsud
Notwithstanding Covid-19’s debut over two years ago, the world continues to witness this ever-present saga develop.
Vaccine mandates have continued to dominate worldwide political debates, with the shipping industry being no exception. Whilst shipping is well known for being the bloodline of global trade, many tend to overlook the cogs which form an integral part of the industry’s continuous efforts in retaining its efficiency and far-reaching impact.
The vaccinations of seafarers could avoid many potential disruptions to the international chain of supplies due to their travelling to a plethora of countries around the globe, each having distinct Covid-19 circumstances and approaches. Their primary role as key workers throughout the pandemic and the necessary priority of their vaccination was even recognized by the United Nations, the International Maritime Organisation (IMO) and the International Labour Organization (ILO).
As indicated in several studies, there is a correlation between jabbed seafarers and a reduction in the severity of Covid-19 symptoms (as well as its contagion) so much so that most ports worldwide tend to facilitate the movement of goods within their ports vis-à-vis more relaxed entry and departure requirements for vaccinated seafarers, in an effort to continue the safe global chain of supply across international borders.
Vaccination Mandates and their Legality
Whilst most countries have relied on informed and voluntary consent for the Covid-19 vaccination rollout, compulsory vaccination has quickly become a contentious topic of discussion. The European Commission (EC) spearheaded by President Ursula von der Leyen had urged EU member states to consider mandatory vaccinations as part of their approach towards combatting Covid-19. However, as a result of continuous studies on the matter, the EU has, since then, published Recommendation (EU) 2022/107, on a coordinated approach to facilitate safe free movement during the Covid-19 pandemic. Within this instrument the EC strengthened its position, by stating that an EU Covid Certificate is being required for travelling within the EU, with additional entry requirements only being applicable in absence of vaccination. This moves away from vaccination mandates by providing alternative requirements to vaccination for travelling.
But would a vaccine mandate be legal? Whilst not within the realm of Covid-19, in the recent case of Vavřička and Others v. the Czech Republic, the European Court of Human Rights (ECtHR) confirmed that a policy of mandated childhood vaccinations does not violate the Right to Respect for Private Life found in Article 8 of the European Convention on Human Rights (ECHR), the Right to Refuse a Medical Intervention emanating from Articles 5 and 6 of the ECHR or the right to manifest religion or belief freely under Article 16 of the Charter of Fundamental Rights and Freedoms amongst other rights. Whilst forced medical intervention is in fact an interference to one’s physical integrity, it is justified if it is geared towards a general policy of protecting the health and other fundamental rights of other individuals. Therefore, an argument in favour of achieving herd immunity to better protect the general population by means of a vaccination mandate, may be considered legal and justified. Notably, the ECtHR acknowledged that Czech law contained sufficient provisions for the exemption of those with medical or religious reasons for not receiving vaccinations, neither of which were demonstrated by the objecting party.
Furthermore, the ECtHR reiterated that in matters of health-care policy, it is the domestic authorities who are best placed to assess priorities, the use of resources and social needs, and so, evidently, a substantial margin of interpretation is allowed as to the need for vaccine mandates.
Application to the Covid-19 Pandemic
Vaccine mandates have successfully been imposed in different states worldwide, including Austria. However, this comes at the expense of a high standard of compliance with the General Data Protection Regulation (GDPR) which categorises one’s vaccination status as high-risk data. Amongst other implications, this inhibits the employer from processing such information if the same end can be achieved through less intrusive manners or if the purpose for processing may lead to discriminatory effects.
Notably, a Covid-19 vaccine mandate applicable to seafarers could easily be reconciled with shipping laws. In fact, the Maritime Labour Convention, implemented locally through the Merchant Shipping (Maritime Labour Convention) Rules, Subsidiary Legislation 234.51, obliges signatory states to ‘ensure that all seafarers on ships that fly its flag are covered by adequate measures for the protection of their health…’, which could potentially be achieved through a vaccination mandate. A similar responsibility is imposed on shipowners within the same instrument.
Foreign Outlook towards the Vaccination of Seafarers
Whilst a global acknowledgement of the importance of vaccinating seafarers and port workers may be observed, different stances have been taken on the imposition of a Covid-19 vaccine mandate on shipping industry workers.
Several states recognize both the importance of vaccinating seafarers entering their ports as well as the operational difficulties to facilitate access of vaccines to seafarers. Accordingly, many adopted industry-specific vaccination programmes targeting seafarers by offering on-board or port-based vaccination facilities. For instance, the Netherlands offers free vaccination to all seafarers working on Dutch-owned or managed vessels. Similarly, Croatia and Germany adopted campaigns to offer vaccination to all seafarers entering and berthed at their ports. Germany has further set up specific vaccination centres in major port cities. Amongst other ports, states, private companies and organisations, similar programmes were also adopted in Norway, Australia, the United Kingdom, some United States ports, Italy and Belgium. Some of these states, such as Australia, have given further priority to the continuation of the movement of goods by creating exemptions from border restrictions to commercial maritime crew.
Nonetheless, in consequence of a slow global rollout of vaccinations for seafarers and heightened Covid-19 risks, shipping stakeholders have identified a general reluctance to allow the disembarkation or repatriation of unvaccinated seafarers even if requiring medical help, with the same also applicable to instances involving the disembarkation of corpses onboard vessels. It is for this reason that there is a surge in demand for mandatory vaccination for seafarers across the industry, so much so that some countries have already adopted such mandates. For instance, Canada implemented a Covid-19 Vaccination mandate covering employees of all federally regulated marine sectors, which was met with positive reactions amongst the Canadian marine shipping organizations. As of the 18th of December 2021, the Brazilian Federal Government has started enforcing a vaccine mandate which also applies to any seafarers wishing to enter Brazilian ports. Vaccine mandates within the shipping industry have also been adopted by major shipping companies, such as Stena, Hoegh LNG and LNG Croatia.
Other countries have decided against imposing a vaccine mandate whilst limiting the entry of seafarers to those who are fully vaccinated. This position was taken in Sri Lanka wherein both foreign and national unvaccinated seafarers are subject to strict testing and quarantine on disembarkation.
The debate on vaccine mandates for seafarers may be perceived as a dilemma on how to balance the containment of Covid-19 with the ever-growing demand for the quick and efficient movement of goods. Whilst there is no harmonised position on the subject across countries and other major stakeholders to date, the trend seems to be shifting away from vaccine mandates for seafarers.
One example substantiating this observation is Ghana’s recent removal of the vaccine mandate previously applicable to seafarers. Moreover, the latest EC Recommendation remained silent on vaccine mandates and even recommended an exemption to seafarers from the requirement of a valid EU Digital Covid Certificate applicable. In doing so, the EC crystalised the importance of member state appreciation in the matter as well as the free movement of goods. The direction taken was perhaps pre-empted by the IMO, who opposed a Covid-19 vaccination mandate applicable to seafarersback in April 2021.
 Despite introducing the law on the 16th of February 2022, it was planned to be enforced within a month’s time, however, on the 10th of March 2022, Austria decided to suspend the vaccination mandate prior to its enforcement.