Leopoldo García Ruiz publishes the research “Vaccines, COVID certificates and border control: reflections on the Djokovic case” in Revista Chilena de Derecho
Leopoldo García, a member of our research team, has just published a study in the international legal journal Revista Chilena de Derecho in which he argues that States lack the legitimacy to require mandatory vaccination against COVID-19 as a border control measure.
According to our colleague, “The ‘Djokovic case’ was an abuse and a perfect example of the exaltation of security over freedom, which seems to be imposed for some time now in our societies”.
He agrees that governments should look after public health and, therefore, it is reasonable that in the most acute phases of a pandemic, certificates should be required for access to certain places or services or that entry into a country should be temporarily denied to anyone who cannot prove that he or she is immunized.
However, he believes that referring to vaccination alone would be unreasonable “when the proven safety and efficacy of vaccines against COVID-19, in particular, is still far from ideal and when there are alternative means, such as PCR testing and natural immunization by disease recovery, that can demonstrate that one is free of or protected against the virus.”
“The safety and efficacy of COVID-19 vaccines justify their administration, but not their mandatory nature: the natural immunity acquired by Djokovic should have been taken into account”
The digital certificate of the European Union does allow to prove alternatively vaccination, negative diagnosis by PCR or natural immunization, that is why Djokovic was able to compete without any problem last year in other tournaments.
“Djokovic is a young person and an elite professional athlete, who made a legitimate risk-benefit calculation at the time and chose not to be vaccinated against COVID-19, thus exercising his right not to undergo involuntary medical treatment. The Serbian tennis player had the means to undergo frequent PCR tests and, moreover, had just passed the disease at the end of 2021, as attested to by two impartial medical panels. Beyond certain clumsiness and contradictions in which he and his team incurred during those days, the immunity he acquired should have been enough to let him enter Australia. Preventing him from doing so was irrational and unscientific, since, in the short-medium term, natural immunity to a disease protects as much or more than the vaccine against it”.
2023 season without mandatory vaccination
For Djokovic, the 2023 season is certainly going to be different. The measure requiring him to be vaccinated against COVID-19 to enter Australia from overseas ceased to be in force in July. And other countries with similar requirements, such as New Zealand and Canada, have followed suit; the United States has not.
Initially, Djokovic was not going to be able to benefit from the regulatory change in Australia, because his expulsion entailed the suspension of his entry visa until January 2025. However, last November, the new Australian Minister of Immigration decided to revoke that suspension, which has allowed him to play the current edition of the Australian Open, where he won on January 29.
In his study, Leopoldo García considers that the expulsion of the Serbian tennis player was exemplary, because the Court that authorized it did not do so on the grounds of his medical record or his immigration status – to which it did not object – but on the grounds that, as a sports star, Djokovic’s presence in Australia could encourage anti-vaccine movements and hinder youth vaccination in the country.
Our colleague considers these arguments to be “unacceptable”. In this case, they argue that because Djokovic is a sports star, his attitude may influence others, so he should not have entered the country, even with a reasonable medical exemption. This is a serious legal anomaly, because it bases the punishment, first, on his status as a foreigner – Australians have never had a strict obligation to be vaccinated – and then on his breach of an alleged duty that depends on a purely subjective assessment”.
Decline of the rule of law?
According to Leopoldo Garcia, the ‘Djokovic case’ is connected to the crisis of the rule of law in times of pandemic.
“Since March 2020, we are witnessing in our societies a worrying deterioration in the protection of civil and political rights of citizens and a correlative exaltation of security, to the detriment of freedom, with a markedly paternalistic tone. Certainly, this drift has been going on for some time: there are those who place the turning point in 9/11 and the reaction it triggered at the time, but with the pandemic this trend is reaching even greater heights”.
García Ruiz, L. Vaccines, COVID certificates and border control: reflections on the Djokovic case
Revista Chilena de Derecho, vol. 49 (3), 2022, pp. 89-108.
