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Vaccine certificates - An infringement of human rights?

On 31 May 2021, Malta’s Prime Minister Robert Abela unveiled Malta’s vaccine certificate system, where people who are fully vaccinated against COVID-19 can download a vaccine certificate to ease travel and allow them to attend “certain events”. Subsequently, on 11 June 2021, Deputy Prime Minister and Minister for Health Chris Fearne announced that vaccine certificate holders can attend mass social and cultural events from 5 July 2021.

Health Minister Chris Fearne shows a vaccine certificate, which will be available from Tuesday. Photo: Chris Sant Fournier - Times of Malta

This begs the question of whether we are about to enter a future where everyone will need to present a vaccine certificate every time they want to enter somewhere as common as a shop or café, travel by ferry or airplane, go to the doctor or hairdresser, or attend a party or concert. Is this an infringement of people’s human rights?

The measures put in place to prevent the spread of COVID-19 in the last 16 months have had a massive impact on everyone’s lives, and on some much more than others. The safe re-opening of society should lessen these negative impacts and enable people to live fuller lives again. A rationale provided for the use of a certification scheme is that it would allow people to regain a degree of liberty, allowing them greater access to areas of life that have been curtailed, and others to work and earn a living, whilst also protecting against the transmission of the virus which has wreaked havoc around the world.

However, depending on where and how they are used, COVID certificates could have a significant impact on the enjoyment of human rights. Requiring a COVID-19 status certificate to access areas of life such as education, housing, work, domestic travel, essential services, hospitality venues, cultural and leisure activities, community spaces, events, gyms and/or retail could discriminate against people who have a valid reason for not being able to produce such a certificate, and further exacerbate the inequalities highlighted during the pandemic.

In the UK, the Scottish Human Right Commission set out some of the ways people’s human rights might be infringed following the introduction of a widespread COVID-19 certification system.

If people are prevented from accessing places in the list above, e.g. work and education, this could have a severe impact on their right to personal development, and to establish and develop relationships. If people were effectively coerced into accepting a vaccination due to widespread use of a certification system, that could be deemed as interfering with their private life, as vaccination is a physically invasive medical procedure which everyone should have the right to refuse.

Furthermore, Article 14 of the European Convention on Human Rights (ECHR) recognises that rights contained in the ECHR shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinions, national or social origin, association with a national minority, property, birth or another status. “Other status” has been held to cover a distinction made on account of an individual’s health status, either as a disability or a form thereof.

A blanket vaccine certification system, without adequate alternatives that are practicable, accessible and affordable, could be discriminatory against those who are not able to produce a vaccine certificate, including children and young people, those who have certain health conditions, those who decline the vaccine for religious or ethical reasons, and others who may decline a vaccine due to concern about its efficacy or safety, or lack of trust in government.

Thus, a provision of an alternative to vaccination in a wider context similar to the EU COVID-19 certificate should be introduced in all settings to address some of the concern regarding exclusion and discrimination. Depending on the traveller’s status, there are three types of EU’s COVID-19 passport launched.

  • Vaccination passport for persons who have been vaccinated in the last 6 months;

  • Test certificate for persons who tested negative for COVID-19 in the last 6 months; and

  • Recovery certificate for persons with a positive COVID-19 test in the last 6 months.

People holding such a document will be able to travel throughout Europe without the need to quarantine or test for COVID-19. The Maltese Government should ensure that the Maltese system provides such an alternative to its citizens as well.

Also, in a bid to ensure that people’s human rights are protected as much as possible, the Maltese Government should ensure that the vaccine certificate scheme is temporary, with a publicly known end date. It must also conduct regular, open and transparent reviews of the ongoing necessity and proportionality of the scheme and the setting being used. This should also include regular assessment of the impact of the scheme on people’s human rights, as well as the effectiveness of the scheme in achieving its aim of protecting lives.

Another protective measure would be that the Maltese Government include provisions down the line which allow measures in some settings to come to an end on a specified date (e.g. when a sufficient number of people have been vaccinated and no variants which escape vaccine immunity are in circulation).

Therefore, governments must ensure that the vaccination certificate system introduced in the coming days is complemented with some of the suggested safeguards and ensure that the system is continuously monitored alongside scientific evidence that this is truly protecting lives and livelihoods and not an excuse for a modern version of discrimination.

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