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The Veil of the COVID-19 Vaccination Certificates: Ignorance of Poverty, Injustice towards the Poor

Published online by Cambridge University Press:  05 July 2021

Sarah GANTYOpen the ORCID record for Sarah GANTY[Opens in a new window]
Sarah GANTY*
Affiliation:
J.S.D. candidate, Yale Law School, New Haven, CT, USA and Visiting Professor, Facultés Universitaires Saint-Louis – Bruxelles and Université Libre de Bruxelles, Belgium; email: sarah.ganty@yale.edu.
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Abstract

Socioeconomic disadvantages are amplified by the COVID-19 pandemic all over the world. Public actions and omissions severely affect the poor, alongside their precarious living, health and working conditions. As we slowly prepare for the aftermath of the pandemic, thanks to the progression of vaccination, especially in developed countries, certain measures taken in this context, more specifically the “vaccination certificates”, are likely particularly to affect the poor, who usually also belong to other vulnerable groups such as ethnic minorities or single parents, and could eventually constitute for them a state of permanent quarantine. In this contribution, I argue that COVID-19 vaccination certificates are a slippery slope towards exclusion and stigmatisation of the poor through a bureaucratic system based on privileges that raises important questions in light of the fundamental rights of the people who reside at society’s margins, struggling to conform to the “phantom of normalcy”.

Information

Type
Symposium on COVID-19 Certificates
Information
European Journal of Risk Regulation , Volume 12 , Special Issue 2: Symposium on COVID-19 Certificates and Special Issue on the Global Governance of Alcohol , June 2021, pp. 343 - 354
Copyright
© The Author(s), 2021. Published by Cambridge University Press

I. Introduction

As the COVID-19 vaccine rollout continues apace and hope slowly returns that we are on our way back to some sort of “normalcy”, many critical public health policy questions remain unanswered. One body of initiatives aimed at resuming normal life and raising concerns are the various vaccination certificates. These certificates would enable people to travel and access services upon presentation of a certificate showing that its bearer has been vaccinated. In some cases, an alternative would be to present a certificate of recovery (proving that the person has acquired some immunity) or a test certificate (proving that they have received a negative test result), valid only for a short period.Footnote 1 Some countries, such as Israel – the world champion of vaccination – with its digital green pass,Footnote 2 New York City with its digital vaccine passFootnote 3 and Denmark through it “coronapas”,Footnote 4 have already implemented their own vaccine certificates. The European Union (EU) is currently discussing the “Digital Green Certificate” to facilitate free movement.Footnote 5

In this context, some authors have considered vaccine certificates as “immediate policies that offer reasonable leeway for balancing protection of public health with a return to prepandemic life” and that “current circumstances” demand.Footnote 6 It is difficult to agree with this stance. If vaccination programmes are to protect the whole population, including the poor, the system of vaccination certificates itself is exclusionary, because of its difficult access for the least socioeconomically privileged people who will not be able to return to pre-pandemic life (Section II). More specifically, I argue in this paper that the system of vaccination certificates is likely to put poor people in a perpetual state of lockdown (Section III), discriminating against them (Section IV) and casting some serious doubts about its proportionality (Section V). Indeed, if by definition such a certificate system is based on privileges conferring special rights to the bearers, these privileges will in fact mainly be granted to socioeconomically privileged people who are more likely to get vaccinated, are not “essential” workers likely to see the exercise of their job conditioned by such a certificate, have a stable legal status, are likely to encounter fewer difficulties in dealing with the administrative vagaries linked to the granting of such certificates, etc., as the experience of the “Green Pass” in Israel has already shown.Footnote 7

The present contribution will mainly deal with the consequences of such certificates for the socioeconomically underprivileged within developed countries, where vaccination has generally been much faster than in most developing countries and where the introduction of such certificates is on policy agendas where they have not already been implemented. I will focus more specifically on EU countries and will also borrow some examples from Israel, the USA and the UK. Although I do not deal with it in my paper, it is important to bear in mind that such certificates also have important consequences in terms of global inequalities as they add barriers to migration and travel, especially between the poorer and richer world regions, an issue that is addressed by Martina Tazzioli and Jouni Häkli in the present special issue.Footnote 8

II. Difficult access for the poor

Socioeconomically disadvantaged people are the most affected by the COVID-19 crisis due to their higher exposure to the virus, which is in turn driven by a variety of socioeconomic factors.Footnote 9 Several studies have shown the same phenomenon in the context of previous pandemics, such as the Spanish flu of 1918, which mainly affected the working class whether that was in India, Norway or the USA.Footnote 10 It was no different with the H1N1 flu of 2009.Footnote 11

First, socioeconomically disadvantaged people are among the “at-risk” groups because of their overrepresentation among people suffering from cardiovascular disease, diabetes, cancer and chronic disease.Footnote 12 Second, their living conditions make them more vulnerable to the virus.Footnote 13 Third, when they are employed, these people are more commonly exposed to the virus because of the nature of their work.Footnote 14 Fourth, they have greater difficulty accessing the health system.Footnote 15 Fifth, measures taken by public authorities in the context of lockdownFootnote 16 have de facto hit people who live in cramped, unsanitary, overcrowded housing without green spaces more severely, including people who find themselves in social and human distress.Footnote 17 Finally, workers who are undeclared or hired in the informal sectors – overrepresented among irregular migrants – have been left without income and social protection. In addition, poor people have also been targeted by the police in terms of sanctions for non-compliance with lockdownFootnote 18 and likely particularly to be affected by financial penalties for non-respect of lockdown.Footnote 19

Making a vaccination programme widely available constitutes an international obligation for public authorities, including under Article 12(2)c) of the International Covenant for Economic, Social and Cultural Rights, which enshrines the right to prevention, treatment and control of disease, including the implementation or enhancement of immunisation programmes and other infectious disease control strategies.Footnote 20 The European Committee for Social Rights has also recalled that “States Parties must operate widely accessible immunization programmes. They must maintain high coverage rates not only to reduce the incidence of these diseases, but also to neutralize the reservoir of the virus and thus achieve the goals set by WHO to eradicate several infectious diseases”.Footnote 21 More generally, the European Court of Human Rights (ECHR) has recently recognised that “vaccination is one of the most successful and cost-effective health interventions”Footnote 22 echoing the World Health Organization’s (WHO) position on COVID-19, according to which “vaccines are one of the most effective tools for protecting people against COVID-19”.Footnote 23

Against this background, if vaccines against COVID-19 appear as an urgent and important remedy to protect the socioeconomically underprivileged people more heavily affected than the rest of the population, the vaccination certificates are likely to exclude them. The ways such certificates work and the conditions they impose differ from one country, city or region to another, and many are still blurred and uncertain. However, before these certificates become a common practice all over the world, especially in developing countries, it is urgent to highlight the danger they present for the fundamental rights of the poor, who are less likely to gain access to and then benefit from such certificates. Indeed, poor people are among the sections of the population who are the least vaccinated,Footnote 24 not only because of practical and administrative obstacles,Footnote 25 but also because of their higher vaccination hesitancy and their mistrust in the health system, which is partly explained by their experience of long-standing discrimination, as poor people usually belong to minorities and discriminated groups.Footnote 26 This is, for instance, the case for the Roma community in Hungary,Footnote 27 but also black people in the UKFootnote 28 and the USA,Footnote 29 and the Bedouin community in the South of IsraelFootnote 30 in the context of COVID-19, confirming studies carried out previously according to which low-skilled and poor people tend to be less commonly vaccinated, although they are among the “at-risk” groups.Footnote 31 In addition, many Western countries do not include irregular migrants in their vaccination plans, making a whole group of people – already in the shadows – de facto outside of any health protection.Footnote 32 Finally, the digital divide is another obstacle likely to make it difficult for the poor to access certificates.Footnote 33 Although for the present these certificates appear to be being made available digitally and in paper, in the event that only the former type becomes the norm, poor people who do not have the necessary digital resources will not be able to use them.Footnote 34 Even if these certificates continue to be accessible on paper and digitally, other parts of the administrative process will normally be conducted online, which amounts to an additional obstacle. In other words, the lack of access to technology and digital skills is likely to perpetuate poverty, restricting social mobilityFootnote 35 and, in the case of vaccination certificates, physical mobility tout court. All of the abovementioned difficulties are likely to be persistent through time since repeated vaccinations may be required as the virus evolves, as explained by the WHO.Footnote 36

III. A perpetual state of lockdown for the poor

Most certificates are public in nature and cover cross-border travel, for which poor people are less likely to be affected, especially within the EU, where tertiary graduates are generally more mobile than the rest of the population.Footnote 37 However, low-skilled people (more likely to be socioeconomically underprivileged), especially from Eastern Europe, still move across borders.Footnote 38 Therefore, when they need to travel, these socioeconomically underprivileged people are likely to encounter more difficulties overcoming the barriers of the vaccination certificates, which derails their life or work projects for the reasons I explained in the previous section: either because they are not vaccinated and/or because they were unable to get a vaccination certificates for administrative reasons.

More importantly, beyond the question of cross-border travel, the vaccination certificate is also likely to be used by public and private actors for other purposes, either because the law says so or because of gaps in the regulation regarding these certificates, as is the case in Israel regarding labour law: because there is no regulation or collective agreement dealing with the case of unvaccinated workers, some employers took advantage of this vacuum to place entry restrictions for their unvaccinated workers or even terminating their employment contracts.Footnote 39 The fact that poor people are less likely to benefit from a certificate also carries with it the risk that they will be excluded from increasingly numerous services in society. Even more critically, if such certificates concern access to certain services – such as swimming pools, museums, restaurants, events, hairdressers, cinemas, etc. – in most countries that have so far implemented this type of certificate, it is reasonable to fear that over time such certificates will become more general: certificates are likely to be even more problematic if they are required to benefit from other services, such as nurseries, schools, social services, administrative services, supermarkets, etc., with a deterrent effect on the most marginalised populations. As a matter of fact, whether it is limited to certain services or generally, the vaccination certificate system in Western societies amounts to an indirect vaccination obligation, imposing on those who are not in possession of such a certificate a perpetual state of lockdown.

Furthermore, aside from the question of how the scope of the certificates will disadvantage the poor, the certificate system itself raises the important issue of the “non-take-up” phenomenon as regards the poor population. The “non-take-up” phenomenon describes a situation where people who have rights on paper do not claim them or benefit from them in practice. Even where many private and public services remain available to people who do not possess certificates, they will still constitute an additional invisible barrier that is likely to drive people not to claim the social benefits and rights they are entitled to, exacerbating the phenomenon of “non-take-up”. In 2004, there was between 40% and 80% of non-take-up in Organisation for Economic Co-operation and Development (OECD) countries, and recent studies have shown that this remains very high.Footnote 40 This issue of “non-take-up” has been confirmed in the context of the pandemic and the measures put in place by governments to help poor people because of complex procedures and bureaucratic jargon.Footnote 41 The causes of “non-take-up” are diverse, including a lack of information, transparency, institutional barriers, the complexity of the procedures and stigma.Footnote 42 The difficulty of “receiving” a certificate even once a person has been vaccinated should not be overlooked in light of the non-take-up issue. The administrative obstacles are real, especially for poor people, and this administrative requirement might be a new barrier for them, especially when these certificates expire after a period, as they do in Israel. In addition, it has been shown that stigma plays a role in this non-take-up phenomenon,Footnote 43 and that such stigma is likely to be intensified for people who do not have a vaccination certificate – even where it is not required as such – which is likely to exacerbate the situation of “non-take-up”.

IV. A discriminatory and stereotyping tool against the poor

Against this background, vaccination certificates are likely to discriminate against poor people, especially indirectly, since while they appear to be “neutral” measures applied to the entire population, their consequences are much worse for the poor because they are overrepresented among people who will not be in possession of such a certificate, not only as regards their mobility, but more importantly regarding the access to services and rights as explained in the previous section. Moreover, where criminal and administrative sanctions can be imposed for the failure to obtain or present a certificate, as in Denmark, the fact that the rich and the poor have to pay the same fine might be regarded as indirect discrimination since it is likely to affect poor people much more than the more privileged classes, especially where custodial sentences are available in the case of non-payment, as in Germany, Switzerland or the USA.Footnote 44

Furthermore, poor people who are particularly affected by these vaccination certificates are likely to fall into situations of intersectional or additive discriminationsFootnote 45 : poor families “with a migration background”,Footnote 46 single women and mothers overexposed to poverty and overrepresented in low-paid jobs,Footnote 47 Roma, people of colour, etc. In other words, people are likely to be discriminated against by the vaccination certificate system not only on the grounds of their socioeconomic underprivileged situation, but also on the basis of other characteristics such as ethnic origin, race or gender, which intersect or add up to their situation of precariousness. Indeed, on the one hand, “status-based discrimination is frequently closely correlated with socioeconomic disadvantage”Footnote 48 since “[g]roups which suffer from discrimination on status grounds [gender, race] … are disproportionately represented among people living in poverty”.Footnote 49 On the other hand, poor people themselves are subjected to stereotyping, prejudice, stigma and discrimination because of their precarious situations.Footnote 50 In this regard, poverty is not only a consequence but also a cause of discrimination, creating a vicious cycle. As a matter of fact, an intersectional or additive approach of discrimination that includes, among others, status grounds related to the socioeconomic situation is particularly important when assessing the legality of the measures justified by public health protection in the context of the pandemic – especially the vaccination certificates – because it is a way to recognise that “privilege and disadvantage migrate across identity categories”.Footnote 51

More importantly, vaccination certificates also raise the important issue of stereotyping and stigma against the poor. Many examples show that beyond the disadvantages that the poor and undereducated face, they are also victims of stereotyping and stigma, which can be defined as “beliefs about the characteristics of groups of people” that are predominantly negative.Footnote 52 Stereotypes “serve to maintain existing power relationships; they are control mechanisms. Stereotypes uphold a symbolic and real hierarchy between ‘us’ and ‘them’”.Footnote 53 As for the COVID-19 situation more specifically, several reports have shown that the stereotyping of poor people and minorities is exacerbated in times of pandemic. Indeed, as Earnshaw explains, we tend to believe that bad things happen to people we view as “bad”, a phenomenon called the “just-world fallacy”.Footnote 54 Many new manifestations of stereotypes and discrimination have also been observed since the identification of COVID-19. Xenophobia was first directed against people regarded as having “spread” the virus around the world.Footnote 55 Then, essential workers such as health workers and populations facing stereotypes and discrimination previously to the pandemic (eg people with HIV, sexual minorities, sex workers, migrants, Roma, etc.) were subjected to further stereotypes and verbal and physical abuse.Footnote 56 These people are overrepresented among socioeconomically disadvantaged populations, and their socioeconomic situation contributes in turn to the stereotypes and prejudices of which they are victims. In this context, requirements for vaccination certificates are likely to exacerbate the stigmatisation and stereotyping of the poor, even when they have a certificate. The attitudes expressed in stereotypes and stigma towards them can also trigger and worsen their own mistrust and isolation, resulting in an even higher risk of “non-take-up”, putting in danger their health and the well-being of society in general. Indeed, stigma and stereotypes during a pandemic pose a threat to everyone. Research on HIV, Ebola, Hansen’s disease, hepatitis BFootnote 57 and other infectious disease shows that stigma undermines efforts to find and treat diseases. People who fear being socially excluded if they are sick are less likely to get tested or seek treatment if they have symptoms,Footnote 58 and a vaccination certificate, whatever the extent of the obligations it represents, will act as a catalyst for this stigma, whether it is real or “only” internalised by the most vulnerable groups of our society.

V. Doubtful proportionality as regards the poor

The obligation to possess a vaccination certificate to gain access to public and private services, especially if it becomes general at some point, would make the situation of the poor untenable, especially if they become subject to fines, as in Denmark, for non-respect of such obligations.Footnote 59 The interference in the fundamental rights of these people is real and manifold and raises many concerns, not only in terms of discrimination as previously explained, but also because it is likely to affect most of their rights – political, civil and socioeconomic.

In this context, the proportionality of vaccination certificates that condition movement, but more importantly access to public and private services and work, needs to be generally questioned.Footnote 60 Indeed, although the aim of the protection of public health pursued by this system of certificates can certainly be considered legitimate, the need for such an indirect vaccination obligation to achieve this goal and its stricto sensu proportionality are far from obvious in light of the situation of socioeconomically underprivileged people: are all the activities conditioned by vaccination certificates likely to increase the public health risk if a section of the population participating in them are not vaccinated? If so, are there not less intrusive measures than certificates to achieve the same aim, such as the combination of distancing policies and an information campaign on vaccination? Are most of these individuals reluctant to be vaccinated? When dealing with the question of the necessity of mandatory vaccination in general, the WHO stated that such an obligation should be imposed only “if … [it] would increase the prevention of significant risks of morbidity and mortality and/or promote significant and unequivocal public health benefits”, if “a substantial portion of individuals are able but unwilling to be vaccinated and this is likely to result in significant risks of harm” and after having tried to address the concerns of these persons proactively.Footnote 61 It is only in these circumstances, according to the WHO, that such an obligation “may be considered ‘necessary’ to achieve public health objectives”. As for the vaccination certificate system, as an indirect obligation of vaccination, the conditions stated by the WHO have not been demonstrated so far, which casts important doubts on the proportionality of such a system. In addition, beyond the certificate system itself, there remains some doubts about the vaccines themselves, as recalled by the WHO: “a number of scientific unknowns remain concerning the effectiveness of COVID-19 vaccines: efficacy in preventing disease and limiting transmission, including for variants of SARS-CoV-2; duration of protection offered by vaccination; timing of booster doses; whether vaccination offers protection against asymptomatic infection …”.Footnote 62 In short, the vaccination certificate system is even more questionable as the data available are incomplete in terms of showing that making COVID-19 vaccination indirectly mandatory through a system of certificates would actually achieve the goal of protecting public health. As a consequence, given the importance of the rights at stake and the potentially disastrous consequences for the poor, it is doubtful that the benefits – if any – of such a system of certificates for society outweigh the individual costs for precarious people.

A recent judgment by the ECHR has dealt with this question of proportionality – although only in light of the right to a private and family life (Article 8 ECHR) – in the context of the compulsory administration of nine different vaccines for children in the Czech Republic. Parents who did not comply were respectively fined and prohibited from benefitting from nursery services for their kids.Footnote 63 In other words, the case concerned the indirect obligations to be vaccinated (ie obligations that do not directly impose an involuntary medical treatmentFootnote 64 ), such as in the case of a vaccination certificate. The Court judged that such measures did not violate the right to private and family life, without engaging with the questions raised under the right to education and the freedom of thought, conscience and religion.Footnote 65 The ECHR appears to leave a very wide margin of appreciation to the states. As critical commentators have pointed out, as well as Judge Wojtyczek in his dissenting opinion, if it is important for the Court to take a strong stance regarding vaccination, its decision is mainly based on “strong value judgments without a sufficient factual basis”Footnote 66 and its reasoning lacks coherence,Footnote 67 especially as to the necessity of the sanctions imposed on parents in light of the aim of public health protection.

This case cannot be entirely transposed to the vaccination certificate system, however, as it mainly concerned the protection of very young children: the best interests of the child were central to this case, while it has been shown that children are barely affected by COVID-19. Moreover, this ruling was only limited to nurseries – the fact that schools were not concerned played an important role in the Court’s reasoning in light of the concept of “social solidarity” (ie not contaminating other children). In addition, the Court did not tackle the flipside of the social solidarity aspect: the parents’ poverty is likely to be significantly affected by fines or the fact that nursery care was rendered unavailable to them, but this question was unfortunately marginal in the arguments brought by the applicant.Footnote 68 As a consequence, the question of conditioning the fundamental rights of the poor through an indirect vaccination obligation remains open before the ECHR. In any case, this judgment cannot be interpreted by the Council of Europe Member States as a green light to condition work, public and private services on the possession of such certificates, especially when it comes to socioeconomically underprivileged people, since the proportionality of such measures could be seriously questioned, as I have just explained.

VI. Conclusion

As Hershkoff and Cohen rightly put, “Society tries to impose on poor people – as it does on all those whom it stigmatizes – implicit conditions on how they may relate to members of the mainstream”.Footnote 69 Vaccination certificates constitute the paradigmatic example of such “phantom normalcy”,Footnote 70 which is likely to have important consequences for poor people already weakened by the pandemic, thus further crystallising their underprivileged status. In this situation, it is essential that in their assessment of the proportionality of the certificates – especially under the necessity test – courts take into account the situation of these people who are made increasingly “invisible” and might be condemned to live in a permanent state of lockdown, parked in their shelters. As recalled by the UN Committee on Economic, Social and Cultural Rights, there is a clear link between fundamental rights in general and the right to health: “The right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights … These and other rights and freedoms address integral components of the right to health”.Footnote 71 In other words, we cannot consider the right to health in a vacuum since all of the other fundamental rights – including the rights to food, housing, work, education, human dignity, life, non-discrimination, equality, the prohibition against torture, privacy, access to information and the freedoms of association, assembly and movement – are essential to the realisation and respect of the right to health. As a consequence, in the case of people less likely to be vaccinated and to get vaccination certificates, whether this is due to accessibility, administrative issues, hesitancy, mistrust or other reasons, it is essential for public authorities to take into account the exclusionary dimension that the lack of a vaccination certificate will have, especially for vulnerable socioeconomically disadvantaged groups who have a long history of discrimination, because it raises issues under many of their fundamental rights directly linked to their right to health. In any case, instead of putting effort, energy and money into developing exclusionary and discriminatory measures such as these vaccination certificates, it seems to me much more constructive and productive to put in place a programme of prevention and education to combat COVID-19, including through vaccination.

Arundhati Roy has powerfully written: “Historically, pandemics have forced humans to break with the past and imagine their world anew … We can choose to walk through it, dragging the carcasses of our prejudice and hatred, our avarice, our data banks and dead ideas, our dead rivers and smoky skies behind us. Or we can walk through lightly, with little luggage, ready to imagine another world. And ready to fight for it”.Footnote 72 Sadly, by adopting this vaccination certificate system, the most powerful people in this world seemed to have opted for the first option, the perpetuation of inequalities and stigma against the margins of our society.

Footnotes

Many thanks to Harry Panagopulos and Professor Alberto Alemanno for their great input on a previous version of this paper. The usual disclaimers apply.

1 See, eg, Art 3(a) “Proposal on a framework for the issuance, verification and acceptance of interoperable certificates on vaccination, testing and recovery to facilitate free movement during the COVID-19 pandemic (Digital Green Certificate)” COM(2021)130 final, Brussels, 17 March 2021.

2 See the official website about the Green Pass: <https://corona.health.gov.il/en/directives/green-pass-info/> (last accessed 12 April 2021).

3 See the official website about the Excelsior Pass: <https://covid19vaccine.health.ny.gov/excelsior-pass> (last accessed 12 April 2021).

4 Euronews, “Denmark among first in Europe to introduce COVID pass scheme” (6 April 2021).

5 Proposal for a Digital Green Certificate regulation, supra, note 1. On this proposal, see the contribution of DV Kochenov and JD Veraldi, “The Commission against the Internal Market and European Union Citizens: Trying to Shoot Down Sputnik with the ‘Digital Green Certificate’?”, in this issue.

6 MA Hall and DM Studdert, “‘Vaccine Passport’ certification – policy and ethical considerations” (2021) New England Journal of Medicine 10.1056/NEJMp2104289.

7 E Albin et al, “The Israeli ‘Green Pass’: promoting vaccination from a human rights and equity perspective”, in this issue.

8 M Tazzioli and J Häkli, in this issue.

9 B Burström and W Tao, “Social determinants of health and inequalities in COVID-19” (2020) 30(4) European Journal of Public Health 617–18; J Patel, “Poverty, inequality and COVID-19: the forgotten vulnerable” (2020) 183 Public Health 110–11; R Blundell, “COVID-19 and inequalities” (2020) 41(2) Fiscal Sudies 311–13; C Bambra et al, “The COVID-19 pandemic and health inequalities” (2020) 74 Journal of Epidemiology and Community Health 964–68.

10 Bambra et al, supra, note 9, 964–68; E Sydenstricker, “The incidence of influenza among persons of different economic status during the epidemic of 1918: commentary” (1931) 36(4) Public Health Reports 154–70.

11 Bambra et al, supra, note 9, 964–68.

12 Footnote ibid; Burström and Tao, supra, note 9, 617–18.

13 Bambra et al, supra, note 9; M Buheji et al, “The extent of COVID-19 pandemic socioeconomic impact on global poverty. A global integrative multidisciplinary review” (2020) 10(4) American Journal of Economics 220.

14 K Pouliakas and J Branka, “EU jobs at highest risk of Covid-19 social distancing: is the pandemic exacerbating the labour market divide?” (2020) Cedefop working paper; L Gamio, “The workers who face the greatest coronavirus risk”, NYTimes (15 March 2020).

15 V Hernanz et al, “Take-up of Welfare Benefits in OECD countries: a review of the evidence” (2004) OECD Social, Employment and Migration Working papers no. 17; B Baumberg, “The stigma of claiming benefits: a quantitative study” (2016) 45(2) Journal of Social Policy 181–99; M Fuchs et al, “Falling through the social safety net? Analysing non-take-up of minimum income benefit and monetary social assistance in Austria” (2020) 54 Social Policy Administration 827–43; S Chareyron and P Domingues, “Take-up of social assistance benefits: the case of the French homeless” (2018) 64(1) Review of Income and Wealth 170–91.

16 E Beaunoyer et al, “COVID-19 and digital inequalities: reciprocal impacts and mitigation strategies” (2020) 111 Computers in Human Behavior 106424; MM Jæger and EH Blaabæk, “Inequality in learning opportunities during Covid-19: evidence from library takeout” (2020) 68 Research in Social Stratification and Mobility 100524; Special Rapporteur on Extreme Poverty and Human Rights, Looking Back to Look Ahead: A Rights-based Approach to Social Protection in the Post-COVID-19 Economic Recovery (2020) United Nations, para 44.

17 R Armitage and L Nellums, “The COVID-19 response must be disability inclusive” (2020) 5 The Lancet e257; S Hennette-Vauchez, “L’urgence (pas) pour tou(te)s” (2020) La Revue des Droits de l’Homme 10.4000/revdh.8986.

18 S Body-Gendrot, “Police marginality, racial logics and discrimination in the banlieues of France” (2010) 33(4) Ethnic and Racial Studies 656–74; F Jobard et al, “Mesurer les discriminations selon l’apparence: une analyse des contrôles d’identité à Paris” (2012) 67(3) Population 423–51; Amnesty International, Policing the Pandemic Human Rights Violations in the Enforcement of COVID-19 Measures in Europe (2020) 5.

19 T Helm et al, “£10,000 fines warning for failing to self-isolate as England Covid infections soar”, The Guardian (20 September 2020).

20 Art 12(2)c) International Covenant for Economic, Social and Cultural Rights and General Comment n°14 of the Committee on Economic, Social and Cultural Rights, The right to the highest attainable standard of health (Twenty-second session, 2000), U.N. Doc. E/C.12/2000/4 (2000), para 16. See also see Art 11(3)d) European Social Charter and European Committee for Social Rights.

21 European Social Charter and European Committee for Social Rights, Conclusions XV-2, Belgium, Art 11-3, 31 December 2001.

22 Vavricka and Others v. the Czech Republic, app no. 47621/13 and five other applications (ECHR, 8 April 2021), para 277.

23 WHO, “COVID-19 and mandatory vaccination: Ethical considerations and caveats”, Policy brief, 13 April 2021.

24 P Peretti-Watel, “Attitudes toward vaccination and the H1N1 vaccine: poor people’s unfounded fears or legitimate concerns of the elite?” (2014) 109 Social Science and Medicine 10–18.

25 D Gruener, “Immunity certificates: if we must have them, we must do it right” (2020) COVID-19 Rapid Response Impact Initiative – White Paper 12, Edmond J. Safra Centre for Ethics – Harvard University; Le défenseur des droits, Les refus de soins opposés aux bénéficiaires de la CMU-C, de l’ACS et de l’AME (2014) 14.

26 V Gamble, “Under the shadow of Tuskegee: African Americans and health care” (1997) 87 American Journal of Public Health 1773–78.

27 M Dunai, “‘Falling like flies’: Hungary’s Roma community pleads for COVID help”, Reuters (31 March 2021).

28 M Razai et al, “Covid-19 vaccine hesitancy among ethnic minority groups” (2021) 372 BMJ 513.

29 L Bogart et al, “COVID-19 related medical mistrust, health impacts, and potential vaccine hesitancy among Black Americans living with HIV” (2021) 86(2) Journal of Acquired Immune Deficience Syndrome 200–07.

30 Albin et al, supra, note 7.

31 E Paul et al, “Attitudes towards vaccines and intention to vaccinate against COVID-19: implications for public health communications” (2021) 1 The Lancet Regional Health – Europe 100012; M Schwarzinger et al, “COVID-19 vaccine hesitancy in a representative working-age population in France: a survey experiment based on vaccine characteristics” (2021) 6 Lancet Public Health 210–21; AS Walker, “Pandemic’s racial disparities persist in vaccine rollout” NYTimes (5 March 2021).

32 PICUM, The COVID-19 Vaccines and Undocumented Migrants: What Are European Countries Doing? (2021).

33 JAGM Van Dijk, “Digital divide: impact of access” in P Rössler, CA Hoffner and L Zoonen (eds), The International Encyclopedia of Media Effects (Hoboken, NJ, Wiley-Blackwell 2017). It overlaps with a urban/rural divide and a age gap (Eurostat, “Digital economy and digital economy statistics at regional level” (2021)), as well as gender gap (ITUpublications, “Measuring digital development, facts and figures” (2019)).

34 Gruener, supra, note 25; A Perrin and E Turner, “Smartphones help blacks, Hispanics bridge some – but not all – digital gaps with whites” (2019) Pew Research Center.

35 J James, “Confronting the scarcity of digital skills among the poor in developing countries” (2021) 39 Developmental Policy Review 327–30 (concerning the question of smartphones in developing countries). As an example of how the digital divide is likely to affect poverty, see: I Mingo and R Bracciale, “The Matthew Effect in the Italian digital context: the progressive marginalisation of the ‘poor’” (2018) 135 Social Indicators Research 629–59.

36 WHO, supra, note 23, 2.

37 Eurostats, “EU citizens living in another Member States – Statistical Overview” (2021).

38 Footnote ibid.

39 Albin et al, supra, note 7.

40 See supra, note 15.

41 Special Rapporteur on Extreme Poverty and Human Rights, supra, note 16, para 20.

42 Administrative costs involving long periods spent queuing, filling in forms and obligations to report detailed information and provide extensive documentation to the welfare agencies appear to play an important role in non-take-up.

43 While stigma plays a role, the literature seems divided on the magnitude of its impact. See Fuchs et al, supra, note note 15. See also H Kayser and J Frick, “Take it or leave it: (non-)take-up behavior of social assistance in Germany” (2000) 121(1) Journal of Applied Social Science 27–58; J Stube and K Kronebusch, “Stigma and other determinants of participation in TANF and Medicaid” (2004) 23(3) Journal of Policy Analysis and Management 509–30; Baumberg, supra, note 15; O Hümbelin, “Non-take-up of social assistance: regional differences and the role of social norms” (2019) 45(1) Swiss Journal of Sociology 7–33 (claiming that stigma plays an important role) and see also K Bruckmeier and JüJ Wiemers, “A new targeting: a new take-up?” (2012) 43 Empirical Economics 565–80; J Currie, “The take-up of social benefits” (2004) IZA Discussion Papers, No. 1103, Institute for the Study of Labor (claiming that stigma plays a role, but a more limited role).

44 M Nagrecha, “The limits of fairer fines: lessons from Germany” (Criminal Justice Policy Program, Harvard Law School, 2020). See also: Lăcătuş v. Switzerland, app no. 14065/15 (ECHR, 19 January 2021). This question has been much more documented and researched in the USA: NL Sobol, “Charging the poor: criminal justice debt & modern-day debtors’ prisons” (2016) 75 Maryland Law Review 486; T Atkinson, “A fine scheme: how municipal fines become crushing debt in the shadow of the new debtors’ prisons” (2016) 51 Harvard Civil Rights- Civil Liberties Law Review 189; Note, “Fining the indigent” (1971) 71 Columbia Law Review 1281; TB Harvey, “Jailing the poor” (2017) 42 Human Rights 16.

45 S Hannett, “Equality at the intersections: the legislative and judicial failure to tackle multiple discrimination” (2003) 23 Oxford Journal of Legal Studies 65; K Crenshaw, “Demarginalizing the intersection of race and sex: a Black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics” (1989) 8(1) University of Chicago Legal Forum 139–67; S Atrey, “The intersectional case of poverty in discrimination law” (2018) 18 Human Rights Law Review 411.

46 L Platt and R Warwick, “Are some ethnic groups more vulnerable to COVID-19 than others?” (2020) The IFS Deaton Review.

47 Hennette-Vauchez, supra, note 17.

48 S Fredman, “Redistribution and recognition: reconciling inequalities” (2007) 23 South African Journal on Human Rights, 214–15.

49 S Fredman, “The potential and limits of an equal rights paradigm in addressing poverty” (2011) 3 Stellenbosch Law Review 567.

50 S Ganty, “Poverty as misrecognition: what role for anti-discrimination law in Europe?” (2021) Human Rights Law Review (forthcoming).

51 MA Fineman, “The vulnerable subject: anchoring equality in the human condition” (2008) 20(1) Yale Journal of Law and Feminism 21. As for the proportionality question, see Section IV.

52 A Timmer, “Toward an anti-stereotyping approach for the European Court of Human Rights” (2011) 11(4) Human Rights Law Review 714.

53 Footnote ibid., 715. See also: Human Rights Council United-Nations General Assembly, Final Draft of the Guiding Principles on Extreme Poverty and Human Rights, Submitted by the Special Rapporteur on Extreme Poverty and Human Rights, Magdalena Sepúlveda Carmona (2012) A/HRC/21/39, 4–8.

54 V Earnshaw, “Don’t let fear of Covid-19 turn into stigma” (2020) Harvard Business Review; L Manderson and S Levine, “COVID-19, risk, fear, and fall-out” (2020) 39(5) Medical Anthropology 367–70.

55 Amnesty International, “Mesures prises face à la COVID-19 et obligations des états en matière de droits humains : observations préliminaires” (2020).

56 UNAIDS, “Addressing stigma and discrimination in the COVID-19 response” (2020); R Creţan and D Light, “COVID-19 in Romania: transnational labour, geopolitics, and the Roma ‘outsiders’” (2020) 61(4–5) Eurasian Geography and Economics 559–72.

57 J Mokaya et al, “A blind spot? Confronting the stigma of hepatitis B virus (HBV) infection – a systematic review” (2018) 21(3) Wellcome Open Research 29.

58 Earnshaw, supra, note 54.

59 The fine imposed amounts to EUR 330.

60 A Barak, Proportionality, Constitutional Rights and Their Limitations (Cambridge, Cambridge University Press 2012) p 131; V Jackson, “Proportionality and equality” in V Jackson and M Tushnet (eds), Proportionality and Equality in Proportionality, New Frontiers, New Challenges (Cambridge, Cambridge University Press 2017) p 175.

61 WHO, supra, note 23, 2.

62 WHO, “Interim position paper: considerations regarding proof of COVID-19 vaccination for international travellers”, 5 February 2021. In the same vein, the organization has opposed the immunity certification: TC Voo et al, “Immunity certification for COVID-19: ethical considerations” (2020) 99(2) Bulletin of the World Health Organization 155–61.

63 Vavřička and Others v. the Czech Republic, supra, note 22.

64 The margin of appreciation of the state is also wide when it comes to a direct compulsory vaccination, although see: Solomakhin v. Ukraine, app no. 24429/03 (ECHR, 15 March 2012); Boffa and others v. San-Marino, app no. 26536/95 (ECHR, 15 January 1998).

65 Vavřička and Others v. the Czech Republic, supra, note 22.

66 Dissenting opinion of Judge Wojtyczek in Vavřička and Others v. the Czech Republic, supra, note 22, para 18.

67 Z Vikarská, “Is compulsary vaccination compulsary?”, VerfBlog (12 April 2021).

68 Vavřička and Others v. the Czech Republic, supra, note 22, para 162.

69 H Hershkoff and AS Cohen, “Begging to differ: the First Amendment and the right to beg” (1991) 104(4) Harvard Law Review 912.

70 See references in note 40, supra.

71 Comment n°14 of the Committee on Economic, Social and Cultural Rights, supra, note 20, para 3.

72 A Roy, “The pandemic is a portal”, Financial Times (3 April 2020).

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