Guest Editorial: The Compatibility of COVID Passes with the Prohibition of Discrimination

Abstract

Countries all over the world are increasingly introducing Covid-19 passes – certificates of an individual’s vaccination status, testing status, or recovery from the virus – and mandating their use in certain contexts, such as access to bars, restaurants, public transport and other facilities. In this editorial I will not engage in a detailed descriptive examination of how COVID passes have been implemented in individual states. Rather, my intention is to do a big picture analysis of the compatibility of such policies with the prohibition of discrimination and the principle of equality. Non-discrimination is a foundational rule of international human rights law and most domestic constitutional systems for the protection of fundamental rights. It is not an absolute rule, in the sense that some distinctions in treatment can be reasonably and objectively justified. And COVID passes may well be justified in most states that have used them so far, depending on how precisely they were designed and implemented. That said, the key argument I wish to make here is that lawyers and policymakers need to be especially mindful of the potential indirect discriminatory effects of COVID passes. In order to mitigate such effects, all state rules and policies need to be thoroughly scrutinized, be evidence-based and subject to oversight and judicial review. The state must gather data about the real-world effects of COVID passes, positive and negative, and subject them to ongoing, dynamic evaluation, including meaningful equality impact assessments. Finally, the positive and negative effects of COVID passes will always be variable and context-specific – they may be a great success in one country but not in another; the circumstances of each society need to be taken into account.

Note:
Funding: The editorial essay was written with internal funding of the University of Nottingham.

Declaration of Interests: I have no competing interests to declare.

Keywords: COVID-19, coronavirus, passes, passports, certificates, discrimination, equality, human rights