On 12 July 2021, President Macron announced the tightening of Covid measures amid the rising Delta variant in France. Following his announcement, more than 20,000 people a minute rushed to book an appointment for the vaccine, breaking all records since the start of the vaccination campaign. Meanwhile, protests against government measures increased with people concerned over the restrictions’ implications for human rights and civil liberties.

EXTENSION OF THE COVID “HEALTH PASS”

In his address on 12 July, Macron announced the extension of the Covid health pass. From 21 July, people are required to show proof of vaccination or a negative test result to access cultural venues such as cinemas, museums, concerts, and all other events or places with capacity for more than 50 people. As of 1 August, anyone without a health pass is not admitted to restaurants, cafes, or movie theatres and will not be able to travel long distances by train. As for health workers, they will face suspension of pay or dismissal if not vaccinated by 15 September 2021. Lastly, many tests will cease to be free in the fall to encourage vaccination before then.

Such measures were far from being considered back in April, with President Macron declaring that a health pass “will never be a right of entry that differentiates between French people”. Health minister Olivier Véran had also stressed France’s “passion for equality” and that it was “almost inconceivable that when places reopen, they will not reopen to everyone”. However, the Delta variant and the low rates of vaccination seemed to have blurred such commitments.

Within hours of Macron’s address, online medical appointment sites like Doctolib hit records with hundreds of thousands of people booking their first dose. Meanwhile, in the two consecutive weekends following the announcement, more than 100,000 people protested the government’s new measures. While often depicted as “anti-vax,” protesters’ political affiliations and motives are far more diverse. While some do not want to get vaccinated, others already had their first or second jab but oppose the extension of the health pass, which they argue would undermine freedom and civil liberties. Such risks were put most bluntly by Michèle Rivasi, a French MEP for the European Greens, who went so far as to define the extension of the measures as “apartheid in the land of human rights”—a comment she apologised for following extensive criticism.

FRANCE’S NEW COVID HEALTH PASS AGAINST HUMAN RIGHTS?

Macron’s decision to implement a Covid health pass poses serious questions in relation to human rights: Is it possible to disregard individual choice to safeguard public health? Under what conditions can we infringe the rights to bodily autonomy or physical integrity? And what are the relevant provisions under human rights law? 

In light of these considerations, the European Convention on Human Rights (ECHR)—to which France is a party—is of particular relevance. Under article 2(1), the state party has the positive obligation to safeguard the lives of those within its jurisdiction. This includes the duty to provide a regulatory framework and the obligation to take preventive operational measures. In the context of the Covid pandemic, vaccination appears to be one of the most effective means to minimise the risk of hospitalisation and mortality. Under these unprecedented circumstances, it would then seem reasonable to believe that the state could impose a vaccine mandate to safeguard public health and the lives of its citizens.

While states should protect everyone’s right to life under their jurisdiction, considerations should be given as to whether mandatory vaccination conflicts with other provisions related to individuals’ rights. One should also examine whether such interference could be considered lawful under certain circumstances. Under article 8 of the ECHR: “Everyone has the right to respect for his private and family life, his home and his correspondence.” This includes both the physical and psychological integrity of the individual. Article 3 of the EU Charter of Fundamental Rights is even more explicit on the protection of bodily integrity in the fields of biology and medicine. Among other provisions, the article states that “the free and informed consent of the person concerned, according to the procedures laid down by law” should be respected. In that case, Macron’s measures would severely impinge on the right to physical or bodily integrity. While vaccines are not yet mandatory for the general population, restricting individuals’ access to most public spaces and services based on proof of vaccination or negative test de facto makes it mandatory.

That being said, interference with the exercise of this right applies under certain circumstances. As defined by the ECHR, state interference is lawful if: (1) it is in accordance with the law; (2) it is in the interests of national security, public safety, or the economic well-being of the country; for the prevention of the disorder of crime; for the protection of health or morals; or for the protection of the rights and freedoms of others; and (3) if the interference is necessary in a democratic society. While it is clear that vaccination is one of the most efficient measures to safeguard public health, concerns remain as to France’s new Covid measures’ necessity and proportionality, as well as their impact on the most vulnerable segments of the population. 

According to Clair Hédon, French defender of rights (“Défenseur des Droits”), the extension of the health pass has serious consequences for civil liberties. “I recognise the importance of vaccination to fight against the pandemic but at the same time, I am rather questioning the method and proportionality of most of the restrictions,” she explains. According to her, such measures would need to be discussed as part of a democratic debate due to their important implications for individuals’ rights and freedoms. Instead, the French government initiated an accelerated procedure, meaning that the French Parliament and the Senate only get to discuss the text one time before its promulgation. 

Another concern for the defender of rights is the measures’ impact on poorer segments of the population. The lowest vaccination rates can indeed be observed in poorer areas, where individuals have little to no access to digital platforms and information, and public services are lacking. In addition to significant spatial disparities in vaccination between urban areas, rural peripheries, and departments overseas, the health pass would exacerbate already existing socio-economic divides, which have already deepened since the beginning of the pandemic.

In the Parisian suburb of Seine-Saint-Denis, one of the capital’s poorest neighborhoods, the combination of large families in cramped quarters and the lack of doctors and hospital beds has left inhabitants particularly exposed to the virus. Similarly, the vaccination campaign has been less effective partly due to poor access to information and public services. In June, the area recorded one of the lowest vaccination rates with only 22% of the population having received their first injection (against 34.3% nationally) and 9.5% being fully vaccinated (against 15.8% nationally). Most recently, mobile vaccination centres [in French] have been set up in front of crowded areas such as shopping malls, local markets, and metro stations. These centres, which do not require online appointments, aim to facilitate access to vaccination and information to reach the most vulnerable.

On 25 July, the French Senate formally adopted the bill for the Covid health pass. Amid increasing protests, the Senate nonetheless made several compromises. Recent amendments include exempting shopping centres, prohibiting the dismissal of employees based on the Covid health pass, and making the health pass conditional upon the re-establishment of the state of emergency until 31 October. Looking to the future, the proportionality and necessity of France’s Covid measures should be cautiously evaluated in order to ensure public health and safety while guaranteeing the equal protection of the rights and freedoms of all. 

Valentine holds a Bachelor’s degree in International Relations from Amsterdam University College and wrote her dissertation on the French government’s securitisation of Islam through counterterrorism and secularism. She is currently pursuing her Masters in Middle Eastern Politics at SOAS University of London. Her fields of interests include state violence and terrorism, human rights, and intersectional feminism.

Linkedin