IPV vaccination; photo by Sanofi Pasteur via Flickr (CC BY-NC-ND 2.0)

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Do compulsory vaccinations against COVID-19 violate human rights?

An assessment of the measure’s compatibility with the European Convention on Human Rights

02.12.2020

As soon as the announcement of a vaccine against the coronavirus hit the news, discussions on the permissibility of compulsory vaccination multiplied. As anti-vaccination campaigns flourish and fake news spread in a flash, vivid public debates on mandatory vaccinations are close at hand. Against that background, this piece scrutinizes the relevant case-law of the European Court of Human Rights (ECtHR) – and the earlier European Commission on Human Rights (EComHR) – to convincingly address those asking: Is compulsory vaccination compatible with the European Convention on Human Rights (ECHR)?

Compulsory vaccination and the interference with the right to respect for private life

Although the Grand Chamber has yet to issue its widely-anticipated decision on Vavřička and others v the Czech Republic, which will essentially clarify the landscape as to the ECtHR’s view on mandatory vaccination and the consequences of one’s refusal to comply with the national legislation thereon, earlier relevant jurisprudence does not leave much room for assumptions. In fact, the previous case-law of both the ECtHR and the EComHR, which addressed the compatibility of mandatory vaccination with the ECHR in its later years, provides some clear guidelines on the matter.

As early as 1984, the EComHR had already underlined that ‘a requirement to undergo medical treatment or a vaccination, on pain of a penalty, may amount to interference with the right to respect for private life’ (Acmanne and others v. Belgium, pp 251, 255). This vaguely phrased assumption was later affirmed by ECtHR, which held that ‘[c]ompulsory vaccination – as an involuntary medical treatment – amounts to an interference with the right to respect for one’s private life, which includes a person’s physical and psychological integrity, as guaranteed by Article 8(1)’ (Solomakhin v Ukraine, para 33). What remains to be examined is whether such an interference can be justified under Article 8(2).

The legitimate aim pursued

In the case of Boffa and others v San Marino, the EComHR acknowledged that the interference arising from the compulsory vaccination of the applicants’ children against hepatitis B was indeed inspired by one of the legitimate aims enlisted in ECHR Article 8(2), namely the need to protect the health of the public and of the persons concerned (p 34). In this sense, the Commission acknowledged the interference as justifiable, and moved further to examine whether it was also ‘necessary in a democratic society’.

Similarly, in the case of Jehovah’s Witnesses of Moscow v. Russia, which referred to mandatory vaccination during an epidemic, the ECtHR emphasized that ‘free choice and self-determination were themselves fundamental constituents of life and that, absent any indication of the need to protect third parties, the State must abstain from interfering with the individual freedom of choice in the sphere of health care, for such interference can only lessen and not enhance the value of life’ (para 136). Doing so, the Court indicated that the right to private life could in principle be limited for the protection of third parties.

For the purposes of the present analysis, there is no reason to doubt that a potentially compulsory Covid-19 vaccination would pursue a legitimate aim. Assuming that the measure was introduced through an accessible and foreseeable legal provision (Silver and others v the United Kingdom, para 87), the assessment of its necessity in a democratic society would be of much more interest and importance.

Criteria for the assessment of necessity in a democratic society

The ECtHR has reiterated in its established case-law that the notion of ‘necessity in a democratic society’ implies a pressing social need to which the interference at stake corresponds and, in particular, that this interference is proportionate to the legitimate aim pursued (Dudgeon v.the United Kingdom, paras 51-53). In the specific case of Solomakhin v Ukraine, where the applicant was involuntarily vaccinated against diphtheria during an epidemic, the Court has been deemed to have suggested two criteria to assess the necessity of such interference in a democratic society: 1) public health considerations that necessitate the control of the spreading of infectious diseases; and 2) the assessment of whether necessary precautions had been taken with regard to the suitability of vaccination for the individual case at hand. Indeed, the Court paid attention to the fact that the medical staff had checked the suitability of the applicant for vaccination prior to carrying out the vaccination and to the fact that necessary precautions had been taken to ensure that the medical intervention would not be to the applicant’s detriment to the extent that would upset the balance of interests between the applicant’s personal integrity and the public interest of the protecting the population’s health (para 36).

In a similar fashion, the EComHR in Boffa and others v San Marino underlined that the domestic authorities enjoy a certain margin of appreciation, the extent of which depends not only on the aim of the interference, but also on its form (p 35). The Commission stated, first, that the applicant did not demonstrate a probability the relevant vaccine would cause serious problems in the particular case of his child. It explained secondly, that the measure taken did not go beyond the margin of appreciation enjoyed by the State, since a similar vaccination campaign, obliging individuals not to endanger the health of others where their own life is not at risk, existed in most countries (p 35). The aforementioned criteria (i.e. the existence of a public health necessity and the suitability of the individual for vaccination) recently elaborated by the Court, therefore seem to have been already envisaged by the Commission, which simply further assessed the existence of consensus in the attitude of States on the matter at that time.

To further flesh out this certain margin of appreciation regarding compulsory vaccination and for the purposes of the present analysis, reference should be had to more recent developments in state practice. In its written observations submitted to the Court on the case of Vavřička and others v the Czech Republic, the European Centre for Law and Justice underlined that Europe is quite divided on this subject. As it further noted, a significant number of European States has not established mandatory vaccination, while some States have even acknowledged the right of individuals to conscientious objection. This lack of consensus on the matter seems to indicate that States enjoy a rather wide margin of appreciation (X, Y and Z v the United Kingdom, para 44). And although drawing conclusions on the States’ margin of appreciation in cases of a pandemic on the basis of the lack of consensus on mandatory vaccination against any infectious disease does not seem very persuasive, the intensity of the coronavirus pandemic and its degree of unexpectedness seem to verify the existence of a wider margin of appreciation enjoyed by States under these circumstances. Despite their prerogative, States should try to strike a fair balance between the right to private life on one hand and the protection of public health on the other.

Against this background, the following section assesses, whether these criteria would be met in the case of compulsory vaccination against COVID-19.

Application of the established criteria to the case in question

Initially, the unprecedented circumstances that the breakout of the pandemic brought about could be qualified as a ‘pressing social need’ or as ‘public health considerations that necessitate the control of the spreading of infectious diseases’. Most of all, since the margin of appreciation enjoyed by the States in dealing with pandemics was during the assessment above found to be rather wide, a putative interference with the right to private life, introduced through the measure of compulsory vaccination, should not per se be seen as a failure in the balancing exercise to be performed by States with regard to the competing interests.

However, scrutinizing whether the legitimate aim could be reached through less intrusive means is an essential parameter of any balancing exercise. In this sense, if the legitimate aim pursued could be met via the compulsory vaccination of a specific age group, the horizontal imposition of compulsory vaccination would tilt the scale to the side of unlawful interference. In cases where an alleged violation of Article 8 was at stake and the State was found to be enjoying a wide margin of appreciation, however, national authorities did not need to provide “sufficient” reasons, implying the practical lack of less grievous means by which the legitimate aim could be reached (Buckley v the United Kingdom). Indeed, in such situations the local authorities are deemed as being in a better position to assess the efficiency of less coercive measures (see here p 77).

Additionally, as the above analysis evinces, the assurance of suitability of vaccinations for each individual is an essential prerequisite for the compatibility of mandatory vaccinations with the ECHR. The latter prerequisite is to be assessed on an ad hocbasis, while the burden of proof on the demonstration of the reason(s) why in the specific case mandatory vaccination is unsuitable lies with the individual at issue, who will have to demonstrate a probability that the vaccine will cause serious problems to her/his health (Boffa and others v San Marino p 35). In this sense, the level of severity that needs to be reached for such an allegation to render the measure arbitrary is relatively high.

Conclusively, the measure of compulsory vaccination is compatible with the ECHR, save if the requirement of a prior assessment of the suitability of vaccination for the individual at issue is not met.

Author
Spyridoula Katsoni
Spyridoula Katsoni is a Ph.D. Candidate and Research Associate at the Institute for International Law of Peace and Armed Conflict (IFHV), Ruhr-University Bochum.
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9 Comments
  1. Yes every compulsory “precaution” is a violation of human rights. Who’s to force me to adhere to their own risk assessment and life priorities? It doesn’t matter how much science is behind their vaccine, my life is mine and I should call big decisions.

  2. I note you cite legal technicalities in order to reach your conclusion which you seem unwilling to be moved from. I quote the Nuremberg code;
    “ The protagonists of the practice of human experimentation justify their views on the basis that such experiments yield results for the good of society that are unprocurable by other methods or means of study.“

    You’ve avoided the contradiction and ethics of forcing a population to except an experimental drug with unknown short, medium or long terms affects, even coercion to except such a drug should be against an individual’s rights.

    If the ECHR would conveniently overlook the contradictions to reach your conclusion, then I think humanity is in serious trouble.

    • Dear Adam,
      Thank you for your comment.
      Pursuant to the Court’s recent judgement on Vavřička and others v. the Czech Republic, a slight shift in jurisprudence can be noted; nowadays, the Court seems to be more mindful of conscience objections during the assessment of the compatibility of compulsory vaccinations with the ECHR. Against this background, the present article is better read in conjunction with a more recent article published herein, titled “What Does the Vavřička Judgement Tell Us About the Compatibility of Compulsory COVID-19 Vaccinations with the ECHR?”.
      Kind regards,
      Spyridoula Katsoni

  3. Is no jab, no job against human rights.
    Discrimination against those for what ever reason wish not to receive the covid vaccination, from religious or medical reasons etc.

  4. It is not reasonable to make a vaccine mandatory for an illness that more than 99% either develop mild symptoms from or remain asymptomatic. Given no person should ever be forced to take an experimental drug only given emergency use authorization, there would be clear violation of human rights under such a law. Human subjects in an experiment deserve informed consent. Given nobody even knows if the mRNA vaccines will stop the spread of an illness or only generally lower prevalence of more severe illness, it is even more absurd to mandate a drug before its efficacy is clear.

    • Dear Mr Kourtakis,
      Thank you very much for your comment.
      As I have mentioned in another comment herein, the vaccines that have received authorization in accordance with the EU regulations on the matter do not fall under the category of unauthorised experimental medications, as the European Court of Human Rights seems to perceive them in Hristozov and Others v Bulgaria (App No 47039/11 and 358/12).
      Furthermore, numerous scientific reports highlight the efficacy of vaccination as a means of countering the spread of the virus, while numerous reports also evince different percentages of patients with mild or no symptoms to the ones you suggested above. For these reasons and for the reasons anaysed in the post above, I believe that ‘the measure of compulsory vaccination is compatible with the ECHR, save if the requirement of a prior assessment of the suitability of vaccination for the individual at issue is not met.’
      Kind regards,
      Spyridoula Katsoni

  5. If you refuse to have the covid-19 vaccination can you be discriminated against in any way ie travelling across borders (EU) ‘refused entry to a sports/cultural event, seat on an airline, restaurants etc.
    Thank you.

  6. Can you answer a simple question ? Many doctors and scientists say the ‘vaccines ‘ are not in fact legally defined or scientifically defined as a vaccine at all.
    So how can this discussion about rights have any bearing on reality util this matter has been tried,proved, tested and in a court of law ?

    • Dear Mr. Fitzmaurice-Brown,
      Thank you very much for your comment.
      On this issue, the jurisprudence of the European Court of Human Rights is not particularly rich. The Court makes, however, a distinction among authorised and unauthorised or experimental drugs. In the case of the latter, the Court has underlined that there is an emerging consensus among States parties to the ECHR allowing, under exceptional conditions, the use of unauthorised medicine. However, the Court further noted that this consensus was not based on settled principles in the law of the said States parties, nor did it extend to the precise manner in which the use of such products should be regulated. Such being the case the Court found no ECHR violations in the case of Bulgaria’s refusal to allow access to experimental drugs to terminally-ill cancer patients (Hristozov and Others v Bulgaria, App Nos 4703911/11, 358/12, 13 November 2012).
      Against this background, one can notice a skeptical attitude of the Court towards unauthorised medication. However, since some anti-COVID vaccines have been authorised in accordance with the EU regulations on the matter, they surely do fall outside the ambit of unauthorised medications for the purposes of the subject matters dealt with by the European Court of Human Rights. Such being the case, it is to my strong conviction that if a case were brought before the Court on the issue of the anti-COVID vaccines, the latter would not be dealt with as unauthorised medications by the Court.
      I hope that my response has addressed your question satisfactorily.
      Kind regards,
      Spyridoula Katsoni

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