It is evident that Covid-19 changed the global order by which over 219 million people have been infected, and more than 4.5 million people have died. The Covid-19 vaccination is viewed as a way back to normality, an escape from the existing constraints that prevent us from shaking hands and hugging beloved ones (McMillan, 2021). While millions of people wait anxiously for weeks or months to reach a priority vaccine group (probably years in some low-income countries), others fear their refusal to accept the Covid-19 vaccine, irrespective of the reason, will isolate them by constraining their social freedom (Ibid) which is what has been occurred during last months as part of European states to encourage people toward vaccination.
Recently, the Belgian government has announced that from October 2021, everybody aged 16 and over will be required to have a valid Covid vaccination certificate to access bars, restaurants, and clubs. (VRT, 2021). In other words, those who are vaccinated can enter a bar or restaurant by showing their vaccination certificate. However, non-vaccinated people would have to get tested regularly, as a negative result is only valid for one (self-test) or two days (PCR test) (Brussel Times, 2021). This initiative was adopted by Italy and France as well (Ibid). In response to this plan, hundreds of people protested at the prospect of a Covid-19 vaccination being a mandatory requirement to participate in certain activities (Brussel Times, 2021).
Therefore, two questions arise in this context. Firstly, whether is it possible to make the vaccination mandatory under European Convention on Human Rights (ECHR). Secondly, whether imposing certain social restrictions on non-vaccinated people is allowed, or such governmental initiative would amount to a violation of ECHR. As a result, in this article, these two questions will be examined.
- Case of Smallpox Vaccination; History Repeats Itself
The debate over vaccination is not limited to the recent pandemics. During the late 17th century, all states were struggling with a pandemic. In 1796, Edward Jenner created the first vaccination against smallpox, which was seen as a solution to a disease that was killing millions of people worldwide. In this regard, smallpox vaccination was made mandatory in the UK by enactment of the Vaccination Act of 1853, similar to what is happening to the covid-19 vaccination (McMillan, 2021). However, By the late 19th century, anti-vaccination leagues were formed, and thousands protested against it. The main opposing arguments and objections included issues of religiosity and health. Besides, the issue of individual rights was invoked by various oppositions at that moment. Ultimately, the legislation was amended in 1898 by which it was allowed for ‘conscientious objection’ to receiving a vaccine (Ibid).
- European Convention on Human Rights and Vaccination
Generally, compulsory vaccination relates to the interplay among competing rights. To illustrate, on the one hand, a government has a duty to protect the health and safety of the population, and on the other hand, it is an inherent right of an individual to decide about his/her bodily integrity.
In this regard, article 8 of ECHR is the primary basis for the second group’s line of argument. It provides that (ECHR, 1950)
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Therefore, like any other medical treatment, vaccination requires the recipient’s free and informed consent (Nilsson,2021). However, based on the European court of human rights (ECtHR) jurisprudence, certain restrictions are defined for this right (Ibid). Notably, in Solomakhin vs. Ukraine, the ECtHR held that, although mandatory vaccination is not in accordance with a person’s right to integrity protected under Article 8 ECHR, such interference could be justified in case of a ‘necessity to control the spreading of infectious diseases’ (ECtHR, 2012).
In addition, on the 8th of April 2021, the Grand Chamber of the ECtHR issued a judgment on Vavřička and others v. the Czech Republic (ECtHR,2021) which shed light on its view on Covid-19 compulsory vaccinations. as it provides useful guidelines on the situation, under which compulsory COVID-19 vaccinations comply with the ECHR (Katsoni, 2021). The case brought before ECtHR by six applications, lodged by a father. The father omitted to have his children vaccinated and therefore, based on domestic legislation, he was found to have committed a minor offence. (Ibid). Ultimately, The Court held that the policy, which requires that any parents who refuse to let their children be vaccinated can be fined and unvaccinated children excluded from pre-school, was compatible with the ECHR. Besides, it held that the mere possibility that a system which is based on recommendations might be less effective than a compulsory one establish a reliable argument for mandatory vaccination policies under the ECHR (Nilsson,2021).
- Concluding Remarks and Recommendations
To sum up, based on ECtHR’s jurisprudence, it could be argued that under certain conditions, governments are allowed to use economic sanctions and compulsory incentives to encourage vaccination against COVID-19. Nevertheless, Caution must be exercised. Because, as Rozalio – third-party intervener in the Vavřička case- emphasized, mandatory tools may have adverse effects such as increasing mistrust and opposition to vaccination (Ibid). In addition, under ECHR Article 8, vaccination policies are only lawful if they prove to be proportionate.
As a result, given the fact that resistance against vaccination is more common among ethnic minorities and marginalized groups, it is suggested that government officials ensure education campaigns reach these groups and enable their members to make informed vaccination choices. Also, attempts for trust-building and disinformation prevention may be helpful (Ibid).
- Bibliography
Brussel Times, 2021, “Belgium prepares general introduction of Covid pass in Brussels”, accessed September 14 2021< https://www.brusselstimes.com/belgium/183899/belgium-prepares-general-introduction-of-covid-pass-in-brussels/ >.
Brussel Times, 2021, “1,500 protest in Brussels against mandatory vaccination”, accessed September 14 2021< https://www.brusselstimes.com/brussels-2/183734/1500-protest-in-brussels-against-mandatory-vaccination/ >.
Council of Europe, 1950, “European Convention for the Protection of Human Rights and Fundamental Freedoms”.
ECtHR, 2012, “CASE OF SOLOMAKHIN v. UKRAINE”.
Katsoni, 2021, “What Does the Vavřička Judgement Tell Us About the Compatibility of Compulsory COVID-19 Vaccinations with the ECHR?”, accessed September 13 2021< https://voelkerrechtsblog.org/what-does-the-vavricka-judgement-tell-us-about-the-compatibility-of-compulsory-covid-19-vaccinations-with-the-echr/ >.
McMillan, 2021, “Mandatory vaccination: legal, justified, effective?”, accessed September 14 2021< https://www.ibanet.org/article/70E1F93E-A23B-4F1A-A596-AEEF84750241 >.
Nilsson,2021, “Is Mandatory Vaccination Against COVID-19 Justifiable Under the European Convention on Human Rights?”, accessed September 14 2021< https://gchumanrights.org/preparedness/article-on/is-mandatory-vaccination-against-covid-19-justifiable-under-the-european-convention-on-human-rights.html >.
VRT, 2021, “Covid passport in hospitality in Brussels from October”, accessed September 14 2021< https://www.vrt.be/vrtnws/en/2021/09/08/_covid-passport-in-hospitality-in-brussels-from-october/ >.
