Vaccine hesitancy jeopardises population immunity
Not everyone can be vaccinated against COVID-19. People with specific allergies should not be given certain vaccines, and we have insufficient data on whether current vaccines are safe for children, pregnant women and those with compromised immune systems, including people with HIV. Moreover, many are hesitant about receiving a vaccine. A recent study indicates that vaccine acceptance in Europe varies between 44-66 per cent, which may not be sufficient to achieve the level of population immunity (or ‘herd immunity’) that would enable us to open up our societies again.

Of greatest concern to the wary is fear of side effects. Distrust is more common among ethnic minorities and marginalised groups, which may have good reason, at least from a historical perspective, to doubt public authorities and the healthcare system. Additionally, the unprecedented rapid development and approval of COVID-19 vaccines seems to have led larger groups to hesitate.

Therefore, governments are considering different strategies to encourage people to have the jabs. These include public education campaigns and various incentives such as the EU’s proposed Digital Green Certificate which would allow its holders to travel freely within the EU, and Israel’s Green Pass which grants access to social and cultural events as well as to gyms, hotels, and restaurants for individuals with COVID-19 immunity, either through full vaccination or recovery from the illness. No government has yet made vaccination against COVID-19 mandatory; that is, imposing sanctions for non-compliance rather than enforcing vaccination. Nevertheless, mandatory vaccination is part of the governmental ‘toolbox’ to protect public health against contagious diseases and is practised in some countries, such as the Czech Republic, France and Germany, in relation to other viruses, for instance, measles, mumps and rubella. The question thus arises: is mandatory vaccination against COVID-19 compatible with international human rights law?

Mandatory vaccination can be justified but context vital
The main rule within international human rights law is that vaccination, like any other medical intervention, must be based on the recipient’s free and informed consent. This rule is, however, not absolute. In Solomakhin v Ukraine, the European Court of Human Rights (the Court) held that mandatory vaccination interferes with a person’s right to integrity protected under Article 8 of the European Convention on Human Rights (ECHR). Nevertheless, the Court concluded such interference may be justified if considered a ‘necessity to control the spreading of infectious diseases’ (para 36).

Last week, the Court’s Grand Chamber delivered its widely-anticipated judgment in Vavřička and Others v the Czech Republic, providing more detailed discussion of the implications of the ECHR on mandatory vaccination in the context of childhood vaccines. The case concerned domestic legislation requiring children to undergo a series of vaccinations. The policy does not physically enforce vaccination but parents who refuse to let their children be vaccinated can be fined and unvaccinated children excluded from pre-school (paras 73 and 83). The Court held, by 16 votes to one, that the policy was compatible with the ECHR.

This judgment shows that states enjoy a wide margin of appreciation in determining vaccination policies, as long as vaccination is not forcibly imposed (para 280). States have a positive obligation to protect the health and life of their residents, including those particularly vulnerable to certain diseases and those who cannot have specific vaccines for medical reasons (para 282). Low vaccination rates increase risk of outbreaks of serious diseases which may severely impact individuals’ health and society in general. Thus, the Court held that the mere possibility that a system based on recommendations might be less effective than a mandatory one constitutes a strong reason to permit mandatory vaccination policies under the ECHR. The fact that most European states maintain high vaccination rates without mandatory policies did not deter the Court from this conclusion (paras 285, 306 and 310).

The above suggests governments are free to use economic sanctions and incentives to encourage vaccination against COVID-19. However, caution is required. Whether mandatory means are necessary to achieve sufficient vaccination coverage is essentially an empirical question which can only be answered in relation to a specific context, taking the expected effectiveness of various approaches and level of vaccination hesitancy in the country in question into account. As emphasised by third-party intervener Rozalio in Vavřička and Others, repressive tools may prove counterproductive, increasing mistrust and opposition to vaccination.

Like all interference with ECHR Article 8, vaccination strategies are only lawful if proportionate. Any policy must not excessively burden those affected and benefits must compensate for any harms caused ‘all things considered’. Vavřička and Others lists several relevant factors. For example, clearly, only safe and effective vaccines may be part of a domestic vaccination policy. This, however, is for the scientific community, not the Court, to determine (para 291). If experts consider a vaccine safe, then a few children suffering serious and lasting side effects (approximately five or six out of 100,000 children a year) will not make a duty to vaccinate disproportionate (para 301). Other pertinent issues include: availability of compensation for health injuries resulting from vaccination, severity of sanctions imposed on those who refuse vaccination, and legal safeguards for those who wish to contest sanctions. In this case, a fine equivalent to 400 euros was deemed moderate, hence, a proportionate sanction. Regarding exclusion of unvaccinated children from pre-school, the Court recognised such measures deprive affected children of opportunities to develop their personalities and acquire important social and learning skills in a pedagogical environment. Exclusion was, however, a direct consequence of parental choice. Moreover, access to pre-school for children who cannot receive vaccinations for medical reasons hinges on a high vaccination rate among their peers. Thus, the Court concluded that it cannot be regarded as disproportionate to require those for whom vaccination represents a remote risk to health to accept this duty ‘in the name of social solidarity’ (para 306).

A difference between the vaccines discussed in Vavřička and Others and currently available COVID-19 vaccines is that the latter are only considered safe for adults. A vaccine for children and adolescents is, however, getting closer. Furthermore, Vavřička concerned vaccination against viruses like measles and poliomyelitis, which pose severe risks to children. By contrast, children with COVID-19 typically exhibit only mild symptoms and child death rates are very low. As dissenting judge Wojtyczek pointed out, because communicable diseases differ from each other in various respects, proportionality assessment of a vaccination duty should be conducted on a ’disease-by-disease basis’.

Avoid discriminatory use of compulsion
As previously noted, vaccine hesitancy is more common among ethnic minorities and marginalised groups. Hence, states need to ensure education campaigns reach these groups and enable their members to make informed vaccination choices. Additional efforts to build trust and prevent disinformation may also be necessary.

Moreover, the higher prevalence of vaccine hesitancy among certain groups raises questions about possible discriminatory effects of mandatory vaccination policies. Such policies that penalise and exclude unvaccinated people from certain spheres of society risk a disparate impact on minority groups and may thereby exacerbate already present social disadvantage and stigma. Thus, any mandatory vaccination policy must be carefully formulated to avoid discrimination.

Elsewhere, I have developed a framework to help decision-makers design proportionate and non-discriminatory regimes for compulsory health interventions. It discusses specific harms caused by policies that target groups protected under discrimination law and explains how such harms affect balancing and proportionality assessments. The framework is tailored to the mental health context, however, its high level of abstraction, allows for much wider application.

Cite as: Nilsson, Anna. "Is Mandatory Vaccination Against COVID-19 Justifiable Under the European Convention on Human Rights?", GC Human Rights Preparedness, 15 April 2021, https://gchumanrights.org/preparedness/article-on/is-mandatory-vaccination-against-covid-19-justifiable-under-the-european-convention-on-human-rights.html