Mandatory Vaccination? Against my human rights?

26

J’Moul Francis BA Law, LLM, (EU Law, Competition Law, and International Law); Commonwealth Scholar, Legal Commentary Blogger at www.francisobiter.org

Well, not really, but it depends on a few factors.

Anti-vaxxers, vaccine sceptics, and critics of a mandatory vaccination policy want to protect their individual freedoms, whether based on objective reasoning or not, out of the fear of an apparent unwanted, unfettered, and unjust encroachment by the state on how individuals choose to live their lives. The compatibility of a possible compulsory vaccination policy with human rights (or constitutional) obligations can be addressed by walking through a recent and very instructive judgment from the European Court of Human Rights (ECtHR) and highlighting broader considerations.

Vavřička and Others v the Czech Republic is a case concerning the compulsory childhood vaccination policy and its interference with the ‘Right to Respect for Private Life’ under Article 8 of the European Convention of Human Rights (ECHR). The situation is that there’s a legal obligation for all persons residing on a long-term basis in the Czech Republic to undergo routine vaccinations. But, more relevantly, for children under the age of 15, their statutory representatives must act to get their child(ren) vaccinated. Accordingly, the “vaccination duty”, particularly for children, concerns immunisation against childhood diseases, namely: diphtheria, Haemophilus influenzae type-B infections, hepatitis B, measles, mumps, poliomyelitis, rubella, tetanus, whooping cough, and in limited circumstances, pneumococcal infections. Given that compliance cannot be physically enforced, failure to adhere results in, as the case with the applicants, a fine equivalent to XCD$1,306 and/or the unvaccinated child(ren) being barred from going to school (exemption given to those who cannot be vaccinated for health reasons). As such, the applicants lodged a case citing breaches to their fundamental rights and freedoms.

The Court held that compulsory vaccination, as an involuntary medical intervention, represents an interference, i.e., a prima facie breach of one’s physical integrity, which concerns the right to respect for private life. However, the application of the law does not end there. You see, before deciding on the outcome of whether a measure is a breach or violation of rights, in human rights and by extension constitutional rights cases, courts engage legal tests to examine whether an interference with one’s rights is objectively justified. In the European human rights context, the Court examines whether the interference is lawful, legitimate, and proportionate (Proportionality Test), or –in common law systems like ours in Antigua and Barbuda– using the equivalent proportionality test applicable (applying R v Oakes, Attorney-General v Antigua Times, de Freitas v. The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and Others, Nyambirai v National Social Security Authority, Bank Mellat v HM Treasury, et al), the Court will examine: 1) whether its objective is sufficiently important to justify the limitation of a fundamental right, 2) whether it is rationally connected to the objective; 3) whether a less intrusive measure could have been used; and 4) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community (my emphasis added here).

A vital function of human rights or constitutional rights is to protect all from the direct, indirect, actual, potential abuse of power by the state in the erosion of individual and collective rights. However, the law provides manoeuvring room for the state (and its emanations) to act within a certain margin of discretion or appreciation (or, in the case of treaties, within reservations and derogations, albeit very restricted). In each situation, particular facts coupled with the nature of the rights require authorities to balance competing interests, chiefly the public interest in a democratic society. So, for example, in determining whether to institute a mandatory vaccine policy, the state must weigh the rights and interests of a small, unvaccinated group against the broader public health risks posed to the remainder of the population (and visitors to the shores) already suffering from diverse comorbidities (particularly amplified in a small country). Hence, given the inherent job of governments to balance varying legitimate and competing interests with every decision and policy, courts (as well as the general debating public must) consider whether an interference or breach of human rights can be objectively justified. In Vavřička and Others v the Czech Republic, the Court engaged Article 8(2) of the ECHR, “whether the interference was ‘in accordance with the law’, ‘pursued one or more of the legitimate aims’ specified therein, and to that end was ‘necessary in a democratic society’”.

In sum, the Court held that there had been no violation of Article 8, which encompasses freedom from interference with physical and psychological integrity– the right to develop one’s identity and the right to live one’s life in the manner of one’s choosing. In finding that the relevant Czech policy was based on law duly promulgated, the Court then turned to the legitimate aims pursued by the mandatory policy. In this regard, the judgment touches on two categories of legitimate aims; well, it only dealt with one– legitimate public health aims and hinted to the other­– legitimate socio-economic aims.

In terms of the former, the Court noted that the measure seeks to utmost protect against harmful diseases in circulation which pose a serious health risk in addition to protecting the health and rights of others particularly, “those who cannot be vaccinated and are thus in a state of vulnerability, relying on the attainment of a high level of vaccination within society at large for protection against the contagious diseases in question”. Furthermore, the Court accepted that decreased vaccination coverage across the population has broader public health implications, and measures must be put in place to prevent a downward spiral. Particularly concerning mandatory vaccination for children, the Court recognised that any policy measure affecting children individually and collectively must be in their best interest, particularly their health and development. Hence, immunisation in the context of the child’s best interest (and by extension might I add for the adult population) is to directly protect those who can be vaccinated against serious illness and diseases and indirectly protect those who cannot be administered vaccines by ensuring the attainment of a sufficient level of vaccination coverage. I should note here that, at a time when distrust in authorities, experts, and facts are ultra-high, the Court reaffirmed its long-held position and confidence that in matters of healthcare policy, “it is the domestic authorities [that] are best placed to assess priorities, the use of resources and social needs”.

 

Turning to the latter, the Court saw no need to examine the possibility of economic disruptions, the economic health, security, or the prevention of disorder, seeing that the public health reasons suffice. Furthermore, I believe that the case being about vaccination in children made the socio-economic argument irrelevant; however, the Court did not dismiss such concerns and left it open. So, it stands to reason that examining socio-economic factors could be a point of consideration in a case of mandatory vaccination among the adult population, seeing that socio-economic activity is driven by a safe, healthy, and productive –you guessed it– adult population! In turning to whether the policy measure was necessary in a democratic society, the Court noted that “vaccination is one of the most successful and cost-effective health interventions and that each State should aim to achieve the highest possible level of vaccination among its population”. Moreover, the Court also agreed with the “social solidarity” and “pressing need” considerations in that the protection of the most vulnerable in society depends on the remainder of the population and their assumption of a minimum risk in the form of vaccination. A Bentham-esque (Utilitarian) approach by the Court.

 

Lastly, the Court turned to the question of proportionality sensu stricto (in the narrow sense) in its ‘necessary in a democratic society’ assessment to balance the benefits (or not) of the mandatory nature of the policy and the possible adverse effects on rights and freedoms. In this regard, the Court reasoned: that there is no provision allowing for a vaccine to be forcibly administered; that the administrative (not criminal) sanction of a fine can be regarded as relatively moderate and can only be imposed once; and that the non-admission policy for unvaccinated children is protective rather than punitive in nature being that the aim is to safeguard children collectively and individually. As such, the Court also recognised that policy discretion allows authorities to act with a degree of flexibility, albeit proportionally in a pandemic.

 

In a sense, the Court anchored its position on a silent yet absolute human right in its judgment- the right to life. Although it made no explicit mention of it (probably to keep a narrow focus on Article 8), nevertheless the Court certainly clothed its reasoning and stepped out at length on the obligation of government and its emanations to protect life –individually and collectively­– and to guard against the failures to protect life. As public policy must benefit society and its parts as a whole, for individuals to be part of and dwell among all in society, they must conform to rules that are applicable to and safeguard the health and wellbeing of all citizens and residents in light of the preponderance of credible scientific evidence on the efficacy of vaccines.

 

Internal and external socio-economic factors may legitimately underpin the push for a possible compulsory vaccination policy. Internally, being a service-based economy with tourism at the centre, it is crucial to guard against severe cases of illnesses, hospitalisations, and deaths, which in turn will lead to the beginning of the end of the ongoing economic disruption: job loss, little to no investment, austerity programmes affecting critical services, the inability to fulfil mandates etc. Externally, vaccination requirements (in effect mandatory) are already rolling out in order to travel and engage in leisure, business, investment, and trade. Source markets, major airlines, cruise lines, and travel companies are enquiring about vaccination rates among the population and particularly among persons working directly and indirectly in the tourism sector. Even tourists themselves are asking about the vaccination status of hotel staff.

 

Therefore, as Jodi-Ann Quarrie (Jamaican human rights lawyer) eruditely concluded in her thought-provoking blog, “[t]he balance for any State is such that they have to look at their international obligations, their domestic obligations, and look at what the people in their country want and consider to be important”. With this in mind, exceptions –especially based on unreasonableness inclusive of manufactured facts and conspiracy theories– can’t be allowed if they pose a greater threat to public health, security, and economic resilience.

 

Just in passing…
Section 3(c) of the Antigua and Barbuda Constitution

Whereas every person in Antigua and Barbuda is entitled to the fundamental rights and freedoms of the individual, that is to say, the right, regardless of race, place of origin, political opinions or affiliations, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely-

  1. life, liberty, security of the person, the enjoyment of property and the protection of the law;
  2. freedom of conscience, of expression (including freedom of the press) and of peaceful assembly and association; and
  3. protection for his family life, his personal privacy, the privacy of his home and other property and from deprivation of property without fair compensation,
    the provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms, subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.

 

Updated on 20 August 2021 to reflect more applicable case law.

 

CLICK HERE TO JOIN OUR WHATSAPP GROUP

26 COMMENTS

  1. Great article. I read it from beginning to end without a break because it was such compelling reading. And yes, mandatory vaccination would not be unconstitutional in Antigua and Barbuda since the Constitution would allow for such a law given the exigences of the covid pandemic and the fact that it has been declared a dangerous infectious disease. With respect to breaches of human rights, their are also circumstances in which derogations would be allowed and again the covid pandemic would be a case in point.

    • In the context of this Covid vaccine, the court would have to take into consideration the fact that vaccinated persons can still catch and spread the virus. Moreover , their is no evidence well at least that i came across that would suggest that the virus transmitted by vaccinated persons is less dangerous than what is transmitted by those not vaccinated. How then it can be said that my right not to accept the vaccine is prejudicing the right of others .

    • Tabor glad to see you agree with the writer. The PM has been saying the same thing. But Have you advise Harold about this. So that when it goes to Parliament Pringle does not take a un-educated position of opposing for opposing sake

      • In the last few centuries human beings have evolved where the ability to kill a wild boar or bear multiple children are no longer major traits of a superior being. The cerebrum is now the driving force for our species and that has enabled us to now raise pigs rather than hunt boars or starve for example.

        Anti Vaxxers and the like that get their guidance from internet nut jobs and opportunists whether political, religious or attention seekers rather than scientific experts are not exactly the cerebral cream of the human genepool.

        The loss of those genes (which can increase exponentially over time), I suspect, will not be a tremendous loss to our species. Of course, their lack of rational action can endanger the lives of some of the more intellectually developed but the net effect will still be positive I believe.

    • “…..and the fact that it has been declared a dangerous infectious disease.”

      OH MY, SO YOU’RE SAYING THAT COVID-19 WHICH HAS A 99.9% SERVIVAL RATE IS A DAGEROUS DISEASE????

      PFFT!

  2. Since when hepatitis b because a childhood disease? The mode of transmission for hep b is thru blood or body fluids. Just because it’s on the childhood schedule of mandatory vaccines doesn’t make it a childhood disease. And the most egregious part of it is, the infant gets its first dose within 24 hours of birth. Realistically, how is a new born infant at risk of contracting hepatitis b. These are the BS that are being done to kids.

  3. Yep, section 16, of our constitution essentially makes clear you don’t have the right to cause harm to others (ie spread covid ). Vaccination helps to curtail covid spread hence all courts will see mandatory covid vaccination as being legal

    • Tenman is that something to celebrate? Really
      A slave that do not know he is a slave because of rights given to him exists in an illusionary state of ignorance.

      • A slave? Boss one of the main reasons we form societies is for safety. We all agreed there is safety in numbers. So we should embrace an individual right which would in essence lower those numbers hence negate our safety? Boss you if you have a problem, the find some place where there is no government and you ca try to be on your own. Not sure how long you will be able to defend such because those places tend to be ones where the law of the jungle dictates

  4. CT…it is researched pieces like this we expect you to bring for discussion and not to be always providing political responses and opinions because of your retainership.

  5. JUST SAYING I have posted legal articles on ANR in the past (for your education and others) and you have forgotten your only response was a “yawn”. I guess you do not have the attention span to read long articles.

    • Your legal opinions are never sound. Not supported and always debunked by other more senior legal minds. Like your opinion of the importance of the SOE in order for the government to call a curfew

  6. FROM THE SIDELINE do you live on Mars? You do not need a SOE for the implementation of the curfew. Under the Public Health Act once a disease is declared a dangerous infectious disease, the Constitution provides the basis for Regulations to be made that would abridge our normal fundamental rights such as freedom of association and freedom of assembly. If your QC Gerry did not tell you that then you need to find another teacher. The government does not know any better so I excuse them.

    • Yet even the BDS government disagrees with you hence instituted a SOE during the second wave so they could institute a curfew. Saint Lucia did same (State of Emergency, curfew return in St Lucia amid COVID surge). Boss you long lost this argument

    • Let me also add TNT (PORT OF SPAIN, Trinidad – The Trinidad and Tobago government on Saturday declared a State of Emergency (SOE) and an eight-hour curfew as a “scared population” looked to the authorities to implement new measures to deal with a rising number of deaths and infections from the coronavirus (COVID-19) pandemic.)

  7. TENMAN and FROM THE SIDELINE why don’t you both come and sit me me so I can take you through the Constitution and the Public Health Act to finally convince you that you do not need a SOE in order to implement a curfew. First to begin with are all the countries you mention have the same constitutional provisions and Public Health Legislation. Please give me a break with your ignorance.

    • Boss why would I waste time, just a few months ago you argued same (via comments on ANR), now since Lovell spit in your mouth you change your mouth. What you did not read the constitution before Lovell sold you on the idea? Look I can understand persons with time, getting new info which causes them to change course. The problem with you though is you change on a dime and pretend your former state never existed. One day you write a artcle taking a stance. Within 24 hours your stance then changes. Seems to me you simply just argue for arguing sake

  8. TENMAN the issue is not about changing positions. What you and all your other ANR bush lawyer Comrades need to do is to present legal arguments based on the Constitution and the Public Health Act to show that a State of Emergency is required for the implementation of covid-19 Regulations under the Public Health Act. Why don’t you and FROM THE SIDELINE get a legal opinion from your big lawyer Sir Gerald.

  9. Unfortunately, in this case, forcing people to be vaccinated against their will is a violation of their human rights and here’s why…
    1. Non of these mRNA vaccines have ever been used and they do not meet the definition of what a vaccine is, and what a vaccine does. These are EXPERIMENTAL vaccines and have only been granted Emergency Use Authorization by the US FDA, and as such, they do violate the Nuremberg Code and International Human Rights Convention.
    2. The COVID virus has still not been isolated and purified according to the well established Koch and Rivers postulates. They say the virus has been isolated according to close genetic matches, but Human and Monkey DNA are a 98% match. Think about that. In order to justify such a match, they changed the definition of “Isolation” and ignored the Koch and Rivers postulates used to isolate and purify such viruses as the Yellow Fever Virus which was isolated and purified in 1942 and again in 1944.
    3. The COVID virus is 99% recoverable, and is treatable and preventable with drugs such as Ivermectin, and Hydrochloroquine. Vitamins A, C, D and Zinc have also shown to prevent the onset and to treat people with COVID.
    4. Before Government can purchase, be granted, or acquire any of these mRNA experimental vaccines, they have to agree and sign on the dotted line to indemnify and hold harmless the manufacturers for any adverse reactions, injuries, including death.
    5. No one knows what the long term effects of these mRNA vaccines will do. What they do know, is that when mRNA vaccine were administered to mice, and the mice were then exposed to the SARs virus, they all died. Every last one.
    Based on the information above, which does not address the plethora of conspiracy facts that continue to emerge daily, we can clearly see, and in point of fact, conclude… that a vaccine for COVID is not necessary or needed. In fact, it should be avoided at all costs because you have been given a body and a soul full of life. It is not yours, nor is it the place of the Government to tell you what you should do with that, which does not belong to them.

  10. First, The JAB they are talking about is NOT a vaccine by any definition accepted by rational people.

    Second, this mRNA shot is like not other ‘vaccine’ in history. It is an EXPERIMENTAL DRUG that is in phase 3 of testing which won’t be completed until 2023.

    Third, the EMERGANCY DECREE was unconstitutional because there never was a true pandemic.

    In recent years and months, the long-held definitions of three words all changed, with immense ramifications for public health policy in the midst of COVID-19

    WHO’s original definition of a pandemic from May 1, 2009, specified simultaneous epidemics worldwide “with enormous numbers of deaths and illnesses”; this definition was changed in the month leading up to the 2009 swine flu pandemic, removing the severity and high mortality criteria

    COVID-19 vaccines are technically gene therapies and did not meet the definition of vaccine, until Merriam-Webster’s vaccine definition was recently changed to — conveniently — include a description of the experimental gene therapies

    From June 2020 to November 2020, WHO changed their definition of herd immunity to imply that it’s a concept that only applies to vaccination, not naturally acquired immunity gained from prior infection

    The implication for society is that by putting out this false information, they’re attempting to change your perception of what’s true and not true, and perverting science in the process

Comments are closed.