Mandatory Vaccination? Against my human rights?

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.

 

 

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