Forced vaccinations: A perspective based on international human rights law

By The Standard and Newsday | Jan. 4, 2022 | 6 Min read

Forced or compulsory vaccination is a vaccination system in which the enforcement of a duty to vaccinate is ultimately ensured by the compulsory administration of the vaccine constitutes “compulsory vaccination”.

By Scott P Mamimine

Mandating vaccinations for COVID-19 raises many complex questions concerning the interplay of competing rights. Central to these is where the line should be drawn between a government’s duty to protect the health and safety of the population and the individual’s right to bodily integrity, particularly when a worldwide pandemic is causing millions of deaths and economic devastation.

This creates a perfect set of conditions for a debate on individual versus collective rights, the limitations of the right to health and an assessment on whether the limitations can justify the phenomenon of force vaccinations globally.

Definition of forced vaccination

However, in most cases, states opt for rather indirect, relative forms of enforcement, which imply negative consequences in the case of the refusal to vaccinate, but do not include compulsory administration. Such indirect means may be fines or the linking of one’s vaccination status to the enjoyment of certain (non-essential) services, like preschool, or situations, for example attending a concert.

Considering that medical interventions are only to be carried out with the free and informed consent of the person concerned, it seems appropriate to define every vaccination system that mandates any negative consequence as a result of refusing to carry out a vaccination as “compulsory vaccination’”subject to justification, as these consequences can (and are intended to) influence one’s decision to get vaccinated.

This seems to be in line with the definition of forced or compulsory vaccination underlying the 2021 European Court of Human Rights decision in the case of Vavricka v Czeck Republic App no 47621/13 (ECtHR, 8 April 2021).

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International human rights law and mandatory vaccination

The foremost principle in the Nuremberg Code (1947) is that ‘the voluntary consent of the human subject is absolutely essential’. Article 7 of the legally binding International Covenant on Civil and Political Rights (ICCPR) (that was ratified by 173 governments world-wide) clearly dictates that “no one shall be subjected without his free consent to medical or scientific experimentation“. Article 3 of the United Nations Educational, Scientific and Cultural Organisation (Unesco), Universal Declaration on Bioethics and Human Rights determines that “human dignity, human rights and fundamental freedoms are to be fully respected” and the interests and welfare of the individual should have priority over the sole interest of science or society while Article 6 explicitly states that any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information.

While the Unesco Declaration does not establish enforceable rights, it is persuasive concerning what the global standard for informed consent should be.

Article 5 of the Convention for the Protection of Human Rights and Dignity of the Human Being regarding the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (Oviedo Convention) specifically determines that:-

“An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.”

Although the Oviedo Convention is only legally binding on the European Union Member States that ratified the convention it clearly sets a standard regarding the protection of human rights in the biomedical field. In terms of the WHO’s Guidance for Managing Ethical Issues in Infectious Disease Outbreaks (2016), the bioethical foundation for the support of emergency use medical interventions ‘is justified by the ethical principle of respect for patient autonomy, in other words the right of individuals to make their own risk — benefit assessments in light of their personal values, goals and health conditions’.

Limitation of fundamental human rights

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. Fundamental human rights and freedoms are not absolute. Their boundaries are set by the rights of others and by the legitimate needs of society. Considering that potential benefits and burdens on human rights may occur in the pursuit of the major purposes of public health and public safety, a human rights framework provides a useful approach for analysing and responding to public health challenges.

Article 27 of the Unesco Declaration affirms that: If the application of the principles of this declaration is to be limited, it should be by law, including laws in the interests of public safety, for the investigation, detection and prosecution of criminal offences, for the protection of public health or for the protection of the rights and freedoms of others. Any such law needs to be consistent with international human rights law (emphasis added).

It is recognised that public health justifies the imposition of restrictions on the exercise of fundamental rights subject to such restrictions being reasonable and proportionate.

In order to determine whether a government may impose vaccine mandates, the proportionality analysis, which is a standard legal test for adjudicating human rights disputes, needs to be applied to determine the legitimacy, adequacy, necessity and proportionality of any restriction on human rights.

The proportionality test consists of four stages, determining whether:

The measure pursues a legitimate purpose (legitimacy). It is a legitimate aim of state parties to take action to protect the public against an infectious disease.
The measure must be adequate to achieve the purpose (adequacy). According to the WHO and United States Centres for Disease Control, fully vaccinated people still need to social distance and adhere to a number of COVID-19 preventative measures given uncertainty with regard to whether the:

a) COVID-19 vaccines would be effective against other variants.
b) COVID-19 vaccines would provide long term immunity (vaccine efficacies are based on short-term data only).
c) COVID-19 vaccines would prevent people that received the vaccine from spreading the virus

lThe measure infringes human rights no more than absolutely necessary to accomplish the purpose (necessity). An alternative to mass mandatory vaccinations would be to only vaccinate those in vulnerable groups after they have given their informed consent and people that choose to be vaccinated. Another alternative is the use of Ivermectin as a prophylaxis in the treatment of COVID-19.

The measure does not have a disproportionately adverse effect (proportionality stricto sensu). The legislative measure must represent a net gain when the reduction in enjoyment of rights is weighed against the benefits achieved by the infringing measure.

Given that a mandatory vaccination measure would fail on the adequacy, necessity and proportionality strictu sensu (in the narrow sense) stages, mandatory vaccinations would per se be disproportionate and, therefore, unlawful.

Importantly, Article 4 of the ICCPR and Siracusa Principle 58 specifically determines that: ‘No state, including those that are not parties to the Covenant, may suspend or violate, even in times of public emergency freedom medical or scientific experimentation without free consent’.

Unfortunately, public health decisions to restrict human rights have frequently been made in an uncritical, unsystematic and unscientific manner.

Therefore, the prevailing assumption that public health is an unalloyed public good that does not require consideration of human rights norms must be challenged.

For the present, it may be useful to adopt the maxim that health policies and programs should be considered discriminatory and burdensome on human rights until proven otherwise.

International human rights law affords the individual a right to make informed choices about vaccination and all medical interventions.

The underlying principle is that those who undergo the risk of medical treatment should make the final decision about their own participation after they are informed of the purpose, risks, and benefits of the treatment.

COVID-19 vaccines are experimental, and citizens have the right to refuse such a vaccine and the Siracussa Principle 58. The right of refusal, therefore, stems from the fact that Emergency Use Authorisation products are, by definition, experimental.

Governments should comply with international human rights law and make COVID-19 vaccinations voluntary and not mandatory.

There should also be no discrimination against those who choose not to be vaccinated, like not being allowed to travel, attend school, shop, attend social gatherings or not being employed.