This Q&A is meant to elaborate on the human rights implications of such schemes.
As a human rights organisation, the Civil Liberties Union for Europe can remind Member States on what kind of human rights considerations must be respected before introducing such a scheme, but unless some of these considerations are clearly disrespected, we are not in a position to take a stand on individual regimes. This is because we lack the necessary medical and epidemiological expertise to weigh up whether this measure is necessary and proportionate.
1. What makes a vaccination regime mandatory? Does mandatory vaccination breach our fundamental rights?
If the rules around vaccination state that an individual who does not get the vaccine can face negative consequences such as fines, denial of access to certain public spaces, or losing one’s job, this qualifies as a mandatory vaccination regime.
Such regimes may undeniably interfere with our fundamental rights such as the right to life, right to respect for private life or freedom of religion. But rights have to be balanced against each other. In certain cases, rights can be restricted in order to protect the rights of others or certain legitimate public interests. The only exception to this is the prohibition on torture. For our purposes, this means that physically forcing people to receive a vaccine will always be illegal. But making it mandatory in some other way, like with a fine, could be justifiable, depending on the circumstances and the evidence.
2. Can the European Union prescribe mandatory vaccinations?
Governments have given the European Union authority to take decisions (‘competence’) on certain policy areas that influence Member States’ ability to fight the current coronavirus pandemic (see point 13). In addition, the EU can (and does) help governments coordinate their efforts in fighting vaccine-preventable diseases. However, the EU does not have the authority to make vaccinations mandatory. Within the European Union, vaccination policy remains within the legal authority of individual Member States.
3. Under what circumstances are mandatory vaccination regimes justified from a fundamental rights perspective?
In order to be justified, mandatory vaccination regimes first need to pursue a legitimate aim. The list of recognised legitimate aims includes protecting public health and the rights of others. Second, they need to be an appropriate means to achieve that aim. Third, they need also be necessary to achieve that aim. And fourth, they need to be proportionate to that aim.
4. Are the recently proposed European COVID-19 mandatory vaccination schemes justified?
Evaluating the justification of individual mandatory vaccination schemes requires not only expertise in human rights but also in medical science and in epidemiology. As a human rights organisation, the Civil Liberties Union for Europe can remind Member States what kind of human rights considerations must be respected before introducing such a scheme, but unless some of these considerations are clearly disrespected, we are not in a position to take a stand on individual regimes. This is because we lack the necessary medical and epidemiological expertise to weigh up whether this measure is necessary and proportionate.
5. What can be a legitimate aim for a mandatory vaccination regime?
States have a duty to protect the life and health of everyone in society. Therefore, protecting the public from the direct and indirect consequences of an epidemic (illness, death, collapse of the healthcare system), for example, by developing herd immunity, counts as a legitimate aim for amandatory vaccination regime.It is important to note that while governments are obliged to protect individuals from external dangers, they do not have a right to protect them from their own choices. To illustrate, states may be justified in introducing mandatory vaccination schemes to protect the vulnerable members of the community who cannot be vaccinated, but vaccination mandates aiming to keep individuals healthy even against their own choices would not be justified. To clarify, a mandatory vaccination regime with the sole purpose of keeping individuals who would not want to get vaccinated healthy cannot be justified. A mandatory vaccination regime that aims at decreasing the chance that these individuals fall sick in such great numbers that they render the healthcare system unable to function may be, under certain circumstances, justified.
6. When can a vaccine mandate be considered appropriate?
Whenever a government introduces a measure that interferes with fundamental rights they need to consider whether the measure in question is appropriate. This means that the measure has to be capable of achieving the legitimate aim. Mandatory vaccination schemes are appropriate measures when vaccinations are demonstrably efficient and safe. Vaccinations are considered to be efficient when they can prevent the disease (or at least severe progression), and safe when the expected benefits are significantly higher than the risks they carry. Whether a given vaccination is efficient and safe is a question of scientific evidence and may change with time. For example, vaccinations may be differently efficient against different virus variants, and the dominant virus variant in a given territory may change – as it does with the coronavirus.
7. When can a vaccine mandate be considered necessary?
A mandatory vaccination scheme can be considered necessary only if there are no less restrictive or non-restrictive measures that can achieve the same aim. For example, if there was some evidence that information campaigns would lead to the same levels of vaccination as a mandatory vaccine scheme, then it would be difficult to say that a mandatory vaccine scheme is necessary. Generally, governments need to be able to show that alternative measures that don’t interfere as much with people’s rights would not or have not worked.
8. When can a vaccine mandate be considered proportionate?
An interference is proportionate if the importance of the legitimate aim pursued and the severity of the interference in people’s rights are in proportion to each other. Even if it were proven that the introduction of a mandatory vaccination regime was the only way to achieve herd immunity against a particular disease, a government would still need to show that the benefits of herd immunity against that particular disease balance against the interference with people’s rights. For example, if the disease in question poses minimal threat to life and health, the interferences with people’s rights caused by a vaccine mandate would not be justified. If, however, the disease puts many people’s lives or (long-term) health in danger, such a measure may be justified.
9. Is it justified to make vaccinations mandatory for members of specific groups only, and not for all? Isn’t that discriminatory?
Some Member States are considering whether to introduce (or have already introduced) not a general vaccine mandate, but job-specific or age-specific vaccine mandates. Liberties is of the opinion that such measures can be justified under certain circumstances.
If a government can show that it’s vital to performing a certain job that an individual be vaccinated in order to protect public health (e.g., people working in the healthcare system), then making that a condition of employment is justifiable.
As for an age-specific vaccine mandate, the answer to the above question is less clear-cut. If it can be shown, for example, that unvaccinated members of a certain age group have a significantly higher chance of ending up in intensive care than other members of society, and that vaccinating this group would avoid a real risk of collapse of the healthcare system, an age-specific mandate could potentially be justified. However, governments cannot be justified in prescribing vaccination for members of a certain age group solely to protect people belonging to that age group from the consequences of their own decision to not get vaccinated. (This of course applies to adults only.)
10. Would human rights law allow for exemptions from mandatory vaccination for religious reasons?
Article 9 of the European Convention on Human Rights protects freedom of thought, conscience and religion. However, the relevant case law suggests that mandatory vaccination policies do not constitute an infringement on Article 9. This is because previous legal rulings have said that vaccine mandates do not breach central aspects of religious convictions. According to the case law, Article 9 does not protect each and every act motivated or influenced by a religion, but only those that are central to the expression of a religion.
11. Should there be exemptions for people who cannot be vaccinated for health reasons?
Mandatory vaccination in order to achieve herd immunity can be appropriate only if the vaccinations are such that there are enough people for whom it is safe to get vaccinated. In such a case it is certainly not justified to, for example, fine those who for medical reasons should not be administered the vaccine.
12. What if someone believes that under the given circumstances, the mandatory vaccination scheme that will apply to them is not justified?In each Member State there are different procedures for challenging laws. We recommend that in such cases citizens consult local legal aid services to get informed of the alternatives they may have. For a case to be admissible to the European Court of Human Rights, all available domestic remedies need to have been exhausted. They may also exercise their right to protest (peacefully) and free speech to let the authorities know about their concerns.
13. What should the EU do to better protect human rights and public health? What can a human rights organisation doing advocacy at EU level – like the Civil Liberties Union for Europe – do?
The information citizens receive through social media platforms have a great influence on their willingness to get vaccinated. Unfortunately, the spread of disinformation, including on the vaccine, is part of a profitable business model for social media companies. The EU could stop this from happening by properly enforcing already existing rules and possibly drafting new legislation.
The Civil Liberties Union for Europe, together with EDRi and Access Now, recently issued a paper outlining the steps the EU should take to tackle disinformation while still preserving free speech, free thought, and freedom of information. We plan to continue working on this issue in the foreseeable future.