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COMMENT | VOLUME 399, ISSUE 10321, P220-222, JANUARY 15, 2022
Mandatory COVID-19 vaccination and
human rights
Je! King ' • Octávio Luiz Motta Ferraz • Andrew Jones
Published: December 23, 2021 •
DOI: https://doi.org/10.1016/S0140-6736(21)02873-7 •
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On Dec 9, 2021 the Austrian Government laid a bill before
parliament that would impose a mandatory COVID-19
vaccination requirement for all its residents.1 This move
followed the Greek Prime Minister's announcement to
impose fines on residents aged 60 years and older who
do not take up COVID-19 vaccination.2 Many other
nations are contemplating similar mandates or have
adopted mandates in certain workplace settings, such as
Australia, Brazil, Canada, France, Indonesia, Italy, and the
UK.3 Some people resist vaccine mandates on pragmatic
grounds, for example, that such mandates could
decrease health-care sta!ing levels or morale.4, 5
However, mandatory vaccination is also o"en opposed in
principle. The UK Secretary of State for Health and Social
Care, Sajid Javid, for instance, told the BBC on Dec 10,
2021 that he thought mandatory vaccination is
“unethical”.6 Many others presume mandatory
vaccination violates human rights.7 We believe that this
view is mistaken, at least as a matter of international and
comparative constitutional law.
Our opinion is based on extensive discussion and
analysis held as part of the Lex-Atlas: Covid-19 (LAC19)
project, a worldwide network of jurists that is producing
and curating the open-access Oxford Compendium of
National Legal Responses to Covid-19.8 50 jurists in the
network adopted principles concerning the legality and
constitutionality of mandatory vaccination in October,
2021 (the LAC19 Principles).9 We concluded that
mandatory vaccination and human rights law are
compatible in principle and that there is a compelling
rights-based case for a state duty to consider adopting
mandatory vaccination, defined as any law that makes
vaccination compulsory, or any public or private
vaccination requirement for accessing a venue or service
that cannot be avoided without undue burden.9 This
definition recognises mandates adopted by public and
private bodies and, crucially, that requirements
avoidable through a!ordable testing are not mandatory.
• View related content for this article
Even on the most libertarian understanding of liberty,
philosophers and jurists agree that restrictions on liberty
can be justified if they prevent harm to others. The
European Convention on Human Rights recognises this
by considering the right to physical integrity under article
8 to be a “qualified right” that can be limited “for the
protection of health”.10 If a mandatory vaccination
scheme aims in part or whole to reduce harm to others, it
is not paternalistic.
But liberty is not the only value relevant to human rights
law. Economic and social rights to health, work, and
education have been recognised in international law
since 1948, most comprehensively in the UN
International Covenant on Economic, Social and Cultural
Rights (ICESCR),11 an international treaty ratified by 171
states, including all those in Europe and the UK. In its
2013 Global Vaccine Action Plan, WHO reinforced the
view that ”immunization is, and should be recognized as
a core component of the human right to health and an
individual, community and governmental
responsibility”.12 A similar view was recognised in article
12(c) of the ICESCR, which lists “the prevention,
treatment and control of epidemic… diseases” as among
the obligations entailed by the right to health.11
Mandatory vaccination is not a knee-jerk response to
COVID-19. In more than 100 countries there already exist
some version of mandatory vaccination of school
children for a range of diseases, including measles,
mumps, rubella, tetanus, and polio.13 In April, 2021 Chile,
Germany, Israel, Mexico, Norway, Serbia, Spain, and a
number of states in the USA had pre-pandemic laws that
gave legal authority to impose vaccination mandates
against COVID-19 in particular.14
As far as we know, no major constitutional or
international court has found that a mandatory
vaccination policy violates any general right to liberty.
Many such policies have been upheld when challenged.
In April, 2021 in relation to a pre-COVID-19 law, the Grand
Chamber of the European Court of Human Rights found
that a Czech law requiring compulsory vaccination of
children against nine diseases did not violate the article 8
right to physical integrity because the scheme was a
proportionate means of protecting public health.15 In
several other jurisdictions, courts have reached the same
or similar conclusions, including the US Supreme Court's
ruling in Jacobson v Massachusetts (1904),16 recent pre-
COVID-19 judgments that uphold mandatory vaccination
schemes in France,17 Italy,18, 19 and Chile,20, 21 and
COVID-19-specific decisions for programmes in New York,
USA,22 and Brazil.23 In most of these decisions, the courts
found the schemes gave e!ect to the right to health.
Figure thumbnail fx1
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Nevertheless, the in-principle compatibility of mandatory
vaccination and human rights does not mean that
governments, employers, or schools should be cavalier
about their adoption. They certainly interfere with
fundamental rights, so careful design is required to
ensure that vaccine mandates do not violate rights. The
LAC19 Principles thus aim to provide guidance on how to
enact rights-compliant schemes.9
The LAC19 Principles recommend that mandatory
vaccination schemes must be prescribed by law that is
clear and preferably adopted a"er consultation. Ideally,
mandatory vaccination should be regulated by statute,
rather than executive rules (ie, regulations). The making
of mandatory vaccination laws should undergo a period
of consultation of at least 4–6 weeks and involve
subnational governments, opposition parties, trade
unions, experts, the public, and others. These
consultations, and the government's response, should be
published before the passage of any bill, to allow for
debates and amendments. Consistently with widely
accepted constitutional principles that relate to the non-
delegation of core legislative functions, mandatory
vaccination laws should not leave major policy questions
for governments, private businesses, or employers. They
should be addressed in the bill going through the
legislature, allowing for debate and amendments.
Mandatory vaccination schemes must also meet the legal
principle of proportionality. As detailed in the LAC19
Principles, the scheme must have a legitimate aim—eg,
the reduction of virus transmission or protection of
health services. The means chosen must be rationally
connected to that aim. In practice, proportionality will be
satisfied if the mandatory vaccination scheme is based
clearly on sound public health advice. The scheme must
also be necessary in the sense that there is no other less-
impairing means of achieving that aim. Here there will be
much debate about vaccine e!icacy and probable social
responses to mandatory vaccination. Public law
principles counsel judicial restraint on a question as
complex as the epidemiological necessity of a
nationwide vaccine mandate. Finally, fines and
punishments for not complying with the mandate should
be e!ective but not be too onerous. The more severe the
penalty, the more vulnerable is the policy to a legal
finding of disproportionality.
The LAC19 Principles also call for constructive
engagement with reasonable vaccine hesitancy. The
political philosopher John Rawls famously distinguished
what is rational from what is reasonable.24 Vaccine
hesitancy may be reasonable (understandable and
respect-worthy) for some groups who are suspicious of
vaccine mandates—eg, communities who have been
subject to state-complicit persecution, discrimination,
marginalisation, or neglect.9, 25 In such cases, the state
and other actors should adopt constructive engagement
interventions with these groups, such as community-led
education or delayed commencement periods. Blunt
termination notices on their own are insu!icient.
However, constructive engagement falls short of o!ering
full exemptions. Medical exemptions should be
considered, but exemptions for religious beliefs or
freedom of conscience are not generally required by
human rights law.25
Although mandatory vaccination requirements must be
designed with great care, there is no reason to think they
are inherently incompatible with human rights law.
The Lex-Atlas project is funded by the Faculty of Laws,
University College London, UK, the Dickson Poon School
of Law, King's College London, UK, and the Max Planck
Institute of Comparative Public Law and International
Law in Heidelberg, Germany. JK and OLMF are principal
investigators and AJ is a research fellow of the LAC19
project, which is supported more widely by the UK's Arts
and Humanities Research Council, the Leverhulme Trust,
and UK Research and Innovation (UKRI). The funding
sources had no role in this Comment. We declare no
other competing interests.
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Article Info
Publication History
Published: December 23, 2021
Identification
DOI: https://doi.org/10.1016/S0140-6736(21)02873-7
Copyright
Crown Copyright © 2021 Published by Elsevier Ltd. All
rights reserved.
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