Can government mandate the COVID-19 vaccine against your will? A discussion on international human rights law

July 1st, 2021
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Picture source: Gallo Images/Getty

Australian Prime Minister, Scott Morrison, asserted that a COVID-19 vaccine will be ‘as mandatory as you can possibly make it’ while South Africa’s President Cyril Ramaphosa, on the other hand dismissed rumours that the COVID-19 vaccination program will be compulsory for all citizens and made clear that ‘nobody will be given this vaccine against their will’ (‘Scott Morrison says a coronavirus vaccine would be “as mandatory as you can possibly make it”’ (www.sbs.com.au, accessed 2-6-2021); Marchelle Abrahams ‘Ramaphosa details SA vaccine rollout plan: “Nobody will be given vaccine against their will”’ (www.iol.co.za, accessed 2-6-2021)).

There has been a great deal of talk about subjecting people who are not vaccinated to restrictions involving their access to public places, flights, hotels, and continued employment, thereby indirectly making vaccination compulsory. Disciplinary procedures have even been launched against professionals who had expressed publicly their opposition to compulsory vaccination (Luisa Regimenti ‘No obligation to be vaccinated and a ban on discrimination against people who do not wish to be vaccinated’ (www.europarl.europa.eu, accessed 20-4-2021)).

Viral vaccine misinformation, distrust in government institutions and a politicised vaccine development process have numerous people sceptical of COVID-19 vaccines. According to the Journal of the American Medical Association, 56% of Americans want to get the COVID-19 vaccine, while 39% of Americans say they will definitely not or probably not get the COVID-19 vaccine when it becomes available to them (Heather Skold ‘To vaccinate or not: Americans split on whether to get Covid-19 vaccine’ (www.krdo.com, accessed 20-4-2021) and Cary Funk and Alec Tyson ‘Intent to get a COVID-19 vaccine rises to 60% as confidence in research and development process increases’ (www.pewresearch.org, accessed 20-4-2021)).

The topic of vaccination evokes strong opinions and emotions, now more than ever in the COVID-19 era. Many are grateful and relieved to get the COVID-19 vaccine, and others are indignant and exasperated at the prospect of COVID-19 vaccination mandates.

An important question arising from this is whether an individual can be compelled by government to be vaccinated against their will in terms of international human rights law?

Pro-choice v pro-mandate

The COVID-19 vaccination debate has two distinct viewpoints, one ‘pro-mandate’ and the other ‘pro-choice’.

 

The proponents of the pro-mandate perspective strongly support mandatory vaccination policies and, inter alia, argue that: The pro-choice perspective strongly opposes mandatory vaccinations and, inter alia, argue that:
All healthy people that can be vaccinated should be mandated in order to achieve herd immunity. Government officials are best qualified to make vaccination decisions.  ‘Government [should] ensure that a sufficiently high percentage of people vaccinate to preserve societal herd immunity’ (Louise Kuo Habakus and Mary Holland Vaccine Epidemic: How Corporate Greed, Biased Science, and Coercive Government Threaten Our Human Rights, Our Health, and Our Children (New York: Skyhorse 2012) at 20-26). Vaccination choice is a fundamental human right. Because vaccination poses a risk to life, liberty, and security of person, only an individual may decide how, when, and whether to vaccinate (Kuo Habacus and Holland (op cit)). The theory of herd immunity is not an adequate rationale for state compulsion to vaccinate. When dealing with a disease with a crude mortality rate (‘sometimes called the crude death rate that measures the probability that any individual in the population will die from the disease; not just those who are infected, or are confirmed as being infected, and is calculated by dividing the number of deaths from the disease by the total population’) ranging between 0,001% and 0,5% natural infection is preferable for all people not in vulnerable groups (Dr Willem van Aardt ‘Limiting human rights during COVID-19 – is it only legitimate if it is proportional?’ 2021 (May) DR 14).
COVID-19 vaccines are overwhelmingly safe and effective, and the benefits vastly outweigh the risks. Adverse events are extremely rare. The World Health Organisation (WHO), European Union (EU) and the United States (US) and other health authorities approved the vaccine and, therefore, it is safe (Sarah Lynch and Kanneboyina Nagaraju ‘6 important truths about COVID-19 vaccines’ (www.theconversation.com, accessed 30-3-2021)). COVID-19 vaccine safety science is in its infancy, not rigorously tested and incomplete. The COVID-19 vaccines have been invented, developed, and approved at a lightning-fast pace in less than one year. Testing of vaccine efficacy and the safety of the COVID-19 vaccines were limited and insufficient. According to the World Economic Forum and the WHO the average development time for almost all other safe vaccines have been between ten and 15 years. US Centers for Disease Control and Prevention said they ‘will continue to provide updates as we learn more about the safety of the … vaccine in real-world conditions’ essentially admitting that the health authorities are busy with a ‘real-world’ medical experiment (Douglas Broom ‘5 charts that tell the story of vaccines today’ (www.weforum.org, accessed 30-3-2021). All COVID-19 vaccines received the ‘Emergency Use Authorisation’ and not the time-tested ‘Biologics License Application’, where rigorous and thorough testing and analysis preceded the issuance of such a license (DJ Opel; DA Salmon; EK Marcuse ‘Building Trust to Achieve Confidence in COVID-19 Vaccines’ (https://jamanetwork.com, accessed 30-5-2021)).
COVID-19 vaccine refusers are dangerous and selfish. People who elect not to vaccinate are selfish, irrational, and threaten the right to life and the right to health of others with a deadly disease (Kuo Habacus and Holland (op cit)). COVID-19’s crude mortality rate ranges between 0,001% to 0,5% (see https://covid19.who.int/, https://covid.cdc.gov, https://coronavirus.jhu.edu/data/mortality , accessed 10-6-2021). 99,5% of all people under the age of 75 that contract COVID-19 will survive. No mass vaccinations are reasonably required to combat a disease with a crude mortality rate ranging between 0,001% to 0,5% . According to Dr Michael Yeadon (former vice president and Chief Scientist of Pfizer) ‘You do not vaccinate people who aren’t at risk from a disease’ (NH Web Desk ‘No need for vaccines, COVID pandemic is over, says former Vice President of Pfizer’ (www.nationalheraldindia.com, accessed 30-3-2021); Steve Stecklow and Andrew Macaskill ‘The ex-Pfizer scientist who became an anti-vax hero’ (www.reuters.com, accessed 30-3-2021);  and AIER Staff ‘Open letter from medical doctors and health professionals to all Belgian authorities and all Belgian media’ (www.aier.org, accessed 30-3-2021)).
‘Mandatory vaccination is typically justified on Millian grounds’:  According to John Stuart Mill, a justifiable ground for the use of state coercion (and restriction of liberty) is when one individual risks harming others (Julian Savulescu ‘Good reasons to vaccinate: Mandatory or payment for risk?’ (2021) 47 Journal of Medical Ethics 78). If extremely safe, why are pharmaceutical companies protected from liability? In terms of the US Public Readiness and Emergency Preparedness Act of 2005 for medical countermeasures against COVID‑19, covering ‘any vaccine, used to treat, diagnose, cure, prevent, or mitigate COVID‑19’ precludes ‘liability claims alleging negligence by a manufacturer in creating a vaccine’.
At least 70% to 90% of the adult population need to be vaccinated to achieve herd immunity. Irrespective of whether people have already been infected with COVID-19 and already have antibodies in their system they need to be vaccinated (Vanderbilt University Medical Center (victr.vumc.org, accessed 30-3-2021)). Significantly less people need to be vaccinated to achieve herd immunity. In terms of a recent estimate, 55% of Americans have already had COVID-19 vaccine and already have antibodies in their system. There is no need to vaccinate people that already have antibodies. Only 25% to 45% of Americans need to vaccinate to achieve herd immunity and not the 70% to 90% claimed by the US CDC (Aria Bendix ‘A Johns Hopkins professor predicts the US will reach herd immunity by April, but many experts aren’t so optimistic’ (www.businessinsider.com, accessed 31-3-2021); CDC ‘Estimated Disease Burden of COVID-19’ (www.cdc.gov, accessed 31-3-2021); Jonathan Allen and Dan Whitcomb ‘Americans celebrate Christmas Eve under spiralling COVID pandemic’ (www.reuters.com, accessed 31-3-2021); and  Saba Aziz ‘“Significant underestimation”: Canada’s COVID-19 case count likely much higher than reported’ (https://globalnews.ca/, accessed 31-3-2021).
Vaccine exemptions based on religious and other objections should be abolished. People should lose their freedoms if they choose not to vaccinate. They should not be allowed to travel, attend public events or resume life as normal (Sam Shead ‘What people might not be allowed to do if they don’t get vaccinated’ (www.cnbc.com, accessed 30-3-2021)). Vaccination exemption rights must expand, not contract. Individuals have the right to free and informed consent for all medical interventions, including COVID-19 vaccination (The Nuremberg Code 1947).

 

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 ‘[h]uman dignity, human rights and fundamental freedoms are to be fully respected’ and ‘[t]he interests and welfare of the individual should have priority over the sole interest of science or society’ while art 6 explicitly states that ‘[a]ny 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 (Kuo Habacus and Holland (op cit)).

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’ (www.who.int, accessed 15-5-2021).

Limitation of fundamental human rights

Fundamental human rights and freedoms are not absolute. Their boundaries are set by the rights of others and by the legitimate needs of society. Generally, 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 (Alec Stone Sweet and Jud Mathews ‘Proportionality balancing and global constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 68 at 72). 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 (United Nations Economic and Social Council ‘Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights’ UN Doc E/CN.4/1985/4, Annex (1985) at para 25).
  • The measure must be adequate to achieve the purpose (adequacy). According to the WHO and US CDC, 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:

–       COVID-19 vaccines would be effective against other variants.

–       COVID-19 vaccines would provide long term immunity  (vaccine efficacies are based on short-term data only).

–       COVID-19 vaccines would prevent people that received the vaccine from spreading the virus (Tamara Bhandari ‘New evidence COVID-19 antibodies, vaccines less effective against variants’ (https://medicine.wustl.edu, accessed 14-4-2015); Atanu Biswas ‘A statistician explains: What does “90% efficacy” for a Covid-19 vaccine mean?’ (www.scroll.in/, accessed 14-4-2021); and CDC ‘Frequently Asked Questions about COVID-19 Vaccination’ (www.cdc.gov, accessed 14-4-2021)).

         There seems to be no consensus that mass mandatory vaccinations would achieve the desired outcome of achieving herd immunity and returning society to normality and as such the measure cannot be deemed adequate.

  • The 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. Meta-analyses based on 18 randomised controlled treatment trials of Ivermectin in COVID-19 have found large, statistically significant reductions in mortality, time to clinical recovery, and time to viral clearance. Furthermore, results from numerous controlled prophylaxis trials report significantly reduced risks of contracting COVID-19 with the regular use of Ivermectin (Pierre Kory; Gianfranco Umberto Meduri; Joseph Varon; Jose Iglesias; and Paul E Marik ‘Review of the emerging evidence demonstrating the efficacy of Ivermectin in the prophylaxis and treatment of COVID-19’ (www.ncbi.nlm.nih.gov, accessed 31-5-2021)). Given the various alternatives, vaccine mandates would not pass the necessity stage of the proportionality analysis.
  • 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. Vaccine mandates cannot result in a net gain as it would effectively discriminate against and deny approximately 30% to 40% of the world’s population that do not want to be vaccinated with an experimental COVID-19 vaccine their most basic human rights to life, liberty, freedom of movement and education in order to combat a disease with a population level crude mortality rate ranging between 0,001% – 0,5%.

Given that a mandatory vaccination measure would fail on the adequacy, necessity and proportionality strictu sensu 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’ (Siracusa Principles (op cit)).

Conclusion

The distinguished health and human rights professor Jonathan M Mann, MD, MPH, asserted that:

‘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’ (Jonathan M Mann, Lawrence Gostin, Sofia Gruskin, Troyen Brennan, Zita Lazzarini, Harvey V Fineberg ‘Health and human rights’ (1994) 1.1 Health and Human Rights Journal 6 at 14 – 15).

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 (Nuremberg Code, ICCPR Art 4 (op cit) and the Siracussa Principle 58 (op cit)). 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.

Dr Willem van Aardt BProc (cum laude) LLM (UP) LLD (NWU) is an Admitted Attorney of the High Court of South Africa, Admitted Solicitor of the Supreme Court of England and Wales and an Extraordinary Research Fellow at North-West University – Research Unit Law Justice and Sustainability Potchefstroom Campus.

This article was first published in De Rebus in 2021 (July) DR 12.

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