Compulsory Vaccination: A far-reaching encroachment into a Brave New World

By Efi Thoma, Lawyer LL.M.

“Blind belief in authority is the greatest enemy of truth”, said Albert Einstein. In Huxley’s Brave New World, it was predicted the emergence of a “controlling oligarchy” who would conduct similar experiments on human beings to condition docility and minimize the potential for civil unrest. In Brave New World, the main “reward” used to condition subservience via positive reinforcement was a super-drug called Soma. “The World Controllers”, writes Huxley, “encouraged the systematic drugging of their own citizens for the benefit of the state.”

Over the last two years, legal scholars are witnessing an unparalleled violation of fundamental rights of individuals both at European level as well as at international level. Now that the “pandemic” has dynamically entered its third year, we will attempt a brief outline of certain facts from a legal perspective.

The legal aspect of the controversial newly adopted compulsory measures on vaccination in certain EU countries, supersedes the moral aspect, as the latter can only be protected by legal measures.US National Federation of Independent Businesses and 27 states contended that the vaccine is an “invasive, irrevocable, forced medical procedure”.

The guiding human rights principles for considering measures taken to advance public health are:

• They must be reasonable, necessary, and proportionate.
• They must take into account the potential for discrimination.

Vaccine passports and certificates may have significant implications for privacy and autonomy, freedom of movement and association, equity and discrimination, particularly when it comes to accessing everyday goods and services.

Vaccine passports and certificates are more likely to be consistent with human rights when they are used as a tool to ease existing restrictions and improve public health outcomes.

Rather than becoming a further requirement on top of existing restrictions, vaccine passports and certificates should generally operate in place of them.

Austria is set to begin a pioneering experiment - becoming the first country in Europe to make COVID vaccines compulsory for all adults, aged 18 and older. Once the mandate goes into effect, authorities will write to every household to inform them of the new rules.

From mid-March, police will start checking people’s vaccination status during routine checks; those who can’t produce proof of vaccination will be asked to do so in writing and will be fined if they don’t.

On the other hand, Switzerland's government states that "legally, a general obligation for the population to be vaccinated is excluded" but transparent information should be provided to allow people to make an informed decision.

Compulsory vaccinations for children are "necessary in a democratic society", the European Court of Human Rights (ECHR) said in a ruling in April 2021. In the case of Vavřička and others v. The Czech Republic, the Court ruled that a vaccine mandate for children who were admitted to daycare centers did not violate the right to private life. While the Court acknowledged that a vaccine mandate is an infringement of one’s right to private life, the measure was justified as it was required for the protection of the rights of others and public health generally.

Sixteen of the 17 judges rejected the families' argument that the compulsory vaccination law went against their right to respect for private life (Article 8 of the European Convention on Human Rights). They concluded "the measures could be regarded as being necessary in a democratic society" and that the government has not "exceeded their wide margin of appreciation in this area". Legal experts deem that the foregoing ruling "reinforces the possibility of compulsory vaccination" for COVID-19. The Court’s decisions will have brought relief to the French and Greek Governments, having introduced compulsory vaccinations.

Article 8 of the European Convention on Human Rights is not absolute, unlike some other human rights such as Article 3, the right to freedom from torture. In the description of Article 3, the notion of “degrading treatment” when a government decides upon mandatory vaccinations, with insufficient medical data and well known deaths and serious side-effects of the vaccinations, could not be considered also as a direct violation of Article 2 (Right to Life) as well as a form of degrading treatment for people who do not wish to be vaccinated and this decision does not impose a proven imminent risk to other people’s health?

* Efi Thoma is a lawyer in Cyprus, Member of Cyprus Bar Association