Kama una muda kusoma kidogo...... compulsory vaccination siyo ngeni
STUDENT ESSAY: Is Compulsory COVID-19 Vaccination a Violation of Human Rights?
Aaron Chia
State obligations under ECHR and compulsory vaccination
Regarding the potential implementation of a compulsory vaccination, the primary source of law to be considered is the ECHR, which was incorporated into UK law through the Human Rights Act 1998.
[19] Article 2 of the ECHR concerning the right to life is of upmost importance in this context as it places positive and negative obligations on the state. Interpretation of this Article is summarized by the ECtHR in
L.C.B. v The United Kingdom (1998), stating that “the state must not only refrain from the intentional and unlawful taking of life, but also take appropriate steps to safeguard the lives of those within its jurisdiction.”
[20] Specifically regarding the positive obligation, states have a “primary duty to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life.”
[21] As suggested by Camilleri, the positive obligation deriving from Article 2 may lead to claims that, in the context of a public health emergency, a vaccine should be made mandatory for those who are able to receive it, in order to protect those who rely on herd immunity for protection against such diseases.
[22] However, when considering a narrower compulsory vaccination claim, the case of
Calvelli and Ciglio (2002) is highly relevant as the court applied the positive obligation principle of Article 2 specifically to “the public health sphere”, stating that the obligation “requires states to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives.”
[23]
This concept is demonstrated through a number of examples where the MMR vaccine, among others, has been made a legal requirement for healthcare professionals. Countries such as Canada, Australia, and several Caribbean countries, as well as some countries in Europe, have polices whereby certain vaccinations are a requirement by law for those directly in the healthcare sector, one of them being the UK.
[24] In addition, there are a number of governments that have adopted similar policies with specific focus on the education sector. For example, in Italy, France, three provinces of Canada, as well as the United States, there is a requirement for children to be vaccinated in order to attend public or private schools.
[25] An important element of this requirement is that they allow for medical, religious, and philosophical exemptions, aside from Mississippi, West Virginia, and California, which now only allow for medical exemptions.
[26] In countries such as Australia, although vaccinations for children are not mandatory, the government offers financial incentives to have their children vaccinated. This is through non-taxable payments for each child who meets the requirements for immunization.
[27]
One of the key outcomes of the implementation of these mandatory vaccination policies is that the government has not only taken positive action to protect the right to life of individuals within their jurisdiction, but they have ensured that individuals who rely on herd immunity are able to fully enjoy their human rights and fundamental freedoms the same way every other individual is able to, without putting their own lives at risk.
Governments and/or institutional policy-makers should use arguments to encourage voluntary vaccination against COVID-19 before contemplating mandatory vaccination.
Efforts should be made to demonstrate the benefit and safety of vaccines for the greatest possible acceptance of vaccination.