Opinion: compulsory vaccination is not a new policy measure and has existed for centuries, yet Covid vaccines have faced much opposition

Amid a dramatic surge of Covid-related cases and hospitalisations, the Austrian government recently announced the imminent passing of a law mandating vaccination for the entire population from February 1st next. Germany is considering the same option and the president of the EU Commission Ursula von der Leyen has said that compulsory vaccination is a topic to discuss.

While Austria will be the first country in Europe to make Covid vaccination compulsory for the general population, Italy and France introduced this obligation for health workers earlier this year. Other countries, such as Greece, imposed a targeted vaccination mandate for groups of the population exposed to higher risks, such people aged over 60 and other vulnerable individuals.

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From RTÉ Radio 1's Morning Ireland, Sam Jones from the Financial Times on the Austrian government's new Covid-19 lockdown for the unvaccinated

Governments have justified these measures as exceptional and necessary means to contain the number of Covid-related deaths and preserve the functionality of national health systems. Yet, these obligations are being vocally contested.

Why do people object to compulsory Covid vaccinations?

Compulsory vaccination is not a new policy measure and has existed for centuries. In 1776, during the American War of Independence, George Washington ordered his troops to be vaccinated against smallpox. In 1806, Elisa Bonaparte, Napoleon's sister, mandated smallpox vaccines in the Principality of Lucca and Piombino (Tuscany in Italy today), for all new-borns and unvaccinated adults. Many European countries currently have compulsory vaccination programmes for children against serious diseases, such as mumps, measles, polio or tuberculosis.

Ye compelling people to get their Covid vaccines is perceived to be significantly different compared with the mentioned examples. Amid a lot of old arguments, anti-vaxxers stress the record time in which vaccines have been developed and the allegedly consequent absence of careful analysis of their potential side effects in the long run. This mistrust is then in turn used by anti-vaxxers to fuel a legal objection to compulsory vaccines that mandating Covid jabs would disproportionately interfere with our fundamental rights.

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From RTÉ 1's Six One News, president of the EU Commission Ursula von der Leyen says EU should discuss mandatory vaccination

A breach of human rights?

Is this true? Many are the fundamental rights invoked by anti-vaxxers to contest the legality of compulsory Covid vaccination laws, from the right to life to personal liberty. The right to privacy in particular is often evoked as a fundamental value that would be violated in case of imposition of compulsory vaccination. Today, privacy is often associated with data protection, a right which has become crucial in the context of the digital society.

But the right to privacy also encompasses private life in general: it aims to protect individuals from any form of interference from the state, both from a perspective of physical integrity and in terms of independence of personal development. For example, over the past few decades, individuals have successfully invoked the right to privacy to challenge state legislation prohibiting abortion and contraception. In these seminal cases, courts have recognised that state legislation cannot prevent individuals from determining crucial aspects of their life in an independent way. Following this line, anti-vaxxers argue that the imposition of compulsory Covid vaccination would disproportionately interfere with their private life.

Privacy vs public health

However, the right to privacy, as with most fundamental rights, is not absolute. According to many national and supranational constitutional instruments, including the European Convention on Human Rights, the right to privacy can be restricted if it is necessary and proportionate to preserve other fundamental values.

Earlier this year, the European Court of Human Rights considered compulsory children vaccination against nine types of disease to be 'necessary in a democratic society'. In October, the Italian Council of State validated the introduction of compulsory Covid vaccination for healthcare workers. In all these cases, the compression of individual privacy generated by the vaccine obligation was considered to be necessary and proportionate to preserve public health as well as to ensure the continued functioning of essential public services.

A question of proportionality

Certainly, so far courts have decided cases involving compulsory vaccination for specific categories, identified by age or profession. From a legal perspective, mandating Covid vaccines for the general population can be considered as a proportionate measure only in presence of extremely serious threats affecting the national health system, public services, or the society more in general.

The conundrum is therefore more political than legal

The legal principle of proportionality might help policymakers identify intermediate solutions to adopt before imposing Covid vaccines on a general scale. Mandating vaccination for specific categories of workers or particularly vulnerable groups according to a risk-based approach as well as exploiting the full potential of the Covid cert are two options to consider before extending a vaccine obligation to the whole population. Tackling the issue of vaccination hesitancy through vaccine mandates is admissible, but only as a last resort solution.

The role of moral persuasion

The conundrum is therefore more political than legal. Imposing additional legal obligations might have political downsides, potentially increasing the level of mistrust, the sense of oppression, and more generally exposing a failure by public institutions to communicate, educate and persuade people about the importance of being vaccinated. The political opportunity to introduce new legal obligations will not only depend on the epidemiological situation, but also on the success of moral persuasion.

The views expressed here are those of the author and do not represent or reflect the views of RTÉ