The mandatory nature of vaccination in times of Covid: a contextual approach and analysis from legal studies and comparative politics

Abstract

The most important and effective action to combat the COVID-19 pandemic, once it was verified that the initial immunity due to contagion or generalized confinements did not solve the problem in the medium term, has been vaccination. The success of vaccines is nothing new. Throughout the history of humankind, vaccines have served to reduce and even eliminate some serious communicable diseases. It is not an exaggeration to say that, together with the purification of water and penicillin, the vaccination of the population against certain diseases is one of the greatest achievements both in the fields of public health and the health of individuals.

However, the success of vaccines, not only in this pandemic, but throughout history, has always been in doubt. Despite the evidence of the preventative effect of vaccines, the anti-vaccine movement has endured over time and has even grown in recent decades. Such opposition has not diminished with the efficiency and safe results that the new vaccines against Covid-19 have produced using mRNA technology; on the contrary, it has continued to expand.

After the development and authorization of vaccines against covid-19 in record time, the first challenge faced by vaccination campaigns around the world was to determine the priority in access to the resource when the availability of vaccines was still scarce. The criteria followed at this point were, at least in Europe, quite uniform, prioritizing the vaccination of those most in need.  That is, the elderly, who are the most prone to suffering serious illnesses.

Access to vaccines was very unequal worldwide and, to avoid this, different strategies were proposed, including the suspension of patent rights or the creation of the COVAX vaccine initiative to supply countries that could not buy them.

Once a greater number of vaccines were available, and prioritizing access to them was no longer the main ethical-legal issue, the debate arose in many countries about the opportunity to incorporate vaccination as a legal duty. This involved changing the majority opinion in the world; although already the subject of discussion before the pandemic, it was argued to be a moral duty to receive the recommended vaccines to preserve public health and that of others.  World public opinion was very attentive to this issue of compulsory vaccination, perhaps due to the rejection that vaccines aroused in certain sectors of the population and, in particular, the vaccine against Covid-19. The discussion about the balance between the freedom of individuals and the achievement of a collective interest as important as public and individual health was resolved at the legal level by the courts of justice. Specifically, the rulings of the Supreme Court in the United States and the European Court of Human Rights in Europe established criteria that were basically convergent. Both courts understand that states have the competency to oblige the population to be vaccinated in order to safeguard their health as long as certain requirements are met: a serious risk of a pandemic, a safe and effective vaccine to combat the disease exists, and the absence of less invasive measures to achieve the same result. These rulings have served to support the specific legal measures that were adopted during the pandemic by both the different states of the United States and the member states of the Council of Europe.

Necessarily different concepts have been confused in the debate, in particular those of mandatory and forced vaccination, which do not belong to the same category because they limit different fundamental rights and do so with different levels of intensity. When speaking of mandatory vaccination, reference is made to a duty whose non-compliance determines a legal consequence, be it an economic sanction or a limitation of a right. Thus, the individual who neglects the obligation to be vaccinated will be fined, have their freedom of movement restricted, their working conditions altered or their employment and salary suspended. The legal consequence is not the forced vaccination of those who resist the vaccine, but generally an economic fine. On the contrary, when it comes to forced vaccination, the individual who disregards the obligation will be legally compelled to be vaccinated, resorting even to force if necessary. In other words, the right affected directly by the measure here is the integrity of the individual. These are, therefore, two measures of different significance, from the perspective of the rights ultimately affected by the limitation, and this difference must be taken into account from the principle of proportionality.

In this paper we offer an overview of the various responses adopted by different States in relation to whether or not vaccination is mandatory, which have ranged from mandatory for certain groups or even for the entire population. Among those measures of indirect persuasion for vaccination are “covid passports”.

Our work identifies a broad agreement in the international community on the compatibility between mandatory vaccination and the safeguarding of fundamental rights when certain conditions are met. It is also recognized that proportionality in the adoption of measures is the most effective way to achieve the desired objective of reaching high levels of vaccination in the population. In any case, it would have been desirable to have advanced formulas of persuasion that would have gone beyond information and training, without incurring in the adoption of measures that strongly restrict personal liberty, such as compulsory vaccination. Faced with this international agreement, we do not find shared criteria in other areas related to vaccines: their development and authorization, their fair distribution, or information about them. This absence of shared visions and cooperation gives rise to rivalries that reinforce the traditional clashes between powers.

As the purpose of the work is to compare the legal foundations of the mandatory nature of vaccines in two territories that exert significant influence in other parts of the world, and to do so from a contextual perspective. The work has not attempted to carry out an exhaustive approach to any of the many questions raised, but rather to outline, based on some of the most accredited jurisprudential and doctrinal sources, some provisional conclusions which, at least in some cases, must be subject to successive revisions.