The legitimacy of compulsory vaccination is a question of what kind of freedom we want. It is not a matter of state decree, but rather the reaction of a democratic constitutional state to an omission that can be interpreted as a violation of the freedom of others. If we take the legal relationship of freedom as a basis, some guidelines for models of compulsory vaccination emerge.
The pandemic in a liberal constitutional state
The legitimacy of compulsory vaccination is a legal problem – in some EU member states. In a liberal constitutional state, law limits the political power of state and private actors. It frames social conflicts and controls their fair balancing, it regulates systems according to a priori rules of practical reason, which – evidence-based – enable the reciprocal exercise of fundamental rights. This action-guiding and at the same time relieving function of the liberal rule of law should be recalled in view of the continuing normative uncertainty of pandemic regulation. Guiding, because it sets firm guard rails for policy-making in politics and society and, above all, makes freedom and human dignity binding and unavailable to the state power. Relieving, because it offers a compass when the empirical assessment of social, economic or cultural conflict situations is only characterised by ambivalence and uncertainty.
Committed to freedom
If one thinks of the legitimacy of a general vaccination obligation from its end – i.e. the consequence of its violation – one’s view may become sharper as to whether a democratic legislator may oblige citizens to immunise themselves through vaccination at all, and if so, under what conditions. In the legal mode, the violation of an obligation results in a sanction. This gives rise to the fundamental problem of whether the legislature may not only take away from the citizen the decision to tolerate a medical intervention in physical integrity as a decision that belongs to the core area of personal rights, but also sanction it in the case of refusal. In other words: would it be legitimate to punish the breach of duty? A first approach to this question, evokes trepidation. Sanctions as a reaction to a breach of duty is historically the hallmark of the authoritarian state, which elevated its existence to a value and criminalised any deviation, even a minor one, as a breach of the state order itself worthy of punishment.
The historically sensitised imperative may be derived from this to not simply impose a vaccination obligation as part of a pandemic administrative law, or even to use coercive means to enforce it, but to ask whether it is not a prerequisite of a “general law of freedom” as part of a legal relationship. Karl Lauterbach made Kant his ally. And rightly so: Freedom only gains real value in mutual recognition. It presupposes including the other and his rights and his or her vulnerabilities. Last but not least, it is precisely in this situation of concrete need that it becomes clear: freedom requires political, if you will, systemic conditions if everyone – in the same way – wants to make use of their freedom rights. Even those who refrain from doing something act. Even those who do not act can cause harm. For example, anyone who fails to provide help, even though it is possible and reasonable, and thereby violates the rights of others, in particular life and limb, is obliged by law to provide help under threat of sanctions. The question “What’s it to me?” is in this case not an option, but a problem. “What’s it to me?” is not an option if we do not want to call into question the foundations of any use of freedom. The failure to vaccinate may be a legitimate exercise of fundamental rights, but it is also a negation of responsibility, which is indispensable if one wants to establish a legal relationship of freedom. The perspective changes: it shifts to those “in need” who are adversely affected by the free decision to vaccinate. The duty to vaccinate in the face of a pandemic is therefore not based on reasons of state but exists because another person has a right to protect his or her freedom.
Vaccination obligations – European legal bases
If the duty to vaccinate is therefore understood as a normative requirement for action based on the mutual recognition of civil liberties, this also provides guidelines for weighing conflicting rights and the proportionality of the encroachment on fundamental rights and civil liberties associated with the duty to vaccinate. It remains important to note that the decision to be vaccinated is a highly personal matter. Like any medical treatment, it requires the consent of patients, whose freedom is only respected and taken seriously if it is based on comprehensive information about the risks and side effects of the intervention. Information and consent are at the same time the cornerstones of a trusting reciprocal doctor-patient relationship, the core of both patient autonomy and medical ethics. In international law, patient autonomy is secured, among other things, in Article 5 of the Convention on Human Rights and Biomedicine (Oviedo Convention, 4.IV.1997), which binds the intervention in the physical integrity of the patient to his or her voluntary and informed consent.
However, international and European law also establishes other civil rights that affect health and bodily integrity. Article 12 of the International Covenant on Economic, Social and Cultural Rights, for example, provides for the right of everyone to the highest standards of health care, which is concretised, among other things, by a right to the protection, treatment and control of epidemic diseases. The scope of protection of Article 12 of the European Social Charter is similar, explicitly linking the right to health protection to the duty of EU Member States to take appropriate measures to prevent epidemic diseases. Individual rights of patients to their autonomy are thus supplemented in international and European law by civil rights to the protection of health, which correlate with state and societal responsibility for preventive health care. In the case of compulsory vaccination, this can lead to tension between personal autonomy and state responsibility vis-à-vis the subjective right to the protection of health.
Criteria of European jurisprudence
In its judgment Vavricka and others v. Czech Republic (Applications nos. 47621/13 and 5 others, 8 April 2021), the European Court of Human Rights grants the legislator a wide margin of appreciation in the design of a compulsory vaccination in view of these possible antinomies.
The breadth of the discretion also follows from a lower density in the design and interpretation of the principle of proportionality. Necessity in a democratic society must, on the one hand, be based on sufficient and proven facts, the normative consequences of which, on the other hand, are subject to the legislative prerogative of assessment (Judgment Vavricka and others, para 285 and subs.). With regard to the appropriateness of a statutory vaccination obligation, however, the European Court of Human Rights at the same time formulates a few essential requirements. For example, sanctions must never be absolute, but must provide for exceptions – for medical reasons, for example – they must not be punitive and should rather be one-off. Last but not least, they must be subject to judicial review. Individual patient autonomy is by no means unrestricted. It finds its limits where the state and society bear responsibility for institutions whose general function of securing the subjective right to the protection of the health of all is in danger of being thwarted in the face of a grave and concrete danger (Judgment Vavricka and others, para 284).
The Principle of Proportionality – Rational Weighing Rule in the Face of Ambivalence
Unlike in the Vavricka decision, in the current pandemic we are not dealing with a proven cause-and-effect relationship between a vaccine and the eradication of a disease. But we do know about the long-term preventive effect. We know that the means-purpose relationship does not occur immediately, but only in time. What we do or do not do now has consequences for the future. Whoever asserts his right to health, hence his freedom now, whoever obliges the other to act to protect this freedom in the here and now of the pandemic, may not yet be directly affected, but should be able to claim that damage to the right will be avoided in the future. Appropriateness in this context means that the legal obligation to vaccinate at least promotes the transformation into an endemic situation as well as the return to normality under the rule of law.
Pandemic regulation as experimental law and crisis element of the rule of law
From the legal relationship of freedom taken as a basis here follows the connection of the legal obligation to vaccinate with the freedom of all, which constitutes the democratic constitutional state: Pandemic regulation generated – across Europe – a form of experimental law programmed for ad hoc crisis management. In many European countries, this ranged from the use of emergency articles to the rapid succession of pandemic laws and regulations. In the process, pandemic control and containment measures were introduced, these measures were tightened, relaxed and tightened again. Since the approval of effective vaccines, the legislator has set various vaccination incentives and imposed access requirements to cultural or leisure facilities, to public buildings, in schools, and finally even to the workplace. All these measures represent widespread and serious encroachments on elementary fundamental rights – the right to education, cultural freedom, freedom of occupation, freedom of religion and general freedom of action. What is more, the enforcement of these fundamental rights restrictions has been shifted from the state to private actors who, for their part, are obliged to control the rules issued by the state at great cost in terms of time and personal resources. In view of the uncertainties and rapidly changing findings of the pandemic, this form of regulation may be almost without alternative, but its consequence is the lasting damage to the principles of the rule of law, especially the requirement of clear, coherent and transparent standards. The crisis of the pandemic threatens to perpetuate itself as a crisis of the democratic rule of law.
The legitimisation of a duty to vaccinate requires precise and restrictive criteria according to which a duty to act in a way that makes the freedom of others possible can be imposed on another. This calls for a general law that
- determines the scope of the obligation to vaccinate, the groups of persons (from 18 years of age in Austria, from 50 years of age in Italy), and exceptions of medical indication;
- at best, provides for an administrative sanction which, moreover – unlike in Austria and Greece – can only be imposed once;
- makes the violation of the vaccination obligation dependent on a prior counselling interview;
- provides for a fair procedure and judicial review;
- is limited in time and contains evaluation clauses (like in the Austrian Model).
The question will be what else remains to escape the seemingly endless spiral of legal experimentation with freedom. Compulsory vaccination seems to be the indispensable condition for returning to the – permanent – normality of the liberal constitutional state.