Widespread vaccination aims to achieve herd immunity for a population, a situation where up to 95% (for some diseases) of the population attains immunity. It seeks to eradicate the disease by reducing the number of hosts it can infect, causing it to die out rather than transmit further. According to a 2010 study, 14 countries in the European Union make at least one childhood vaccination mandatory (with ‘mandatory’ meaning ‘required by law’, with no parental right to refuse the uptake). Thomas Douglas will argue in a contribution to this symposium that mandatory vaccination is sometimes justified for infectious disease control, though whether it is justified for Covid-19 will depend on whether herd immunity can be achieved via less restrictive means. In this piece, we survey the current law regarding mandatory vaccination policies but commence by distinguishing them from their close cousins.

A Spectrum of Compulsory Vaccination Policies

In contemplating compulsory vaccination, we can distinguish broadly between two categories: those policies that seek to compel vaccination unconditionally versus those that make vaccination a condition for engaging in certain activities. The first one makes vaccination an unconditional legal requirement, for some (e.g. children) or all of a population. Exceptions may apply, but are intended to be narrow. We refer to these as “mandatory vaccination policies.” Within them, we can distinguish further between mandates (1) that can be enforced with coercion, (2) whose breach constitutes a crime, and (3) whose breach incurs civil or administrative fine. The differences can be legally significant, as we will see further below.

The second category, what we will call “conditional vaccination policies,” includes those policies which make vaccination a condition for the enjoyment of some right, freedom, or privilege that is ordinarily available to persons without vaccination. These can apply in the employment, education, hospitality and travel areas, among others. Vaccine passports and digital certification arise for consideration here. The conditions can be imposed by the state or by private persons who control access to the relevant goods or services. The main concern for conditional vaccination policies is how significant the obstructed right or interest is, by reference to liberty, dignity or other fundamental values. International law and the vast majority of the world’s constitutions recognise fundamental rights to education and to work. Events, travel, and hospitality venues at first glance seem more optional. But restrictions on these liberties can impose unequal burdens and be quite grave for some categories of persons.

While these two categories divide recognisably on whether there is a legal right to avoid the vaccine requirement, in reality they represent a continuum of pressure with rising and unevenly distributed degrees of intrusiveness. We can see why some countries and ethicists consider all these policies to be ‘mandatory vaccination.’ We adopt different usage only because we will see that conditional policies raise a number of legally salient differences that become relevant to a proportinality analysis.

Countries with Existing Laws Permitting Mandatory Vaccination against Covid-19

Of the 36 responses to our survey,[1] eight countries had existing laws which could be used presently to impose mandatory vaccination for Covid-19: Chile, Germany, Israel, Mexico, Norway, Serbia, Spain, and the USA. Contributors from Chile, Norway, Spain and the USA will clarify their legal regimes in individual contributions to this symposium.

No country had a policy of mandatory vaccination (as we define it) commenced. In all eight cases, the basic legal regimes permitting Covid-19 vaccination pre-dated this pandemic. In several US states, as Lyndsay Wiley’s symposium contribution will clarify, general health protection laws seem open to interpretations that would allow a programme of mandatory vaccination. Notably, some legal regimes make exceptions. Section 20(6) of Germany’s Infection Protection Act includes a statutory protection of the right to refuse otherwise mandatory vaccination on recognised medical grounds. Several US states provide for religious exemptions, which can in practice serve as a significant challenge to the aims of a mandatory vaccination policy.

Only Spain and Serbia have seen new legal powers introduced to deal with mandatory vaccination for Covid-19 in particular. In Serbia, the Infectious Diseases Act 2016, which prescribes mandatory immunization, was amended on 13 November 2020 to permit mandatory emergency vaccination for all or special categories of persons if the risk of transmission is determined. In Spain, explained further in the symposium contribution of Dolores Utrilla, the Autonomous Community of Galicia relied on a national (Spanish) law to enact measures conferring powers to trigger a mandatory vaccination regime.

Two other notable curiosities have emerged from the survey. First, there was no strong correlation between pre-existing mandatory vaccination policies for children and the existence of laws permitting mandatory vaccination for Covid-19. None of France, Latvia, or Italy have such Covid-19 mandatory vaccination laws in place, despite each having mandatory vaccination programmes in place. President Macron of France, a country with striking vaccine hesitancy, declared unequivocally in November 2020 that Covid-19 vaccination would ‘not be made obligatory.’ Of the eight countries whose current law permits mandatory Covid-19 vaccination, only Serbia and Chile had pre-existing programmes of mandatory vaccination.

The second curiosity is that there is no trend for states regarded as having been autocracies or anocracies to have laws in place to effect mandatory Covid-19 vaccination. For instance, none of China (or Hong Kong SAR of the People’s Republic of China), Ethiopia, Kazakhstan, Russia and Turkey have laws that would permit mandatory vaccination. This may or may not be a byproduct of the likelihood that such laws can be enacted swiftly where needed. It may also sometimes be cultural (e.g. see the Russian statutory protection referred to below).

Of those countries that do have laws in place, they are part of established legal frameworks for epidemic response. We can observe that to the extent that mandatory vaccination policies will be considered – and countries with current legal prohibitions such as Belgium and the United Kingdom do discuss regularly whether they may be adopted – a pre-existing legal regime that is bespoke for the pandemic situation will most likely appear more legitimate than a hastily improvised law. Even where such laws already exist, they should perhaps be revisited with a view to considering contemporary social distancing options, innovations in vaccine regulation and research, and contemporary thinking in the field of bioethics. Enacting new regimes would allow for parliamentary discussion of intervention ladders, exceptions, and different options for parliamentary scrutiny and sunset provisions as democratic safeguards. On the whole, states would do better to create (and perhaps refresh) a legal framework for mandatory vaccination in advance rather than try to muddle through in an emergency.

Constitutional and Statutory protection against Mandatory Vaccination

Most respondents to our survey indicated that either statutory or constitutional protections existed against any programme of mandatory Covid-19 vaccination. For a significant number of countries, such as Belgium, France, Ireland, New Zealand, Russia, and the UK, statutes or the common law would require a new statute to make such a programme possible. Section 11 of New Zealand’s Bill of Rights Act 1990 protects the ‘right to refuse to undergo any medical treatment.’ Belgium and Russia both have statutory protections for patients’ right to refuse medical interventions.

Beyond this, in a broad range of countries, respondents indicated that a mandatory vaccination policy would engage its constitutional rights provisions. These include, but are not limited to, Austria, Belgium, Brazil, Canada, Chile, Colombia, France, Germany, Hong-Kong SAR, India, Ireland, Israel, Italy, Mexico, Norway, South Africa, Spain, Tunisia, Turkey, and the USA. Under this model, mandatory vaccination would affect one or more fundamental rights (life, human dignity, liberty, autonomy, privacy, physical integrity, and/or the freedoms of conscience and religion). In such cases, vaccination mandates can generally be imposed only (i) statutorily, (ii) based on the need to protect public health and/or other constitutional rights and principles, and (iii) subject to the requirement of proportionality.

The comparative prevalence of this fundamental rights-based approach places proportionality right at the heart of the 'mandatory vaccination dilemma,’ just as it is in some writing about the ethics of mandatory vaccination (on which, see the symposium contribution by Thomas Douglas). Some of the most relevant comparative examples of national litigation before constitutional and supreme courts will be addressed in various symposium contributions.  At the supranational level, the Inter-American Commission on Human Rights (IACHR) has recently recommended through Resolution 1/2021 that ‘all Covid-19 vaccinations that the State administers must be subject to the free, prior, and informed consent of the individual being vaccinated’. This may be contrasted with the most recent European Court of Human Rights' (ECtHR) case law on mandatory vaccination, which is of critical importance to national constitutional law in 47 countries across Europe.

In Vavřička and Others v. the Czech Republic(8 April 2021), a case concerning a pre-pandemic policy of compulsory vaccination for children against a set of well-known infectious diseases, the ECtHR devoted several pages of analysis to establishing a 'general consensus’ that public health requires the ‘highest possible level of vaccination’ [277].  The concurring judgment of Judge Lemens described the Court’s judgment as establishing that 'the vaccination duty is one way by which the authorities choose to fulfil their positive obligation to protect the right to health' [2]. As explained elsewhere in more depth by Dolores Utrilla, it follows from this judgment that the proportionality of mandatory vaccination programmes depends inter alia on (i) the level of effectiveness and safety of the vaccine, (ii) the provision of exemptions for people with adverse medical conditions, and (iii) the severity of the negative consequences associated with non-compliance - in particular, the non-existence of coerced vaccination. In this regard, the Vavřička and Others judgment seems to confirm that coercive policies are the most legally suspect and that the further down the ‘ladder of interventions’ the policy will be – in terms of its compulsory character – the more easily it will pass any proportionality analysis. These aspects of the judgment are well-aligned with a recent judgment exploring similar issues of the Supreme Federal Tribunal of Brazil, whose judgment applied to the case of Covid-19 vaccination in particular and which is explored in depth in the symposium contribution by Octávio LM Ferraz. Proportionality analysis may also, as it has in other contexts in the past, put the extent of a fine underscrutiny. The classic example of disproportionality in legal teaching is ‘using a sledge-hammer to crack a nut.’ Relevant in this regard is the legislation adopted by the Autonomous Community of Galicia, Spain, which would permit administrative penalties of up to 600,000 Euros for non-compliance by certain persons. Finally, the ECtHR’s proportionality assessment also suggests that ‘softer’ compulsory vaccination policies, such as the ‘conditional vaccination policies’ covered by a range of contributions to this Symposium, may also be scrutinised under a similar fundamental rights-based framework of analysis.

Aside from these considerations, in strictly legal terms, nearly everything remains to be said when it comes to the (im)possibility for states to impose vaccination mandates on their citizens in a pandemic such as the current one. Indeed, for a number of reasons, the balancing test underlying any Covid-19 mandatory vaccination scheme may well be different from other (more common) vaccination mandates. Some Covid-19 specificities worth mentioning in this regard are the novelty of the coronavirus disease; the fast-tracked development and approval of the vaccines against it; the potential for conditional vaccination policies to increase vaccine uptake; or even the fact that, by more quickly relaxing restrictive measures, vaccination mandates might in some circumstances lay claim to be freedom-enhancing. These and other unique features of the current situation may combine in the constitutional analysis of any particular laws in such a way as to either reinforce or detract from the justifiability of the particular mandatory vaccination policy. Which is another way of saying that in law, as with so much else, ‘it all depends…’

In Part II of this opening editorial, to be published tomorrow, we will explore the role of conditional vaccination policies as imposed by public officials and private companies and other persons.

[1] Respondents included the rapporteurs for Argentina, Austria, Belgium, Brazil, Canada, Chile, China, Colombia, Ethiopia, France, Germany, India, Ireland, Israel, Italy, Jamaica, Kazakhstan, Latvia, Lebanon, Mexico, New Zealand, Nigeria, Norway, Pakistan, Philippines, Russian Federation, Serbia, South Africa, Spain, Sweden, Taiwan, Tunisia, Turkey, United Kingdom, United States of America.  The Rapporteur for the Hong Kong Special Administrative Region of the People’s Republic of China also responded.