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Abstract: Despite the overwhelming scientific evidence that vaccines are, in general, safe and effective, vaccine hesitancy continues to thrive due to various reasons, such as misinformation, the wish to protect one’s personal autonomy, and/or religious or moral beliefs. Vaccine hesitancy therefore endangers attaining and maintaining herd immunity which protects those that cannot be vaccinated due to medical reasons. Some States have consequently implemented compulsory vaccination schemes in order to close this gap in protecting public health, which, however, raises two essential questions in the context of human rights protection: (i) if a State has done so and implemented a compulsory vaccination scheme, does it potentially violate Articles 2,8, and 9 of the ECHR? In other words, are the ECHR Contracting Parties under a negative obligation to abstain from introducing such measures? Or (ii) if a State has not done so (yet), is it actually under a positive obligation to introduce such measures in order not to violate these provisions? On the basis of the ECtHR’s recent judgment in Vavřička and others v. the Czech Republic (April 2021), I will discuss these questions and conclude that States are, if specific requirements are met, not prohibited from implementing such measures, whilst they are also not obligated to do so under the ECHR as long as they protect those most vulnerable to infectious diseases through other means.
The presentation is based on a paper which will be published in the European Convention on Human Rights Law Review.
Paul Gragl is Professor of European Law at the University of Graz, Austria. His research interests include public international law, EU law, human rights law, and legal theory as well as philosophy, which is reflected in his most recent monograph Legal Monism: Law, Philosophy, and Politics (OUP, 2018).