By: Michael Mengistu Woldeyes
It has been almost two years since COVID-19 hit the world. Starting from January 2020, the virus has taken millions of lives. However, vaccines have been developed to combat the pandemic. Ethiopia is one of the leading countries in Africa with COVID-19 cases though the Ministry of Health has taken several measures to limit the spread of the virus. To support this fight against the pandemic, Ethiopia has received close to 5 million COVID-19 vaccines from donor States. Nevertheless, the public has been resistant to the vaccines for several reasons such as religious beliefs. Research conducted in Addis Ababa revealed that many were not willing to take COVID-19 vaccines for these and other grounds. Despite the public’s hesitancy towards vaccines, COVID-19 vaccines have been found to be the most essential means to end the spread of the disease across the globe. This article aims at identifying whether or not it is within the human rights of individuals to refuse COVID vaccinations. It does so by analyzing international human rights instruments to which Ethiopia is a party.
Could COVID-19 Vaccines be made compulsory under human rights law?
Everyone has the right to the highest attainable standard of health which is recognized by the International Covenant on Economic, Social, and Cultural Rights (ICECSR) and the Constitution of the World Health Organization (WHO). In order to understand whether getting vaccinated is our right or obligation, we need to understand the scope of the right to health recognized under international human rights instruments. Accordingly, article 12 (1) of the ICESCR recognizes the right to the highest attainable standard of physical and mental health and this right has been given a non-binding but authoritative explanation by The United Nations Committee on Economic, Social, and Cultural Rights (UNCESCR) under the Committee’s 14th general comment.
According to this general comment, States have the obligation to respect, protect, and fulfill the right to health of individuals by making quality health facilities, goods, and services easily available, accessible, and acceptable by society. The duty to respect means that States should not interfere with the health of individuals for example by prohibiting some individuals from gaining health care while the obligation to protect requires States to protect individuals from third parties that harm the health of individuals and public health. On the other hand, the obligation to fulfill implies that States have to provide health facilities for the public. Hence, when it comes to vaccines, it reads well that States have to make vaccines available for the public in the time of need if they have the capacity to do so. In addition, failing to protect the health of individuals entails that the State is violating the individual’s right to life. For example, it could be argued that a State that fails to provide basic medicines for HIV/AIDS carriers is violating the right to life of these individuals. By the same token, failing to provide COVID-19 vaccines for citizens while the State is fully capable of providing these vaccines can be interpreted as violating the right to health and life of individuals. But what if the State makes vaccines available and the public refuses to get vaccinated? Does the State have the right to make COVID-19 vaccinations compulsory? In other words, is it within the human rights of the individual to refuse vaccinations? In order to answer this, we should look into two different perspectives of health law/human rights law. On the one hand, States have the obligation to respect, protect, and fulfill the right to health and life of individuals by maintaining public health and on the other hand, the individual has the right to his/her private life and freedom of thought and religion. Today, in most of Ethiopia and mainly in Addis Ababa, many people are refusing to get vaccinated based on religious grounds or personal fear of the vaccine itself. If the Government makes vaccinations compulsory, it might be interpreted to mean that the State is violating the religious and private rights of individuals. But when we look at the State’s obligation to protect public health, human rights law provides that the State can limit rights such as the right to private life in order to promote the general welfare of the society. Therefore, civil and political rights such as the right to freedom of thought and religion are subject to limitations by law.
The United Nations Economic and Social Council in 1985 issued the Siracusa Principles to guide States as to when limitations on civil and political rights are justified. Accordingly, limitations are justified when they are:
1. Provided for and carried out in accordance with the law;
2. In the interest of a legitimate objective of general interest;
3. Strictly necessary in a democratic society to achieve the objective;
4. Based on scientific evidence and not drafted or imposed arbitrarily – that is, in an unreasonable or otherwise discriminatory manner and when;
5. There are no less intrusive and restrictive means available to reach the same objective.
Restrictions are said to be in a legitimate objective of general interest and necessary in a society when there is, among other things, a demonstrable threat to public health. According to Alexandre Kiss, “limitations adopted on the basis of this ground may include not only collective measures but also those aimed at the protection of the health of individuals”. Hence, taking measures to make COVID-19 vaccines compulsory by restricting the right to private life, religion, and freedom of thought of individuals would protect the health and life of individuals; most of all, the most vulnerable group of society; senior citizens. And these measures would be based on scientific evidence that shows the effectiveness of COVID-19 vaccines. However, the hard question is whether making COVID-19 vaccines compulsory would be the least intrusive measure that the Government could implement to protect public health. This is a question left to public health officials but if the answer to this question comes out positive, the Government will be in its rights and/or obligations to make vaccines compulsory and individuals will be obliged to take COVID-19 vaccines within the realm of human rights law. It should, however, be noted that making vaccines compulsory does not mean physically compelling individuals to take doses. The State can deploy several measures such as issuing fines on those individuals who refuse to get vaccinated.
In conclusion, though human rights protect the right to private life, religion, and freedom of thought of individuals, they also allow for the limitations of these rights when public health is threatened. However, there are principles that States are required to follow when limiting civil and political rights. If all of those principles are fulfilled, then, I believe that COVID-19 vaccines can be made compulsory.
About the Author
Michael received his LL.B. from Addis Ababa University in 2018. He also holds an LL.M. in human rights law from the University of Groningen. The author can be reached at firstname.lastname@example.org.