- Britt Gronemeyer
The Legality of Mandatory Masks and Vaccinations
As countries across Europe witness increasing vaccination rates, public activities are opening on a conditional basis. Preventative measures such as mandatory masking and vaccination requirements in various contexts across Europe have become causes for concern from parties who are worried that it may be a violation of their human rights. Backlash against compulsory vaccinations and the continuous use of masks has reached top courts in countries across Europe, with different outcomes in each. The European Convention on Human Rights applies to those who are included in the Council of Europe, which is a much larger entity than the EU, with 47 countries as opposed to the European Union’s 27. This includes the United Kingdom and Switzerland. Ultimately, the European Convention on Human Rights has become the basis of arguments on either side of the issue.
European Convention on Human Rights
The European Convention on Human Rights is a human rights treaty between the members of the Council of Europe which established the founding principles of the European Court of Human Rights meant to identify and prevent violations of human rights. The fundamental structure of the ECHR rests on the idea that “everyone’s right to life shall be protected by the law”, while simultaneously stating in Article 2 that these rights can be legitimately restricted by governments for the purposes of protecting public safety, national security, the economic wellbeing of the country and public health. The ECHR’s recognition of the right to integrity, a component of the right to respect for privacy and autonomy, has been used as a basis for arguments against obligatory medical intervention. The right to life and the right to bodily autonomy at first glance appear inherently related, however, the right to individual bodily autonomy does not take precedence over the right to protect life.
Grounds for Legal Rulings
Due to the complexity and legal ambiguity of extraordinary public health requirements in relation to the ECHR, two factors influencing the assessment of their legality are the public danger imposed by COVID-19 and the efficaciousness of public health measures. This requires an in-depth inquiry into the science behind preventative measures that could infringe on bodily autonomy as well as an analysis into whether these measures are significant enough to justify the restriction on human rights. Decisive proof that masks are effective in reducing the transmission rates of the virus and that vaccinations decrease the likelihood of catching Coronavirus once coming in contact with it has emerged. In the eyes of governmental bodies, such criteria have been used to justify the restriction on the right to bodily autonomy in the name of protection of public health and safety.
Recent rulings made by the European Court of Human Rights include Solomakhin v Ukraine which ruled that mandatory vaccinations interfere with a person’s right to integrity. However, the ruling clarified that the interference is justified if judged necessary to control the spread of infectious diseases. Although the ruling does not dispute that mandatory vaccination infringes upon one's individual rights, it clarifies the lack of precedence in the context of the public health situation. While the verdict is a relatively straightforward interpretation of the Convention, it does not provide a threshold which would set a precedent for future issues regarding vaccination requirements. It gives individual nations and governments the responsibility of interpreting necessity which has the potential to lead to legal discrepancies between European nations. By dismissing two cases that had asked to restrict the Greek law saying workers must be vaccinated against COVID-19, the Court has left the interpretation of the Convention ambiguous in regard to vaccination and mask mandates. Countries in Europe that have chosen to implement strict mask and vaccination requirements include the Netherlands, where employers can be fined if their employees fail to wear their masks; those employees can lose wages or their jobs entirely.
In unprecedented times, countries across Europe are navigating new ways to handle Covid-related issues on a daily basis. The enforcement of mask and vaccine mandates has become the primary topic of controversy, putting pressure on lawmakers, governments and the European Court of Human Rights to accurately and decisively establish the legality of these measures in order to cohesively move past this pandemic.