what does human rights law say?

As winter sets in all over Europe, COVID-19 cases start to increase, despite the massive rollout of mass vaccination programs earlier this year. The Austrian government has pointed the finger at the unvaccinated and has only announced a new lockdown for those who have not had the shot.

Like other pandemic policy decisions, this lockdown raises questions about how far states can go with emergency powers and whether they will violate human rights law. What could the European Convention on Human Rights say about this particular case?

The Austrian Chancellor, who justified his country’s new policy, Alexander Schallenberg, said:: “My goal is very clear: get the unvaccinated people vaccinated, not imprison the unvaccinated.” The campaign is an attempt to get people vaccinated without making vaccination mandatory. In that sense, it can be seen as less infringing on human rights than mandatory vaccination.

While the new lockdown in Austria is different from previous lockdowns. by clearly distinguishing between vaccinated and unvaccinated, it is unlikely that any challenge based on discriminatory treatment will succeed. The lack of antibodies against a certain disease is not a ‘protected characteristic’ according to the Discrimination Act.

Many European states have already introduced mandatory vaccinations for certain sectors, such as health professionals and other public sector workers. Notably, in a case earlier this year, the European Court of Human Rights ruled that compulsory vaccination of children for certain diseases is not necessarily violate human rights.

The case, from pre-pandemic days, focused on the Czech requirement that children must be vaccinated against nine diseases in order to be allowed to attend kindergarten. The court ruled that this did not violate the right to respect for private life, as the policy pursued the legitimate aim of protecting the health and life of others. Nor was it a blanket ban on unvaccinated children going to school. In addition, various exemption grounds have been built into the program and it did not apply to older children who had reached primary school age.

This case therefore means that a mandatory vaccination policy at first sight does not violate treaty rights. But much will depend on the actual policy in question. Many European states require vaccines by sector – which is a stark choice for those who work in sectors where vaccinations are required: choose to get vaccinated or not work.

Austria’s new policy can be viewed in a similar vein: choose to get vaccinated or choose to go into lockdown. This is perhaps the closest thing to mandatory vaccinations, because legally requiring everyone in a state to be vaccinated would probably be practically unworkable.

Whether Austrians now have the freedom to choose whether or not to be vaccinated is a debate that the European Court of Human Rights will not be happy to get involved in. In the Czech case, the court stated that states have a “wide margin of discretion” in assessing how to strike a balance between individual liberty and the greater good. Although this does not give states flamesHowever, it does mean that the court will largely surrender to individual states’ positions on the matter.

Human rights and the pandemic

The court’s reluctance to intervene can be seen in some of the early human rights cases of the pandemic. Earlier this year found it challenging against Romanian lockdown laws to be “inadmissible” because the Romanian MEP who brought the case has failed to demonstrate that lockdowns were particularly harmful to him. According to the court, lockdowns were very clearly a “restriction”, not a deprivation of liberty, and therefore did not violate the right to freedom of the treaty under the treaty. Article 5 of the European Convention on Human Rights.

Alexander Schallenberg Wears A Face Mask At An Eu Event.  An Eu Flag Is Depicted On The Wall Behind Him.
Austrian Chancellor Alexander Schallenberg says the purpose of the lockdown was to encourage more people to use the vaccine.
Olivier Hoslet / EPA-EFE

This is not to say that other treaty rights may not also be affected by lockdowns. The right to private family life, or the right to freedom of association can be affected. But again, it’s likely that states will be given a wide discretion.

Understandably, courts may not want to tail the government when responding to a crisis like the pandemic. Lockdowns are an essential response to the pandemic and can even be justified on the basis of human rights as protecting people’s right to life. But we may nevertheless feel uneasy about the courts’ hands-off approach and the legal way in which lockdowns have been implemented.

in my book Emergency powers in times of pandemic, I argue that states should have formally declared emergencies in accordance with Article 15 of the European Convention on Human Rights to “quarantine exceptional powers in exceptional situations”. In this way, any “hands-off” court ruling allowing these exceptional powers cannot be used to justify similar human rights interference outside the pandemic. For example, ensuring that states do not introduce similar lockdown powers to deal with less obvious threats like terrorism when there is no “public emergency threatening the life of the nation” in place.

Whether other states follow Austria’s lead in selective lockdowns likely depends on how successful it is in increasing vaccination rates and stopping cases. But the long-term legacy of these powers in human rights will only become apparent long after the pandemic has subsided.

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