I write this article on the day I received my last COVID-19 vaccination. Before registering myself for the vaccine via the governmental registration page of Sint Maarten, I tried to read up on the facts about this vaccine. A topic that I found interesting from a professional point of view is if COVID-19 vaccines should be compulsory. Here in this article, I will discuss the legal aspects of a mandatory vaccination. It is important to know though, that at the day I write this article, the government of St. Maarten strongly advises receiving your vaccine, but it remains the free decision of all inhabitants.
Before I get there, I’ll first explain what compulsory vaccination could entail. Vaccination can directly or indirectly be made compulsory. Direct mandatory vaccination would, for example, be if a healthcare professional accompanied by a police officer would knock on your door, and if you do not wish to open the door, force their way in, grab your arm, put out a needle and jab it forcefully in your arm. Or you could risk getting arrested because being non-vaccinated is turned into a felony. Luckily, this is not what is suggested when people suggest compulsory vaccination, and it is also a bit of a farfetched scenario in a democratic society such as St. Maarten with the rule of law.
However, certain measures may have as an effect that people’s choices are guided in a certain direction. For example, if by law you have to pay a small but significant fee, when you do not wish to receive vaccine, or if you by law you would be banned from participating in activities such as going to school, to work, to practice your favorite sports or to go out, if you refuse your vaccine, your choice to get the vaccine might not be made on an entirely free basis. When measures put in place, exert a strong pressure to choose for receiving a vaccine, people still might feel pushed into taking the vaccine. This kind of indirect compulsory vaccination – what still is a severe limitation of fundamental rights – is a way less farfetched scenario than the directly compulsory vaccination.
After all, this COVID-19 pandemic already made us familiar with several severe freedom-restricting measures under the guise of the protection of public health. Think about the lockdown, curfew, the closing of non-essential businesses and wearing mouth-masks in public. Interestingly, these measures, although being severe, (eventually) survived in the Netherlands against several injunction procedures initiated by interest groups who liked these drastic measures to be removed. The court in these cases acknowledged that dramatic times may legitimize drastic matters.
But times do not even have to be necessarily dire. Many fundamental rights such as the inviolability of the body, right of private life or the freedom of philosophy of life or religion may (and most are) limited by laws supported by just a parliamentary majority. Based on this principle, indirect compulsory vaccination is something what is already out there in several democratic countries and what is debated in many others. The European Court of Human Rights recently ruled, for example, in a case against the Czech Republic that on the one hand compulsory vaccination (for children against contagious childhood diseases such as measles), as an involuntary medical intervention, is an interference of physical integrity and thus it concerns the right to respect for private life.
On the other hand, the court recognized that the Czech policy – where parents who without good reason do not vaccinate their children are fined and where such non-vaccinated children are not accepted in nursery school – pursued the legitimate aims of protecting health as well as the rights of others. It noted that vaccination protects both those who receive it and also those who cannot be vaccinated for medical reasons and are therefore reliant on herd immunity for protection against serious contagious diseases.
Also, the high Dutch Council of State (Raad van State), a few months before said ruling from the European Court of Human Rights, formulated in an advice to the Dutch government – pertaining to questions from the health ministry to make vaccination for children a condition for going to nursery schools – that the protection of public health in a broader sense may be a legitimate goal for compulsory vaccination by law. However, it also emphasized that compulsory vaccination is only an option when it meets the criteria of proportionality and subsidiarity. Meaning that there is no (more) less invasive measure (proportionality) and the measures may not be more invasive than reasonable in the light of the situation (subsidiarity). It therefore reasons that compulsory vaccination should only kick in when the vaccination coverage drops to such a low point that children who cannot (yet) receive vaccination are in inaudible danger.
The argument of the protection of public health and the proportionality and subsidiarity is also relevant when considering compulsory COVID-19 vaccinations. Professor emeritus Dute, prominent Dutch legal scholar in the field of health law, argued in January of this year in his blog that – in the Netherlands – it was way too early to think about compulsory vaccination for COVID-19 there. I believe that he is right, and that many of his arguments are also relevant for St. Maarten.
Professor Dute rightfully states that we should overestimate the abilities of the vaccine. After all, what do we so far know about the vaccine so far mostly used by the St. Maarten government, namely Pfizer-Biontech? According to our government, RIVM and WHO, this vaccine is well-tested, and although it may – as most other vaccines – rarely cause serious side-effects, it is considered as very safe. So, according to experts, these vaccines do not pose an unacceptable risk for the (healthy) individual. The vaccine protects adults very well against developing serious COVID-19 related symptoms such as serious lung damage and breathing difficulties that are related to that. Therefore, vaccinations are expected to ease the pressure on the hospitals and intensive care units, what in itself is beneficial to the overall healthcare accessibility. This serves public health. The WHO expects the more people get vaccinated, the more the virus circulation will decrease, which also will then lead to fewer mutations of the virus.
On the other hand, a large group of the society cannot be vaccinated yet. After all, the vaccine has not yet been tested sufficiently on children below 16. This group can still transmit the virus. What we also do not know yet – since these vaccines, contrary to vaccines for children’s diseases, are relatively new – is how long this vaccine protects us against the virus. More importantly, at this moment we do not yet sufficiently know if vaccinated people are still able to transmit the disease to others. Recent provisional findings from the European Center for Disease Prevention and Control are hopeful, though, and suggest that vaccines at least limit the chance of transmission and therefore a relaxation of measures is suggested for them there.
In short, we know that the vaccine for the individual helps to avoid developing a severe case of COVID-19. Also, there are promising signals that vaccination might also be beneficial for unvaccinated people that surround the vaccinated person. However, we do not yet fully understand how much or how long vaccines protect public health, and therefore if they are really the key to normalcy that we all hope for. As long as there is considerable doubt about how much effect COVID-19 vaccines have on the public health, we have to be careful with making such vaccines mandatory.
On top of that, a government and legislator thinking about compulsory vaccination have to look to less invasive alternative measures first. Perhaps the public health might also be sufficiently protected by preventive testing with so-called rapid COVID-19 tests?
The strongest argument, however, why compulsory vaccination at this moment does not yet have to be considered is that voluntary vaccination, in combination with an urgent advice from the government to get vaccinated, seems to be working so far. According to the website of the government, 13,042 persons in St. Maarten on April 22, 2021, already received their first jab and 6,370 were fully vaccinated. This while a month earlier only 5,000 people had received a shot. This looks to me that St. Maarteners on average are willing to get vaccinated when they have the opportunity to do so.
That is comforting, since compulsory vaccination might break more than it heals. After all, making vaccination compulsory by governmental actions could very well feed rumors, and with that undermine the trust of the public in this new vaccine. People that already have concerns about this vaccine, might be even more daunted to take this vaccine and could prefer to dig their heels in.
In conclusion. It is preferable if people freely choose to get vaccinated and it is also preferable to persuade doubters with arguments instead of pressuring them. Compulsory vaccination is a heavy-handed solution that should only be considered by the government and legislator if public health is at stake and voluntarily vaccination does not do the trick (anymore) and other solutions such as preventive testing are not an (sufficient) option. Indirect compulsory vaccination against COVID-19, although legally a possibility, at this moment should not be considered yet. For now, it is better to inform all St. Maarteners about the availability of the vaccine, and to honestly inform them about its benefits and side effects.
This also means that we as citizens all have the great responsibility to inform ourselves with information from renowned sources, so we all can make an informed decision. Because of this, I urge everyone who did not yet get vaccinated to look at all the information that is out there and make up their mind.