Can Europe make vaccination compulsory?

Again faced with surging infections, some countries in Europe are considering a move once deemed unthinkable on the socially progressive continent – compulsory vaccination.

With concern rising about the new Omicron variant even as protests over vaccinations continue, some leaders are signalling their patience with the unvaccinated has worn out. Last week, European Commission President Ursula von der Leyen said it is time to “think about mandatory vaccination”.

Is it right – or even possible – to force people to take the jabs?

Austria became the first European Union member to announce it would require citizens to be vaccinated in the fight against Covid-19, a mandate set to take effect in February. The move came just days after the country’s unvaccinated were told they must stay at home in isolation at all times except for the most urgent tasks, a restriction that already went farther than any other European nation in singling out those who refuse to be vaccinated.

“It is a drastic measure. I would have preferred to go another way,” Austrian Chancellor Alexander Schallenberg said in a media interview explaining the plan for compulsory vaccination. “But if one year in having the vaccine, of having national campaigns, of having media explaining again and again what this is about, that we have such a high degree of insecurity, of people believing in fake news, we have a necessity to take this drastic step.”

Those in violation will face a fine, but how much or how the policy will be enforced is unclear. Nearly a third of Austrians remain unvaccinated.

Germany followed with its own targeted lockdown of the unvaccinated last week. Even Angela Merkel, the outgoing chancellor considered a leading proponent of human rights, and her successor Olaf Scholz indicated they back plans for mandatory vaccinations in the coming months. The requirement would also have to be approved by the German parliament.

Greece is focusing on the older population, which Prime Minister Kyriakos Mitsotakis says accounts for 90 per cent of Covid-19 deaths. Starting on January 15, those over 60 will be fined 100 euros a month if they are not vaccinated.

France and Italy are already requiring healthcare, government professionals and teachers to be vaccinated. France is requiring workers in contact with the public to have a health pass that proves that they are vaccinated, recovered from Covid-19, or have had a negative test result, while Italy instituted a so-called Super Green Pass on Monday that will no longer honor a negative Covid test to qualify but instead strictly requires vaccination or proof of recovery from infection.

Italian citizens and visitors alike will need the pass to use indoor seating at bars and restaurants or access museums, theatres, concerts, discos, sports matches and other public venues.

Increasing pressure for vaccination comes as Europe crosses the grim threshold of 75 million infected. The newest detected Covid-19 variant, Omicron, continues to spread on the continent and elsewhere, but not enough is yet known about it to evaluate what kind of threat it poses.

But is it legal for countries in the EU, long a champion of individual rights, to force citizens to be vaccinated? It appears so, according to recent rulings by the European Court of Human Rights (ECHR).

While individual countries’ constitutions would no doubt bar physically forced inoculation, a range of coercive measures could be employed.

According to the ECHR, the main relevant principle in international human rights law is that vaccination, like any medical intervention, must be based on the recipient’s “free and informed consent”, but that is not absolute. The court’s Grand Chamber recently ruled interference with that rule of consent might be justified when it is “a necessity to control the spread of infectious diseases”.

Jon Van Housen and Mariella Radaelli are veteran international journalists based in Milan