Martin Buijsen is Professor of Health Law at the Erasmus School of Law and at the Erasmus School of Health Policy and Management. He researched the legal options for a mandatory immunisation program for RM Themis, the Dutch journal for law professionals.
Why is it important to consider mandatory vaccinations?
“To achieve any form of herd immunity, vaccination rates must be brought up above 80 percent as quickly as possible. A recently conducted random survey shows that less than three-quarters of the Dutch are willing to be vaccinated against Covid-19. Another indicator we have is the enthusiasm there is for the annual vaccine against the seasonal flu. In 2018 – these are the most recent figures – only 51 percent of high-risk patients signed up for the flu shot. Among healthcare personnel, the figure is 13 to 28 percent. When it comes to Covid-19, it is hard to imagine achieving the vaccination coverage you need without using any pressure, force or an intensive information campaign.”
Surely people feel this sense of urgency a little more strongly now than they do with the annual flu shot?
“Generally speaking, the sense of urgency for vaccination is not felt as keenly, simply because people are unaware of the grave dangers of infectious diseases.”
You are a philosopher and a lawyer. Which hat do you wear when it comes to mandatory vaccinations?
“That of a lawyer. I investigated whether it would be possible to enact a law to force people to be vaccinated. I also looked into whether such a law would violate any greater human rights, such as the ones that we are bound by in the European and international human rights treaties.”
Would a mandatory vaccination conflict with human rights?
“No. We are signatories to the European Convention on Human Rights. It contains an article that states that people have a right to life, and that we are obligated to take measures to protect that life. Seen in this light – and everyone agrees on this – a state should in any event make a vaccination program readily available. But there is also Article 8 that stipulates that people have the right to privacy, which includes physical integrity. Plus, Article 9 stipulates that people have freedom of thought, conscience and religion. You could argue that a law that forces people to be vaccinated violates these two articles. Nevertheless, exercising those rights may be restricted under certain conditions; for example, if public health is at risk.”
The Netherlands does not currently have compulsory vaccinations, does it?
“No. The entire national vaccination program is on a voluntary basis, with the exception of a minor law that applies to military personnel. But there are countries, and they are in the same human rights treaty as we are, that do uphold compulsory vaccinations. France and Italy, for instance.”
How far does that requirement go there?
“Children who have not been vaccinated may be excluded from some facilities such as day care centres and schools; even parents can be refused child benefits. This is what we generally define as mandatory vaccination. We don’t pluck people off the streets to physically force them to undergo a vaccination, of course not, but we do encourage them to take part. There is also a law in the Netherlands that makes it possible for day care centres to refuse unvaccinated children. A similar law was already approved in Germany this spring. But these are reactions to the declining vaccination rates for ‘common’ infectious diseases. That kind of law is nowhere near far-reaching enough for the whole country to be immunized against Covid-19 very quickly.”
The discussion about any such indirect legal obligation is extremely heated at the moment. Is it legally feasible to deny people access to a festival, concert or plane if they have not been vaccinated?
“Definitely. You can restrict all kinds of rights – as the past six months have shown – on the grounds of public health. That is a legitimate goal, as long as that restriction has legal grounds, is deemed necessary and is proportionate.”
Yet Hugo de Jonge, the Dutch Minister of Health, says that there are no legal grounds for mandatory vaccinations. Is he wrong?
“You may restrict people from exercising some fundamental rights, but only if lighter measures are not effective. If you can achieve the vaccination rates required on a voluntary basis, you should do that first, in line with the law. Forced vaccination in this respect is always a subsidiary matter. Subsequently, it may only be carried out if a law has been adopted that makes this possible. There is none in place yet. It is also difficult to imagine that this kind of legislation would be enacted in a country with an established culture such as here in the Netherlands.”
Is a café allowed to refuse people at the door? Can a large employer, such as Erasmus University or the Municipality of Rotterdam, obligate its employees to get a vaccine?
“Those are two different things. I don’t think it’s a problem for a hospitality venue, festival or airline to have a door policy. In the workplace, of course, there is an employment contract. This would then have to be amended. You should ask an employment lawyer about that. When recruiting new staff, for example in healthcare, you could make vaccination a prerequisite.”
Do you think it’s wise to opt for mandatory forms of vaccination, indirectly or otherwise?
“Nobody likes to be coerced. And if it isn’t necessary, you shouldn’t do it, either. The Netherlands has always had high vaccination rates. And even the decline in vaccination rates, which in recent years had caused a lot of panic, has stagnated again, basically due to a vigorous campaign. The Italian population also had to cope with a drop in vaccination rates and making them compulsory has led to a huge increase in the number of vaccinations. But there are also countries that have had a system of compulsory vaccinations in place for a long time already and, at the same time, still have very low vaccination rates. So, making something mandatory is not invariably more effective.”
According to critics, mandatory vaccinations play right into the hands of conspiracy theorists who are convinced that this is part of Bill Gates’ plan to wipe out half the world’s population.
“That may well be the case.”
Do you find it frustrating that anti-vaxxers, even if they are a very small group, continually get so much attention in the public debate?
“No. I am a staunch supporter of absolute freedom of expression. Anti-vaxxers are allowed to say what they want. I believe in the strength of arguments. And I have few doubts about the outcome of such a discussion. The clamour of the anti-vaxxers will be drowned out by actual scientific evidence, provided that this is well-publicised in terms of information. And if people really do not want to be vaccinated, then they are free to choose that. It’s just important to realise that they enjoy that freedom thanks to all those people who do get vaccinated. I’m very curious how this discussion will unfold, what with the anti-vaxxers and people from the orthodox Protestant community. That will have to be handled very skilfully. Trust in institutions such as science, democratic politics and public healthcare will be put to the test.”
You’re going to get the shot, aren’t you?
“Yes, I will. I’ll patiently wait my turn. And I would advise everyone to do the same as well.”
