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MEIG Highlights, Latest News 6 décembre 2021

Highlight 33/2021 – Some thoughts on new lockdown restrictions for unvaccinated persons

Tamari Mtchedlidze, 6 décembre 2021

Amid the pandemic, different countries introduce various measures in order to effectively deal with Covid-19. Vaccination, as one of the essential means, is widely used in every country to defeat this virus. It has been started back in December, 2020 when the first dose of a fully tested vaccine, manufactured by Pfizer/BioNTech, was administered in the United Kingdom.

Each and every country has its own policy on vaccination, either prioritising vaccination of as high amount of people as possible in a short period of time, or providing vulnerable groups (e.g. older people or people with specific diseases) with the vaccines in the first place.

With the aim of limiting social contacts in response to rise of the pandemic, different measures are used worldwide, such as: shifting to teleworking and online schools, closing cafes, restaurants, shopping malls, barring spectators from sporting events, etc. However, some of the countries, for example Austria, went further and imposed lockdown for only unvaccinated people who are only allowed to leave home for limited reasons (working, buying food or visiting the doctor). Even Health Minister of Germany, Jens Spahn frequently states in his public speeches that we face the pandemic of the unvaccinated. In Germany, those who are not vaccinated, are required to provide negative tests in order to use public transport or go to the office. Also, unvaccinated people are banned from those places where hospitalisation rate is more than three patients per 100 000 people. Greece also joined this approach, where unvaccinated people are barred from restaurants, museums, cinemas and gyms even if they are tested negative for the virus.

The question is whether lockdown for unvaccinated persons can be justified from human rights perspective. Several rights are restricted for those persons, including right to liberty of movement, right to freedom of association, right to peaceful assembly. Moreover, by being unable to leave the house, the risk of exposure to domestic violence, experiencing mental health problems and poverty is significantly increased.

International Covenant on Civil and Political Rights, to which 173 States are parties, allows restrictions of non-absolute rights if such restrictions are imposed in conformity with the law and are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. Moreover, governments are obliged to ensure prevention of disease and to provide medical care to the public so the right to health is protected. ICCPR also states that in time of public emergency which threatens the life of the nation, States may take measures derogating from their obligations under this Covenant, provided that such measures are not inconsistent with their other obligations under international law and are not discriminatory. Pursuant to Article 26 of ICCPR, all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. Moreover, European Convention of Human Rights adopted within the Council of Europe with 47 member States (including aforementioned European states), provides that the enjoyment of the rights and freedoms set forth in the Convention shall be secured without discrimination. Hence, such restrictions can be justified from public health protection perspective and they will not violate  international obligations of the states provided that they do not have discriminatory nature.

Margin of appreciation granted to the countries allows them to decide how to deal with pandemic. However, balance must be stricken between protection of public health and restrictions of particular human rights and equality principle must be followed.

Tamari Mtchedlidze, Some thoughts on new lockdown restrictions for unvaccinated persons, Highlight 33/2021, available at www.meig.ch

The views expressed in the MEIG Highlights are personal to the author and neither reflect the positions of the MEIG Programme nor those of the University of Geneva.

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