France’s Anti-Covid Strategy: Compulsory Health Passes, Mandatory Vaccination, and Limitations on Human Rights

France’s Anti-Covid Strategy: Compulsory Health Passes, Mandatory Vaccination, and Limitations on Human Rights

Mariana Henriques Martins
Cover by TNGO illustrator Rosella Gangi

President Macron’s anti-Covid measures have raised a high number of protests in France and sharp accusations of violating human rights. Mandatory vaccination and health passes are among the most contentious initiatives.

This situation led to discussions and research on the causes for vaccination-hesitancy, as well as on the proportionality of the government’s strategy to fight Covid-19. In effect, the questions remain: why is there so much hesitancy towards the Covid-19 vaccine? Is it justifiable to preserve public health and fight a worldwide pandemic through the infringement of fundamental rights?

President Macron’s anti-Covid strategy

On the 12th of July of this year, given the emergence of the Delta variant and its exponential propagation, President Macron announced a stricter anti-Covid course of action. It involved the following measures:

  • People working in the health and care industry (such as hospitals, clinics, retirement homes and any other institutions for vulnerable people) are to be mandatorily vaccinated until the 15th of September. Sanctions apply for those who fail to comply with this measure. For instance, they may lose their jobs without compensation.
  • Starting the 21st of July, those aged 12 and above were required to present a health pass to enter events with more than 50 people. From August 9, this rule was applied to cafés, restaurants (including outdoors), hospitals, care houses, conferences, hotels and resorts, long-distance trains and buses. A health pass (pass sanitaire) is the possession of one of the following documents (shown on paper, digitally, or in the TousAntiCovid app): a Covid-19 vaccination certificate, a negative Covid 19 test (rapid antigen or PCR) taken within 48 hours or a positive Covid 19 test (rapid antigen or PCR) taken between two weeks and six months from the date of the test. Anyone that enters these establishments without a health pass can be fined 135 euro. From September 30 this rule applies to citizens under age 12.
  • Starting this Autumn, PCR tests for non-medical reasons and without a prescription will no longer be free of charge. Furthermore, unvaccinated travellers arriving in France from countries considered “risky” will have to follow a mandatory quarantine period.

These measures were the result of a low vaccination rate that was threatening a deeply desired social recovery and putting the vulnerable population seriously endangered in the face of a new, unknown, and rapidly spreading variant.

On the one hand, this announcement led to a boost in the booking of vaccines’ appointments all over the country. On the other hand, it led to an increasing number of protests and complaints. Indeed, many are of the opinion – especially those in the opposition and the anti-vax movement – that this course of action represents an attack on personal freedoms and extreme abuse of power.

France is, apparently, one of the most vaccine-sceptical countries in Europe. An aspect that, according to some, has its roots in the past and is worthy of investigation. In effect, it is this hesitancy that inevitably leads to harsher preventative measures.

French President Emmanuel Macron at the Elysee Palace in Paris, France. Source: inews

Hesitancy towards Covid-19 Vaccines

Understanding this reluctance can pave the way for different strategies to fight the pandemic that won’t provoke antagonism against governments’ restrictions of some fundamental rights. To that end, it is indispensable to untangle and understand why people are, in the first place, unwilling to take the vaccine.

Firstly, there is scientific uncertainty regarding the duration of the immunity period and the vaccines’ efficiency to limit transmission. Coronavirus’ nature and effects are ongoing research. This prevailing uncertainty creates a climate of insecurity. In effect, it is fundamental for people to have access to all the relevant information about the vaccine in order to make informed decisions, without being indirectly impelled to do it through government measures that might intensify feelings of distrust and anxiety.

According to some, the 2009 Swine Flu was an impactful event that negatively moulded France’s perspective on vaccination. At the time, “millions of superfluous jabs were prescribed raising millions of euros to the industry behind it” which created a climate of scepticism around vaccination that might explain the current reluctance towards Covid-19 vaccines.

The RECOVER Social Sciences and the European Centre for Disease Prevention and Control (ECDC) developed a study that evaluates public opinion concerning Covid-19 vaccines in France, Germany, Belgium, Italy, Spain, Sweden, and Ukraine. This brief is valuable to understand why there is so much reluctance in accepting the vaccine and to, eventually, create new conciliatory strategies that will dispense the infringement of fundamental rights.

The brief states that the mistrust against Covid-19 vaccines is less about not trusting healthcare workers and medical practitioners and more about not trusting pharmaceutical companies and the financial gains behind the vaccination campaigns. The study also demonstrates that even if the vaccine was proven safe and free of charge, only “between 44% and 66% of respondents would accept to be vaccinated”.

That said, neither the incident of the Swine Flu in 2009 nor the conditional approval or the uncertainty of vaccine’s side effects can be blamed for the low number of vaccinated citizens. The vaccines being free of charge and proven safe may not be enough to encourage mass vaccination.

Katherine Eichelbaum, in her research essay, Is mandatory vaccination an unjustified violation on human rights?, debates the psychology of anti-vaccination thinking. Even though her study refers to childhood immunizations, it can be linked to the current pandemic. Eichelbaum adds two other reasons why people might be discouraged to be vaccinated: one is what the author considers ‘misinformation’, which alarms people by exaggerating some side effects the vaccine might provoke. The second is the high number of individuals who chose to rely on herd immunity instead of taking the vaccines themselves.

In other words, the hesitancy and uncertainty lurking behind Covid-19 vaccines are impeding herd immunity; “which only occurs once a (relatively high) threshold of a given population is inoculated against each preventable disease”. Herd immunity is essential to fight the pandemic efficiently with the least number of victims.

In short, if there are not enough people vaccinated against the pandemic, public health is seriously at risk which, in turn, leads to severe measures that might have to interfere with human rights.

Opposition to health passes in France. Source: BBC

Limitations on Human Rights

According to Eichelbaum, a vaccine can be defined as “the suspension of attenuated or killed microorganism (bacteria, viruses or rickettsiae), or of antigenic proteins derived from them, administered for the prevention, amelioration, or treatment of infectious diseases”. When we are vaccinated, an external agent is being inserted into our body which, inevitably, affects bodily integrity.

If mandatory, France’s measures will infringe not only Article 8 of the European Convention of Human Rights (right to respect for private and family life), which implicitly includes the right to refuse medical treatment, the right to bodily autonomy, and the need for informed consent; but also Article 5 (right to liberty and security) since it is inextricably linked to ideas of freedom from any interference with one’s bodily autonomy and integrity.  However, according to the ECHR, the public authority may interfere with these rights in the “interests of national security, public safety (…) for the protection of health or morals, or for the protection of the rights and freedoms of others”.

Moreover, the imposition of health passes violates Article 2 of the Protocol Nº 4 of the ECHR (right to freedom of movement). But then again, restrictions to this freedom might be necessary and proportionate when in “accordance with law and are necessary in a democratic society (…) for the maintenance of order public, for the prevention of crime, for the protection of health or morals, or the protection of the rights and freedoms of others”. Adding to this, mandatory vaccination might breach Article 9 of the ECHR (freedom of thought, conscience, and religion). Nevertheless, this freedom, once again, “shall be subject only to such limitations as are prescribed by law and necessary (…) for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

At last, it is important to mention how these infringements are at odds with the states’ obligation to protect Article 2 of the ECHR (right to life). This right is of the utmost importance when considering the proportionality and justification of anti-Covid-19 measures that restrict some human rights and freedoms. Indeed, the Right to Life asks for a negative and positive action of the states, and the latter refers to the states’ “primary duty to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life”. The Covid-19 pandemic and the refusal of some to be vaccinated for non-medical reasons make it difficult to achieve herd immunity which, in turn, threatens the life of those who cannot be vaccinated for medical reasons.

Furthermore, André den Exter from Erasmus School of Law, in the article Mandatory vaccination in childcare and its relevance to COVID-19, maintains the claim that “the right to private life does not only include an obligation to abstain from unlawful interference in a person’s private life but, simultaneously, includes a generally recognized positive obligation to protect the life and well-being of others from health risks”.

Exter analysed the case study of Vavřička and Others v the Czech Republic, which has been thoroughly connected to the debate on the Covid-19 vaccination strategy. This case was submitted to the European Human Rights Court by a group of parents from the Czech Republic. They objected to paying a 400 euros penalty for not having vaccinated their children and, also, for having their unvaccinated kids excluded from preschool, and claimed that their right to private life was being violated. At last, the European Court decided that there was no violation of ECHR’s private life since it is not an absolute right and, therefore, “restrictions can be allowed when justified”.

The outcome of Vavřička and Others v the Czech Republic case demonstrates how compulsory (not forced) vaccination can be justified in the presence of a pressing social need, even if there is no certainty of its efficacy, and especially when vaccine hesitancy is increasing. 

Even though there are significant differences between childhood immunizations and Covid-19 vaccination programmes, –  the former concerns diseases that are well studied by medical science, and, besides, the Covid-19 vaccine is not yet approved for children –  this case study has been discussed thoroughly to demonstrate that a compulsory Covid-19 vaccination could be lawful as long as considered necessary and proportionate in the interest of public health and safety and the protection of others’ rights and freedoms.

COVID-19 Vaccine. Source: ConstructConnect Canada

The questions remain and there is no simple and clear-cut way of providing an answer. Indeed, the world is experiencing an unprecedented situation that has led to immediate and often-improvised responses.

Given the urgency and critical times, these actions had to restrict some fundamental rights. For instance, if before ‘freedom of movement’ was ever more restricted by compulsory quarantines and lockdowns for a greater good, now France’s mandatory health passes and vaccination (the latter applies to part of the population, namely, health and care workers) is the government’s approach assumed to better and more effectively fight a pandemic that has proven to be extremely unpredictable and fatal.

Undoubtedly, it has its disadvantages. The strong discontent and dissatisfaction in the country reflect that. Nonetheless, these controversial conditions are raising important discussions and debates which are crucial and utterly useful not only for the moment we are living but also to any future circumstances that might demand conflicting and difficult decision-making.

  • Is the duty of preserving the public health sufficient to justify such limitations on human rights?
  • Is it fair to impose such limitations to those who for medical reasons cannot be vaccinated?
  • How can governments better communicate the scientific uncertainty of Covid-19 pandemic and appease the climate of distrust?

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France’s Anti-Covid Str…

by Mariana Henriques Martins time to read: 8 min