By Alan Greene,

As winter sets in across Europe, COVID-19 cases are beginning to rise, despite the vast roll-out of mass vaccination programmes earlier this year. Austria’s government has pointed the finger of blame firmly at the unvaccinated, announcing a new lockdown only for those who have not had the jab.

Like other pandemic policy decisions, this lockdown raises questions about how far states can take emergency powers, and whether they will violate human rights law in doing so. What might the European Convention on Human Rights say about this particular case?

In justifying his country’s new policy, the Austrian chancellor, Alexander Schallenberg, said: “My aim is very clear: to get the unvaccinated to get vaccinated, not to lock up the unvaccinated.” The move is an attempt to get people to get vaccinated without making vaccination compulsory. In this sense, it may be seen as less intrusive on human rights than compulsory vaccination.

While Austria’s new lockdown is different from earlier lockdowns. by drawing a clear distinction between the vaccinated and unvaccinated, any challenge based on discriminatory treatment is unlikely to succeed. The lack of antibodies against specific disease is not a “protected characteristic” under discrimination law.

Many European states have already introduced compulsory vaccinations for certain sectors such as healthcare professionals and other public sector workers. Notably, in a case earlier this year, the European Court of Human Rights held that compulsory vaccination of children for certain diseases does not necessarily violate human rights.

The case, from pre-pandemic days, centred on the Czech Republic’s requirement that children be vaccinated against nine diseases to be allowed attend nursery school. The court found that this did not violate the right to respect for private life, as the policy pursued the legitimate aim of protecting health and the lives of others. It was also not a blanket ban on unvaccinated children attending school. Additionally, several grounds for exemption were built into the programme and it did not apply to older children who had reached primary school age.

This case therefore means that a compulsory vaccination policy does not, on its face, violate convention rights. But much will depend upon the actual policy in question. Many European states are requiring vaccines on a sector-by-sector basis – which, for those working in sectors where vaccinations are required, presents a stark choice: choose to get vaccinated or choose not to work.

Austria’s new policy may be viewed in a similar vein: choose to get vaccinated, or choose to go into lockdown. This may be the closest we get to mandatory vaccinations, as legally requiring everybody in a state to get vaccinated would probably be practically unworkable.

Whether Austrians now have free choice on whether to get vaccinated is a debate the European Court of Human Rights will be reluctant to get involved in. In the Czech case, the court stated that states have a “wide margin of appreciation” when assessing how best to strike the balance between individual freedom and the greater good. While this does not give states carte blanche, it does mean the court will largely defer to individual states’ views on this issue.

Human rights and the pandemic

The court’s reluctance to interfere can be seen in some of the early human rights cases of the pandemic. Earlier this year, it found a challenge against Romania’s lockdown laws to be “inadmissible” because the Romanian MEP who brought the case failed to show that lockdowns were particularly injurious to him. Lockdowns were, according to the court, very clearly a “restriction”, not a deprivation of liberty, and so did not violate the convention’s right to liberty under Article 5 of the European Convention on Human Rights.

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The Austrian chancellor, Alexander Schallenberg, says the aim of the lockdown was to encourage more people to take up the vaccine. Olivier Hoslet / EPA-EFE

This is not to say that other convention rights may not also be affected by lockdowns. The right to private family life, or the right to freedom of association may be affected. But again it is likely that a wide margin of appreciation will be afforded to states.

It is understandable that courts may not wish to tie the government’s hands behind its back when responding to a crisis such as the pandemic. Lockdowns are a vital response to the pandemic and can even be justified on human rights grounds as protecting people’s right to life. But we may nevertheless be uneasy about courts’ hands-off approach and the legal manner in which lockdowns have been enacted.

In my book Emergency Powers in a Time of Pandemic, I argue that states should have formally declared emergencies in accordance with Article 15 of the European Convention on Human Rights so as to “quarantine exceptional powers to exceptional situations”. This way, any “hands-off” court ruling allowing these exceptional powers cannot be used to justify similar interference of human rights outside the pandemic. For example, ensuring that states do not introduce similar lockdown powers to deal with less obvious threats such as terrorism when there does not exist a “public emergency threatening the life of the nation”.

Whether other states follow Austria’s lead on selective lockdowns is likely to depend on how successful it is in increasing vaccination rates and stopping cases. But the long-term human rights legacy of these powers will not be clear until long after the pandemic has waned.The Conversation

Alan Greene, Reader in Constitutional Law and Human Rights, University of Birmingham

This article is republished from The Conversation under a Creative Commons license.