Mandatory COVID-19 vaccination and human rights

On Dec 9, 2021 the Austrian Government laid a bill before parliament that would impose a mandatory COVID-19 vaccination requirement for all its residents.1Austrian ParliamentCOVID-19-Impfpflichtgesetz—COVID-19-IG (164/ME).https://www.parlament.gv.at/PAKT/VHG/XXVII/ME/ME_00164/index.shtml#Date: Dec 9, 2021Date accessed: December 17, 2021Google Scholar This move followed the Greek Prime Minister's announcement to impose fines on residents aged 60 years and older who do not take up COVID-19 vaccination.2BBCCovid: Greece to fine over-60s who refuse Covid-19 vaccine.https://www.bbc.co.uk/news/world-europe-59474808Date: Nov 30, 2021Date accessed: December 17, 2021Google Scholar Many other nations are contemplating similar mandates or have adopted mandates in certain workplace settings, such as Australia, Brazil, Canada, France, Indonesia, Italy, and the UK.3ReutersFactbox: countries making COVID-19 vaccines mandatory.https://www.reuters.com/business/healthcare-pharmaceuticals/countries-making-covid-19-vaccines-mandatory-2021-08-16/Date: Dec 8, 2021Date accessed: December 17, 2021Google Scholar Some people resist vaccine mandates on pragmatic grounds, for example, that such mandates could decrease health-care staffing levels or morale.4British Medical AssociationLegal, ethical and practical implications must be considered ahead of mandating vaccines.https://www.bma.org.uk/bma-media-centre/legal-ethical-and-practical-implications-must-be-considered-ahead-of-mandating-vaccines-says-bmaDate: Oct 27, 2021Date accessed: December 17, 2021Google Scholar, 5Nuffield Council on BioethicsMandatory vaccinations for health and social care workers: Nuffield Council on Bioethics urges government to gather more evidence and explore other options more thoroughly before introducing coercive measures.https://www.nuffieldbioethics.org/news/mandatory-vaccinations-for-health-and-social-care-workers-nuffield-council-on-bioethics-urges-government-to-gather-more-evidence-and-explore-other-options-more-thoroughly-before-introducing-coercive-measuresDate: Oct 14, 2021Date accessed: December 17, 2021Google Scholar However, mandatory vaccination is also often opposed in principle. The UK Secretary of State for Health and Social Care, Sajid Javid, for instance, told the BBC on Dec 10, 2021 that he thought mandatory vaccination is "unethical".6BBC Radio 4Best of Today Health Secretary: mandatory vaccines are "unethical".https://www.bbc.co.uk/programmes/p0b8ymrrDate: Dec 9, 2021Date accessed: December 17, 2021Google Scholar Many others presume mandatory vaccination violates human rights.7Landler M Vaccine mandates rekindle fierce debate over civil liberties.The New York Times. Dec 10, 2021; https://www.nytimes.com/2021/12/10/world/europe/vaccine-mandates-civil-liberties.htmlDate accessed: December 17, 2021Google Scholar We believe that this view is mistaken, at least as a matter of international and comparative constitutional law.Our opinion is based on extensive discussion and analysis held as part of the Lex-Atlas: Covid-19 (LAC19) project, a worldwide network of jurists that is producing and curating the open-access Oxford Compendium of National Legal Responses to Covid-19.8King J Ferraz OLM Villarreal P The Oxford compendium of national legal responses to Covid-19. Oxford University Press, Oxford2021https://oxcon.ouplaw.com/home/occ19Date accessed: December 17, 2021Google Scholar 50 jurists in the network adopted principles concerning the legality and constitutionality of mandatory vaccination in October, 2021 (the LAC19 Principles).9Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19.https://lexatlas-c19.org/vaccination-principles/Date: Nov 1, 2021Date accessed: December 17, 2021Google Scholar We concluded that mandatory vaccination and human rights law are compatible in principle and that there is a compelling rights-based case for a state duty to consider adopting mandatory vaccination, defined as any law that makes vaccination compulsory, or any public or private vaccination requirement for accessing a venue or service that cannot be avoided without undue burden.9Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19.https://lexatlas-c19.org/vaccination-principles/Date: Nov 1, 2021Date accessed: December 17, 2021Google Scholar This definition recognises mandates adopted by public and private bodies and, crucially, that requirements avoidable through affordable testing are not mandatory.Even on the most libertarian understanding of liberty, philosophers and jurists agree that restrictions on liberty can be justified if they prevent harm to others. The European Convention on Human Rights recognises this by considering the right to physical integrity under article 8 to be a "qualified right" that can be limited "for the protection of health".10Council of EuropeThe European Convention on Human Rights.https://www.echr.coe.int/documents/convention_eng.pdfDate: 1950Date accessed: December 17, 2021Google Scholar If a mandatory vaccination scheme aims in part or whole to reduce harm to others, it is not paternalistic.But liberty is not the only value relevant to human rights law. Economic and social rights to health, work, and education have been recognised in international law since 1948, most comprehensively in the UN International Covenant on Economic, Social and Cultural Rights (ICESCR),11UNInternational Covenant on Economic, Social and Cultural Rights.https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4Date: 1966Date accessed: December 17, 2021Google Scholar an international treaty ratified by 171 states, including all those in Europe and the UK. In its 2013 Global Vaccine Action Plan, WHO reinforced the view that "immunization is, and should be recognized as a core component of the human right to health and an individual, community and governmental responsibility".12WHOGlobal vaccine action plan 2011–2020.https://www.who.int/publications/i/item/global-vaccine-action-plan-2011-2020Date: Feb 21, 2013Date accessed: December 17, 2021Google Scholar A similar view was recognised in article 12(c) of the ICESCR, which lists "the prevention, treatment and control of epidemic… diseases" as among the obligations entailed by the right to health.11UNInternational Covenant on Economic, Social and Cultural Rights.https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4Date: 1966Date accessed: December 17, 2021Google ScholarMandatory vaccination is not a knee-jerk response to COVID-19. In more than 100 countries there already exist some version of mandatory vaccination of school children for a range of diseases, including measles, mumps, rubella, tetanus, and polio.13Vanderslott S Marks T Charting mandatory childhood vaccination policies worldwide.Vaccine. 2021; 39: 4054-4062Crossref PubMed Scopus (7) Google Scholar In April, 2021 Chile, Germany, Israel, Mexico, Norway, Serbia, Spain, and a number of states in the USA had pre-pandemic laws that gave legal authority to impose vaccination mandates against COVID-19 in particular.14Lex-Atlas Covid-19Mandatory Vaccines and V Passports (LAC19 Survey).Harvard Dataverse. 2021; (published online April 14.)https://doi.org/10.7910/DVN/SR9WG0Google ScholarAs far as we know, no major constitutional or international court has found that a mandatory vaccination policy violates any general right to liberty. Many such policies have been upheld when challenged. In April, 2021 in relation to a pre-COVID-19 law, the Grand Chamber of the European Court of Human Rights found that a Czech law requiring compulsory vaccination of children against nine diseases did not violate the article 8 right to physical integrity because the scheme was a proportionate means of protecting public health.15European Court of Human RightsVavřička and Others v. the Czech Republic [2021] ECtHR no. 47621/13, 3867/14, 73094/14, 19298/15, 19306/15 and 43883/15.https://hudoc.echr.coe.int/fre#%7B%22itemid%22:%5B%22001-209039%22%5D%7DDate: April 8, 2021Date accessed: December 17, 2021Google Scholar In several other jurisdictions, courts have reached the same or similar conclusions, including the US Supreme Court's ruling in Jacobson v Massachusetts (1904),16Supreme Court of the United StatesJacobsen v. Massachusetts, 197 U.S. 11 (1905).https://www.loc.gov/item/usrep197011/Date: 1904Date accessed: December 17, 2021Google Scholar recent pre-COVID-19 judgments that uphold mandatory vaccination schemes in France,17The Constitutional Council of FranceDecision no. 2021-824 DC.https://www.conseil-constitutionnel.fr/en/decision/2021/2021824DC.htmDate: Aug 5, 2021Date accessed: December 17, 2021Google Scholar Italy,18The Constitutional Court of the Italian RepublicConstitutional judgments no. 307/1990.https://www.giurcost.org/decisioni/1990/0307s-90.htmlDate: 1990Date accessed: December 17, 2021Google Scholar, 19The Constitutional Court of the Italian RepublicConstitutional judgment no. 5/2018.https://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S_5_2018_EN.pdfDate: Nov 22, 2017Date accessed: December 17, 2021Google Scholar and Chile,20The Supreme Court of ChileDecision no. 7074.https://bibliotecadigital.indh.cl/bitstream/handle/123456789/601/5b.-%20Sentencia%20C.S.?sequence=12&isAllowed=yDate: Nov 15, 2021Date accessed: December 17, 2021Google Scholar, 21The Supreme Court of ChileDecision no. 36759.https://suprema.pjud.cl/SITSUPPORWEB/DownloadFile.do?TIP_Documento=3&TIP_Archivo=3&COD_Opcion=1&COD_Corte=1&CRR_IdTramite=2047622&CRR_IdDocumento=1575019&Cod_Descarga=11Date: March 3, 2016Date accessed: December 17, 2021Google Scholar and COVID-19-specific decisions for programmes in New York, USA,22Supreme Court of the United StatesDr. A. Et. Al. v Kathy Hochul, Governor of New York 595 U.S. ___ (2021).https://www.supremecourt.gov/opinions/21pdf/21a145_gfbi.pdfDate: Dec 13, 2021Date accessed: December 17, 2021Google Scholar and Brazil.23The Brazilian Supreme Federal TribunalADI 6.586 and 6.587 [STF 2020].http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/ADI6586vacinaobrigatoriedade.pdfDate: Dec 17, 2020Date accessed: December 17, 2021Google Scholar In most of these decisions, the courts found the schemes gave effect to the right to health.Nevertheless, the in-principle compatibility of mandatory vaccination and human rights does not mean that governments, employers, or schools should be cavalier about their adoption. They certainly interfere with fundamental rights, so careful design is required to ensure that vaccine mandates do not violate rights. The LAC19 Principles thus aim to provide guidance on how to enact rights-compliant schemes.9Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19.https://lexatlas-c19.org/vaccination-principles/Date: Nov 1, 2021Date accessed: December 17, 2021Google ScholarThe LAC19 Principles recommend that mandatory vaccination schemes must be prescribed by law that is clear and preferably adopted after consultation. Ideally, mandatory vaccination should be regulated by statute, rather than executive rules (ie, regulations). The making of mandatory vaccination laws should undergo a period of consultation of at least 4–6 weeks and involve subnational governments, opposition parties, trade unions, experts, the public, and others. These consultations, and the government's response, should be published before the passage of any bill, to allow for debates and amendments. Consistently with widely accepted constitutional principles that relate to the non-delegation of core legislative functions, mandatory vaccination laws should not leave major policy questions for governments, private businesses, or employers. They should be addressed in the bill going through the legislature, allowing for debate and amendments.Mandatory vaccination schemes must also meet the legal principle of proportionality. As detailed in the LAC19 Principles, the scheme must have a legitimate aim—eg, the reduction of virus transmission or protection of health services. The means chosen must be rationally connected to that aim. In practice, proportionality will be satisfied if the mandatory vaccination scheme is based clearly on sound public health advice. The scheme must also be necessary in the sense that there is no other less-impairing means of achieving that aim. Here there will be much debate about vaccine efficacy and probable social responses to mandatory vaccination. Public law principles counsel judicial restraint on a question as complex as the epidemiological necessity of a nationwide vaccine mandate. Finally, fines and punishments for not complying with the mandate should be effective but not be too onerous. The more severe the penalty, the more vulnerable is the policy to a legal finding of disproportionality.The LAC19 Principles also call for constructive engagement with reasonable vaccine hesitancy. The political philosopher John Rawls famously distinguished what is rational from what is reasonable.24Rawls J Political liberalism. Columbia University Press, New York, NY1993Google Scholar Vaccine hesitancy may be reasonable (understandable and respect-worthy) for some groups who are suspicious of vaccine mandates—eg, communities who have been subject to state-complicit persecution, discrimination, marginalisation, or neglect.9Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19.https://lexatlas-c19.org/vaccination-principles/Date: Nov 1, 2021Date accessed: December 17, 2021Google Scholar, 25Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19 part II.E.https://lexatlas-c19.org/vaccination-principles/#e-constructive-engagement-with-vaccine-hesitancyDate: Nov 1, 2021Date accessed: December 17, 2021Google Scholar In such cases, the state and other actors should adopt constructive engagement interventions with these groups, such as community-led education or delayed commencement periods. Blunt termination notices on their own are insufficient. However, constructive engagement falls short of offering full exemptions. Medical exemptions should be considered, but exemptions for religious beliefs or freedom of conscience are not generally required by human rights law.25Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19 part II.E.https://lexatlas-c19.org/vaccination-principles/#e-constructive-engagement-with-vaccine-hesitancyDate: Nov 1, 2021Date accessed: December 17, 2021Google ScholarAlthough mandatory vaccination requirements must be designed with great care, there is no reason to think they are inherently incompatible with human rights law.The Lex-Atlas project is funded by the Faculty of Laws, University College London, UK, the Dickson Poon School of Law, King's College London, UK, and the Max Planck Institute of Comparative Public Law and International Law in Heidelberg, Germany. JK and OLMF are principal investigators and AJ is a research fellow of the LAC19 project, which is supported more widely by the UK's Arts and Humanities Research Council, the Leverhulme Trust, and UK Research and Innovation (UKRI). The funding sources had no role in this Comment. We declare no other competing interests. On Dec 9, 2021 the Austrian Government laid a bill before parliament that would impose a mandatory COVID-19 vaccination requirement for all its residents.1Austrian ParliamentCOVID-19-Impfpflichtgesetz—COVID-19-IG (164/ME).https://www.parlament.gv.at/PAKT/VHG/XXVII/ME/ME_00164/index.shtml#Date: Dec 9, 2021Date accessed: December 17, 2021Google Scholar This move followed the Greek Prime Minister's announcement to impose fines on residents aged 60 years and older who do not take up COVID-19 vaccination.2BBCCovid: Greece to fine over-60s who refuse Covid-19 vaccine.https://www.bbc.co.uk/news/world-europe-59474808Date: Nov 30, 2021Date accessed: December 17, 2021Google Scholar Many other nations are contemplating similar mandates or have adopted mandates in certain workplace settings, such as Australia, Brazil, Canada, France, Indonesia, Italy, and the UK.3ReutersFactbox: countries making COVID-19 vaccines mandatory.https://www.reuters.com/business/healthcare-pharmaceuticals/countries-making-covid-19-vaccines-mandatory-2021-08-16/Date: Dec 8, 2021Date accessed: December 17, 2021Google Scholar Some people resist vaccine mandates on pragmatic grounds, for example, that such mandates could decrease health-care staffing levels or morale.4British Medical AssociationLegal, ethical and practical implications must be considered ahead of mandating vaccines.https://www.bma.org.uk/bma-media-centre/legal-ethical-and-practical-implications-must-be-considered-ahead-of-mandating-vaccines-says-bmaDate: Oct 27, 2021Date accessed: December 17, 2021Google Scholar, 5Nuffield Council on BioethicsMandatory vaccinations for health and social care workers: Nuffield Council on Bioethics urges government to gather more evidence and explore other options more thoroughly before introducing coercive measures.https://www.nuffieldbioethics.org/news/mandatory-vaccinations-for-health-and-social-care-workers-nuffield-council-on-bioethics-urges-government-to-gather-more-evidence-and-explore-other-options-more-thoroughly-before-introducing-coercive-measuresDate: Oct 14, 2021Date accessed: December 17, 2021Google Scholar However, mandatory vaccination is also often opposed in principle. The UK Secretary of State for Health and Social Care, Sajid Javid, for instance, told the BBC on Dec 10, 2021 that he thought mandatory vaccination is "unethical".6BBC Radio 4Best of Today Health Secretary: mandatory vaccines are "unethical".https://www.bbc.co.uk/programmes/p0b8ymrrDate: Dec 9, 2021Date accessed: December 17, 2021Google Scholar Many others presume mandatory vaccination violates human rights.7Landler M Vaccine mandates rekindle fierce debate over civil liberties.The New York Times. Dec 10, 2021; https://www.nytimes.com/2021/12/10/world/europe/vaccine-mandates-civil-liberties.htmlDate accessed: December 17, 2021Google Scholar We believe that this view is mistaken, at least as a matter of international and comparative constitutional law. Our opinion is based on extensive discussion and analysis held as part of the Lex-Atlas: Covid-19 (LAC19) project, a worldwide network of jurists that is producing and curating the open-access Oxford Compendium of National Legal Responses to Covid-19.8King J Ferraz OLM Villarreal P The Oxford compendium of national legal responses to Covid-19. Oxford University Press, Oxford2021https://oxcon.ouplaw.com/home/occ19Date accessed: December 17, 2021Google Scholar 50 jurists in the network adopted principles concerning the legality and constitutionality of mandatory vaccination in October, 2021 (the LAC19 Principles).9Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19.https://lexatlas-c19.org/vaccination-principles/Date: Nov 1, 2021Date accessed: December 17, 2021Google Scholar We concluded that mandatory vaccination and human rights law are compatible in principle and that there is a compelling rights-based case for a state duty to consider adopting mandatory vaccination, defined as any law that makes vaccination compulsory, or any public or private vaccination requirement for accessing a venue or service that cannot be avoided without undue burden.9Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19.https://lexatlas-c19.org/vaccination-principles/Date: Nov 1, 2021Date accessed: December 17, 2021Google Scholar This definition recognises mandates adopted by public and private bodies and, crucially, that requirements avoidable through affordable testing are not mandatory. Even on the most libertarian understanding of liberty, philosophers and jurists agree that restrictions on liberty can be justified if they prevent harm to others. The European Convention on Human Rights recognises this by considering the right to physical integrity under article 8 to be a "qualified right" that can be limited "for the protection of health".10Council of EuropeThe European Convention on Human Rights.https://www.echr.coe.int/documents/convention_eng.pdfDate: 1950Date accessed: December 17, 2021Google Scholar If a mandatory vaccination scheme aims in part or whole to reduce harm to others, it is not paternalistic. But liberty is not the only value relevant to human rights law. Economic and social rights to health, work, and education have been recognised in international law since 1948, most comprehensively in the UN International Covenant on Economic, Social and Cultural Rights (ICESCR),11UNInternational Covenant on Economic, Social and Cultural Rights.https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4Date: 1966Date accessed: December 17, 2021Google Scholar an international treaty ratified by 171 states, including all those in Europe and the UK. In its 2013 Global Vaccine Action Plan, WHO reinforced the view that "immunization is, and should be recognized as a core component of the human right to health and an individual, community and governmental responsibility".12WHOGlobal vaccine action plan 2011–2020.https://www.who.int/publications/i/item/global-vaccine-action-plan-2011-2020Date: Feb 21, 2013Date accessed: December 17, 2021Google Scholar A similar view was recognised in article 12(c) of the ICESCR, which lists "the prevention, treatment and control of epidemic… diseases" as among the obligations entailed by the right to health.11UNInternational Covenant on Economic, Social and Cultural Rights.https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4Date: 1966Date accessed: December 17, 2021Google Scholar Mandatory vaccination is not a knee-jerk response to COVID-19. In more than 100 countries there already exist some version of mandatory vaccination of school children for a range of diseases, including measles, mumps, rubella, tetanus, and polio.13Vanderslott S Marks T Charting mandatory childhood vaccination policies worldwide.Vaccine. 2021; 39: 4054-4062Crossref PubMed Scopus (7) Google Scholar In April, 2021 Chile, Germany, Israel, Mexico, Norway, Serbia, Spain, and a number of states in the USA had pre-pandemic laws that gave legal authority to impose vaccination mandates against COVID-19 in particular.14Lex-Atlas Covid-19Mandatory Vaccines and V Passports (LAC19 Survey).Harvard Dataverse. 2021; (published online April 14.)https://doi.org/10.7910/DVN/SR9WG0Google Scholar As far as we know, no major constitutional or international court has found that a mandatory vaccination policy violates any general right to liberty. Many such policies have been upheld when challenged. In April, 2021 in relation to a pre-COVID-19 law, the Grand Chamber of the European Court of Human Rights found that a Czech law requiring compulsory vaccination of children against nine diseases did not violate the article 8 right to physical integrity because the scheme was a proportionate means of protecting public health.15European Court of Human RightsVavřička and Others v. the Czech Republic [2021] ECtHR no. 47621/13, 3867/14, 73094/14, 19298/15, 19306/15 and 43883/15.https://hudoc.echr.coe.int/fre#%7B%22itemid%22:%5B%22001-209039%22%5D%7DDate: April 8, 2021Date accessed: December 17, 2021Google Scholar In several other jurisdictions, courts have reached the same or similar conclusions, including the US Supreme Court's ruling in Jacobson v Massachusetts (1904),16Supreme Court of the United StatesJacobsen v. Massachusetts, 197 U.S. 11 (1905).https://www.loc.gov/item/usrep197011/Date: 1904Date accessed: December 17, 2021Google Scholar recent pre-COVID-19 judgments that uphold mandatory vaccination schemes in France,17The Constitutional Council of FranceDecision no. 2021-824 DC.https://www.conseil-constitutionnel.fr/en/decision/2021/2021824DC.htmDate: Aug 5, 2021Date accessed: December 17, 2021Google Scholar Italy,18The Constitutional Court of the Italian RepublicConstitutional judgments no. 307/1990.https://www.giurcost.org/decisioni/1990/0307s-90.htmlDate: 1990Date accessed: December 17, 2021Google Scholar, 19The Constitutional Court of the Italian RepublicConstitutional judgment no. 5/2018.https://www.cortecostituzionale.it/documenti/download/doc/recent_judgments/S_5_2018_EN.pdfDate: Nov 22, 2017Date accessed: December 17, 2021Google Scholar and Chile,20The Supreme Court of ChileDecision no. 7074.https://bibliotecadigital.indh.cl/bitstream/handle/123456789/601/5b.-%20Sentencia%20C.S.?sequence=12&isAllowed=yDate: Nov 15, 2021Date accessed: December 17, 2021Google Scholar, 21The Supreme Court of ChileDecision no. 36759.https://suprema.pjud.cl/SITSUPPORWEB/DownloadFile.do?TIP_Documento=3&TIP_Archivo=3&COD_Opcion=1&COD_Corte=1&CRR_IdTramite=2047622&CRR_IdDocumento=1575019&Cod_Descarga=11Date: March 3, 2016Date accessed: December 17, 2021Google Scholar and COVID-19-specific decisions for programmes in New York, USA,22Supreme Court of the United StatesDr. A. Et. Al. v Kathy Hochul, Governor of New York 595 U.S. ___ (2021).https://www.supremecourt.gov/opinions/21pdf/21a145_gfbi.pdfDate: Dec 13, 2021Date accessed: December 17, 2021Google Scholar and Brazil.23The Brazilian Supreme Federal TribunalADI 6.586 and 6.587 [STF 2020].http://www.stf.jus.br/arquivo/cms/noticiaNoticiaStf/anexo/ADI6586vacinaobrigatoriedade.pdfDate: Dec 17, 2020Date accessed: December 17, 2021Google Scholar In most of these decisions, the courts found the schemes gave effect to the right to health. Nevertheless, the in-principle compatibility of mandatory vaccination and human rights does not mean that governments, employers, or schools should be cavalier about their adoption. They certainly interfere with fundamental rights, so careful design is required to ensure that vaccine mandates do not violate rights. The LAC19 Principles thus aim to provide guidance on how to enact rights-compliant schemes.9Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19.https://lexatlas-c19.org/vaccination-principles/Date: Nov 1, 2021Date accessed: December 17, 2021Google Scholar The LAC19 Principles recommend that mandatory vaccination schemes must be prescribed by law that is clear and preferably adopted after consultation. Ideally, mandatory vaccination should be regulated by statute, rather than executive rules (ie, regulations). The making of mandatory vaccination laws should undergo a period of consultation of at least 4–6 weeks and involve subnational governments, opposition parties, trade unions, experts, the public, and others. These consultations, and the government's response, should be published before the passage of any bill, to allow for debates and amendments. Consistently with widely accepted constitutional principles that relate to the non-delegation of core legislative functions, mandatory vaccination laws should not leave major policy questions for governments, private businesses, or employers. They should be addressed in the bill going through the legislature, allowing for debate and amendments. Mandatory vaccination schemes must also meet the legal principle of proportionality. As detailed in the LAC19 Principles, the scheme must have a legitimate aim—eg, the reduction of virus transmission or protection of health services. The means chosen must be rationally connected to that aim. In practice, proportionality will be satisfied if the mandatory vaccination scheme is based clearly on sound public health advice. The scheme must also be necessary in the sense that there is no other less-impairing means of achieving that aim. Here there will be much debate about vaccine efficacy and probable social responses to mandatory vaccination. Public law principles counsel judicial restraint on a question as complex as the epidemiological necessity of a nationwide vaccine mandate. Finally, fines and punishments for not complying with the mandate should be effective but not be too onerous. The more severe the penalty, the more vulnerable is the policy to a legal finding of disproportionality. The LAC19 Principles also call for constructive engagement with reasonable vaccine hesitancy. The political philosopher John Rawls famously distinguished what is rational from what is reasonable.24Rawls J Political liberalism. Columbia University Press, New York, NY1993Google Scholar Vaccine hesitancy may be reasonable (understandable and respect-worthy) for some groups who are suspicious of vaccine mandates—eg, communities who have been subject to state-complicit persecution, discrimination, marginalisation, or neglect.9Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19.https://lexatlas-c19.org/vaccination-principles/Date: Nov 1, 2021Date accessed: December 17, 2021Google Scholar, 25Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19 part II.E.https://lexatlas-c19.org/vaccination-principles/#e-constructive-engagement-with-vaccine-hesitancyDate: Nov 1, 2021Date accessed: December 17, 2021Google Scholar In such cases, the state and other actors should adopt constructive engagement interventions with these groups, such as community-led education or delayed commencement periods. Blunt termination notices on their own are insufficient. However, constructive engagement falls short of offering full exemptions. Medical exemptions should be considered, but exemptions for religious beliefs or freedom of conscience are not generally required by human rights law.25Lex-Atlas Covid-19Legal, constitutional, and ethical principles for mandatory vaccination requirements for Covid-19 part II.E.https://lexatlas-c19.org/vaccination-principles/#e-constructive-engagement-with-vaccine-hesitancyDate: Nov 1, 2021Date accessed: December 17, 2021Google Scholar Although mandatory vaccination requirements must be designed with great care, there is no reason to think they are inherently incompatible with human rights law. The Lex-Atlas project is funded by the Faculty of Laws, University College London, UK, the Dickson Poon School of Law, King's College London, UK, and the Max Planck Institute of Comparative Public Law and International Law in Heidelberg, Germany. JK and OLMF are principal investigators and AJ is a research fellow of the LAC19 project, which is supported more widely by the UK's Arts and Humanities Research Council, the Leverhulme Trust, and UK Research and Innovation (UKRI). The funding sources had no role in this Comment. We declare no other competing interests.

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