In recent days, the public’s concentration in this country has been on the vaccination obligations set by the Government. The Deputy Minister of Law and Human Rights emphasized that vaccination is mandatory. Those who refuse can be subject to criminal sanctions. The Indonesian Ulama Council (MUI) has also issued Halal and Sacred Fatwas against Sinovac Vaccines (JP, 9 Jan 2021).
Yesterday, BPOM delivered the results of an analysis of the efficacy test of the Sinovac Vaccine by 65.3 percent. In line with WHO guidelines, BPOM finally gave approval for use in emergency conditions for the Covid-19 vaccine in response to the need to accelerate the handling of Covid-19.
This vaccination obligation created controversy. There is concern about the safety and health of the body, both in the short and long term, which leads to resistance. Even though the President has set an example by being vaccinated for the first time (January 13, 2021).
However, there are still doctors and health workers who openly refuse. The Indonesian Doctors Association (IDI) also issued a Declaration (11 January 2021) so that all IDI member doctors should follow the vaccination program and stop the polemic. Open opposition has also come from politicians, legislators and religious leaders.
Rejection of the Covid-19 vaccine does not only occur in Indonesia, almost in all countries, both in developed countries such as America, Australia, Germany, Switzerland, and others as well as developing countries. This shows that coercion is not a simple matter. This paper discusses whether the Government can enforce vaccinations according to international health law and human rights law.
Protection of Individual Rights
In the context of individual rights, forcing someone to be vaccinated is a violation of the fundamental right to personal autonomy which provides a more specific right to body integrity (bodily integrity). The integrity of the body is the inviolable physical body and emphasizes the importance of personal autonomy, self-ownership, and human self-determination over their own bodies.
In the field of human rights, violations of the integrity of the body of others are considered unethical, disturbing and possibly criminal. In principle, everyone can make decisions for himself and what can and cannot be done with his body.
Two important legal documents protecting this right are the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). The Convention on the Rights of Persons with Disabilities also requires protection of physical and mental integrity. Indonesia has also ratified the three Conventions mentioned above.
Although all three international human rights treaties support individual rights, they do not speak specifically about the right to refuse medical care. The ICCPR states that no one should be subjected to torture or other cruel, inhuman or degrading treatment or punishment. In particular, no one should be subjected to medical or scientific experiments without their free consent.
But it is the fundamental right to life that makes the Covid-19 vaccine significant. This means that the government must make efforts to protect the lives of its citizens by protecting them from life-threatening diseases.
Included in this right to health is the right to be free from non-consensual medical treatment. The right to be free from non-consensual treatment can only be limited under certain conditions, with respect to best practice and international standards. But this right, in turn, will be subject to the state’s obligation to prevent and control diseases that endanger public health.
Public Health Can Override Individual Rights
Any restriction on individual rights, any interference with the integrity of the individual body, requires explicit legal justification. In practice in other countries, courts have ruled that measures to safeguard and protect public health can replace the right to refuse medical care when such measures to safeguard public health are clearly justified by law. This clear justification means that there must be a reasonable aim why vaccination is required by justifying restrictions on the right to refuse medical care.
The key is trust and transparency in the policies taken, as well as the public’s right to obtain correct and accurate information. So that good public communication is needed to explain that the steps taken can be justified legally and ethically. Including transparency of all risks that may occur, the potential to occur and what will occur, as well as who is responsible and liable for these risks and the mechanisms.
Consequences of Refusing Vaccination?
If vaccination is available, every individual will have the right (but not an absolute right) under international and domestic law to refuse vaccination. But the Government can and may even override that right. A person can still exercise their right to refuse vaccination but the government can then restrict other rights and freedoms.
In practical terms, those who refuse vaccination can mean no travel or access to school or work if it puts the health and lives of others at risk. Refusal to vaccinate can also limit social welfare benefits. But, once again, the Government must provide clear justification for such restrictions, so that a criminal approach is not necessary.
Finally, forced vaccination will instead create resistance. Especially if the government fails to convince the public regarding the vaccine’s safety guarantee. A voluntary approach can be successful as long as socialization, communication, education is provided adequately and transparently to the public, as well as a persuasive approach. If the availability of vaccines is still very limited, should it be mandatory?
Note: this article was published in Jawa Pos, January 14, 2021
Lecturer at the Faculty of Law, Airlangga University
