Positive Obligations as Coercive ‘Rights’ and Compulsory Vaccination under the European Convention on Human Rights

Abstract

This article assesses what is analytically at stake when individuals claim that their rights under the European Convention on Human Rights have been interfered with and the respondent State invokes compliance with positive human rights obligations as the aim pursued with the interference. These situations could be framed as manifesting a tension between negative and positive obligations. This is a framing that was accepted in the compulsory vaccination case of Vavřička and Others v the Czech Republic. By using the reasoning and the framing endorsed in this judgment, the article demonstrates that there were no positive obligations at stake. By accepting that there was a tension between obligations, the Court in this case allowed general interests to operate under the façade of individual rights. While the State can and should protect general interests, such as public health, the coercive measures used in the pursuit of these interests are not commands that form the content of positive human right obligations