Anti-vaccination movements, children’s’ rights and private power

We are delighted to welcome back Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate  at Durham Law School. She is currently researching on history and theory of public international law. You can follow her on Twitter @ntinatzouvala

Around a month ago the Wall Street Journal published an article entitled ‘The Anti-Vaccination Epidemic’ , which summarises an ongoing and worrying trend: diseases like mumps, measles and whooping cough are reappearing in the Western world. The reason for this is comeback is the growing anti-vaccination movement both in the US and Europe. Fueled by (dubious) publications that falsely associated certain vaccines (MMR) with autism, and by overemphasising highly exceptional cases of severe side-effects, the participants in anti-vaccination movements refuse to vaccinate their children. Apart from a heavy reliance to conspiracy theories, these movements also rely on the undeniable success the very social practice they oppose: we are no longer afraid of smallpox or rubella precisely thanks to being immunized against them at a very young age. The fact is that historically these diseases claimed the lives of millions of children and if the anti-vaccination movement prevails, they will do so again. The only way for parents to keep their children out of the ‘system’ without seriously endangering them is for them to fail politically: a few free-riders will still be safe given the overall eradication of the diseases due to the overall high rates of vaccination. But if the public campaign of these parents succeeds, then this shield will collapse and it is a matter of time before epidemics of smaller or larger scale return.

What is of interest here are the legal justifications provided by parents for their actions. (Un)surprisingly, there is a long history of civil liberties rhetoric in the UK against compulsory immunisation. After vaccination was made compulsory in 1840 the British society was in unrest and in 1878 a member of the Anti-Compulsory Vaccination League argued:

I. It is the bounden duty of parliament to protect all the rights of man.

  1. By the vaccination acts, which trample upon the right of parents to protect their children from disease, parliament has reversed its function.

III. As parliament, instead of guarding the liberty of the subject, has invaded this liberty by rendering good health a crime, punishable by fine or imprisonment, inflicted on dutiful parents, parliament is deserving of public condemnation.’

Given the general distrust towards governmental intervention at the time and importantly, given that the only conceivable rights at play seemed to be those of the parents, the law was amended in 1898. The amended version arguably introduced the concept of ‘conscientious objector’ in British law, allowing parents who ‘did not believe’ in the effectiveness of immunisation to opt out.

Contemporary protesters rely on the same legal and scientific (in the broadest sense of the word) arguments to justify their choice not to vaccinate their children. This post is not concerned with explaining how science has progressed since then rendering any overall challenge to the practice implausible. What is of our concern here is the modification of the legal background since the end of the 19th century. Two things need to be noted here: first, the classical, liberal conceptualisation of rights as shields against state interference is now complemented -to an extent- by an understanding that state intervention is necessary for the meaningful enjoyment of such rights, especially by vulnerable groups. Further, the conviction that children enjoy rights that are not identifiable with those of their parents has entered the legal equation. In the international realm this conviction is materialised through the Convention of the Rights of the Child (CRC hereafter), an instrument that according to UNICEF changed the way we see children from passive objects of care and charity to human beings with a distinct set of rights.

Sadly, any analysis based on the CRC is not applicable in the US, since the state has signed but not ratified the Convention. Nevertheless, it is applicable almost worldwide, and therefore we need to pay close attention to it. Directly relevant here are the Article 24 on the right to health and the General Comment 15 of the CRC Committee that elaborates the details of the right. Moreover, Article 3 para. 1 stipulating that all decision-making should be guided by the ‘best interests of the child’, Article 12 dictating that children should be provided ‘the opportunity to be heard’ and ‘due weight’ should be given to their opinions and finally, Articles 5 and 14 that guarantee parental rights are significant for this debate.

More specifically, Article 24 stipulates that children are entitled to the enjoyment of the ‘highest attainable standard of health’, they should not be deprived of their right of access to such health care services’, while there are explicit references to preventative health care and utilisation of technology, in order to promote the right to health. Moreover, we are confronted with one of these (rare) circumstances when there is a rather objective basis for judging what is ‘at the best interests of the child’. In principle, pluralistic societies with different and often conflicting understandings of what amounts to ‘good life’ grant parents with a wide margin of appreciation (in the non-Strasbourgian, ordinary sense of the term) in the making of such decisions. However, vaccinations are specific in two interrelated ways. General Comment 15 obliges the states to decide on Article 24- related issues according to ‘evidence-based public health standards and good practices’, setting therefore a rather objective, scientific standard for what is at the best interest of the child. Further, in its commentary on Article 3 the Committee clarifies that ‘best interests’ apply both to individual children and ‘children as a group’. This is of importance, since refusal to vaccinate one’s children is in many aspects dissimilar from refusing, for example, blood transfusion on religious grounds. In the latter case it is the specific child that is endangered (which is bad enough), whereas in the former there are legitimate general public health concerns. Moreover, this practice endangers these vulnerable children who due to genuine medical reasons cannot be vaccinated. Luckily, when immunisation levels are high these children’s health is protected thanks to our ‘herd immunity’. They might not be immune to the disease themselves, but they will probably never face the risk anyway, since everyone else is and therefore it is highly unlikely for them to be infected. Any state policy towards the anti-vaccination movement needs to take into account the rights and best interests of these children as well.

Another legal argument invoked by parents is that compulsory vaccination violates their (and their children’s) right private and family life under Article 8 of the ECHR. This argument does not seem to be legally tenable. In fact, the European Court of Human Rights had the chance to rule on Article 8 and compulsory vaccination in 2012 in Solomakhin v Ukraine. It needs to be stressed that when Solomakhin was subjected to compulsory vaccination he was a full- grown adult. Still, the court found that even though compulsory vaccination evidently interfered with his bodily integrity and therefore fell under Article 8, the interference was justified in a democratic society as it ‘could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region.’ Arguably, if this is the case when it comes to a 35-year-old man, it is highly unlikely that the ECtHR would find a violation of the parents’ rights when it comes to vaccinating children 1 or 5 years old (these are ages the two rounds of MMR vaccination commonly take place), especially if we take into account the children’s rights under the ECHR and the CRC.

This does not necessarily imply that states are under an obligation to introduce compulsory vaccination for children. Questions of policy efficiency are of direct concern here and each state can make to appropriate choices taking into account the rights and interests of all individuals concerned and , of course, the interests of the society as a whole with a special focus on its more vulnerable members who arguably will suffer disproportionally from a disease outbreak. For example, in the light of the overall circumstances a state might choose to initiate an information campaign rather than resort to criminalisation of parents that refuse to vaccinate their children. Nevertheless, it needs to be stressed that the rights- based rhetoric of the anti-vaccination movement does not seem to take into account the actual international human rights documents and courts decisions. Further, this human rights rhetoric draws from an intellectual and political tradition with a very narrow understanding of human rights and, importantly, a very exclusionary conceptualisation of who is actually the bearer of these rights.

One final note: it is very easy and very appealing to dismiss these movements as manifestations of lunacy and poor education. Nevertheless, this attitude does not explain why and how these movements are fuelled periodically and more specifically now that no major publication (however ill-researched) on the topic has come out. My feeling is that- up to an extent- the revival or appearance of such movements is attributable to an overall distrust towards the state and a trend to conceptualise the private sphere exclusively as one of freedom and, in this case, care and love. Arguably, these sentiments are cultivated by states themselves through their turn to a neoliberal agenda that discredits any conception of public good and prioritises a very narrow understanding of what it means to live in a society, and even to be an individual. Interestingly, children’s rights and children’s welfare more broadly is one of the starkest examples of how less state involvement does not necessarily lead to more freedom. Rather it can well lead to an increase of private power, which being private, and in this case accompanied by love and affection, is not easily identifiable.

Anti-vaccination movements, children’s’ rights and private power

Taxing Times for Human Rights, but not for Multinational Corporations

apple-logoWe are delighted to welcome the latest in a series of cross-posts by Dr Shane Darcy from the Business and Human Rights in Ireland Blog.  The Business and Human Rights in Ireland Blog is dedicated to tracking and analysing developments relating to business and human rights in Ireland. It aims to address legal and policy issues, as well as highlighting human rights concerns raised by the activities of Irish companies or multinational corporations based in Ireland. The blog is run by Dr Shane Darcy who is a lecturer at the Irish Centre for Human Rights, National University of Ireland Galway.

Ireland is one of many countries that is being put through the mill of so-called austerity measures. Cuts all across public services, including in health and education, as well increased unemployment and personal debt are having a severe impact on society. David Stuckler and Sanjay Basu have convincingly argued in their recent book that “austerity kills”. The devastating effects of austerity can actually be measured in lives, specifically the observable increase in suicide in countries such as Greece Continue reading “Taxing Times for Human Rights, but not for Multinational Corporations”

Taxing Times for Human Rights, but not for Multinational Corporations

European Parliament Recently Hosted International Seminar on Genetic Discrimination

We are delighted to welcome this guest post from Aisling de Paor, a Ph.D candidate in the Centre for Disability Law and Policy at NUI Galway, and Irish Research Council for the Humanities and Social Sciences (IRCHSS) scholar. Aisling is a graduate of NUI Galway (BCL) and University College Cork (LL.M).  Aisling qualified as a solicitor and specialized primarily in employment law.

On 6th March 2012, Marian Harkin MEP and Phil Prendergast MEP hosted a seminar on the topic of Genetic Discrimination. The event was organised by the Centre for Disability Law and Policy, NUI Galway, in conjunction with the European Disability Forum, and took place in the European Parliament, Brussels. This international seminar, which was chaired by Andre Gubbels (Belgian Ministry), was the first of its kind in the European Parliament and brought together a diverse range of leading experts in the area, with the objective of exploring the case for a European level response to protect the privacy of genetic information and to prevent genetic discrimination. The seminar highlighted the interdisciplinary nature of this area and focused on the interaction between genetic science, technology, ethics and the law, and in particular, how best to address this complex area. The event also looked at the challenges and practical problems that arise when attempting to Continue reading “European Parliament Recently Hosted International Seminar on Genetic Discrimination”

European Parliament Recently Hosted International Seminar on Genetic Discrimination

Amnesty International CDLP Seminar on Legal Capacity

The Centre for Disability Law and Policy (NUI Galway) and Amnesty International (Ireland) held a seminar today on getting legal capacity law right.  The seminar can be viewed here.  The seminar heard from Oliver Lewis from MDAC who spoke about the CRPD in international Best Practice on legal capacity law.  Christine Gordon who spoke about the lessons from British Columbia on supported decision-making.  Professor Gerard Quinn spoke about the challenges in realising supported decision-making.  The seminar was chaired by Colm O’Gorman the Executive Director, Amnesty International (Ireland) and was addressed by Kathleen Lynch the Minister for Disability, Equality, Mental Health and Older People.  One of the really interesting aspects of the seminar was the contribution from the “experts through experience” who spoke of their perspectives on legal capacity when decision-making is called into question.  Mary Farrell spoke about her experience in terms of her son who was made a Ward of Court following a High Court Award of damages for an acquired brain injury.  Paul Alford spoke about his experience of moving from an institutional setting to living independently in the community and making his own decisions about how he lived his life.  Bill Lloyd an advocate for older persons spoke about the deficiencies of Irish law in respecting the decision-making of one of his clients who was diagnosed with dementia.  Jim Walsh shared his experience and perspectives on decision-making and persons seen as having a mental health problem.

Amnesty International CDLP Seminar on Legal Capacity

Report on the Proceedings from the Conference on Genetic Discrimination: Transatlantic Perspectives on the Case for a European Level Legal Response

We are delighted to welcome this guest post from Aisling de Paor, a Ph.D candidate in the Centre for Disability Law and Policy at NUI Galway, and Irish Research Council for the Humanities and Social Sciences (IRCHSS) scholar. Aisling is a graduate of NUI Galway (BCL) and University College Cork (LL.M).  Aisling qualified as a solicitor and specialized primarily in employment law.

On Saturday 19th November 2011, the Centre for Disability Law and Policy (in conjunction with the Burton Blatt Institute, Syracuse University, USA) hosted a conference entitled ‘Genetic Discrimination – Transatlantic Perspectives on the Case for a European Level Legal Response’ at National University of Ireland Galway.  This international conference, which was chaired by Justice John Mac Menamin of the High Court, was the first of its kind in Europe and brought together a diverse range of leading experts in the area, with the objective of exploring the case for a European level response to protect the privacy of genetic information and to prevent genetic discrimination. The conference highlighted the interdisciplinary nature of this area and focused on the interaction between genetic science, technology, ethics and the law, and in particular, how best to regulate this complex area. Continue reading “Report on the Proceedings from the Conference on Genetic Discrimination: Transatlantic Perspectives on the Case for a European Level Legal Response”

Report on the Proceedings from the Conference on Genetic Discrimination: Transatlantic Perspectives on the Case for a European Level Legal Response

Call for Papers: Ireland and the United Nations Framework for Business and Human Rights

A one-day conference organised by the Irish Centre for Human Rights and the School of Law, NUI Galway entitled “Ireland and the United Nations Framework for Business and Human Rights” will take place on 24 March 2012 at the National University of Ireland Galway.  The conference seeks to explore and analyse issues of law and policy for Ireland arising from the 2011 adoption by the United Nations of Professor John Ruggie’s framework for business and human rights.  The framework emphasises a State’s duty to protect human rights, a corporate responsibility to respect human rights and the need to provide remedies to respond to violations of human rights by business.  This conference seeks to look beyond the voluntary corporate social responsibility approach to business and human rights; as Maurice Manning, President of the Irish Human Rights Commission has observed, “voluntarism can never be a substitute for global standards on businesses’ mandatory compliance with human rights”. The organisers welcome in particular contributions which address seek to address legal questions which arise in relation to the UN framework on business and human rights.  Ireland represents an obvious case study in this context, given the presence of numerous multinational corporations, increasing privatisation of public services and allegations of corporate involvement in human rights violations both in and outside of Ireland. The conference aims to address the following topics:

  • Legal and policy approaches to regulation of Irish companies for human rights
  • Obligations of the State and companies when public functions are privatised
  • Role of extraterritorial jurisdiction in Irish law to address violations committed overseas by Irish companies or multinationals based here
  • The potential role of criminal law to address violations of human rights by business
  • Civil litigation as a means accountability – lessons from the Alien Tort Claims Act
  • Remedies for victims

Abstract Submission

Abstracts should be sent by 21 December 2011 to: Dr Shane Darcy (shane.darcy@nuigalway.ie) and Dr Ciara Hackett (ciara.hackett@nuigalway.ie). Successful applicants will be informed in January 2012 of their acceptance to the conference. For further information and registration for the conference please contact: Hadeel Abu Hussein: h.abushussein1@nuigalway.ie

Call for Papers: Ireland and the United Nations Framework for Business and Human Rights

Council of Europe Recommendation on the Political Participation of Persons with Disabilities

The Committee of Ministers of the Council of Europe last week adopted a Recommendation that seeks to increase the participation of persons with disabilities in political and public life at all levels − local, regional, national and international.  The Recommendation is available here.  Between 80 – 100 million persons with disabilities live in the 47 Member States of the Council of Europe.  The Council of Europe noted that persons with disabilities often do not take part in the decision-making process as they face legal, physical, and societal barriers to participating. Through this Recommendation the Committee of Ministers seek to challenge this exclusion. The Recommendation aims to remove barriers and create conditions for active citizenship, without discrimination, for all and in all life settings. The Recommendation stresses that all persons with disabilities are entitled to express their views and should not be deprived of their right to vote or stand for election on the basis of disability.  This is a very progressive statement from the Committee of Ministers and goes some way towards countering the repressive position of the European Commission for Democracy Through Law (the Venice Commission) regarding the eligibility of persons with intellectual disability to stand for election and vote.   The Venice Commission in its“Interpretative Declaration to the Code of Good Practice In Electoral Matters on the Participation of People with Disabilities in Elections” stated:

Continue reading “Council of Europe Recommendation on the Political Participation of Persons with Disabilities”

Council of Europe Recommendation on the Political Participation of Persons with Disabilities

Getting it Right: Capacity Legislation and the Convention on the Rights of People with Disabilities

Amnesty International and the Centre for Disability Law & Policy (NUI Galway) will run a seminar entitled “Getting it Right: Capacity Legislation and the Convention on the Rights of People with Disabilities” on 30 November 2011 from 9am – 1pm at the Alexander Hotel, Fenian Street, Dublin 2.  This seminar will explore how Irish legislation can reflect the changes Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD).  Article 12 of the CRPD requires a fundamental change in thinking about legal capacity and repeal of laws that restricts or denies legal capacity.  Person sharing their personal experiences of having their legal capacity called into question will address the conference.  The seminar will also be addressed by leading international legal experts Christine Gordon (speaking about the British Columbia model) and Oliver Lewis (MDAC). This seminar is timely as the Government moves towards the publication of a bill to replace the outdated Ward of Court System.  For more information see here.

Getting it Right: Capacity Legislation and the Convention on the Rights of People with Disabilities

Conference on Disability & Genetic Discrimination

This Saturday 19 November the Centre for Disability Law & Policy will co-host a one-day conference with the Burton Blatt Institute entitled “Genetic Discrimination: Transatlantic Perspectives on the Case for a European Level Legal Response”.  It will take place  in Aras Moyola (Ground Floor), North Campus, National University of Ireland Galway commencing at 9am.  The leading experts in the field will speak at the conference.  See the detailed conference programme here and an Irish Times piece here.  This one day international conference is the first of its kind in Europe and will be significant in sparking a debate in Europe about future law and policy in this area.  It is planned to publish the proceedings from the conference. The purpose of this conference is to examine the case for a European level legal and policy response to protect the privacy of genetic information and to prevent genetic discrimination, particularly in the employment and insurance contexts.  The science of genetic testing and related technology is in the process of advancing. Among other things, genetic testing technology may well offer the prospect of being able to detect the onset of future disabilities. The technology is becoming more prevalent and is being used increasingly in both the employment context and the insurance context.  The conference is aimed at legal practitioners and medical practitioners, academics and researchers, NGOs and those involved in disability issues, bioethics and practice. It is also aimed at those interested in medical testing generally as well as genetic testing specifically. There will be Continuing Professional Development (CPD) points available to those who are eligible and a Certificate of Attendance will be provided after the Conference.  For further information please contact Ms. Aisling de Paor at: aisling.depaor@nuigalway.ie or telephone +353 91 494017.

Conference on Disability & Genetic Discrimination

Job Vacancy: Researcher Collective Complaint to the COE

A legal researcher is required to prepare background materials and drafts for a Collective Complaint to the Council of Europe, European Committee of Social Rights of the Council of Europe on aspects of housing in Ireland. The research is being arranged by a network of housing organisations that have come together including Ballymun Community Law Centre, Barnardos, CAN – Community Action Network, Focus Ireland, The Irish Traveller Movement Independent Law Centre, Mercy Law Resource Centre, Northside Community Law Centre, the Public Interest Law Alliance (a project of FLAC) and Tenants First. Continue reading “Job Vacancy: Researcher Collective Complaint to the COE”

Job Vacancy: Researcher Collective Complaint to the COE