Some Vaccination Questions, Ethical and Legal

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It’s difficult to think of a more pressing problem today than how scarce coronavirus vaccines should be distributed between and within states. Newspapers are full of discussions of ‘vaccine nationalism,’ of the EU-UK-Astra Zeneca row, or of the limited availability of vaccines in the developing world. For us as international lawyers, obviously, the further issue – one to which we can meaningfully contribute – is to what extent should that conversation about the distribution of a scarce resource indispensable for maintaining public health and general welfare be shaped by international law. In particular, by human rights law, whether universal or regional, customary or conventional.

Any such legal analysis of course has to start with the text of the treaties and refer to the relevant general comments of the Committee on Economic, Social and Cultural Rights and the Human Rights Committee, and to the work of UN special procedures – as Diane has done admirably in her post from yesterday. But even if framed in positivist terms it seems inevitable that this analysis will be determined, wholly or to a very large extent, by underlying moral assumptions, intuitions or (rarely) more thought-out theories.

My very limited purpose in this post is to set out a series of questions or scenarios on which such assumptions, intuitions or theories, legal or ethical, can be tested. And nothing more. I don’t have some kind of set of prepared ‘correct’ answers to these questions. But I do think they are (some of) the right questions to ask. Readers are very welcome to try any of them out, in the comments or otherwise. To be clear, the country-specific examples have been chosen only because the dilemmas they present are stark, and for no other reason. No ulterior agenda at work here!

So let’s start:

  1. Is Israel legally or morally obligated to help vaccinate (by providing a sufficient quantity of vaccines) the population of the occupied West Bank?
  2. Is Israel legally or morally obligated to help vaccinate the population of Gaza? If your answer is different here than for q 1, please explain why.
  3. Is Israel legally or morally obligated to help vaccinate the population of Lebanon? Or the population of Fiji? If your answer is different here than for q 1 or q 2, please explain why (and please do so mutatis mutandis for any of the other questions below – you get the idea).
  4. If your answers to any of the questions 1-3 is affirmative, is Israel legally or morally permitted or obliged to first vaccinate all or most of its own population before it has to provide vaccines to those outside its borders? Or must Israel vaccinate only the most vulnerable within its territory before it has to start sharing its vaccine supply? Or must Israel start sharing vaccines as soon as it initiates its own vaccination programme for the most vulnerable?
  5. Is Israel legally or morally permitted to only vaccinate Israeli settlers in the occupied Palestinian territories, or to vaccinate them first?
  6. If a settler from occupied Palestine travels to the territory of Israel in order to get vaccinated, under what circumstances, if ever, would Israeli authorities be legally or morally obligated to deny vaccination to that individual?
  7. Is Russia legally or morally obligated to vaccinate the population of Crimea?
  8. Is Russia legally or morally obligated to vaccinate the population of the Donbas region of Eastern Ukraine?
  9. Is Ukraine legally or morally obligated to vaccinate the population of Crimea?
  10. Is Ukraine legally or morally obligated to vaccinate the population of the Donbas?
  11. Is a state, e.g. Serbia, legally or morally permitted to start vaccinating the general population en masse, without any kind of prescribed order, before it has vaccinated all of the (reasonably defined) priority groups (e.g. medical workers and patients, care home staff and patients, the elderly, people with serious comorbidities)?
  12. In deciding on whether to vaccinate a person, is Serbia legally or morally obligated or permitted to take into account the person’s immigration status (e.g. are they a Serbian national; are they a permanent resident; are they a temporary resident; are they a tourist)? Can/should, for example, vaccination be denied to a foreign student, to a refugee, to an asylum seeker, to an irregular migrant, or to a visitor who has come to Serbia only with the purpose of getting vaccinated?
  13. If Serbia sends an aid contingent of vaccines to Bosnia, can Serbia, without violating its legal or moral obligations, specify that the vaccines would only or primarily go to the (mostly ethnic Serb) Republika Srpska entity within Bosnia? If it sends vaccines to Kosovo, can it, without violating its legal or moral obligations, specify that only those individuals in Kosovo who possess Serbian passports or identity documents can have access to the vaccines? Or can it say that only those individuals who identify as ethnic Serb, or are of the Eastern Orthodox religion, should have access to the vaccines?
  14. Does your answer to any of the questions above depend on the fact that in any given scenario there are other states capable of providing substantial doses of the vaccine, but they have (for whatever reason) chosen not to do so?
  15. Let’s now shift focus from what a state is legally or morally required or permitted to do, to the purely individual perspective. Imagine you’re an ordinary individual living in (say) Serbia, not anyone in the position to exercise governmental authority. Forget about the law, domestic or international – suppose that in all of the questions below the relevant activity would be legal. The only question is whether the activity would be ethical/moral. *** Imagine that Serbia operates a strict priority scheme for vaccination, taking into account individuals’ age and comorbidities and stratifying them into groups. You are a healthy 40-year-old, and under the priority scheme, taking into account the scarcity of the vaccine, you wouldn’t be vaccinated for many months. You have a good friend in the medical profession (or with some administrative role in government), who can arrange for you and your family to get vaccinated immediately, i.e. to jump the queue. Is it ethical for you to ask your friend to do so, or to (without asking) accept his offer to do so?
  16. Serbia now doesn’t operate a rigid priority scheme. People have to register to get vaccinated, and they get notified when it’s their turn to do so. But the notifications are seemingly random/they don’t follow any clear pattern. The vaccines are available but still scarce; you accordingly have no idea when you or your family members would get the vaccine – it could be next week, next month, or much farther off, and if the wait is long enough it could be that Serbia runs out of its vaccine supply. You have a good friend in the medical profession (or with some administrative role in government), who can arrange for you and your family to get vaccinated immediately. Is it ethical for you to ask your friend to do so, or to (without asking) accept his offer to do so?
  17. The position is as in q 16 above, but the dilemma is now as follows. You can use a connection to get yourself and an elderly and very ill family member vaccinated with an (arguably) more efficacious, and more scarce, vaccine (e.g. Pfizer v. Astra Zeneca or Sinopharm) than you or they would have gotten otherwise. Would it be ethical for you to do so?
  18. You are a healthy 40-year-old. Is it ethical for you to get vaccinated (you are invited by the authorities to do so) even though you know there are more vulnerable people in Serbia who are yet to be vaccinated?
  19. You are a healthy 40-year-old. Is it ethical for you to get vaccinated (you are invited by the authorities to do so) even though you know there are more vulnerable people outside Serbia who are yet to be vaccinated?
  20. You are a Serbian national living abroad on a permanent or semi-permanent basis. Is it ethical for you to travel back to Serbia to get vaccinated? Is it ethical for your foreign partner or a friend to travel together with you to also get vaccinated?
  21. Is the morality of your proposed course of action in q 15-20 above affected by you knowing for a fact that numerous other people have already successfully pursued the course of action that you are contemplating (e.g. have jumped the queue using a connection)?
  22. You are a doctor in Serbia administering vaccines. Is it ethical for you to administer the vaccine to a healthy 40-year-old, knowing that there are many more vulnerable people, in Serbia and elsewhere, who have not yet been vaccinated?
  23. You are a doctor in Serbia administering vaccines. After a day’s work and after dealing with all of your appointments, you have 2 leftover doses of the Pfizer vaccine, which have to be administered within a few hours or be discarded. Is it ethical for you to call a family member, a lover, a friend, a neighbour, or a co-religionist from your local church/mosque/whatever and give them the shot, even though they are not in any vulnerable category? If you do so, is it ethical to prefer your friends or family to two unknown persons who just walked into your clinic, asking to be vaccinated?
  24. You are a doctor in Serbia administering vaccines. After a day’s work and after dealing with all of your appointments, you have 2 leftover doses of the Pfizer vaccine, which have to be administered within a few hours or be discarded. Four persons, whom you do not otherwise know, walk into your clinic, asking to be vaccinated. The first is a healthy 40-year-old Serbian national, who is also an ethnic Serb. The second is a healthy 40-year-old Serbian national, who is an ethnic Albanian. The third is a healthy 40-year-old Bosnian national, who is an ethnic Serb. The fourth is an American of Croatian descent, who is 65 years of age, has multiple comorbidities, and is married to a Serbian national and hence is in possession of a formidable Serbian mother-in-law (she already had her shot). You have to decide which of these 4 individuals will get the 2 available doses of the vaccine that evening. Are you ethically permitted or obliged to take their nationality or ethnicity into account in making your decision?

Finally – upon reflecting a bit, do any of your answers on questions 15-24 influence how you think about questions 1-14, and vice versa, and if so how? And if I had reversed the order of the questions (starting from the individual perspective and then shifting to the state one), would that have mattered at all in how you answered them?

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Comments

Ioana says

February 3, 2021

Very interesting questions, but I feel that there is more to explore. The scenarios set out above are based on the presupposition of an unmet need for vaccines. It might be interesting to deal with cases of individual refusals to get vaccinated, due to moral, ethical or other types of concerns. For example, if you are a healthy individual with no preconditions, and prefer to incur the risk of COVID-19 instead of the risk of possible side-effects of the vaccine, would it be moral / ethical for the state to oblige you to take the vaccine? If so, on what grounds, and how would that affect physical integrity / the right to private life? What should be the evidence adduced by the state in order to limit personal bodily autonomy? Also, does the situation depend on whether the person refusing is not a healthy individual, but part of the risk group, or perhaps one of the people in the front line (doctor, nurse).

An additional post on this would be greatly welcome!

Margherita Melillo says

March 1, 2021

Very interesting questions! Very hard to answer, but your last paragraph (on whether we think that the order of the questions may influence our answers) makes me wonder if it would be possible to organise a small behavioural experiment, where four groups of participants (possibly international lawyers? Law students?) are asked to give a short answer to the questions, ordered in different ways.