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As winter sets in across Europe, COVID-19 cases are beginning to rise, despite the vast roll-out of mass vaccination programmes earlier this year.
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Austria’s government has pointed the finger of blame firmly at the unvaccinated, announcing a new lockdown only for those who have not had the jab.
Like other pandemic policy decisions, this lockdown raises questions about how far states can take emergency powers and whether they will violate human rights law in doing so.
In justifying his country’s new policy, the Austrian chancellor, Alexander Schallenberg, said: “My aim is very clear: To get the unvaccinated to get vaccinated, not to lock up the unvaccinated.”
The move is an attempt to get people to get vaccinated without making vaccination compulsory. In this sense, it may be seen as less intrusive on human rights than compulsory vaccination.
While Austria’s new lockdown is different from earlier lockdowns. by drawing a clear distinction between the vaccinated and unvaccinated, any challenge based on discriminatory treatment is unlikely to succeed.
The lack of antibodies against specific disease is not a “protected characteristic” under discrimination law.
HUMAN RIGHTS AND THE PANDEMIC
The court’s reluctance to interfere can be seen in some of the early human rights cases of the pandemic.
Earlier this year, it found a challenge against Romania’s lockdown laws to be “inadmissible” because the Romanian applicant who brought the case failed to show that lockdowns were particularly injurious to him.
Lockdowns were, according to the court, very clearly a “restriction”, not a deprivation of liberty and so did not violate the convention’s right to liberty under Article 5 of the European Convention on Human Rights.
This is not to say that other convention rights may not also be affected by lockdowns. The right to private family life, or the right to freedom of association may be affected. But again it is likely that a wide margin of appreciation will be afforded to states.
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