Parental freedom of religion and belief and childhood vaccination : do mandatory vaccination laws violate parents’ rights to freedom of thought, conscience and religion of Article 9 ECHR?

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Parental freedom of religion and belief and childhood vaccination

Do mandatory vaccination laws violate parents’ rights to freedom of thought, conscience and religion of Article 9 ECHR?

Amsterdam Law School

International and European Law: Public International Law

February 2016

Name Amy Floor Bazdidi Tehrani Student number 10180664

E-mail amyfloor.bazdiditehrani@student.uva.nl Thesis supervisor R. Pierik

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Introduction p. 3

Chapter 1 – Article 9 and the right to manifest a religion or belief p. 7

1.1. Introduction p. 7

1.2. A short introduction to Article 9 ECHR p. 8

1.3. The right to manifest p. 11

1.4. Applying the right to manifest p. 14

1.5. Orthodox Protestants p. 16

1.6. New movements in the vaccination-debate p. 20

Chapter 2 – Limitations on Manifestations of Religion or Belief p. 24

2.2. Limitation and suspension of rights and freedoms – Limitation clauses p. 25

Chapter 3 – The margin of appreciation doctrine and the principle

of proportionality in the context of Article 9 p. 32

3.2. Principle of proportionality p. 33

3.3. The margin of appreciation doctrine p. 38

3.4. General criticism on the margin of appreciation p. 41

3.5. Necessary in a democratic society? p. 43

Conclusion p. 45

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Introduction

In January of this year a major measles outbreak occurred at Disneyworld (USA) for the first time in a decade and even resulted in the death of an adult woman later that spring.1 While the idea that vaccinations are safe and beneficial for children and their (future) health has been a longstanding tradition in Western societies, new movements have come to the stage and succeeded in creating a turning point when it comes to the obviousness of vaccinating children.2 The recent outbreak reveals the success of such movements and brings to light an underlying development: vaccination rates in Western societies are slowly but steady declining.3 These developments together with the recent outbreak at Disneyworld spark a familiar discussion once again: to vaccinate or not to vaccinate?

Infectious diseases were the major killers of human beings until the beginning of the twentieth century and diseases such as polio, measles, diphtheria and tuberculosis have claimed

thousands of lives.4 It is for that reason that the introduction of vaccine programs in public health care has been a welcoming development in protecting human beings from harmful infectious diseases.5 Although vaccines are about prevention, another objective is to maintain so-called ‘herd immunity’, which means that due to a large group in society being immunized against certain infectious diseases, a virus can no longer circulate within that population.6 And even though today’s vaccines have eliminated or dramatically reduced illnesses, there are increasing numbers of parents refusing immunization for their children. It appears that these parents fear vaccines more than the actual diseases that they protect against.7 Traditionally, the most well known objectors to vaccination are religious groups, mostly orthodox Protestant

1

Izadi, E, The U.S. just recorded its first confirmed measles death in 12 years, The Washington Post 02-07-2015 [online]

2_{Pierik, R., Mandatory Vaccination: an Unqualified Defense, Amsterdam Law School Research Paper No.}

2015-08, August 2015, p. 1. [online]

3

Pierik, R., Mandatory Vaccination: an Unqualified Defense, Amsterdam Law School Research Paper No. 2015-08, August 2015, p. 1. [online]

4_{Calandrillo, S., Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their}

Children, University of Michigan Journal of Law Reform 2004, p. 362 [online]

2015-08, August 2015, p. 1. [online]

2015-08, August 2015, p. 1 [online]

7

Calandrillo, S., Vanishing Vaccinations: Why Are So Many Americans Opting Out of Vaccinating Their Children, University of Michigan Journal of Law Reform 2004, p. 353 [online]

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Christians.8 However, more recent objectors to vaccination are now also coming from anthroposophist and homeopathic groups.

The increase of parents who are objecting to vaccines will eventually lead to a decline in vaccination rates, and for most Western governments such declines will lead to certain problems. On the one hand, governments want to maintain herd immunity within their societies so that their population is protected. On the other hand, they are also faced with the rights and freedoms of parents who will want to raise their children as they see fit (i.e. parents who are objecting to vaccination).9 The fight against infectious diseases balanced with these parents’ rights and freedoms will lead to difficult challenges for governments.10 If Western societies want to guard the common good of ‘herd immunity’ they might want to do so through mandatory childhood vaccination programs. In that way, children will receive vaccines at a certain age in order to prevent viruses from expanding or even existing within society. However, such mandatory programs will probably not be received well by all within a society, especially not by parents objecting to vaccination. It is well established that people, and thus parents, have the right to have certain thoughts, beliefs or religions, as is expressed in Article 9 of the European Convention on Human Rights (hereinafter: ECHR). Besides, every parent has the right use those ideas on how to raise their own child. If the freedom to have such ideas is restricted because of a mandatory vaccination program, legal objections will definitely be made. This paper will focus on the most prominent legal objection, coming from both religious parents and parents who object because of other beliefs: mandatory vaccination will limit the parental freedom of thought, conscience and religion.11

While childhood vaccination programs are not (yet) mandatory in the Netherlands, it is nonetheless import to think about the possible legal consequences when it does become so. Parents who object to vaccination because of their religion or other beliefs can no longer choose freely whether to enroll their children into vaccination programs or not. Further, when vaccination laws will only allow for medical exemptions and not for religious or

philosophical exemptions, these parents will feel that their rights and freedoms of Article 9

2015-08, August 2015, p. 1 [online]

11

Pierik, R., Mandatory Vaccination: an Unqualified Defense, Amsterdam Law School Research Paper No. 2015-08, August 2015, p. 1 [online]

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are limited. Eventually, parents might even make their way to court and put this particular limitation by their State up for review. The European Court of Human Rights (hereinafter: ECtHR or Court) has reviewed many cases where individuals have claimed that the State violates their right under the ECHR. To date, the ECtHR has not yet decided on a case of mandatory vaccination and its possible limitations on the rights and freedoms of parents who are against vaccinating their children. It is thus unknown whether the Court will render such mandatory vaccination laws as a violation of parents’ rights under the ECHR. As mentioned before, parents who object to mandatory vaccination will invoke their freedom of thought, conscience and religion ex Article 9. Because of their deeply held beliefs they conscientiously object to the practice of vaccinating. However, the ECtHR has stated that Article 9 does not give individuals a right to conscientious objection.12

The purpose of this paper is to see whether parents who conscientiously object to childhood vaccination are provided with the protection of Article 9. A State who aims to make

childhood vaccination mandatory should be aware of the fact that such protection might be guaranteed by the ECtHR. The main research question of this paper will therefore focus upon the question: “Do mandatory childhood vaccination laws violate the right and freedom of

Article 9 ECHR of religious parents and parents with other beliefs?” Because of a lack of

judicial rulings on the part of the ECtHR, this paper will use the Classic Legal Research method. This type of research can be used for investigating the status of the law with regard to topics about which no clear judicial rulings have been made. It is focused on describing and analysing the law from the perspective of the judge, in this case from the perspective of the ECtHR.13 In the course of the research, the same sources that the judge would use in establishing the applicable law are consulted. These sources are in particular: legislative history, prior case law and scientific literature.14 The goal is to make the best possible

prediction on how the ECtHR would decide if it would be presented with this issue in order to be legally informed and inform other interested parties on the subject.

In order to answer the main research question, certain legal reasoning steps have to be taken. Since the scope of Article 9 will be of interest when answering the main research question, the article itself will be used as the basis for the research design of this paper. The paper is

12_{ECtHR (GC) 07-07-2011,}_23459/03_{(Bayatyan v Armenia) , par. 110 [online]} 13

Rijpkema, P., Methodology of Legal Research, University of Amsterdam, September 2015, p. 8 [online]

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organized as follows. Chapter 1 starts off with a brief description on Article 9 and explains whether the right to manifest a religion or belief is applicable in this particular case. The right to manifest is important to study in order to see whether or not the practice of non-vaccinating children of religious parents and parents with other beliefs is in fact a practice protected by Article 9. If the practice is simply motivated by their religion or beliefs, it will not be accorded with the protection of Article 9. If a State then wishes to implement mandatory vaccination programs, parents will not be able to protect their practice based on Article 9. Chapter 2 discusses the limitations on manifestations of religion or belief. It presents the limitation clause of Article 9(2) and its criteria. Even though Article 9 considers certain practices as protected by the right to manifest, limitations can still be justified for different reasons. This means that even though the practice of non-vaccinating children is considered as being protected, parents can still be limited in their freedom of Article 9 when State action is considered justified. Chapter 3 will conclude with an analysis on the ECtHR’s approach towards the ‘necessary in a democratic society’ criterion of Article 9(2). It will discuss how the Court appoints the margin of appreciation-doctrine and whether or not mandatory vaccination programs are compatible with the principle of proportionality. The margin of appreciation-doctrine and the proportionality principle are the most discussed topics when it comes to the criteria of Article 9(2). A balance has to be struck between the interests of the parents in question and the interests of the State. This might mean that the interests of parents are given lesser weight than the interests of the State. It is of relevance to see how the Court uses this balance in striking a judgment in Article 9-cases and what possible consequences it has for the particular case in this paper. After having discussed Article 9, its limitation clauses and additional principles, the paper will conclude with a conclusion.

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Chapter 1 – Article 9 and the right to manifest a religion or belief

1.1. Introduction

The decline in vaccination rates that Western societies are faced with nowadays can be explained from the rise of new movements of parents who decide that they no longer will vaccinate their children because of beliefs other than religious ideas.15 One of those movements can be identified as parents with anthroposophist and homeopathic views. Together with religious parents who also object to vaccination, they form the two most well known groups in the Netherlands who will likely object to mandatory vaccination laws. And just as with religious parents, parents from these new movements have the right to act in a certain way based on their own beliefs. The Court has affirmed this statement and mentioned that the freedom of religion and belief is an important ECHR-right and that ‘the freedom of Article 9 is one of the foundations of a democratic society and one of the most vital elements for the identity of believers and their conception of life’.16 However, Article 9 might also be one of the most challenging articles in law since almost every society has a multitude of religious and moral beliefs present. Therefore, many persons will constantly be faced with practices that they do not agree with and feel like they are constrained from living their ideal religious life within that society.17 However, this does not mean that all of these persons can claim interference with their right under Article 9 when they disagree with certain practices within society. In other words, mandatory vaccination laws are not necessarily interfering with the rights of these groups of parents simply because they do not agree with such laws.

This chapter will start off with a brief description on Article 9. Since the Court has firmly stated that the article does not give an explicit right to conscientious objection, it is import to see what it does guarantee. If a State wants to make vaccination mandatory by law, religious parents and parents with other beliefs will state that such laws are a violation of their right under Article 9. Indeed, the article does give a right to people to be free in choosing their religion or belief, however, not every practice that comes forward from believing is protected by Article 9. Parents might base their behaviour on their religion and other beliefs and

therefore choose not to vaccinate their children, but does the article protect such practice? In order to determine whether or not mandatory vaccination laws violate the rights and freedoms

2015-08, August 2015, p. 2 [online]

16

Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 67 [online]

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of believing parents under Article 9, the sub-question in this chapter will focus upon the question: ‘Can the choice not to vaccinate based on religious or other beliefs be seen as a

protected practice of religion or other beliefs under Article 9?’ If the choice not to vaccinate

based on religious or other beliefs can be regarded as a protected practice under Article 9, the Court might conclude that mandatory vaccination laws ultimately lead to a violation of Article 9.

1.2. A short introduction to Article 9 ECHR

Article 9 on the freedom of thought, conscience and religion, reads as follows:

(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Although the ECHR already entered into force in 1970, the first case discussing Article 9 before the ECtHR was not until 1993.18 Furthermore, no human rights treaty has ever defined ‘religion’ or ‘belief’ even though freedom of religion is considered as an essential element of self-determination and societal pluralism.19 Given the substantial weight that the ECtHR has given to the freedoms of Article 9, this might seem remarkable. However, the right to have, choose and change one’s religion or belief is unconditional, which means that the State cannot justify any infringement or restriction under the ECHR.20 The ECtHR has named this

particular area of rights of Article 9(1) as ‘forum internum’: a right that is absolute and which cannot be limited or derogated from.21 Article 9(2) refers to the right to ‘manifest’ religion or belief in worship, teaching, practice and observance, which is not absolute and is also known as ‘forum externum’. The right to manifest is the more ‘public’ freedom of religion that is

18

ECtHR (Ch) 25-05-1993, 14307/88 (Kokkinakis v Greece) [online]

19_{Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 34 [online]}

20_{Pimor, A., The Interpretation of Article 9 ECHR: Overview of the Denhigh High School (UK), The Journal of}

Social Welfare & Family Law, Sept-Dec 2006, Vol. 28(3-4), p. 323 [online]

21

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subject to limitation under Article 9(2).22 According to the ECtHR it cannot be said that every act, which is in some way inspired, motivated or influenced by a religion or belief, constitutes a manifestation of the belief. Thus, acts or omission, which do not directly express the belief or which are only remotely connected to a precept of faith fall outside the protection of Article 9.23 In order to count as a manifestation within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion, which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts, the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case.24

As mentioned in the introduction, Article 9 will form the research design of this paper. Whenever a violation of Article 9 is alleged, there is a necessity of considering first whether the article is applicable, and if so, thereafter whether an interference also constitutes a

violation of Article 9.25 The following chapters will discuss the interference-aspect of Article 9 and the current issue at stake. First, the complaint has to fall within the scope of Article 9 and the question if the individual has a right protected by Article 9(1) needs to be considered. Not every act that is attributable to the individual conviction will necessarily fall within the scope of Article 9. The case law on Article 9(1) has made a distinction between acts that are ‘central’ to the relevant belief (which is protected by Article 9(1)) and acts that are ‘simply motivated or inspired by the belief’ (which are not protected by Article 9(1)).26 If the act is not considered as being a manifestation under Article 9, than protection is not applicable.27

Furthermore, it might happen that a certain religion or belief is not considered as a relevant belief that qualifies for protection by the article. As mentioned above, the term ‘religion’ or ‘belief’ has never been defined, however, the case law of the ECtHR shows that the Court accepts ‘mainstream’ religions as readily accepted belief systems that fall within the scope of

22_{Parker, T., The freedom to manifest religious belief: an analysis of the necessity clauses of the ICCPR and the}

ECHR, Duke Journal of Comparative & International Law, Fall 2006, Vol. 17(1), p. 94 [online]

23_{ECtHR 15-01-2013, 48420/10, 59842/10, 51671/10 and 36516/10 (Eweida and Others v UK), par 82 [online]} 24_{ECtHR (Ch) 18-12-1996, 21787/93 (Valsamis v Greece) [online] and ECtHR 15-01-2013, 48420/10,}

59842/10, 51671/10 and 36516/10 (Eweida and Others v UK), par 82 [online]

25_{Murdoch, J., Freedom of thought, conscience and religion: a guide to the implementation of Article 9 of the}

European Convention of Human Rights, Council of Europe human rights handbooks 2007, p. 1 [online]

26_{Campbell, M., Conscientious objection, health care and Article 9 of the European Convention on Human}

Rights, Medical Law International 2011, Vol. 11(4), p. 287 [online] See also ECtHR 12-10-1978, 7050/75 (Arrowsmith v UK), par. 71

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protection. The ECtHR has developed a flexible interpretation of religion when it comes to established religions such as Christianity, Islam, Judaism and Buddhism. Other personal beliefs must attain a certain level of cogency, seriousness, cohesion and importance28 and must relate to a weighty and substantial aspect of human life and behaviour and be deemed worthy of protection in European democratic society.29 The Court has remained silent on the meaning of the terms ‘coherent’, ‘serious’ and ‘cogent’. This might imply that the Court will often rely on its own intuition when confronted with questions regarding beliefs that ought to be protected or not on the grounds of Article 9. This may lead to some unpredictability in their jurisprudence when predicting whether or not Article 9 protects less established beliefs, such as anthroposophy or homeopathy. In the particular issue discussed in this paper, a large number of vaccine-denying parents stems from religious, orthodox Protestant, groups. Being an established religion, the Christian faith is accepted as a relevant belief that falls under the protection of Article 9. And while there isn’t much case law on the other vaccine-denying group of parents, the case of V v. the Netherlands can serve as an analogous example where the Court decided that the anthroposophist beliefs of a doctor, who refused to participate in a national pension-scheme, were worthy of protection on the grounds of Article 9. In this particular case, the Court considered that the non-religious belief of anthroposophy has met the threshold for a belief under Article 9. Whether the Court accepts homeopathy as a non-religious belief will eventually depend on its own determination. However, based on the approach of the Court in accepting other non-mainstream beliefs such as Scientology and veganism, homeopathy will likely be accepted as such.30

And while the religion and belief systems of the parents involved are considered to be falling within the scope of Article 9, it is the manifest-aspect that calls for a more careful analysis. As said before, the term ‘manifestation’ does not cover each act that is motivated or influenced by a religion or belief.31 In stating that mandatory vaccination laws are violating their rights under Article 9, it first needs to be determined if the act of objecting to childhood vaccination falls, in fact, within the scope of protection of the article. If not, protection by Article 9 will

28_{ECtHR (Ch) 25-02-1982, 7511/76 (Campbell and Cosans v UK) [online]}

European Convention of Human Rights, Council of Europe human rights handbooks 2007, p. 11-12 [online]

31

Murdoch, J., Freedom of thought, conscience and religion: a guide to the implementation of Article 9 of the European Convention of Human Rights, Council of Europe human rights handbooks 2007, p. 15 [online]

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not be applicable and no violation of Article 9 will occur. The right to manifest will therefore be further discussed below.

1.3. The right to manifest

If the belief system is recognised, the ECtHR further differentiates between the right to hold that belief and the right to manifest it.32 The right to hold a belief refers to the

abovementioned absolute right of Article 9, the so-called forum internum. A manifestation implies a perception on the part of the people who believe that a course of activity is in some manner prescribed or required.33 With regards to the right to manifest, Article 9 protects the right of a person to manifest belief through ‘worship, teaching, practice and observance.34 It is the term ‘practice’ which has proved to be the most difficult of the four. 35

In order to make the best possible prediction on how the ECtHR would decide if it would have to rule on this particular question, this section will analyse the right to manifest more detailed. The important question here is how does the Court qualify acts as a protected ‘practice of religion or belief’ under Article 9(2)? In Arrowsmith v. the UK, the Commission (before the Strasbourg Court) stated that such determination calls for a careful analysis.36 The Commission further held that ‘Article 9 does not protect every act motivated or inspired by a religion or belief’37 and that ‘a very direct link is needed between the belief and the act’ if the act is to be considered a ‘practice’ under Article 9.38 The legal reasoning described here has come to be known as the ‘necessity test’ – or the Arrowsmith-test. The test prescribes that applicants must show that they are ‘required’ to act in a certain way because of their religion or belief.39 In following cases the Court held that ‘acts considered as a manifestation are those with an ‘intimate connection’ between the act and the belief’.40 For the two groups of parents in this paper, it is thus of importance that they can show that there is in fact a very direct link and an intimate connection between their religion and beliefs and the act of objecting to childhood vaccination.

32_{Rainey, Human Rights Law Concentrate: Law Revision and Study Guide, 2013, p. 119} 33

34_{Rainey, Human Rights Law Concentrate: Law Revision and Study Guide, 2013, p. 120}

35_{Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 110-111 [online]} 36_{Murdoch, J., Freedom of thought, conscience and religion: a guide to the implementation of Article 9 of the}

37_{ECtHR (GC) 10-11-2005, 44774/98 (Leyla Sahin v Turkey) [online]}

38_{Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 115 [online]} 39

40

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Although the term ‘manifestation’ is a little unclear, the idea that some practices motivated by religious and other beliefs are regarded as too far-off to be protected by Article 9 is not an unacceptable idea. It will be impossible for a State to act within its society when every act, inspired or motivated by religion or other beliefs, can fall within the scope of protection of Article 9. There will be always people that are being set off by any form of State practice. If the scope of protection of Article 9 will be too wide, anyone can argue that such State action in some way is violating their right under Article 9. Therefore, the Court itself should maintain limitations on the scope of protection of Article 9. In practice, it is the Court that will determine whether certain acts are ‘required’ by the religion or belief of the applicant. Evidence of such necessity can be found in the assessment of obligations put upon the applicant by the judges themselves.41 Occasionally the Court will use expert evidence from religious leaders, however its use is random and the objective approach of the Court to manifestations does not seem to be based on objective criteria but rather on the Court’s own judgement.42 Writers in the legal field have criticized the Court for taking upon themselves the task of determining the requirements of a religion or belief and for often ignoring the claims of applicants about their own faith.43 Therefore, some judges have suggested

alternative approaches to determine whether a certain practice is a manifestation of religion or belief. One of these approaches included the less restrictive test, requiring applicants to prove that their actions ‘give expression’ to his/her religion or beliefs.44 Such a test does provide a better chance for people to show that their acts, even though they might seem less traditional or general, also give rise to their religion or beliefs. It should not be up to the Court to define the requirements of a religion or belief, also because for some people lesser-known behaviour might also be relevant to one’s religion or belief. However, it is the Arrowsmith test that continues to be applied more routinely and it is thus unlikely that a less restrictive approach will be used.45

The Pichon and Sajous v France case is an example where the Court had to decide upon ‘manifesting beliefs and religion’ and ‘conscientious objection’ within a health care context.

41_{Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 121 [online]} 42_{Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 121 [online]} 43

44_{This test should not be confused with the less restrictive means test that is often implied by the principle of}

proportionality, see further Chapter 3.

45

Gunn, T. J., Adjudicating Rights of Conscience under the European Convention on Human Rights, in: Religious Human Rights in Global Perspective: Legal Perspectives, Martinus Nijhoff Publishers 1996, p. 322

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Even though the application based on Article 9 was declared inadmissible, the Court shed a little light on the impact of Article 9 on conscientious objection. In this case, two pharmacists refused to sell contraceptives to three women who had valid prescriptions and were convicted in French courts for breaching the French Consumer Code. The Consumer Code considers it an offence to refuse to supply goods or provide services where there is no legitimate reason to do so, and having religious or moral beliefs did not constitute such a legitimate reason. The pharmacists claimed that their conscientious objection against selling contraceptives was grounded in their freedom of religion. By declaring the application of the two pharmacists inadmissible, the Court reaffirmed the position that the right to conscientious objection does not fall under Article 9. Unfortunately, this conclusion is without very little reasoning and mainly repeats previous case law. By repeating itself the Court stated: ‘Article 9 mainly protects personal convictions and religious beliefs that are matters of individual conscience and that it also protects acts that are closely connected to personal conscience. Mentioning further that ‘acts of worship or devotion forming part of the practice of a religion or belief in a generally accepted form’ are to be considered to fall within the scope of Article 9.46 It also repeats that the term ‘practice’ as stated in the article ‘does not denote each and every act or form of behaviour motivated or inspired by a religion or a belief’. Instead of accepting the pharmacists’ religious refusals as a manifestation of their religion under Article 9(1) and then deciding whether the State’s interference with this manifestation was justified under Article 9(2), the Court rejected the claim as not falling within the scope of Article 9. This might indicate that the Court itself is a little reluctant to engage with conscientious objection claims under Article 9.47 However, had the Court undertaken a fuller analysis of the conscientious objection claim under Article 9(2), it would have been able to set out a framework with minimum requirements necessary for the accommodation of conscientious objection balanced against the rights and freedoms of other individuals.

Even though the right to manifest a religion or belief is at the heart of the protection of freedom of religion or belief under the Convention, the Court has given a particular narrow reading.48 The Court has been more active in stating that certain State actions have restricted the right to manifest, but it has tended to focus its protection on core areas of Christian beliefs

46

Pichon and Sajous v. France (2001), App. No. 49853/99, Eur. Ct. H.R. 2001-X, decision on admissibility, [Pichon and Sajous].

47_{A. Latmackova, Conscientious Objection in reproductive Health Care: Analysis of Pichon and Sajous v}

France, p. 17.

48

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and cases on less traditional manifestations have been dismissed.49 While minorities and individualistic believers are recognized as deserving protection, that protection has only extended to manifestations that are highly analogous to Christian beliefs.50 Thus, where the Court does seems prepared to accept less mainstream faiths and beliefs as systems falling within the scope of Article 9, the Court seems less prepared to accept less mainstream practices as falling within the term ‘manifestation’.

1.4. Applying the right to manifest

This section will consider the right to manifest as determined by the Court in order to answer the sub-question of this chapter. However, the assumption that the ECtHR seems less

prepared to accept less mainstream practices as falling within the term ‘manifestation’, should be kept in mind in predicting a possible outcome. From an objective point of view, the choice not to vaccinate children based on religious or other beliefs should be assessed on the criteria that the Court has set out in the Arrowsmith case. Meaning that parents should show that there is a very direct link and an intimate connection between their practice of objecting to

vaccination and their religion or other beliefs in order for the Court to accept such practice as a manifestation.

It is often difficult to see whether a very direct link and intimate connection exists because religions and other beliefs are often very personal and central to a way of life of a person. Every person has its own beliefs and behaves in such a way that is personally very directly linked and connected with that belief, whereas such acts might not seem closely linked or connected with that belief to others. This might be the reason why the Court rather sticks with accepting manifestations that are highly analogous to mainstream religions and beliefs like the Christian faith. If the Court accepts too much non-general practices as a manifestation, the gates might be opened towards floods of claims of people stating that their personal ways of life should be protected too. Quite clearly, there have to be some constraints to keep the right of Article 9 within limits that are manageable.51 Some acts are so essential for certain

religions and beliefs that there will be no doubt in determining their existence as a practice under Article 9. However, there are acts that do not immediately rule out their existence as a practice or not. These acts can be seen as a ‘grey area’ and need more explanation and

49_{Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 132 [online]} 50_{Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 132 [online]} 51

Pearson, M., Article 9 at a Crossroads: Interference Before and After Eweida, Human Rights Law Review, Vol. 13:3, Oxford University Press 2013, p. 581 [online]

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argumentation in order to be determined as a manifestation of a religion or belief. It is

necessary to demonstrate that a certain act is closely linked with the belief in question and that it is an expression of a consistent religious pattern of behaviour.52 It has to be an aspect of the belief associated with the belief system, that possesses certain continuity and that is complied with by the person or group in question.53 Is the practice of objecting to vaccination so essential for the religion or other beliefs of parents or does it fall more in the ‘grey area’ of manifestations? This question needs to be considered before determining whether the particular practice can be regarded as a protected manifestation. If it is clearly an essential part of both the religion and other beliefs of the parents in question, than the Arrowsmith-test will be sufficient to assess the sub-question per parental group. If the practice falls within the ‘grey area’ than more explanation is needed as to why the practice should be protected.

Because there are two groups of parents that can be distinguished from one another, both groups will be discussed separately in order to answer the sub-question of this chapter. Both groups use different arguments when demonstrating their legal objections to mandatory vaccination laws. In this section, those arguments will be analysed further. Although it is ultimately the Court who decides whether or not the objection to vaccination can be seen as ‘necessary’, it is interesting to see how both groups will construe their legal arguments.

1.5. Orthodox Protestants

In the Netherlands, a number of local polio outbreaks started occurring in the 1960s amongst orthodox Protestant minorities with low vaccination coverage.54 After that, epidemics spread all over the Bible belt, an area in the Netherlands stretching from the southwest to the

northeast where mainly orthodox Protestants live.55 Despite high vaccination coverage, there have recently been outbreaks of measles, mumps and rubella epidemics largely confined to an orthodox Protestant minority that objects to vaccination in the Netherlands.56 Even though epidemics of diseases that can be prevented by vaccines occur within the anthroposophist

52_{Post, H. & Van der Schyff, G., Godsdienstvrijheid in de Nederlandse rechtsorde: Nationale en Europese}

perspectieven, Wolf Legal Publishers 2014, p. 39

53_{Post, H. & Van der Schyff, G., Godsdienstvrijheid in de Nederlandse rechtsorde: Nationale en Europese}

perspectieven, Wolf Legal Publishers 2014, p. 36/37

54_{Ruijs, H., Acceptance of Vaccination among Orthodox Protestants in The Netherlands, Academic}

Dissertation, University of Nijmegen 2012, p. 10 [online]

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community as well, it is the orthodox Protestant minority that is largely confronted with it.57 The objection to vaccination coming from Christian parents is rooted in their religious beliefs. In Christian theology the term ‘predestination’ is the belief that God has predetermined who will receive salvation and who will not. Sometimes the term is also used to express the thought that it is God who is in control over the universe in general and even in control over less general happenings. The orthodox Protestant physician Abraham Capadose published his objections to vaccination already in 1823.58 According to Capadose ‘vaccination as a

preventive measure is not allowed as it is not known to humans if God intends to send disease’.59 Preventive medical treatments are thus taboo. Vaccination is obviously a preventive medical treatment and, according to the principle of predestination, against the path that God has planned for its believers. Whoever vaccinates their children risks that he or she might think that God is not needed in their lives. It is thus quite clear why these parents do not want to vaccinate their children: preventative medical treatments are against their beliefs of their religion. But in contrast to the practice of objecting to vaccination, other preventative methods of medicine are being used. Preventative screening for breast cancer or prenatal counselling for pregnant women are examples of preventative measures that are used within Protestant denominations that object to vaccination.60 If one would apply the principle of predestination in a consequent manner, than one could imply that these methods are also against God’s will. These inconsistencies do lead to the question if the particular practice of objecting to childhood vaccination is so essential to the Protestant faith? Since other

preventative methods are being used within the religion even though the predestination principle requires otherwise, the practice of objecting to vaccination needs more explanation and argumentation.

While discussing Protestant parents, some further research into the group must be made. Between Protestants there are many denominations to be distinguished: reformed, evangelic or eastern orthodox are few of the many denominations present.61 Vaccination coverage in the orthodox Protestant minority is highly dependent on the denomination and there are large

59

Ruijs, H., Acceptance of Vaccination among Orthodox Protestants in The Netherlands, Academic Dissertation, University of Nijmegen 2012, p. 14 [online]

60_{Pierik, R., Dan toch maar een vaccinatieplicht?, NJB 2013-11, Afl. 40, p. 2804 [online]} 61

Woonink, F., Bezwaren tegen vaccinaties; Perspectief van de weigeraar, Rijksinstituut voor Volksgezondheid en Milieu 2010, p. 6

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differences in vaccination coverage between these denominations. High vaccination coverage of 85% and over was found among the so-called Reformed Bond, other orthodox Protestant members of the Protestant Church in the Netherlands not belonging to the Reformed Bond, and orthodox Protestant members of the Christian Reformed Churches. In contrary to this high coverage number a very low vaccination coverage number of less than 25% was found in the Reformed Congregation in the Netherlands and the Old Reformed Congregations.62 There are thus noticeable differences within the Protestant faith on how to comply with vaccination or not. This leads to further questioning: what do such inconsistencies within one religious group mean for the ‘necessity’ requirement and in showing that their practice is in fact a protected manifestation? If parents in the same religious group act in a different manner, is there then a very direct link and an intimate connection between the actual practice and the religion? Within low coverage groups the practice of non-vaccinating is clearly linked to the beliefs of parents, but within high coverage groups the practice in itself is largely non-existent although the same religion is being followed. How can parents, who do object to vaccination, show that such objection is in fact required by their religion? Because it is eventually the Court who will decide on this particular question, these contrasts might lead to problems for the Court in determining whether the practice should be accepted as a protected practice, or if the practice is simply inspired or motivated by the religion.

Orthodox Protestant parents themselves reported that as parents they decide on the

vaccination of their children as a couple without much discussion with family, health care professionals or religious leaders.63 Since these parents do not focus on health aspects of vaccination but on the religious doctrine or faith in God, it is the religious argument that is leading when deciding upon childhood vaccination. Health care professionals have confirmed that the medical aspects of vaccination, such as the safety of vaccines, might convince other parents to decide whether or not to vaccinate but are less relevant in the decision-making process in the orthodox Protestant population.64 Thus, parents seem to make their decision based predominantly on religious arguments and use religious ideas as the only basis. This will likely confirm the idea that there is an intimate connection and very direct link between the act of objecting to vaccination and their religion. However, within each denomination,

Dissertation, University of Nijmegen 2012, p. 164-165 [online]

64

Ruijs, H., Acceptance of Vaccination among Orthodox Protestants in The Netherlands, Academic Dissertation, University of Nijmegen 2012, p. 165-166 [online]

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religious arguments are used very differently: either in favour or against vaccination. This situation leads to questioning whether or not every denomination should be regarded as its own particular faith. In that way it will be easier to point out a particular practice within each denomination linked to religious conceptions.

Two aspects in the argumentation of Protestant parents seem difficult to comprehend. First, the objection to vaccination is based on the underlying principle of predomination, which means that preventative medical treatments are against the Protestant faith. It is true that childhood vaccination is such a preventative method and thus goes against the principle, however, other preventative medical treatments are accepted even though they go against the very same principle. Second, the differences between denominations also lead to the idea that the principle of predomination is interpreted very differently when it comes to objecting to childhood vaccination. It can be concluded that, in contrast to acts of worship like wearing a cross65 or general participation within the church, the practice of objecting to childhood vaccination cannot be easily recognized as forming a general part of Protestant religion.66 Although certain Protestant parents might follow the practice, there is no complete continuity of that practice within the whole Protestant group of parents. Not all parents comply with the practice of objection to vaccination, as do not all Protestant believers comply with the

principle of predestination in general when it comes to preventative medical measures. To say that the practice is so essential to the Protestant faith so that there is no doubt in accepting it as being a protected practice is not adequate. This conclusion does not necessarily mean that the practice in question is excluded from falling within the scope of protection of Article 9. Some practices do fall within the already mentioned ‘grey area’ and thus call for further argumentation and must show that there is a consistent religious pattern of behaviour. One could argue that, based on the numbers, there isn’t a consistent religious pattern of behaviour within the overall orthodox Protestant belief. The overall vaccination coverage in the

orthodox Protestant group is dependent on the composition of the orthodox Protestant denomination. Within one denomination, the continuity of objecting to vaccinating children and a consistent religious pattern of that behaviour might be present. If such a denomination would be taken as representing the Protestant group of parents, the Court might indeed

determine that there is a practice that should be protected. But because of other denominations

65_{ECtHR 15-01-2013, 48420/10, 59842/10, 51671/10 and 36516/10 (Eweida and Others v UK), par. 91 [online]} 66

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with different practices, the outlook on the orthodox Protestant group as a whole might lead to difficulties for the Court to point out a consistent practice.

The sub-question of this chapter considers whether the choice not to vaccinate, based on religious or other beliefs, can be seen as a practice of religion or other beliefs protected by the right to manifest under Article 9. With regards to the above discussion on the practices within the orthodox Protestant belief, the term ‘manifestation’ does cause some trouble. As

mentioned before, the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. The very direct link and intimate connection are not very apparent when it comes to the practice of objecting to vaccination within the whole Protestant group of parents. Neither is there a religious consistent pattern of behaviour when it comes to the underlying principle of predestination. However, when one looks at specific denominations with high numbers of vaccine-deniers, the chances of being accepted as a protected manifestation will be higher. But how to cope with parents who do object to vaccination but fall within a denomination with vaccine-accepting parents? It will be unfair to exclude parents who are objecting to vaccination because they belong to a denomination that does accept vaccination. In answering this sub-question, the Court should also ask itself a broader question. As with any religion or belief there is likely to be disagreement on religious issues and stricter or more lenient

interpretations of religious doctrines will be present. Therefore, one should also consider whether the pluralism within the Protestant belief should be protected or not?67 Many

religious prescriptions are not immediately found from religious texts but that does not mean that it is nevertheless a sincere religious conviction that should be respected by the Court. Parents who belong to the orthodox Protestant faith will differ between one another when it comes to objecting to vaccination. But, should that mean that their chance to fall within the scope of protection of Article 9 is lost too? If this pluralism is rejected, the Court might be set up as the abovementioned theological authority that needs to do intensive analyses into religious beliefs, and as a Court that should be acting objectively, such a development would be highly undesirable.

67

Pearson, M., Article 9 at a Crossroads: Interference Before and After Eweida, Human Rights Law Review, Vol. 13:3, Oxford University Press 2013, p. 587 [online]

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1.6. New movements in the vaccination-debate

The decline in vaccination rates that is occurring in Western societies can also be attributed to a new movement of parents who think that vaccination is not as beneficial anymore as was always claimed.68 Coming from non-religious corners, a more specific definable group are anthroposophist parents. Outbreaks of diseases in the Netherlands preventable by vaccination do not only occur within the orthodox Protestant community and infectious diseases like measles linked to anthroposophist communities in The Hague have been identified as well.69 It has even been said that nowadays it is mainly the anthroposophist community that does not vaccinate their children, however, specific numbers are not provided and thus cannot be confirmed.70

In anthroposophy, diseases are seen as a natural and often necessary event in a child’s life. As some might see illnesses as suffering, anthroposophists consider it an opportunity for

development and maturation. Because of their belief in an eternal spirit, mankind goes through repeated earth lives and each life has something to teach. Therefore childhood diseases and their symptoms, such as fever or measles, are considered to be positive events that enable the child to incarnate in his or her physical body. According to the

anthroposophical beliefs, diseases help the child develop in a balanced way and children will gain psychical and mental robustness from natural infections when supported by the

appropriate care.71 Thus, vaccinating a child would deprive the child of an opportunity for assistance in the incarnation process and possess a risk for the child’s development and maturation. Where religious parents focus on religious arguments, anthroposophist parents focus on the spiritual health of their children in choosing for non-vaccination. However, according to some anthroposophists, vaccination is in principle not harmful when a child gets a spiritual upbringing. Even though children will not be vaccinated, with the correct

upbringing their incarnation process will likely not be disturbed nor will there be a risk for the

2015-08, August 2015, p. 2 [online]

69_{Van Binnendijk, R. et al, Measles outbreak in an anthroposophic community in The Hague, Eurosurveillance}

Issue 31, vol. 13, The Netherlands 2008 [online]

70_{Hakkenes, E., Vooral antroposofen enten kinderen niet in, de Trouw 03-08-13 [online via:} http://www.trouw.nl, accessed on 02-01-16]

71

Duffell, E., Attitudes of parents towards measles and immunization after a measles outbreak in an anthroposophical community, Journal of Epidemiol Community Health 2001, Vol. 55(9), p. 685 [online]

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child’s development. Besides, even though they consider going through diseases as beneficial for the development of the child, they do want to prevent severe diseases and death.72

Anthroposophist parents do not object to all vaccinations, but mostly refuse the MMR (measles, mumps and rubella) vaccination because they consider these diseases as being essential for the development of their child and because they believe that these are the least risky for children.73 Furthermore, they believe that every medicine, and thus vaccinations too, need to be individualized based on the personal characteristics of a person.74 Also, when vaccinations would become mandatory, anthroposophists would not only object to the aspect of the vaccinations not being personalized, but also to the aspect of losing their freedom to choose.75 Therefore, the rejection of vaccination in case of these parents is not absolute but relative.76 Because the anthroposophist belief emphasizes the free will and the freedom to choose whatever one might want, thus the freedom in choosing to vaccinate children or not, mandatory vaccination laws might be seen as indirectly violating their freedom to choose, and not necessarily their freedom to belief.77

It is possible that these parents will claim that mandatory vaccination laws are a violation of their freedom of their beliefs under Article 9. As is the case with Protestants, these parents have to show that their practice of objecting to vaccination is a practice protected by Article 9 in order to fall within its scope of protection. When applying the ‘necessity’ test, it is required that anthroposophist parents show that they were required to object to vaccinating children because of their belief. If parents want to argue that their objection is essential to their beliefs, than the practice of objecting to childhood vaccination must be very directly linked and intimately connected with their beliefs.78 These parents object to vaccination mostly because they dispute the medical consensus that vaccines are safe and effective and they believe that

73_{Woonink, F., Bezwaren tegen vaccinaties; Perspectief van de weigeraar, Rijksinstituut voor Volksgezondheid}

en Milieu 2010, p. 11

74_{Fijn, R. et al, Antroposofische farmacotherapie; Voor afleververantwoordelijkheid enig inzicht gewenst,}

Pharmaceutisch Weekblad 2001, nr. 136, p. 1266-1273

75_{Hoven, J. & Kappert, M., Deel 1 Vaccinatie, Feiten en Visies, in: Vaccinatie. Voorkomen beter dan genezen?!,}

s.n., 2013, . 14.

76

Woonink, F., Bezwaren tegen vaccinaties; Perspectief van de weigeraar, Rijksinstituut voor Volksgezondheid en Milieu 2010, p. 10

77_{Woonink, F., Bezwaren tegen vaccinaties; Perspectief van de weigeraar, Rijksinstituut voor Volksgezondheid}

en Milieu 2010, p. 10.

78

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some diseases, such as measles, could contribute to the growth of children.79 The level of seriousness of diseases and other medical and factual aspects (such as the risk of certain diseases, side-effects of vaccines etc.) form a large factor in their objections to vaccination.80 In my opinion, this leads to some questions. Do they really fear for the child’s spiritual development or do they object to injecting medicine that might develop physical side

effects?81 The fact that they do make a consideration based on the risk of a certain disease and its harmfulness leads to the suggestion that it is not just about the spiritual development of the child but also about psychical aspects. Besides, they would also object to mandatory

vaccination laws because they can no longer choose differently. Not the mandatory

vaccination laws but the loss of their free will be endangered. Is it merely the fact that they lose their freedom to choose in general? The necessity of showing that the act of objecting is closely linked with the belief will be difficult, because it is not necessarily the

anthroposophist belief that prescribes the duty to object to vaccination but merely gives the right to freely chose on how to handle vaccinations. The arguments coming forth from these vaccine-denying parents do seem to shift from one corner to another. Anthroposophists are known for turning their back on mainstream medicine and official epidemiological and medical research, and look for alternative ways of treating diseases.82 When they come to realize that one of their arguments against vaccination does not serve them anymore, they might look for another alternative way to justify their objections.83 This behaviour comes to show in the above approach: using medical and factual arguments, the spiritual development of children but also their free will as justifications for objecting to vaccination. These

arguments and ideas suggest that their practice of objecting to vaccination is not an essential part of their beliefs. Their belief does not prescribe them to object to vaccination, they simply argue their way towards objecting to vaccination based on their own free will and other medical-related arguments.

2015-08, August 2015, p. 3 [online]

80_{Harmsen, I. et al, Factors That Influence Vaccination Decision-Making by Parents Who Visit an}

Anthroposophical Child Welfare Center: A Focus Group Study, BMC Public Health 2015 [online]

81_{Harmsen, I. et al, Factors That Influence Vaccination Decision-Making by Parents Who Visit an}

Anthroposophical Child Welfare Center: A Focus Group Study, BMC Public Health 2015 [online]: A study on what factors influence vaccination decision making by parents who belief in the anthroposophical view of life. When looking at the results, most parents chose the risk perception of the disease as an influencing factor, mentioning that the perceived severity of the disease is important. However, this is only a study brought upon a certain number of anthroposophical parents and thus is not conclusive for all anthroposophical parents in general.

2015-08, August 2015, p. 3 [online]

83

Pierik, R., Mandatory Vaccination: an Unqualified Defense, Amsterdam Law School Research Paper No. 2015-08, August 2015, p. 3 [online]

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Whereas the practice might not be essential to their beliefs, it can nonetheless still fall within the ‘grey area’. Therefore, anthroposophist parents need to show that the objection to

vaccination is also an expression of a consistent religious pattern of behaviour that the group as a whole follows as well. But because anthroposophists put much weight upon the right to have their own free will, all anthroposophist parents have the opportunity to either object to vaccination, to suspend vaccinations to a later moment or to just vaccinate via ‘normal’ governmental vaccination programs.84 A consistent pattern of behaviour will be very hard to identify since objections to vaccination are a personal matter within their belief. Therefore, it will also be difficult for the Court to recognize such a consistent pattern. In the end it is the Court’s task to assess every claim on a case-by-case basis. Anthroposophist parents, just like Protestant parents, have the right to manifest their beliefs through certain practices. However, not every practice is protected. And based on the above context, it will be difficult for

anthroposophist parents to show that the practice of objecting to vaccination should be regarded as protected by Article 9. Also based on the assumption that the Court seems

reluctant to accept practices that are not as mainstream as other generally recognised forms of practices, it might be the case that in this instance the Court will be reluctant too.

84

Woonink, F., Bezwaren tegen vaccinaties; Perspectief van de weigeraar, Rijksinstituut voor Volksgezondheid en Milieu 2010, p. 10

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Chapter 2 – Limitations on Manifestations of Religion or Belief

2.1. Introduction

It is important for the applicant that the practice brought forward in their claim is a protected form of manifestation under Article 9. Once it can be shown that the issue falls within the scope of Article 9 it will be for the applicant to establish that there has been an ‘interference with his or her Article 9 rights.85 However, one must note that ‘interference’ is not the same as ‘violation’. The determination that there has been an interference with an individual’s rights only leads to further consideration under Article 9(2) as to whether this ‘interference’ was justified or not in the particular circumstances.86 ‘Interference’ normally involves the taking of a measure by a State.87 In the issue central to this paper, State authorities will be involved by making vaccination mandatory within their society. And such involvement might be followed by interference of rights and freedoms under Article 9. It is understandable that parents, who personally object to vaccinating, will feel that their freedom of thought, conscience and religion has been interfered with when a State decides to install a duty to vaccinate. Because of their religion or beliefs, they will have to obey rules that go against their personal ideas. These parents will even feel more limited in their rights if such

mandatory laws have further far-reaching consequences: for example the denial of children to day-care facilities. The Dutch government has not made childhood vaccination mandatory (yet). Nor is vaccination a requirement for admission to childcare facilities in the Netherlands. This is in contrast to other countries where some vaccinations are mandatory, like for example in Belgium and France. Although some countries do have mandatory vaccination programs, the first case has yet to come before the ECtHR regarding the freedom of religion and belief in this particular context.

As noted, paragraph 2 of Article 9 provides that a State may interfere with a manifestation of thought, conscience or religion in certain circumstances.88 When a State implements Article 9(2) it must balance out competing interests between the individual’s freedom to manifest a religion or belief and the legitimate interests of the State in ensuring that such manifestations

85_{Murdoch, J., Protecting the right to freedom, thought, conscience and religion under the European}

Convention on Human Rights, Council of Europe human rights handbooks 2012, p. 26 [online]

87_{J Murdoch, J., Protecting the right to freedom, thought, conscience and religion under the European}

88

Murdoch, J., Protecting the right to freedom, thought, conscience and religion under the European Convention on Human Rights, Council of Europe human rights handbooks 2012, p. 34 [online]

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are limited from unduly interfering in public health and order, morality and the rights and freedoms of others.89 For some people, the dictates of their religion or their beliefs are absolute in any way and they are determined to follow the rules regardless of the law or the consequences. However, the State does not have to respect all the decisions taken by such people and the State may even have a right or a duty to intervene in religious practices to ensure that they do not destroy the autonomy of others or threaten other aspects of the social order.90 With that being said, it is also clear that a State cannot invade important religious or conscientious practices for little or no reason at all. The sub-question of this chapter is thus

whether State interference of Article 9-rights through mandatory vaccination laws can be justified?

2.2. Limitation and suspension of rights and freedoms – Limitation clauses

The drafting of the limitations clause for Article 9 was highly controversial and the drafters rejected the notion that all the rights in the ECHR should be subject to the same limitations. The final draft of Article 9(2) seemed to have been the narrowest of all articles, consequently, this implies that the right to manifest a religion or belief is subject to lesser limitations than the other rights. However, the Court has tended to deal with Article 9(2) in a roughly similar way as the other limitations clauses so that there seems to be little difference in practice between the Articles.91

Once an ‘interference’ has been established, the State must show that such interference was justified. Interference cannot be justified unless it has a ‘legitimate aim’, is ‘prescribed by law’ and is ‘necessary in a democratic society’. With regard to the third criterion, the Court has stated that sometimes a certain margin of appreciation is left to the national authorities in assessing the existence of ‘necessity’, however, this margin goes hand in hand with European supervision and it is the Court’s task to determine whether the measures taken at national level were justified and proportionate.92 In the search for a ‘fair balance’ between the competing interests of the individual and of the community as a whole the Court uses an important interpretative tool: the principle of proportionality.93 Because of the fundamental value given to the freedom of religion in a democracy, the principle of proportionality might

89_{Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 133 [online]} 90

91_{Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 136 [online]}

92_{ECtHR 15-01-2013, 48420/10, 59842/10, 51671/10 and 36516/10 (Eweida and Others v UK), par. 84 [online]} 93

Christoffersen, J., Fair Balance: Proportionality, Subsidiarity and Primarity in the European Convention on Human Rights, Nijhoff 2009, p. 1

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render the margin of appreciation unnecessary or, when a margin is allowed, limit the national discretion of States.94

Legitimate aim

If the State authorities will pursue the idea of making vaccination mandatory, it must show that the interference covers one or more of the prescribed State interests listed in Article 9(2).95 It is the Court that will either accept or refuse the State’s assertion and to see whether or not the interference in question pursues a legitimate aim.96 In practice, the Court usually readily accepts the State’s assertion in saying that the interference has a legitimate aim.97 Some authors have argued that the Court is reluctant in testing the justifications and legitimate aim presented by a State. However, one can understand why the Court may adopt such an approach since it is often the State that will likely have a better understanding why a certain law has passed as legislation. Also, when the Court challenges a State’s course of action, it is in a way accusing the State of acting in bad faith.98 On the other hand, this approach also renders the position of the Court very weak since States will have more room in saying that the aim of the State involvement is legitimate without some form of constraint from the Court.99 The Court thus has to find a balance between giving States room in order to justify their actions but also in acting as an institution that protects the rights and freedoms of the ECHR and in ensuring that State action does not go too far.

In the case of a State interfering through mandatory vaccination laws, grounds for restricting manifestations of religion or belief can be found in two arguments that both reflect the protection of health and the rights and freedoms of others – namely those of children and other vulnerable persons. Some religious traditions do have certain practices that have the potential to cause physical or mental harm to participants – in this case children, and evenly important: outsiders. Such psychical harm can come from outbreaks of infectious diseases like the measles. Consequently, States might feel the need to make laws in order to protect these participants or third persons. When it comes to the latter, the legitimacy of laws that

94_{Arai-Takahashi, Y., The margin of appreciation doctrine and the principle of proportionality in the}

jurisprudence of the ECHR, Intersentia 2002, p. 95

96_{Evans, Freedom of Religion under the European Convention on Human Rights, 2001, p. 147 [online]} 97_{J. Murdoch, Protecting the right to freedom, though, conscience and religion under the ECHR, p. 35} 98

99