The global fervor to develop and deliver a vaccine to protect people against COVID-19, the disease caused by SARS-CoV-2, has been extraordinary. COVID-19 vaccine development has been pursued at an unprecedented speed and scale; following the Emergency Use Authorization (EUA) of COVID-19 vaccines, rapid mass vaccination deployment efforts commenced in all earnest. This fervor to get a needle into every arm has now led to the European Commission president calling on the EU’s 27 member states to consider mandatory vaccination across Europe. With an intensification in COVID-19 vaccine hesitancy and many refusing to be vaccinated, an important question that arises is whether obligatory COVID-19 vaccination policies are ethical and legal in terms of international human rights norms and standards. Article 4(2) of the International Covenant on Civil and Political Rights which was ratified by 193 States Parties worldwide enumerates a specific list of human rights from which no derogation is allowed even in times of a public emergency. Included in this list of non-derogable rights is a sub-category of internationally recognized human rights known as “physical integrity rights” that includes the right to be free from medical or scientific experimentation. International human rights law is unambiguous that all people should be afforded their non-derogable fundamental human right to free and informed consent. Normative ethical perspectives and legal obligations erga omnes dictate that States Parties should not make COVID-19 vaccination mandatory in breach of International Human Rights Law relating to non-derogable rights that are regarded as core human rights, jus cogens. A bioethics perspective, rooted in fundamental human rights, should play a crucial role in the COVID-19 pandemic.

Recent events across the globe have again brought the world’s attention to the com- plex interrelationship between States of Emergency and the protection of fundamental human rights. South Africa was the first African country to declare a national state of emergency. As part of its emergency response to the Covid-19 pandemic, South Africa’s Health Minister in April 2021 announced the launch of its mass vaccination campaign against Covid-19. Derogation provisions in the International Covenant on Civil and Polit- ical Rights allow for States Parties to lawfully suspend human rights guarantees to respond to an emergency “that threatens the life of the nation” To decide on both the presence of such an emergency and the nature and scope of derogations necessary to avert it, author- ities have a wide margin of appreciation. Derogation from rights recognized under inter- national human rights law to respond to “a threat to the life of the nation” is, however, not exercised in a legal vacuum. It is authorized by law, and as such, it is subject to sev- eral legal principles and standards. An emergency that threatens the life of the nation must imperil fundamental elements of statehood or the survival of the population. No State party has the right to violate citizens’ right to life and the right to be free from torture, cruel, inhumane, or degrading treatment, and the right to be free from medical experi- mentation without free consent. These jus cogens norms are not derogable under any cir- cumstances, even for the stated purpose of safeguarding the life of the nation during a pub- lic health emergency.

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Even though COVID-19 has an extremely low crude mortality rate among children, drastic measures to combat the disease significantly infringed the fundamental human rights of millions of children to education and protection. This article examines whether COVID-19-related school closures and the suspension of necessary measures of protection for special needs and vulnerable children were justifiable derogations from covenant obligations and international human rights law. The researcher assessed relevant treaty and covenant obligations of state parties and affirms what international human rights law determines regarding the justifiable limitation of human rights. The article centers on whether the regulations to combat the COVID-19 pandemic are inter alia legitimate, adequate, necessary and proportionate stricto sensu. It argues that the limitation of fundamental human rights must achieve benefits that are proportional to the cost of the limitation, and that the infringement will not be considered proportional if there are less restrictive but equally effective means to achieve the same purpose. Ultimately, it highlights that education and the necessary measures of protection for all children – but specifically those children with special needs and children belonging to vulnerable groups – should be one of the highest priorities in any national strategy to reopen society.

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