![\"\"](\"https:\/\/www.conservativewoman.co.uk\/wp-content\/uploads\/2020\/12\/vaccine.jpg\" "\\"vaccine\\"")
<\/div>\n<\/div>\nA French journal,\u00a0Revue Des Droits et Libert\u00e9s Fondamentaux,<\/em>\u00a0has\u00a0published<\/a>\u00a0a preliminary\u00a0legal\u00a0judgement on mandatory\u00a0vaccines.<\/strong>\u00a0\u00a0In summary, it argues that\u00a0French law technically bans the Covid vaccines without informed consent because they are experimental. We think this is of public interest and of relevance to the UK, where millions\u00a0have been vaccinated without informed consent,\u00a0and therefore have translated it to the best of our abilities.<\/strong><\/p>\n FOUR anti-Covid vaccines are currently authorised in France: the Moderna, the Pfizer & BioNTech (brand name), the AstraZeneca (brand name Vaxzevria) and the Johnson & Johnson (brand name Janssen).<\/p>\n Vaccination is the answer primarily chosen by the French authorities in response to the pandemic.\u00a0Faced with resistance from part of the population, the question of whether it should not be made compulsory for caregivers, or even for all French people, has entered the public debate.<\/p>\n In general, the vaccination obligation finds its basis in several international and national texts.\u00a0The International Covenant on Economic, Social and Cultural Rights of December 16, 1966, provides that in order to guarantee the right to individual health, States must take the necessary measures to ensure \u2018the prophylaxis and treatment of epidemic diseases\u2019.<\/p>\n In France, the minister responsible for health draws up the vaccination policy and the law that determines which vaccines are compulsory.\u00a0Eleven of them are for children. Health professionals and embalming workers are also subject to certain vaccination obligations, as are travellers who wish to visit Guyana.<\/p>\n It is, moreover, admitted that \u2018when a small number of deaths occur within the framework of a vaccination programme whose sole purpose is to protect the health of society by eliminating infectious diseases\u2019, this does not constitute an infringement of the right to life protected by the European Convention on Human Rights of November 4,\u00a01950.<\/p>\n Vaccination has enabled the eradication of smallpox, a 99 per cent reduction in polio cases between 1988 and 2016, a considerable reduction in cases of tetanus, measles and diphtheria, whooping cough, etc.<\/p>\n Conversely, the resurgence of certain lethal infectious diseases is linked to the reduction in vaccination coverage, which may justify making vaccines\u00a0compulsory.<\/p>\n In a recent case, the European Court of Human Rights appeared to give pledges to States wishing to impose this obligation in the fight against Covid-19.<\/p>\n In the\u00a0Vav\u0159i\u010dka judgment<\/a>\u00a0of April 8, 2021, it considered that while compulsory vaccination of children was an interference with privacy, it was necessary in a democratic society\u00a0in the name of social solidarity.<\/p>\n This judgment, together with the fact that the French government had intervened in the proceedings, was interpreted as an additional argument in favour of the obligation.\u00a0This was especially so since the\u00a0Constitutional Council<\/a>\u00a0had already refused in 2015 to declare contrary to the constitution the obligation of childhood vaccination against polio, diphtheria and tetanus.<\/p>\n The health crisis resulting from the Covid-19 pandemic could therefore justify making vaccination compulsory by law for public health reasons.<\/p>\n The exceptional nature of the circumstances should not, however, obscure that of the medical means used to stop it, namely the novel nature of the vaccine procedures used.<\/p>\n Thus, the marketing authorisation given to manufacturers under the accelerated procedure by the European Medicines Agency (EMA) is conditional.\u00a0According to the EMA<\/a>, this type of authorisation is issued \u2018on the basis of less complete data than is normally required\u2019 and assumes that the manufacturer undertakes to \u2018provide complete clinical data in the future\u2019.<\/p>\n The European public assessment reports (EPAR) submitted within the European Medicines Agency for Pfizer and Moderna indicate that pharmaceutical companies have yet to \u2018provide the results of the main trial, which continues for two years\u2019.<\/p>\n The marketing authorisation was granted to Pfizer on December 21, 2020 until December 2022. The \u2018final report of the clinical study\u2019 will be submitted in December 2023.<\/p>\n For Moderna, the authorisation was given on January 6, 2021 until January 2023. The \u2018final report of the clinical study\u2019 will be submitted in December 2022. The fact that this is a vaccination in the experimental phase can therefore not be in doubt.<\/p>\n For the other two vaccines, the marketing authorisation is also conditional.\u00a0The AstraZeneca vaccine was authorised on January 29, 2021 and the Johnson & Johnson vaccine on March 11, 2021. Companies that market them will have to continue to \u2018provide the results of clinical trials, which are ongoing\u2019.<\/p>\n For AstraZeneca, the \u2018final clinical study reports\u2019 are expected on May 31, 2022. Those for the Johnson & Johnson vaccine are expected on December 31, 2023.<\/p>\n The \u2018clinical trial\u2019 formula used by the European Agency is unequivocal.\u00a0This concept is defined by\u00a0Directive 2001\/20 \/ EC<\/a>\u00a0of the European Parliament and of the Council of April 4, 2001.<\/p>\n According to this text, a clinical trial is an \u2018investigation carried out in humans, in order to determine or confirm the clinical, pharmacological and \/ or other pharmacodynamic effects of one or more experimental drugs \u2026 with the aim of ensuring their safety and \/ or efficacy\u2019.<\/p>\n It should be noted, for example, that, apart from the uncertainties relating to their specific technique \u2013 mRNA or recombinant DNA\u00a0\u2013 \u2018no carcinogenicity study has been carried out\u2019 for the\u00a0Moderna<\/a>\u00a0vaccine\u00a0and \u2018no genotoxicity study or carcinogenicity has been achieved\u2019 for the\u00a0Pfizer<\/a>,\u00a0AstraZeneca<\/a>\u00a0and\u00a0Johnson & Johnson<\/a>\u00a0vaccines.<\/p>\n All of this information is sufficient to convince that the Covid-19 pandemic has led health authorities to authorise a large-scale vaccine experiment unprecedented in the history of medicine.<\/p>\n In times of emergency, nothing seems legally to oppose it, both in terms of individual health in order to protect vulnerable people and in terms of public health to avoid the saturation of hospital structures.<\/p>\n On the other hand, the experimental nature of vaccination invites the jurist to recontextualise its use, because in this matter, both domestic law and international law have historically constructed the notion of the subject\u2019s consent as a safeguard to prevent any drift.<\/p>\n Therefore, this principle of consent seems sufficiently well established to constitute an obstacle to compulsory vaccination as long as the clinical trial phases have not been completed.<\/p>\n In 1796, Doctor Edward Jenner inoculated an eight-year-old boy with pus taken from a dairymaid suffering from cowpox.\u00a0 The child developed mild fever, but when he was later injected with smallpox matter, it was found he was immune.<\/p>\n Faith in progress and the exaltation of scientific discoveries then incited experiments on \u2018vile bodies\u2019 considered of little value \u2013 prisoners, internees, slaves, natives, prostitutes.<\/p>\n In the 18th century, doctors carried out experiments on black slaves in the European colonies of the West Indies and North America.\u00a0Preventive inoculation of diseases such as smallpox was used on entire populations to attempt immunisation in the context of mass experimentation<\/p>\n In the 19th century, experiences multiplied.\u00a0Some doctors showed a high ethical conscience.\u00a0This is the case, in 1833, of an American military surgeon,\u00a0William Beaumont<\/a>, who carried out experiments on a patient suffering from a fistula in the stomach, but only after having sought his agreement and\u00a0having committed him to this end.<\/p>\n In 1856,\u00a0Claude Bernard<\/a>, in laying down the principles of the experimental method, recommended \u2018never to practise on a man an experiment which could only be harmful to him to any degree\u2019.<\/p>\n However on December 15, 1859, the criminal court of Lyon condemned for wilful injury two hospital doctors who voluntarily\u00a0inoculated syphilis<\/a>\u00a0into a ten-year-old boy who came to consult for a ringworm.\u00a0In 1884, Louis Pasteur himself wrote to the Emperor of Brazil asking for permission to infect Death Row inmates with cholera in order to try treatments on them.<\/p>\n The requirements of experimentation are therefore far from being immediately synonymous with ethics.\u00a0In 1892 in Germany, a physician director of a clinic was convicted of having injected syphilis into prostitutes and minors without their knowledge.<\/p>\n Following this affair, the German health services adopted on December 29, 1900 an\u00a0instruction<\/a>\u00a0to the directors of clinics, polyclinics and hospitals which imposed on them in terms of experimentation \u2018the clear consent\u2019 of the person concerned.<\/p>\n A French doctor, Pierre-Charles Bongrand, was the first to express the modern idea according to which the human subject \u2013 and not the doctor \u2013 is at the centre of the experimental device.<\/p>\n In 1905, in his\u00a0thesis for the doctorate in medicine<\/a>, he observed that, while being indispensable to medical progress, experiments on human beings were immoral, because they sacrificed the individual for the community.<\/p>\n This is why he proposed to establish an agreement between the experimenter and the subject based on \u2018prior consent\u2019. But the concept did not immediately translate into law and was first legally enshrined\u00a0by a decree of the French Supreme Court on 28 January 1942, stating that all doctors have a fundamental obligation towards the State to obtain their patients\u2019 consent.<\/p>\n As for medical research, it continued to be assumed that it was humanist simply because it aimed to improve the lot of the community.\u00a0\u2018The labour of men of genius, even when directed in the wrong direction, almost always ends up working to the full advantage of mankind,\u2019 wrote Mary Shelley in\u00a0Frankenstein<\/em>\u00a0in 1818.<\/p>\n The 20th century has, however, largely denied the presupposition of the humanist aims of all medical research.\u00a0Thus\u00a0Unit 731<\/a>, created by Imperial Japan in 1932, killed more than 10,000 prisoners used as human guinea pigs in the laboratory.<\/p>\n In August 1944, the Chief Medical Officer of the Japanese Army, Nakamura Hirosato, caused the death of 900 Indonesians after ordering the\u00a0experimental injection of a vaccine<\/a>\u00a0containing chemically modified tetanus toxin.<\/p>\n In Germany, neither the Hippocratic Oath, nor government directives in 1931 saying experimentation was prohibited \u2018in all cases where consent is lacking\u2019 were sufficient to prevent the most tragic medical abuses.<\/p>\n The Third Reich carried out large-scale experiments on deported Jews.\u00a0In the camps of Auschwitz, Buchenwald, Dachau and Natzwzeiler, Nazi doctors used human guinea pigs inoculated with pathogens such as typhus, yellow fever, smallpox, typhoid, cholera and diphtheria to search for vaccines or to develop treatments for immunity. In the aftermath of the Second World War, 20 doctors and three Nazi officials were accused of war crimes and crimes against humanity and tried in Nuremberg.<\/p>\n The subsequent judgment of the American Military Tribunal of 19 and 20 August 1947\u00a0on the crimes of the accused established a list of ten criteria known today as the\u00a0Nuremberg Code.\u00a0Among them is the principle of informed consent of the subject.<\/p>\n The defendants claimed that in times of war, the Hippocratic Oath no longer held and that the State could decide to make the interests of science take precedence over that of the individual for the benefit of the nation.<\/p>\n In response, the Nuremberg judges defined principles which should not depend on a determined legal consecration \u2013 that is, on the law of a particular State \u2013 but on universal medical ethics and even on international law.<\/p>\n This is why the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on December 16, 1966, in turn provides that \u2018it is forbidden to subject a person without their free consent to an experiment medical or scientific\u2019.<\/p>\n The crimes of the Nazi doctors led some to believe that it was just a monstrous accident of history. However, throughout the 20th century, other tragedies resulted from medical experiments without the agreement of the subjects.<\/p>\n Incidents in the US are instructive: The feeding of retarded children with radioactive cereals by researchers at\u00a0Fernald State School<\/a>, Massachusetts, in the 1940s and 1950s; false treatments administered to blacks with syphilis by the\u00a0Tuskegee<\/a>, Alabama,\u00a0Public Health Department\u00a0from 1932 to 1972; contamination of mentally handicapped children with hepatitis by two university doctors at Willowbrook State School in New York from 1956 to 1972.<\/p>\n Then there was the trial on 20,000 Americans of thalidomide, which was given on prescription by general practitioners in the late 1950s until 1961, and the injection of cancer cells into elderly and destitute patients at the Jewish Chronic Disease Hospital in Brooklyn in 1963.<\/p>\n These examples show that for some, the end can always justify the means.\u00a0This is why the World Medical Association, a non-governmental organisation of physicians created in 1947, adopted the Declaration of Helsinki in June 1964.<\/p>\n It is the first post-Nuremberg international text which returns to questions of ethics in experimentation.\u00a0It affirms that \u2018the participation of capable persons in medical research must be a voluntary act\u2019.<\/p>\n In France, the principles of the Nuremberg Code largely inspire the guarantees provided by law.\u00a0They were taken up by the National Consultative Ethics Committee in an opinion delivered in 1984 and by the Council of State\u2019s report on life sciences, ethics and law in 1988.<\/p>\n However, it was the law of December 20, 1988, known\u00a0as the Huriet-S\u00e9rusclat law<\/a>, which for the first time provided for specific permission for medical tests on healthy volunteers \u2013 until then prohibited \u2013 while recalling the need of\u00a0\u00a0\u2018free, informed and express consent\u2019.<\/p>\n \u201d\u00a0[39]<\/a>\u00a0. Medical research, including when it has a therapeutic purpose, is currently governed by the law of March 5, 2012, known as the Jard\u00e9\u00a0law.<\/p>\n According to the Public Health Code, no intervention research can be carried out on someone \u2018without their free and informed consent obtained in writing, after having been given the information provided\u2019.<\/p>\n Interventional research is that which \u2018includes an intervention on the person not justified by his usual care\u2019 \u2013 that is to say, an intervention not without risk for those who participate in it.\u00a0This includes research on drugs, but also cell therapy or gene therapy as recalled by\u00a0INSERM<\/a>, the French public health research organisation.<\/p>\n Both by their nature and by their experimental methodology, the four anti-Covid vaccines appear to fall into this category.\u00a0As for prior information, it must include in particular \u2018foreseeable risks\u2019 and \u2018possible medical alternatives\u2019.<\/p>\n This intervention research requires a favourable opinion from a regional body, the Committee for the Protection of Persons (CPP), which depends on the Regional Health Agency (ARS), followed by authorisation by the National Security Agency of the Medicines and health products (ANSM).<\/p>\n In principle, failure to obtain this consent is punishable by three years in prison and a fine of 45,000 euros under the Penal Code. Nevertheless, the rollout of the anti-Covid vaccine led to French health authorities relinquishing the issue to the European Medicines Agency on the basis of\u00a0Regulation (EC) n \u00b0 726\/2004<\/a>\u00a0of March 31, 2004.<\/p>\n With regard to concerns about\u00a0\u2018medicinal products for human use containing a new active substance\u2019, in particular for the treatment of viral diseases, this regulation\u00a0provides for a centralised authorisation procedure at European level.\u00a0In other words, these medicines\u00a0must receive an authorisation from the European Medicines Agency valid for all EU member states.<\/p>\n This relinquishment then precludes a possible action before a French judge for non-compliance with the opinion and authorisation procedure in domestic law, since under the pressure of the circumstances, this has been replaced by a European procedure.\u00a0On the other hand, it does not in any way dispense with the obligation to obtain the consent of the persons.<\/p>\n Within the Council of Europe,\u00a0Recommendation No.R (90) 3<\/a>\u00a0of the Committee of Ministers on medical research on human beings, adopted on February 6, 1990, sets out a number of principles.<\/p>\n According to the third, \u2018no medical research can be carried out without the informed, free, express and specific consent of the person who lends itself to it\u2019 and, according to the 13th, \u2018persons likely to be the subject of medical research must not be induced to submit to it in a way that compromises their free consent\u2019.<\/p>\n This text, if it represents a political and ethical commitment, has no binding legal value.\u00a0On the other hand, the regulation (EC) of March 31, 2004 provides in a binding way within the European Union the respect of certain ethical requirements during the conduct of clinical trials of medicinal products authorised at European level (Point 16).<\/p>\n Directive 2001\/20 \/ EC<\/a>\u00a0of April 4, 2001, explicitly refers to the Declaration of Helsinki and also provides for informed consent (art. 3).\u00a0Finally, the European Court of Human Rights had the opportunity to rule in 2002 that the imposition of treatment without the patient\u2019s consent is \u2018an attack on the physical integrity of the person concerned\u2019\u00a0and that \u2018compulsory vaccinations as involuntary medical treatments constitute an interference with the right to respect for private life\u2019.<\/p>\n One question remains: Does this principle apply when the experiment consists of a vaccine?\u00a0The answer is yes, because the directive of April 4, 2001, covers medicinal products as they are defined by another text,\u00a0Directive 65\/65 \/ EEC<\/a>\u00a0of January 26, 1965.<\/p>\n According to this\u00a0directive<\/a>, a medicinal product is \u2018any substance or composition presented as having curative or preventive properties with regard to human or animal diseases.<\/p>\n \u2018Any substance or composition which can be administered to humans or animals with a view to establishing a medical diagnosis or to restoring, correcting or modifying organic functions in humans or animals is also considered to be medicinal.\u2019<\/p>\n Anti-Covid vaccines undoubtedly meet this definition.\u00a0Insofar as they are still in the experimental phase, they are subject to the ethical principles imposed by the 2004 regulation. The rule of free and informed consent to an experiment is therefore well established in French law as well as in European Union law. In that case, it was about vaccines long tested, which only arouse marginal disputes among radical opponents of any vaccination.<\/p>\n It is quite different with anti-Covid vaccines.\u00a0As these are, by the European Medicines Agency\u2019s own admission, in the clinical trial phase, it seems difficult to impose them given the existing legal guarantees.<\/p>\n An obligation to vaccinate in a context of experimentation would run the risk of encountering the sanction of a judge, especially since French law is based on the principle of the inviolability of the human body.<\/p>\n This prohibition is expressed in the adage\u00a0Noli me tangere<\/em>\u00a0(\u2018do not touch me\u2019), taken from the words of the risen Christ to Mary Magdalene\u00a0\u00a0and reflecting the sacred character of the body.<\/p>\n If this principle of inviolability has not received constitutional consecration, it nevertheless crosses our entire legal system and is covered by the \u2018safeguard of the dignity of the person\u2019, a broader concept that the Constitutional Council has elevated to the rank of principle.<\/p>\n It is common to say that medical experimentation benefits the entire human species, although it may be exercised to the possible detriment of those who expose themselves to its risks. In other words, the benefit expected by the greatest number would be well worth the danger incurred by a few.<\/p>\n However, medical experimentation on human beings cannot be reduced to an equation which would make it as obvious as a benefit \/ disadvantage calculation.\u00a0Indeed, such reasoning postulates its disinterested purpose while avoiding its economic, political and social determinants.<\/p>\n In the Vav\u0159i\u010dka case, Judge Wojtyczek observed in a\u00a0dissenting opinion<\/a>\u00a0\u2018that no evidence has been submitted to the court to show that the States which have implemented the vaccination obligation obtain better results in terms of public health than the States which have not introduced this obligation\u2019.\u00a0The remark is crucial and fraught with implications.<\/p>\n We must in fact beware of an idealised vision of scientific rationality which would lead to disregarding the issues of power, financial interests and the institutional strategies which condition it.<\/p>\n Medical research has its own logic of deployment, which is not necessarily humanist and which can be subject to the quest for profit, as the French court case over the weight-loss drug Mediator\u00a0recently recalled<\/a>.<\/p>\n It is a fact, moreover, that pure rationality escapes all moral norms and threatens to turn against itself, as the German philosopher and sociologist Max Horkheimer has shown.\u00a0A marker of civilisation can then be transformed into \u2018regressive progress\u2019, according to Theodor Adorno\u2019s theory of the effects of capitalism\u00a0https:\/\/iep.utm.edu\/adorno\/<\/a>\u00a0on individuals.<\/p>\n If the idea of scientific neutrality is an illusion, the mere use of the term \u2018ethics\u2019 in legal texts is not enough to guarantee its harmlessness.<\/p>\n Even when research is strictly framed by law, the principle of free consent often seems fragile in the asymmetrical relationship between medical authority and the subject.\u00a0It is difficult to see, moreover, how consent could be completely \u2018informed\u2019 in the presence of an unknown risk and a complex vaccination technique.<\/p>\n
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\n.While the Vav\u0159i\u010dka\u00a0\u00a0judgment by the European Court does not preclude the anti-Covid vaccination obligation, it does not make it plausible or legally acceptable.<\/p>\n