LETTER TO THE ATTORNEY GENERAL OF BARBADOS- LEGAL & SCIENTIFIC OPPOSITION TO EMPLOYER MANDATE
To: The Hon Attorney General Marshall
Re: Upcoming Deliberations of Social Partners- Vaccinate or Test Mandate
I. Introduction- The need for nuanced analysis
The following represents a summary of my research re the science of the experimental Covid 19 vaccine and the legality of the proposed vaccinate or test mandate for Barbados employees.
This summary was initially prepared in rebuttal to QC Hal Gollop’s quote in the NationNews that, “Bosses can fire workers who refuse vaccination.”
In response to my email re the science, Mr Gollop wrote the following:
“The scientific considerations which you raise never formed part of any thesis put forward by me. My simple view as expressed was this… if in the scheme of things it can be shown that an unvaccinated worker will pose a workplace hazard to an employer in that he is unable to satisfy his primary obligation to provide a safe system of work, then the employer may dismiss that worker. The efficacy of vaccination and whether it is experimental or not are outside the realm of my competence.”
In response to my legal arguments, Mr Gollop countered as follows:
“I have just started to read your well researched and argued thesis. I must however point out that our Constitutions in the Commonwealth Caribbean with very few exceptions do not permit for public law rights to be enforced in private law situations. The Barbados constitution sets up judicial review as a parastatal doctrine and we do not have the body of anti discrimination laws to fill the gap.
Only this evening I was put in possession of a well written article by Professor Rosemary Antoine which sets out the arguments presented by the Public Law / Private Law dichotomy.”
According to Mr Gollop’s explication, which I agree with (if I am interpreting it correctly), lawful termination requires a showing, “in the scheme of things,” that an unvaccinated employee poses an unreasonable and unmitigable hazard (absent a vaccinate or test mandate) in the workplace.
While it is tautological if an employer has an obligation to provide a safe system of work and an employee poses a workplace hazard to that system, then the employer has a duty to mitigate the hazard. My exception to Mr Gollop’s press statement, is that it omitted his subsequent caveat - that an employer can only terminate with a showing that in the “scheme of things,” termination was reasonable.
Even though the efficacy of vaccination and whether it is experimental is outside Mr Gollop’s realm of competence, efficacy and safety are material considerations to any “showing” that termination by a private employer is reasonable under the Barbados Employment Rights Act (ERA). Therefore, in the absence of Mr Gollop’s caveat, his press statement creates the misperception there is a bright line rule, rather than the necessity for nuanced analysis.
II. The Science
Pursuant to that analysis, the European Centre for Disease Prevention & Control (ECDC) just released a study in Eurosurveillance which concluded that the risk of death following the AstraZeneca injection was double the risk of death from Covid 19, in anyone under 40. (See Eurosurveillance Jul 2021, “Balance of risks and benefits associated to the use of Vaxzevria”).
https://www.eurosurveillance.org/content/10.2807/1560-7917.ES.2021.26.26.2100533
The Australian Technical Advisory Group on Immunization (ATAGI) also revoked its preferential recommendation of AstraZeneca, for anyone between the ages of 50-59, based on its most recent findings of a 42% increase in risk of Thrombocytopenia Syndrome (TTS).
With respect to Sinopharm’s BIBP clinical trials, according to The Conversation, 21 June 2021, (Founding Partners: State University of New York, Boston University, University of California, University of Massachusetts Amherst, University of Michigan, The Ohio State University, Penn State, Rutgers University Tufts University , and Vanderbilt University):
1) The very low numbers of adverse events identified overall in Sinopharm’s study, suggests substantial under-reporting.
2) Few elderly people with underlying health issues were enrolled into these studies.
Sinopharm Field Trials:
1) Increases in infections in some countries where these vaccines have been extensively used, but detailed reports are not available. For example, Seychelles has fully vaccinated 68% of its population, mostly with Sinopharm and the remainder with AstraZeneca, yet Seychelles has recently experienced a surge in cases. Detailed epidemiological studies are required to investigate this, but news reports suggest 20% of those hospitalised and 37% of new active cases are fully vaccinated.
2) In Mongolia, the rapid vaccine rollout of four different vaccines, including Sinopharm, suggests initial good effectiveness but a recent increase in cases suggests short-term protection only, and perhaps little effect on transmission.
3) It is critical that researchers and health authorities determine vaccine effectiveness against variants, their effect on transmission, and their safety profiles, yet there’s currently no data on how effective Sinopharm is against any variant of concern despite its use in more than 50 countries.
According to WHO:
“There is currently no substantive data available related to the impact of COVID-19 vaccine BIBP on transmission of SARS-CoV-2, the virus that causes COVID-19 disease.”
Additionally, there is limited data supporting the default position, that although Sinopharm neither stops transmission or infection it mitigates illness. This argument is problematic because for the vast majority of those who are at risk for severe illness or death, there is no science that Sinopharm’s BIBP has any ameliorating effect.
“Analysis of efficacy amongst participants with comorbidities limited by the low number of participants with comorbidities (other than obesity) in the Phase 3 trial…Analysis of safety amongst participants with comorbidities limited by the low number of participants with comorbidities (other than obesity) in the Phase 3 trial”
Therefore, is it reasonable to force employees to choose between their livelihood and the potential risk of injury from an experimental vaccine, that neither stops transmission or infection, nor provides evidence it ameliorates severe symptoms in those most at risk?
Also, what consideration should be given to the emerging data from Public Health England (PHE) that there were 117 deaths among 92,000 Delta cases logged through June 21; fifty of those—46%—had received two shots of vaccine (see Table 4, pp.13-14).
The Pfizer vaccine, purportedly more effective than AstraZeneca or Sinopharm, also paints a picture of protection that gets weaker as months pass after vaccination, due to fading immunity. People vaccinated in January were said to have just 16% protection against infection now, while in those vaccinated in April, effectiveness was at 75%...and per the International Federation of Red Cross most of the hospitalized patients in Israel at present are vaccinated...and around 40% of the new confirmed cases, are persons with 2 Pfizer vaccines.
https://go.ifrc.org/emergencies/4035#details
In response to the PHE and the Israeli data, the Biden Administration last week walked back its claim, that 99% of hospitalizations were in the unvaccinated. According to NBC News, the “Administration is struggling in recent days with how to respond to a rising number of Covid-19 infections and hospitalization among those who are fully vaccinated.”
https://www.google.com/amp/s/www.nbcnews.com/news/amp/ncna1275012
The necessity for this reassessment has now been confirmed by multiple sources:
“Michael Osterholm, director of the Center for Infectious Disease Research at the University of Minnesota who advised the Biden transition, said he is particularly concerned about the increasing number of instances he is hearing about where groups of vaccinated individuals are becoming infected.
In one cluster of more than 200 cases in Provincetown, Massachusetts, 69 percent of the Covid positive cases since July 1 have been among vaccinated individuals, Town Manager Alex Morse said in an MSNBC interview.”
https://boston.cbslocal.com/2021/07/24/provincetown-covid-cluster-cases-delta-variant/
“Of Singapore's 1,096 locally transmitted infections in the last 28 days, 484, or about 44%, were in fully vaccinated people, while 30% were partially vaccinated and just over 25% were unvaccinated. The Singapore data also showed that infections in the last 14 days among vaccinated people older than 61 stood at about 88%.”
Even though the numerosity of breakthrough cases is now acknowledged, it is presently being reported that the vaccinated (who are as susceptible to delta as the unvaccinated) have less severe illness and death.
The veracity of this claim however is contravened by the CDC and by Genomic Epidemiology, Jul 7, 2021.
“Detailed analysis of the spread of cases show that people infected with Delta carry enormous amounts of virus in their nose and throat, regardless of vaccination status, according to the CDC.”
“The viral loads in the Delta infections were ~1000 times higher than those in the earlier 19A/19B strain infections on the day when viruses were firstly detected.”
Given distribution of delta infections are evenly divided between the vaccinated and the unvaccinated, it is not surprising that the vaccinated represent about half of hospitalizations and deaths, especially in light of delta’s high viral loads.
“About half of the 46 patients presently hospitalized in Israel in severe condition are vaccinated, and the majority are from risk groups, according to the health authorities.”
In fact, according to ZOE (Kings College, London), Public Health England’s data of 29 July 2021, shows that the vaccinated now represent the majority of new cases.
https://covid.joinzoe.com/post/uk-cases-stop-rising
III. Herd immunity, and its a priori that the unvaccinated put the vaccinated at risk, is no longer justified by the science.
“Walter A. Orenstein, associate director of the Emory Vaccine Center, said he was struck by data showing that vaccinated people who became infected with delta shed just as much virus as those who were not vaccinated.”
“We're now dealing with different variants which will continue to emerge and transmit in vaccinated populations. So, I think we should forget herd immunity. It's the wrong concept because of the variants. The virus will find ways of transmitting in immune populations” (Prof. Andrew Pollard, Director
Oxford Vaccine Group and Chief Investigator, Oxford Vaccine Trial).
“I think the central issue is that vaccinated people are probably involved to a substantial extent in the transmission of delta,” Jeffrey Shaman, a Columbia University epidemiologist, wrote in an email after reviewing the CDC slides. “In some sense, vaccination is now about personal protection — protecting oneself against severe disease. Herd immunity is not relevant as we are seeing plenty of evidence of repeat and breakthrough infections.”
Herd immunity, once the principal justification for vaccinating as many as possible, is now definitively beyond reach. This is based not only on the conclusions of AstraZeneca Trial Director Pollard, but on an emerging consensus, typified by Jeffrey Shaman and Walter A. Orenstein. Therefore, assuming the veracity of these expert’s conclusions, would it be reasonable for an employer to fire anyone, based on a vaccinate or test mandate, that neither stops transmission nor infection in the workplace, nor provides any benefit to the herd?
In the recent case, Vavřička and others v. Czech Republic (2021) ECHR 116 (Vavricka), which Professor Rose- Marie Belle Antoine stated was precedent for Barbados, the court held a preschooler’s parent could be fined for vaccine refusal explicitly because it jeopardized the herd. Conversely, without any showing the herd is endangered by the unvaccinated, to any extent greater than that of the vaccinated, would it still be possible to maintain that termination can be lawfully supported due to the necessity for herd immunity?
IV. Barbados Labor Law
In response to Mr Gollop’s position that “under our legal framework there is no place for arguments based on human rights violation in the private law sphere,” I reference Professor Antoine’s, Mandatory covid19 vaccines: public health vs individual freedom, June 13, 2021 (Commentary), which work was cited by Mr Gollop as authoritative.
Even if the state is unwilling or unable to enforce its treaty obligations, other principles of law, such as administrative and labour law will be pertinent” ... The real issue is whether such a requirement for mandatory vaccination would be reasonable…
…Caribbean constitutions have different formulae for laws that limit rights, but a common denominator, whether specifically stated, or through elucidation by case-law is reasonableness.”
EMPLOYMENT RIGHTS ACT, 2012 – 9
The right not to be unfairly dismissed
27. (1) An employee has the right not to be unfairly dismissed by his employer.
(4) (1) the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether
(a) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee;
https://labour.gov.bb/wp-content/uploads/PDF/Employment-Rights-Act-2012-9-Corrected-Copy.pdf
Any adjudication of the reasonableness of a vaccinate or test mandate requires consideration of both law and facts. Therefore, without due process that considers the efficacy and the experimental nature of the vaccine (which goes to the gravamen of any mandate), no summary determination of reasonableness is possible.
Even if you refute the data as set forth above by the ECDC inter alia, according to Prof. Antoine’s Commentary, Mr Gollop’s press statement needs to be more nuanced than, “Bosses can fire workers who refuse vaccination”:
“Yet, penalties for failure to meet mandatory requirements might be nuanced in this context. Would it be fair to terminate such an employee, or is it more reasonable for alternative arrangements to be imposed, such as strict safety requirements (PPE e.g.), isolation, home-work arrangements etc so as to retain humanity in the work-sphere?”
I would argue that even Prof Antoine’s more nuanced position, which relies on Vavřička’s justification for mandating a traditional vaccine, is not relevant to an experimental vaccine.
In order to cite Vavřička’s holding in support of an employee’s termination, an employer would need a show an experimental vaccine:
1) has completed clinical trials
2) is not experimental
3) is demonstrably safe and effective vs may be safe and effective
4) stops transmission and infection vs reduction of symptoms only
5) is necessitated by herd immunity and thus the unvaccinated put others at risk.
Because (1) – (5) above are not scientifically valid propositions, an employee’s refusal of an experimental vaccine would be an insufficient reason for dismissal.
In addition, should not a due process hearing take into consideration the questions raised by Barbados Attorney Michelle Russell? These include:
1)Would a demand that unvaccinated but not vaccinated employees be tested, constitute a violation of Sec. 6 of the Employment (Prevention of Discrimination) Act, 2020?
2) Would termination based upon a unilateral and material change of contract constitute an unfair dismissal, under Sec. 31 of the Employment Rights Act?
3) Would the minimum wage laws potentially be triggered by the requirement an employee pay for the experimental test, as an employer-imposed condition of continued employment?
4) Would an employer’s failure to assume liability for the foreseeable costs of vaccine injury, arising out from an employer mandate be reasonable? If the employer’s assumption of liability is left unstated, could a coercive policy, forcing an employee to choose between employment and a cost prohibitive test be actionable, as an intentional infliction of emotional distress?
Also, in light of the Employment Rights Act, Contravention of Right, Sec. 30.1, what weight should be given to an employee’s religious objection to coerced medical experimentation? According to Prof. Antoine in her Commentary, even in the context of traditional approved vaccines, religious objections are meritorious.
“In assessing reasonableness, whether in relation to the private sector or the state, there must also be legitimate exemptions. Religious objection is relevant.”
Contravention of the right
30. (1) A dismissal of an employee contravenes the right conferred on him by section 27 where
(c) the reason for the dismissal is
ix) that the employee refused to carry out an unlawful instruction given him by the employer;
xi) a reason that relates to
-
the race, colour, gender, age, marital status, religion, political opinion or affiliation, national extraction, social origin or indigenous origin of the employee;
Thus, according to the ERA, an Employment Rights Tribunal would be required to determine whether a specific employer’s actions were reasonable in the scheme of things, pursuant to ERA 27 (4)(1). This would also include consideration of an employee’s contravention of right objections, as set forth in 30(1)(c) (xi).
V. Toward Defining the Standard of Reasonableness in the Barbados Labor Code:
Accepting Mr Gollop’s argument that Barbados signed and ratified the International Covenant on Civil and Political Rights (ICCPR), yet has no obligation to enforce it, an employer (according to Prof. Antoine) is still confronted with employment rights and the requirement (as set forth above in the ERA) that termination be reasonable. Per Prof. Antoine, the requirement that employers show termination was reasonable, should include consideration of Barbados’s treaty obligations and the legitimate expectations thereby created.
“The legal sources of law in the Commonwealth Caribbean are (a) the Constitution; (b) legislation; (c) the common law and judicial precedent; (d) custom; (e) international law, including the law of regional treaties; and (f) equity. Of the six named sources, international law is not traditionally known as a source of law but it has become increasingly more important as a point of origin which gives law in Commonwealth Caribbean jurisdictions validity and authority. This is so particularly in relation to labour law and the law of human rights (Law & Legal Systems 2nd Ed., Rose- Marie Belle Antoine).
Thus, the following doctrines, aims and obligations (which Prof. Antoine presents in Law & Legal Systems 2nd Ed.) are not referenced herein to determine the constitutionality of an employer’s actions, which analysis Mr Gollop claims irrelevant, but rather for the specific purpose of determining whether an employer’s firing would be found reasonable under Barbados’ Employment Rights Act (ERA).
As a starting point, if we look to Vavřička to establish “reasonable” limits on an employer’s actions, there can be no question, non-consensual vaccination is an interference with individual liberty.
263. The [ECHR]Court has established in its case-law that compulsory vaccination (even with approved vaccines), is an involuntary medical intervention and represents an interference with the right to respect private life within the meaning of Article 8 of the Convention (see Solomakhin v. Ukraine (no. 24429/03, § 33, 15 March 2012, with further references).
Therefore, in order to justify interfering with an employee’s liberty under the ERA, would not an employer need to present evidence that the safety and effectiveness of the vaccine, reasonably supported a vaccinate or test mandate?
With respect to the AstraZeneca and Sinopharm vaccines, neither are formulated on traditional vaccine platforms. Both are experimental and unapproved, with only Phase III interim clinical trial data reporting. AstraZeneca’s estimated study completion date is 14 February 2023. Sinopharm’s interim study is scheduled to complete 1 December, 2021.
https://clinicaltrials.gov/ct2/show/NCT04560881?term=Bibp&draw=2&rank=2
Until such time as either AstraZeneca or Sinopharm are shown effective against transmission and infection, they should be referred to as investigational drugs.
Per the CDC’s Definition of Terms, only those products that confer immunity to Covid 19, can be referred to as “vaccines.”
Vaccine: A product that stimulates a person’s immune system to produce immunity to a specific disease, protecting the person from that disease.
Immunity: Protection from an infectious disease. If you are immune to a disease, you can be exposed to it without becoming infected.
https://www.cdc.gov/vaccines/vac-gen/imz-basics.htm#terms
Given the above CDC definition, neither AstraZeneca nor Sinopharm should be properly classified as vaccines. Both have been authorized by WHO, pursuant to an Emergency Use Listing (EUL) only. Even this de-minimis standard of “may be safe and effective” was compromised by the failure of the manufacturers to perform animal testing and by the decision to conduct all 3 phases of the clinical trials concurrently.
Now, after less than 1-year, interim data, is being used to justify the global deployment of these experimental vaccines - even though traditional vaccines have an overall failure rate of 60.4%, based on far longer study periods of 10-15 years.
https://www.historyofvaccines.org/content/articles/vaccine-development-testing-and-regulation
https://hdsr.mitpress.mit.edu/pub/pnp0pr4j/release/1
The Institute of Genetics also reports that the safety data excludes any study of tumor production or mutagenesis despite these possibilities.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8168329/
In short, without benefit of a dispositive study on the fate of CRISPR generated foreign DNA in mammalian cells, its possible integration into the host genome and the potential consequences for the transgenomic cells, no Social Partner can reasonably know the medium and long-term sequelae of this unprecedented experiment on the population of Barbados.
VI. Is it reasonable to depend on the preliminary safety and efficacy data as reported by the regulators?
In weighing the pharmaceutical industry’s putative peer review data, it would be relevant to consider the pharmaceutical industry’s long and sordid history of deceiving regulators, falsifying data and placing the public at risk.
Since its inception in 1999, AstraZeneca’s pattern and practice of fraud and misrepresentation is evidenced by over 1 billion in fines. These fines, relative to the profits generated, amount to a slap on the wrist. AstraZeneca’s recidivism plainly evidences the inability of pharmaceutical regulators to end AstraZeneca’s ongoing crimes.
This regulatory failure is not isolated to AstraZeneca but is industry wide. Pfizer, for example, during this same period accrued 4 billion in civil & criminal fines. Thus, it is evident, no matter what crimes Pfizer and AstraZeneca commit, they will be allowed to continue undeterred, in their pattern and practice of placing the health of millions at risk.
On what basis then, is it reasonable for the Government of Barbados, the Social Partners, or any labor tribunal to rely upon AstraZeneca’s data to support the proposition that their experimental vaccines are safe and effective? (See AstraZeneca and Pfizer’s rap sheet).
The Chinese pharmaceutical company Sinopharm appears to be no better, given their purported history of kickbacks, inflated drug pricing and fraud. (See the Washington Post “Corruption in China’s pharmaceutical industry is a long-running scourge”).
https://violationtracker.goodjobsfirst.org/prog.php?parent=astrazeneca
https://violationtracker.goodjobsfirst.org/parent/pfizer
http://www.pmlive.com/pharma_news/sinopharm_executives_face_corruption_probe_in_china_533663
VII. Reasonableness based on Proportionality, Expectations, Aims & Obligations
293. While vaccination is a legal duty in the respondent State, the Court reiterates that compliance with it cannot be directly imposed, in the sense that there is no provision allowing for vaccination to be forcibly administered. In common with the arrangements made in the intervening States, the duty is enforced indirectly through the application of sanctions. In the Czech Republic, the sanction can be regarded as relatively moderate, consisting of an administrative fine that may only be imposed once (Vavřička).
[Vavricka’s holding is consistent with Jacobson v Massachusetts in which the US Supreme Court upheld a $5 fine for refusal to take an approved, non-experimental vaccine. (https://supreme.justia.com/cases/federal/us/197/11/)]
If we apply Prof. Antoine’s analysis of proportionality, legitimate expectations, aims and obligations (Law & Legal Systems, 2nd Ed.) to the reasonableness of mandating an experimental vaccine (vs. a traditional vaccine as in Vavřička and Jacobson), what then is the proper measure of an employee’s liberty that can be reasonably interfered with, in the name of an uncertain public health benefit?
In this context, also consider Prof Antoine’s Commentary in which she states Vavřička is precedent in Barbados. If so, Vavřička then establishes the upper limit of permissible interference with liberty for an approved vaccine.
Since the approved vaccines referenced in Vavřička are not legally equivalent to those that are unapproved, the interference permitted for an experimental vaccine should be less than that for an approved vaccine. If we follow Antoine’s logic, only some lesser proportion of human liberty can then be quashed for the putative health benefits of an unapproved medical experiment. Thus, in order to establish that proportion of an employee’s liberty that can be reasonably quashed with respect to the present matter, we should consider the following factors as expounded by Prof. Antoine.
[All italics below are quotes from Law & Legal Systems 2nd Ed., Prof. Antoine, unless otherwise cited].
Legitimate Expectation Doctrine:
In Joseph and Boyce, the CCJ was attracted to the Australian precedent of Teoh in which the court found that while unincorporated treaties were not directly enforceable, citizens had a legitimate expectation to the procedures established by such treaties.
http://www.worldcourts.com/ccj/eng/decisions/2006.11.08_Attorney_General_v_Joseph.htm
On 23 March 1976, Barbados ratified the International Covenant on Civil and Political Rights (ICCPR).
ICCPR, Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
Barbados’s ratification of the ICCPR, for the express benefit of its citizens, (including that class of employees directly impacted by a vaccinate or test mandate) ensures that in no case can any public or private actor subject anyone to non-consensual medical experiments.
CCPR General Comment, No 20:
2. The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.
According to ICCPR Art 4, this right is non-derogable, even in a public health emergency. Art 4, also holds there is no circumstance where a vaccinate or test mandate, involving experimental PCRs or vaccines, would not be considered a human rights violation.
ICCPR, Art 4
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.
Therefore, in ascertaining the reasonableness of a vaccinate or test mandate, would not an employee have a legitimate expectation that their non-derogable rights (as set forth in the ICCPR) be a factor in any such determination? Providing employees with the “option” of an invasive experimental PCR test, when a far less invasive and arguably more accurate saliva test is available, constitutes an additional abridgement of an employee’s non- derogable rights. Futhermore, subjecting unvaccinated employees to a discriminatory and non-scientific testing protocol is unreasonable. *
Legitimate Aim:
“An interference [with personal autonomy and human liberty] will be considered “necessary in a democratic society” for the achievement of a legitimate aim if it answers a “pressing social need” and, in particular, if the reasons adduced by the national authorities to justify it are “relevant and sufficient” and if it is proportionate to the legitimate aim pursued...
...That assessment by the national authorities remains subject to review by the Court, which makes the final evaluation as to whether an interference in a particular case is “necessary”, as that term is to be understood within the meaning of Article 8 of the Convention...
...A certain margin of appreciation is, in principle, afforded to domestic authorities as regards that assessment; its breadth depends on a number of factors dictated by the particular case. The margin will tend to be relatively narrow where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights. Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will also be restricted”
Per Vavřička, a vaccinate or test mandate would materially interfere with an individual’s key and intimate right to bodily integrity. Hence the margin of appreciation allowed to the State and/or its proxies should be restricted.
In the present matter, AstraZeneca and Sinopharm’s data evidences their experimental vaccine neither stops infection nor transmission and that no herd immunity is possible. Thus, the only relevant evidence an employer could introduce is that the experimental vaccine reduces mild and moderate symptoms. Given symptomatic covid (vs asymptomatic cases) primarily impacts the elderly and infirm with underlying co-morbidities, there is no reasonable necessity or “pressing social need” to subjugate any employee (who is not elderly and infirm) to what the ICCPR absolutely prohibits. Also note, disclosure of the cycle threshold values of Barbados’s 48 covid mortalities, and their underlying co-morbidities, would be relevant in determining the necessity for a vaccinate or test emergency measure.
Also, as set forth in CCPR GC No 20 (3), even if an employer could make some evidentiary showing that its vaccinate or test policy made the workplace measurably safer (which per the current science they could not), no derogation from the strictures of Art 7 would be permitted, due to the experimental nature of the covid-19 vaccine.
CCPR General Comment No 20 (3):
3. The text of article 7 allows of no limitation. The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain in force. The Committee likewise observes that no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority.
Good Faith Obligation:
In contravention to Mr Gollop’s point, that “our Constitutions in the Commonwealth Caribbean with very few exceptions do not permit for public law rights to be enforced in private law situations,” is Barbados’s ICCPR obligations.
Every State has the duty to carry out in good faith its obligations arising from treaties and other sources of international law, and may not invoke provisions in its Constitutions or its laws as an excuse for failure to perform this duty.
There is much judicial and other authority for the rule that a State cannot rely upon its municipal law to avoid its international obligations. This gives force to the argument that international law is a valid source of law in any jurisdiction. The Draft Declaration on Rights and Duties of States 1949, under Article 13, gives justification to this thesis: Treaty obligations should, therefore, be viewed as imposing legal obligations, regardless of whether a State has incorporated that treaty.
Consequently, procedural justice is treated by both the CCJ and the Privy Council as being an inherent part of the rule of law and intrinsic to adjudication. Its existence does not therefore depend on a specific provision in the Constitution, Preamble or otherwise. The judiciary has as much responsibility as the other arms of the State to ensure, in the exercise of its functions, the greatest possible consistency between national jurisprudence and the international jurisprudence which is now evolving.
VIII. Domestic Remedies as an Alternate means of Enforcement against Public or Private Human Rights Violations
CCPR General Comment, No 20 (2), sets out the state’s duty to protect its citizens from both public and private actors who engage in forced medical experimentation.
2. The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity.
CCPR General Comment, No 20, establishes that violations of human rights by both the State and private parties are actionable under the ICCPR. Thus, a State has a duty to protect the human rights of its citizens, regardless of the infringing source. Whether a State relies upon domestic law or its treaty obligations for its remedy, is in the purview of the State.
In general, international law allows States some measure of freedom to determine how they will implement a ratified treaty. The methods may be through direct incorporation of the rights and obligations enshrined in the treaty by way of enacting similar domestic legislation, the reform of existing laws to give effect to the treaty, or self-executing operation of the treaty, such as the reflection of treaty obligations in judicial precedent. This choice does not mean that Party States to a treaty do not have obligations toward it.
Barbados’s assumed obligation under domestic law
The framers of the ICCPR explicitly used the words “in particular” to signify that “medical or scientific experimentation” was a subtype of “cruel, inhuman or degrading treatment or punishment,” and therefore should not be distinguished as separate from.
ICCPR, Art. 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
This interpretation is consistent with the historical record, since Art 7 was drafted in response to the justifications of the Nazi doctors, who defended their non-consensual medical experiments as necessary for the good of the State.
Therefore, by ratifying the ICCPR, Barbados acknowledged experimental medical procedures without informed consent, was akin to cruel and inhuman treatment; and as such would be actionable under Barbados law. Specifically, by ratifying the ICCPR, Barbados agreed to enact domestic enabling legislation.
ICCPR, Art. 2
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant.
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It is now well established that found domestic legislation should as far as possible be interpreted so as to conform to the State’s obligation under such a treaty (Matadeen v Pointu [1999] 1 AC 98, 1149-H)….[and] there is a presumption that Parliament intends to legislate in conformity with treaties and treaty provisions will apply where there is an ambiguity.
Barbados’s consent to be bound by ICCPR Art 7, is further evidenced by Barbados explicitly exempting itself from the ICCPR’s death penalty proscriptions, as well as attempting to amend its constitution to make it more difficult to find the death penalty unconstitutional in any form. Additionally, Barbados reversed its decision in Pratt and Morgan.
Barbados did not however, exempt itself from ICCPR Art 7 (which was in its prerogative to do), nor did it clarify after ratification, Sec 15 (1)’s Constitutional prohibition against torture and inhuman treatment, which parallels the language of ICCPR Art 7. If it were indeed Barbados’s intent not to be bound by its treaty obligations under Art 7, nor create a legitimate expectation in the ICCPR’s proscriptions against non -consensual medical experimentation by both the State and private actors, why then would it not exempt itself from Art 7’s “in particular” provision?
It is clear, therefore, that while Commonwealth Caribbean legal systems conform to the common law dualist approach to international law that it does not supersede domestic law unless incorporated, the courts are more and more adopting unilaterally, treaty obligations and values, without benefit of the legislative process. In Peters v Marksman, the High Court of St Vincent and the Grenadines expressly declared the justiciability and enforceability of international law. It found that flogging with the cat-o’-nine-tails in St Vincent violated Article 1 of the UN Declaration on the Prevention of Crime and the Treatment of Offenders, which was part of the law of St Vincent.
To argue that the ICCPR’s proscriptions are inapplicable to this forthcoming mandate, or that at minimum, its strictures should not be considered under an analysis of reasonableness, is controverted by the weight of authority.
Due Process & The Law
Even if Barbados adopts the position that it is not bound by the substantive law set forth in its treaty, according to Prof. Antoine, there is still a strong argument it would be required to provide procedural due process to those whose human rights are being infringed upon by public or private actors.
“Privy Council and the CCJ respectively have treated the due process or ‘protection of the law’ provisions in the Preambles to the Bill of Rights as not only justiciable, but instrumental to the protection of human rights….
Due process is treated by both the CCJ and the Privy Council as being an inherent part of the law and even the rule of law. Its existence does not therefore depend on a specific provision in the Constitution, Preamble or otherwise. Indeed, many of the other provisions listed in the Constitution, such as a right to a fair trial, also impute due process.”
Before an employer can summarily fire an employee for refusing to submit to medical experimentation, an employee must not be denied due process under the ERA, to ensure their firing was reasonable. In this context, an employer would need to show an unvaccinated worker presented an increased hazard in the workplace relative to a vaccinated worker. To simply state covid constitutes a workplace hazard is insufficient, without a reasonable showing an employer policy of vaccinate or test was positively correlated to mitigating the hazard.
A similar view was expressed by the Privy Council, for example, in Thomas v Baptiste. Lord Millett described the concept in this way:
. . . ‘due process of law’ is a compendious expression in which the word ‘law’ does not refer to any particular law and is not a synonym for common law or statute. Rather, it invokes the concept of law itself and the universally accepted standards of justice observed by civilized nations which observe the rule of law.
Further, in Lewis, due process was treated as an international concept standing independently of the Constitution. This allows the Constitution to reach outside of itself, to these broad notions of justice recognized in international law.
The courts have determined that ‘due process’ and ‘protection of the law’ are in essence the same. They both mean standards of procedural fairness. See, eg, Lewis, above, fn 44 and AG et al v Joseph and Boyce CCJ Appeal, No CV 2 of 2005, decided 21 June 2006 (Barbados).
In Boyce, however, the CCJ69 recognized that ‘protection of the law’ was not specifically mentioned in the body of the Constitution to which the redress clause referred, except by way of a marginal note. The CCJ viewed the body of the Constitution to which the redress clause specifically referred, and which enumerated the human rights provisions, as ‘details’ on the more general rights listed in the Preamble, and importantly, provisions demonstrating how such rights were to be limited where appropriate. In the case of due process/protection of the law, the CCJ appeared to think that such detailing was not only unnecessary but impractical.
If the government now, in coordination with the Social Partners places its imprimatur on a vaccinate or test mandate, its actions would arguably be in contravention of both the ICCPR and its duty to protect the dignity and the physical and mental integrity of Barbados employees.
It is clear that the Constitution is a source for procedural fairness, called due process or ‘protection of the law’ in some Constitutions. This notion, in turn, is to be viewed as an aspect of the rule of law. However, these fundamental concepts do not originate from the Constitution. Rather, they are reaffirmed in the written Constitutions. These are principles which ground the very character of the law and legal system. Further, they are aspects of the separation of powers doctrine as they speak to the essence of the role of the courts to apply the law, in their inherent supervisory jurisdiction. These are constitutional principles in the broadest sense.
Additionally, if it were determined a private or public actor was engaged in inhuman treatment (in accordance with international norms, prior to covid), there would be no question they would be subject to prosecution domestically. Thus, the question is one of interpretation. If forced and/or coerced medical experimentation constitutes inhuman treatment, as particularly defined in the ICCPR Art 7, then there would be no need to enforce an international treaty, since the laws of Barbados would be more than adequate to deal with any such transgression.
In Hobbs et al v R, for example, the Court of Appeal of Barbados looked to international norms and the evolving standards of civilization in making its decision that the cat-o’-nine-tails was unlawful.
In short, given the explicit unambiguous language of the ICCPR, and the domestic requirement for due process, would not the State have a duty to protect employees, in the face of an employer who demands on pain of termination, that employees submit to medical or scientific experimentation?
IX. Conclusion
The nations of the world memorialized the covenants of the ICCPR to ensure non-consensual medical experimentation would never again occur; and all agreed, including Barbados, that they would institute domestic enabling laws toward that end.
Therefore, in deference to the ERA’s due process requirement and to Barbados’s treaty obligations under the ICCPR, would it not be reasonable for the Government and the Social Partners at minimum, to discuss ICCPR Art 7 and its explicit prohibitions, prior to the imposition of any mandate?
Respectfully Submitted,
JT Kong
NOTES:
*Real time reverse-transcriptase polymerase chain reaction (PCR)
Given the emerging data out of PHE and Israel, a rational testing policy to stop the spread of Covid should be responsive to the data that both the vaccinated and the unvaccinated can spread the delta variant. Additionally, in light of Covid’s incubation period of up to 14 days and a PCR false negative rate between 20-38% (depending upon test time from infection), any public health policy that prescribes vaccinated travelers quarantine for only 1-2 days is irrational and risks community spread.
https://www.nature.com/articles/s41598-021-82192-6
Thus, if Barbados’ imposes a vaccinate or test mandate, it should be positively correlated to mitigating the harm, not exacerbating it.
Thus, if Barbados moves forward with its vaccinate or test scheme, it should consider giving employees the option of a non- invasive saliva test. This test has received emergency use authorization from the FDA as well as the CE Mark from the European Economic Area (EEA). Saliva testing is less expensive, and its accuracy is equivalent to NP and OP swabs. It is safer for the health care worker to administer (less risk of infection from aspiration) and because it does not require an invasive swab is far less likely to be resisted.
I would be willing to donate $5000 USD, so that Barbados, with its supplier Stage Zero Life Sciences (SZLS), could ascertain if the saliva test kit is a viable option. Please note, SZLS currently distributes its saliva test kit into the US and Canada.
https://www.stagezerolifesciences.com/barbados.html
https://finance.yahoo.com/news/stagezero-life-sciences-offer-covid-114500710.html
Non-invasive saliva testing is utilized by British Airways and can give results in a little as 25 seconds.
https://mediacentre.britishairways.com/pressrelease/details/86/0/13094
*See Warning & Disclaimers on the Home page: Information on this website is strictly the opinion of presenters. This information is general in nature and should not be relied upon as legal advice, because legal advice cannot be given without full consideration of all relevant information relating to the reader’s individual situation.
