Is the 2G policy legally tenable?

Foto van Martin Buijsen

The Outbreak Management Team has advised the demissionary cabinet to introduce the 2G policy after the current lockdown. With this measure, only people who are vaccinated against or have recovered from Covid-19 are allowed to access certain venues. In an article in NRC, Martin Buijsen, Professor of Health Law at Erasmus School of Law, discusses the protection of human rights and how this protection relates to the implementation of the 2G policy in the fight against the Covid-19 pandemic in the Netherlands.

The underlying thought behind the 2G policy, compared to the 3G policy, is that it is more likely for unvaccinated people to end up in hospital after infection than for people who have recovered from or are vaccinated against Covid-19. The 2G policy needs to limit the burden for the hospitals.

Member States decide for themselves

According to Buijsen, the relationship between the 2G policy and human rights is a complex story. “Many lawyers believe that the curtailment of the fundamental rights of unvaccinated people is limited under the current 3G policy. Testing is possible in many places, and this way, both vaccinated and unvaccinated people can fully participate in social life", says Buijsen. "The European judges have not yet ruled on 2G policy. According to rulings of the European Court of Human Rights, member states have a lot of freedom in taking measures that benefit health", according to Buijsen.

Legislative amendment for 2G policy

In Germany, the 2G policy has been elaborated. Since the beginning of October, the 2G policy now also applies in shops. Before that, the enforcement of the 2G policy was only allowed in the hotels and catering industry. The German court has approved the elaboration as it is deemed safer and offers more freedom to visitors. “I expect that a Dutch judge will consider the fight against the pandemic so serious, that discriminating against unvaccinated people will nevertheless be found to be in line with the European Convention on Human Rights”, according to Buijsen. At the same time, Buijsen states that the 2G policy is unexplored territory: “We do not know how the European Court of Human Rights views these developments.”

The implementation of the 2G policy requires an amendment to the law. This amendment needs to be approved by the Council of State. After this, voting will take place on the amendment in the House of Representatives and the Senate. It is not yet clear whether a majority will be obtained in the House of Representatives. Many parties state not to be in favour of such a policy at this time. However, they do not entirely rule out a 2G policy either.

More information

Read the article in NRC here (in Dutch).

Buijsen also talked about the subject during the broadcast of ‘Met het oog op morgen’ on NPO Radio 1. Listen to the fragment here (in Dutch).

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