On Wednesday, 6 April, in an advisory referendum on the Dutch Approval Act of the Association Agreement between the EU and the Ukraine, Dutch voters rejected the latter by 61.1 % of votes against and 38.1 % in favor of the Act. The low turnout of 32.2%, although low, met the minimum threshold of 30% required. However, questions remain about how the government will react. Should the referendum be allowed to halt the conclusion of an international agreement negotiated by 28 Member States (and ratified by 27 of them) and Ukraine as well as to disregard a previous approval by the Dutch Parliament? Pending response from the Dutch government, it is clear that this vote risks exacerbating instability and incoherence in EU foreign policy.

The Association Agreement was signed on 27 June 2014 following several years of negotiations among the EU, its member states and Ukraine. On the one hand, supporters of the Association Agreement claim the treaty is very important for peace and stability in Ukraine and the entire East-European region because it promotes the rule of law, human rights and good governance. On the other hand, the Agreement was unpopular in some quarters due to fears it would offer EU membership to Ukraine. Others expressed their general discontent with EU decision-making which they claim to be undemocratic. Moreover, the ‘No’ camp claimed the Agreement would cost Dutch taxpayers in order to financially support Ukraine and the agreement softening of visa requirements for Ukrainians would lead to greater immigration from that country.

The referendum was the direct result of the Dutch Referendum Act (DRA), which has been in force since 1 July 2015 and stipulates that Dutch citizens can initiate a referendum on most laws and treaties after these have been approved by both chambers of Parliament and after gathering over 300,000 signatures. GeenPeil, the leaders of the ‘No’ campaign, used the DRA to garner over 427,000 signatures and call for a referendum on the Act on the Association Agreement, which was among the first legal acts having to do with the European Union that was approved after the entry into force of the Referendum Act. In lead up to the vote, the initiators of the campaign noted that this referendum was not so much about the Association Agreement itself, but about giving citizens more control over the EU in general and they consider it as a test case for possible future withdrawal or “Nexit”.

The referendum is suspensory and advisory in nature. This means that the law’s provisions on the entry into force of the Approval Act are suspended pending the results from the referendum. A turnout of at least 30% of voters was required, which was met only marginally. The outcome of the referendum however is only advisory in nature, meaning that the Dutch government is under no legal obligation to accept its results. Nevertheless, Wednesday’s rejection puts the Dutch leading coalition in a difficult position. Prime Minister Mark Rutte’s government is already under pressure over the handling of the refugee crisis, and ignoring a ‘No’ vote could be a risky move with elections scheduled early next year. The Prime Minister’s liberal conservative party, the VVD, stated in Parliament that it would ignore a narrow ‘No’ vote, while its coalition partner the PvdA said it would honor the vote.

What are the consequences of the ‘No’ vote? In theory, the Dutch Government could use a ‘No’ vote to ask the EU to reopen negotiations with Ukraine to alter the treaty, but that is highly unlikely given that bringing the EU, its 28 member states and Ukraine back to the negotiating table will be an almost impossible task, particularly since all other 27 member states and Ukraine have already ratified the Agreement. Therefore, if the Dutch government decides to accept the negative vote, they will have to find an unprecedented political solution, either to opt out of some provisions via an adjusting protocol to the agreement – which would mean that those provisions in the Association Agreement belonging to member state competences would not be applicable in The Netherlands. Another solution might be some kind of additional protocol, act or declaration, which responds to the main concerns of the ‘No’ voters (e.g. emphasizing that Ukraine will not become a member soon, emphasizing the fight against corruption, and so on).

Regardless of the further actions, the outcome of the referendum is not likely to affect EU-Ukraine trade relations in the foreseeable future. Association Agreements are what is known as mixed agreements that include the EU, its members states and third parties – Ukraine in this case – and as such include areas under the exclusive competence of the EU, such as the Common Commercial Policy, shared competences such as the internal market and member state competences such as education. In fact, Association Agreement clauses including on the Deep Comprehensive Free Trade Area have already been provisionally in force since 1 November 2014 (Titles III, V, VI, and VII of the agreement to the extent it is EU competence) and 1 January 2016 (Title IV of the agreement, to the extent it is EU competence).

The provisional application of the Agreement will continue until the Agreement as a whole is unanimously approved by the Council of the EU, as required by the Lisbon Treaty. This decision has been temporarily halted by the Dutch referendum, and thus far, this situation is unprecedented in the EU’s external relations history. If a unanimity vote is not reached due to Dutch opposition, this could create greater instability and incoherence in EU foreign policy – which in turn could affect its legitimacy. A case in point is that the conclusion of two other similar Association Agreements with Moldova and Georgia were also approved in The Netherlands by the Dutch Parliament in 2015.

It remains unclear why the ‘No’ campaign focused on the Agreement with Ukraine rather than any of the other comparable agreements. One can only wonder why a relatively small percentage of a rather small EU country should be allowed to halt the conclusion of an international agreement that had been negotiated by 28 EU member states (including The Netherlands) and Ukraine, through the democratic processes of the EU Parliament, all EU member states Parliaments – including the Dutch Parliament – and the Council of the EU, which is formed of democratically elected governments of the member states.

By Aaron Matta (guest contributor)

Dr. Aaron Matta is a Senior Researcher at The Hague Institute for Global Justice (THIGJ). This blog was previously posted in the commentaries section of THIGJ.

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