With the mixed feelings of anxiety and hope Ukraine was expecting the results of the consultative referendum, which was held on the 6th of April, 2016 in the Netherlands. Despite the mostly negative forecasts, we still hoped that the Dutch will say "yes" to the Agreement on Ukraine’s Association into the European Union. Numerous Ukrainian delegation, including Foreign Minister P. Klimkin, the assurances of the diplomats about the building the bridge over the gap between the opponents and supporters of the Agreement on the Association, notwithstanding the optimistic messages from the part of the Government of the Netherlands about the support to the Agreement - all this was leaving hope for a positive result. Unfortunately, in spite of all these activities, no miracle has happened.
According to the results of the exit poll (the official results will be released on the 12th of April), more than 60% of the citizens who took part in the vote, said "no" to the Agreement on Ukraine’s Association into European Union. The result, though predictable, but no less unpleasant. Especially because a negative decision has been taken on the issue, on which the domestic constitutional procedures were finished, including the government approval and the ratification by the Parliament. And this represents a controversial situation.The comments on this occasion received by "Vector News" from the Ukrainian Foreign Policy Association
:The specificity of the referendum was not only its consultative nature, but also its corrective direction, more precisely, the possibility of stopping the international agreements, already adopted by the highest State authorities. We would like to emphasize this because the number of publications contain the erroneous conclusion that the referendum was supposed to decide the question of ratification of the Agreement about Association. In fact, it is a corrective component of the Dutch know-how had been holding in voltage Ukraine together with the European Union with its leadership for a long time.
This is truly an innovation that makes us make a helpless gesture – not only politicians but also legal professionals. From the domestic authorities we often heard the soothing argument that the referendum is not directed against Ukraine, it only reflects the cautious attitude of the Netherlands to the European Union. This is quite true, because, as it is well known, the Dutch are distinguished by their euroscepticism. At the same time we cannot ignore the Ukrainian "footprint" in the negative results of the vote – otherwise, we would be burying our heads in the sand. The inhibition of the reform process in Ukraine, a complex corruption deja vu confrontations between different branches of power, incomprehensible to the civilized world on-going conflict around the figure of the Premier, unconcealed hostility between the "sworn friends" in the very heart of the parliamentary coalition, visible conflicts of interest of high-ranking officials - all this slowly pushed the Netherlands to skeptical perception of Ukraine's readiness to live according to European standards.
We shouldn’t also forget about the disappointment that was imprinted in the minds of the Dutch after the shameful fiasco of Ukrainian Orange Revolution. In the minds of many Dutch people - on an emotional level - it left a bitter taste for the discredited in Ukraine orange color - a symbol of the ruling Royal dynasty and a matter of national pride of the Netherlands.
On possible solutions to the newest problem in the Dutch-Ukrainian relations commented Olexandr Kupchyshyn
, Ukrainian Ambassador to the Netherlands (2005-2008), Vice President of the Ukrainian Foreign Policy Association.
Therefore, analyzing the results of the referendum, one should be mindful of the results of historical memory, having an impact on its results and of the lack of deep bilateral relations between our nations.
Taking the result of the referendum as a given fact, now we need to focus on the joint development of the algorithm of possible steps - from the part of the Netherlands authorities, the EU leadership, as well as Ukrainian politicians - based on the fact that our country, under any circumstances, remains the Party of the Agreement on Association.
First of all, it should be understood that from the point of view of international law, the Agreement on Association between Ukraine and the European Union is a multilateral international treaty, with the delegation of certain powers to the EU authorities. The termination of this Agreement is possible either by mutual agreement of both Parts, or by a critical decrease in the number of the participants.
Therefore, after the Agreement’s entry into force, the positions’ changes of one country does not mean the change of its legal status. Therefore, the danger of total destruction of Agreement on Association due to the negative results of the consultative referendum in the Netherlands, doesn’t represent a threat - neither to Ukraine nor to the European Union. In the future Ukraine should continue without panic to work diligently on the implementation of the political part of the Agreement and of the part concerning the free trade zone.
However, it is obvious that against the background of the results of the referendum, the Dutch authorities have to seek a solution to a rather complicated situation. Nowadays, at least three options of the official Hague’s actions seem to be possible.
1. Taking into account the consultative character of the referendum, the government could ignore its results. Despite the existence of a legal basis, this option has almost zero prospects. Contrasting of power positions to people's will, most likely, would put an end to the electoral expectations of the political parties of the ruling coalition, given the approaching of parliamentary elections in the country. After all, the role of public opinion in the Netherlands is so weighty that no politician dares to neglect any it.
2. In order to meet the people's will, the government could declare a withdrawal of the Netherlands from the Association on Agreement. This option, under certain domestic circumstances, would be attractive for the authorities in enhancing the electoral chances of the ruling party in the upcoming parliamentary elections. At the same time, it seems that the termination of the Netherlands’ participation in the Agreement would create more problems than benefits for the country. First of all, it would be a recognition of the failure of the authorities to assess in advance the public mood and to predict adequately the situation. This led to the government’s approval and ratification of the Agreement by the Parliament. But the Agreement is not supported by the people. In addition, as a result of this decision the Hague would have received serious image losses, contrasting themselves to other EU Member States during the current Dutch presidency. Brussels would have to find a way to save face, but the Dutch image as that of a reliable and predictable partner, would have turned out to be under threat in the European Union.
In addition, the choice of the hard option would objectively lead to a cooling of the Ukrainian-Dutch bilateral relations, as Ukraine would have a reason to blame the Netherlands for the creation of obstacles to its cooperation with the European Union. It is obvious that this development of events is not in the interests of the Netherlands. But even with the implementation of this option, the Agreement on Association will continue to have legal power between Ukraine and the other countries - EU members.
3. The situation is likely to force the Dutch government to come to seek a compromise that eventually could - at least partially - satisfy the requirements of the Association’s opponents in the country, reassure the EU leadership, as well as give Ukraine the opportunity to have a full-fledged Agreement on Association with the European Union, which it has been striving to have for so many years.
By analogy with the "special status" of the Great Britain in the EU, a compromise for the Netherlands would lie in the fact that, while formally remaining a Party of the Agreement on Association, the country is able to apply selectively its provisions. Such a scenario would require from the descendants of the founder of the Dutch classics and international law, Hugo Grotius, meticulous legal work related to the preparation of a large number of interpretive declarations and reservations to the Agreement. There is a chance that some of them will not cause any excitement in Kyiv and in Brussels, but this course of events is able to mitigate the negative consequences of the referendum, and by and large leaves Ukraine a chance to maintain the status quo.The material was prepared with the assistance of the Ukrainian Foreign Policy AssociationTranslated by Maria Kryzhanovska