EU-Ukraine Association Agreement: the need for ratificationJanuary 26, 2017 - nr.30
The fact that the legislature created the possibility of a consultative referendum means that MPs must take account of the voters’ decision in their reassessment. However, it should be noted that, constitutionally, the Consultative Referendums Act cannot entail an obligation to automatically follow the advice given by the majority. The constitution confers legislative power on, inter alia, MPs. MPs could only be bound by a decision by referendum voters if the constitution were to be amended, but that has not happened. Furthermore, it is the voters themselves who chose these MPs as representatives to take decisions on their behalf. This means that, even after the outcome of a consultative referendum, MPs must understand the consequences of their decision and take account of any new developments.
If a majority of MPs – as the AIV recommends – support the likely new bill regulating the entry into force of the act of approval, which has already been passed, it would be beneficial for future purposes if they were to explain in unambiguous terms how consultative referendums work: their consequences are more limited than those of corrective referendums, which do not exist in our constitutional system.
Moreover, consultative referendums on treaties – especially multilateral treaties – do not work in practice because renegotiating such treaties on the basis of Dutch voters’ views (or presumed views) is virtually impossible. It could therefore be concluded that an exception concerning treaties must be included in the Consultative Referendums Act.
The AIV concludes that the Netherlands should ratify the Association Agreement after it has received additional assurances in the European Council regarding issues such as fighting corruption and strengthening legal protections for the people of Ukraine. In addition to the opportunities that will arise for helping Ukraine strengthen the rule of law and achieve economic modernisation, there are also compelling geopolitical arguments for ratifying the agreement. The EU’s pursuit of its neighbourhood policy with regard to Ukraine is being thwarted by Russia, which claims its own sphere of influence in the territory of the former Soviet Union. Rejection of the Association Agreement, which will not enter into force if the Netherlands declines to ratify it, would undermine the unity among European countries, which is a precondition for successful EU policy and international stability. Russia’s President Putin will probably see such a rejection as a sign of Europe’s weakness and it could encourage him to intensify activities aimed at destabilising Ukraine. The risk of Russia putting renewed pressure on Ukraine has only been increased by the uncertainty surrounding the United States’ future stance following the election of Donald Trump as president. In these circumstances, the Netherlands should refrain from breaking solidarity with its EU partners.