EU-Ukraine Association Agreement: the need for ratification

January 26, 2017 - nr.30
Summary

Conclusions

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.

Advice request
Government reactions

Advisory Council on International Affairs (AIV)
Bezuidenhoutseweg 67, room 6 B 21
Postbus 20061
2500 EB  Den Haag

Date   20 March 2017
Re   AIV advisory letter on EU-Ukraine Association Agreement



The government wishes to thank the Advisory Council on International Affairs (AIV) for its advisory letter of 8 December 2016 on the follow-up to the consultative referendum on the European Union's Association Agreement with Ukraine, entitled ‘EU-Ukraine Association Agreement: the Need for Ratification’.

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. The AIV also points out the geopolitical risks of rejecting the agreement; Russia could interpret such a rejection as a sign of weakness. The AIV further notes that, constitutionally, the Consultative Referendums Act cannot entail an obligation to automatically follow the advice given by the majority.

In the light of the consultative referendum, the government's position on the EU's Association Agreement with Ukraine has been addressed on many occasions in debate with the House of Representatives and in the media. The government has taken the position that it cannot proceed automatically to ratification and has also referred in this connection to the special circumstances of a national ‘no’ vote within the context of a complex international reality. The Netherlands’ decision on ratification of the Association Agreement will have a direct impact on the European Union, its member states and on Ukraine. In particular, it will have implications for the stability of the EU's eastern border, relations with Russia, the situation in Ukraine and the EU's role as a global player.

In its advisory letter the AIV addresses this situation and notes specifically that, in the light of geopolitical relations with Russia, the Netherlands should refrain from breaking solidarity with its EU partners. In deciding how to proceed, the government has taken full account of the circumstances described clearly in the AIV's advisory letter. The government therefore regards the AIV's advisory letter as encouragement to continue on the same course.

On 27 January 2017 the government submitted a bill to the House of Representatives on the entry into force of the act approving the Association Agreement for the purposes of its ratification. As the explanatory memorandum accompanying that bill said, the decision by the heads of state and government assembled in the European Council of 15 December 2016 [Noot AVT: datum ER was 15 dec. volgens onze bronnen] was the decisive factor for the government in submitting that bill. That decision addresses the main concerns raised in the debate in a manner that is legally binding. First, the decision confirms that the Association Agreement does not grant Ukraine the status of candidate country for accession to the Union, nor does it constitute a commitment to confer such status to Ukraine in the future. Second, the decision makes clear that the Agreement does not contain an obligation for the Union or its member states to provide collective security guarantees or other military aid or assistance to Ukraine. As a consequence of this decision by the 28 heads of state and government, article 10 of the Association Agreement cannot be interpreted as providing a collective security guarantee for Ukraine or creating any obligation for EU member states to provide military aid or assistance. Third, the decision explicitly states that the Agreement does not give Ukrainian nationals access to the EU labour market. Member states themselves have the right to determine whether they admit workers from third countries to their territory, and if so, how many. Fourth, the decision states that the Agreement does not require additional financial support by the member states to Ukraine. Finally, the decision confirms that strengthening the rule of law and in particular the fight against corruption are central to the Agreement.

This decision by the heads of state and government gives additional assurances at European Council level which correspond to the AIV's recommendations and address the main concerns expressed in connection with the referendum on the Association Agreement. A majority of members of the House of Representatives voted in favour of the bill on 23 February 2017.


Bert Koenders
Minister of Foreign Affairs

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