EUobserver opinion: Dutch farce on Ukraine: Is there a way out?

Between a farce and a drama there is a thin line. Usually it is a drama that turns into a farce, however, with the Dutch referendum on the EU-Ukraine association agreement it was the other way round.

A farce referendum, which was triggered by the self-centred agenda of a populist movement, has just turned into a drama that will have geopolitical implications. Before the festivities in the No camp and at the Kremlin end, the EU will have to come up with a solution.

If anything, it will have to be a face saving exercise. After all, it was on the EU’s initiative that the negotiations of this agreement started in the first place. Indeed, it is the Dutch government that will have to face the music as it currently holds the EU rotating presidency.

The options are fairly limited. They extend from a mere facelift to a fully nuclear option of moving the association agreement into the history books. For now one thing is clear, this particular agreement does not have luck on its side.

One of the most difficult puzzles ahead for the Dutch government and, more broadly, the European Union is how to translate the manifesto of the No camp into a legal solution.

It is nobody’s secret that the referendum was not really about Ukraine. It was more of a protest vote against the European Union, its handling of the refugee crisis and other issues.

The No camp also claimed that Ukraine is an unstable country with endemic corruption and thus should not be an EU member state.

Myth-busting

This short selection of arguments clearly shows that some myth-busting is needed to begin with.

EU association agreements with third countries go beyond regular international agreements and aim for a much closer cooperation between the sides. This is true. While some of them include references to future membership of the EU (e.g. the agreements with Western Balkan countries), the one with Ukraine deliberately does not do it.

It merely refers to the European perspective in its preamble but it does not make it a vehicle for EU membership. Even if it did, Ukraine would need years, if not decades, to comply with conditions of EU accession.

If it came to it, the No camp would probably ask for a new referendum.

That camp also claims that Ukraine should remain a buffer zone between the EU and Russia. This, no doubt, is music to the ears of Russia’s leader, Mr Putin i. It is exactly what his administration wishes to achieve.

One should not forget, however, that Ukraine is a sovereign European country. In accordance with the EU treaty it can apply for membership and the European Union will have an obligation to consider such a bid. But things have changed.

These days the EU pursues a much stricter pre-accession conditionality compared to what it used to. The aim is to let in countries only when they are stable democracies based on rule of law.

The EU learnt its lesson on corruption with Bulgaria and Romania. It learnt another lesson with Hungary and Poland, where nationalist governments have shown how suddenly democratic reform can be undone.

The No camp can rest assured it would take a very, very long time for a place like Ukraine to make the new grade.

Options

Still, the Dutch government has to react to results of this democratic exercise and it has to sell the solution to its fellow member states.

It’s a tricky time to do it because the EU is preoccupied with the migration crisis, security issues, and Brexit.

It’s also a mess because the association pact has been ratified by all the other 27 EU countries and by Ukraine. One cannot rule out any material change to the content of the treaty, but that would require everybody else to re-ratify the new text.

So what are the options?

To begin with, the Dutch government could just ignore the results of this consultative referendum. This is politically unthinkable, however.

As things stand today, parts of the association agreement are already being applied on a provisional basis. The question is whether this can continue, now that one member state is not in a position to ratify it.

After all, provisional application is meant to precede an actual entry into force of the agreement, not to replace it.

We do have cases of international treaties that provisionally applied for years, - GATT (a predecessor of the World Trade Organisation) being a prime example. But it is not a good solution for the long term.

The least difficult option is adoption of interpretative statements, in which a number of the agreements’ provisions could be clarified with a view to reassure the Dutch voters.

This could include an express statement that the Netherlands does not perceive this agreement as a tool for Ukrainian membership of the EU.

It could indicate more clearly what provisions on cooperation in foreign and security policy would entail.

It may be also helpful to be more clear on the issue of the free movement of persons and workers in relation to visa-free travel.

If a declaration were opted for, it would not lead to renegotiation of the agreement as, under public international law, declaration-type instruments are not binding.

But at the same time, the Dutch No voters would have to accept the move.

Another option is for the Netherlands to ask for an opt-out, in the form of a protocol, from the political part of the agreement.

Technically, this option is possible. But it would complicate the pre-existing ratifications by other parties, which, after all, were based on the agreement and its parties as things stand.

Leaving the ratification technicalities aside, it would be very difficult to envisage a situation in which the Netherlands would simply not take part in any political dialogue, but would nevertheless (through the EU) engage in a “deep and comprehensive” trade relationship with Ukraine.

The Netherlands could ask to split the agreement into two - one dealing with political co-operation and one with trade. The latter is at the heart of the association pact anyway.

It would then be a party only to the trade agreement, with an opt-out from its political twin brother. Again though, in practical terms, this solution would require delicate institutional and legal acrobatics.

The nuclear option is to call it a day and terminate the agreement as it currently stands, including its provisional application.

Blow

This would not only be serious blow, if not the final nail in the coffin, of the EU’s neighbourhood policy. It would also be gift to Putin and it would harm the EU’s credibility as a geopolitical actor.

Neither the EU, nor its member states can afford another kick in the teeth at this time.

The peace and stability dividend is simply too great to lose.

Ramses A. Wessel is professor of international and European law at the University of Twente in The Netherlands. Adam Lazowski is professor of EU Law at the University of Westminster in London