As some may remember, the Netherlands had their own mini-Brexit in April, when a majority of Dutch voted against the EU-Ukraine Treaty, in a non-binding referendum, triggered by campaigners eager to give the establishment a good drubbing.
Since then, Dutch prime minister, Mark Rutte, has scrambled to find a way to avoid vetoing ratifying the treaty.
Rutte’s plan is to secure a ‘legally binding declaration’ to the Treaty at the EU Summit in December, which should stress that it doesn’t lead to EU membership for Ukraine, or the Netherlands providing any extra funds to the country, beyond those already committed, or oblige Dutch military cooperation with Ukraine.
Such declarations are a well-established practice at EU level and have been applied to deal with the Irish no-vote against the Lisbon Treaty, or more recently, Wallonia’s opposition to the EU-Canada trade deal.
How do politicians vote, when the people already voted?
There always are differences as to how “binding” such declarations are, sometimes under national law, sometimes at the EU level, sometimes only according to “international law”, giving lawyers a field day, helpfully confusing any critics.
The EU 27 seem happy to give Rutte whatever declaration he needs and Ukraine isn’t needed to sign anything.
But Rutte’s particular problem is that the coalition of the centre-right VVD with the centre-left PvdA doesn’t hold a majority in the Dutch Senate, needed to pass the EU-Ukraine Treaty.
Only the centrist, EU-federalist, D66 party has suggested it will support Rutte’s solution, while the Christian-democratic CDA hasn’t committed to supporting it just yet.
Its leader, Sybrand Buma, has stated Rutte’s solution is unacceptable, saying: “If the Lower House ignores [the referendum result], we’re fooling the people,” as the declaration “would make clear that things that aren’t in the Treaty really aren’t in the Treaty,” while it “does not change the Treaty.
Still, it’s rumoured that the party would allow its Senators, which seem more keen to approve the deal than the party leadership, a free hand in deciding how they’ll vote.
A solution may be near
But a legislative solution will only come after Rutte has secured his declaration at December’s EU Summit, so it’s not out of the question that there isn’t enough time to complete it before Dutch legislative elections in March 2017.
Those may result in less support for the ruling coalition and complicate the proposed solution.
The whole issue is made even more complex by the fact that many Dutch died in the attack on the MH17 plane over Ukraine, which investigators blame on Russia.
And to make it even more intractable, the agreement is currently being applied on a provisional basis. But, a Dutch law withdrawing the mandate for the Dutch government to sign would unprecedentedly, mean the Treaty can no longer be applied.
That said, these considerations may trump concerns that ignoring a popular referendum on an EU issue is toxic and may only contribute to Euroscepticism.
If the Dutch government were to veto the EU-Ukraine Treaty, it will be the first time since the Swedish no-vote against joining the euro in 2003, that an EU referendum which went the wrong way for Brussels was respected.
The jury is still out on Brexit and for the Danish no-vote against giving up a range of national opt-outs from EU cooperation.
The Swiss 2014 referendum vote, to restrict freedom of movement from the EU, on the other hand, is about to be ignored, as the Swiss Parliament seems keen not to unpick the EU-Swiss arrangement and risk its exemption from ECJ rule.
Soon we can likely also add the Dutch EU-Ukraine Treaty referendum to the list of ignored referendums, at a moment when respecting the will of the voters is easier, and more palatable, than ever
Redrafting the Treaty as a mere trade arrangement is something the Netherlands would agree to.
It would keep the Treaty largely intact while addressing many of the concerns expressed by Dutch no voters.
But refusals to drop relatively empty pledges about “increasing” Ukrainian participation to “EU-led civilian and military crisis management operations” may come back to haunt the EU when the Treaty becomes another symbol of how unwilling or incapable it is at addressing the citizens concerns.