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Senate debates Association agreement with Ukraine

23 May 2017

Senate debates Association agreement with Ukraine

Today the Dutch national Senate debated the European Union’s Association Agreement with Ukraine. Below is an edited version of the contribution to the debate of SP Senator Bastiaan van Apeldoorn. The Senate will return to the issue on May 30th when it votes on whether to accept the treaty.  

“Is it possible that the Netherlands will vote in favour of the entry into force of the association agreement between Ukraine and the European Union despite that treaty having been rejected by a clear majority of the voters over a year ago and most parties having promised that because of this result they would not allow the association agreement to enter into force, at least in its existing form?” Van Apeldoorn began by asking, going on to look at what happened in the referendum and under what rules it has been held. 

“It is indeed a strange picture. A treaty to which both houses of parliament have said ‘yes’, and which then meets a convincing ‘no’ from the populace. Representative democracy and dirtect democracy here clash with each other. In the Senate we realised that, even before there was any talk of a Ukraine referendum. In the plenary consideration here in April 2014 of the legislative proposal on advisory referenda, a range of spokespersons stated that an advisory referendum would in practice be seen by many as a benchmark pronouncement by the voters. Benchmark, which is to say not formally binding, but in fact certainly binding for government and parliament. I refer in particular to something interesting which was said about this in the debate, by amongst others, Thom de Graaf of D66. This was that the Senate would rather see a corrective referendum, in which it was certain what the meaning of the result was. A proposal on this was approved in the first reading but because it would demand a constitutional amendment it would have to be approved by both Houses and by a two-thirds majority. That could take a long time because the  parties which, for the moment, are against, have a blocking minority in the Senate until June, 2019. 

“In order to prevent an advisory referendum from being under whatever circumstances, whatever the level of participation of the people, from being effectively binding on government and parliament, the Senate decided to demand a threshold of 30%. I can recall the emphatic arguments in favour of this from the Labour Party and from D66. The demand was met by means of supplementary legislation. It was, however, pointed out by the bill’s proposers that adding a threshold would mean that a risk could exist that the result of a referendum would be pushed more towards being binding. In this opinion they were supported by the Council of State, which judged that a threshold would in practice undermine the non-binding character of the result. Nevertheless, both Houses ruled that a minimum threshold must be added. We knew precisely what we were doing. Now that the turnout has been achieved in last year’s Ukraine referendum, it’s difficult for this Senate to assert that this turnout was too low.” 

In addition, Van Apeldoorn noted, doubting the relevance of the referendum had been made still more difficult by the conclusion of the National Referendum Enquiry that a much higher turnout would have produced materially the same result. In short, what the voters said on April 6th, 2016, was a fine reflection of the opinion of the entire voting population. 

He went on to talk about the way in which several parties had done an about-turn: having said they would respect the result, they then decided not to do so. But, he said, “if a referendum is held you have to play fair, and if the result goes against you, you have to take the loss.”

Assertions that the result would be respected had the effect, Van Apeldoorn argued, of giving the electorate “confidence that their judgement regarding the treaty would have a major influence” when it came to “the entry into force” of the agreement. In the Lower House, Parliament’s main legislative chamber, six parties, from the SP on the left to the PVV on the right called on the government to withdraw the law approving the treaty. These parties, Van Apeldoorn noted,  represent a clear majority of the population, adding that “The Prime Minster himself acknowledged that the referendum result made it impossible to bring the treaty into force and that he would ask for, and get, time and space to seek a solution. That this would be difficult was  clear”.

Eight months after the referendum the PM told Parliament that he had found a ‘geitenpaadje’ – literally a goat path, the expression is used to mean a narrow, difficult way – to a solution during the December 2016 meeting of the European Council. “He had managed to formulate a ‘legally binding declaration’, which would both do justice to Parliament’s wishes and to those of the electorate. In studying this interpretative declaration, two aspects strike one.

“Firstly, anyone with a modicum of understanding of international treaty law understands that our PM is wrong. There is no possibility of a legally binding declaration in the meaning of the Vienna Convention on the Law of Treaties, for the simple reason that one of the partners to this treaty, Ukraine, is in no manner bound by an interpretation of the treaty by the other treaty partner, the EU. Comparing it to the other declarations cited by the prime minister turned out to have been rather limp.

“Secondly, by the content of the declaration, so celebrated by the premier, not a tittle or jot of the treaty rejected by the people was altered. What the declaration actually chiefly declares is what doesn’t appear in the treaty. The association agreement says nothing about a future Ukrainian membership of the EU, nothing about a collective security guarantee from the EU to Ukraine, nothing about work permits for Ukrainians in the EU and nothing about additional financial obligations of EU member states towards Ukraine.

“That it enumerates things on which the Treaty says nothing, makes the Declaration as a whole disappointingly meaningless. If you know about the opinion of the legal advisor to the European Council, you’ll surely come to the same conclusion. And if you know about the Council of State’s recent advice, you’ll know that the PM is taking us all for fools. All he’s done is mop up the blood spilt by his colleagues in the European Council.”

The prime minister’s problem,  Van Apeldoorn argued, was that because the association agreement had not led to any serious debate in other member states, “he had been wellnigh dragged through the gates of hell during December’s European Council meeting.” In other countries the declaration had been seen “as an unimportant annex” which the Dutch PM could “wear like a fig-leaf” in order to hide a political U-turn.

The National Referendum Enquiry showed that most Dutch citizens do not want to see Ukraine as an EU member in the foreseeable future, Van Apeldoorn noted. Ukraine, however, retains the right to apply for such membership. “This declaration does nothing to alter that,” he said. “If you follow the Ukrainian media, you’ll know as I do that President Poroshenko is looking forward to our decision, that he links it to the impending visa liberalisation and that he tells his people that in his opinion his country satisfies the Copenhagen Criteria. And if those are being named, we can all see the hint in the direction of Ukraine’s EU membership.” 

The SP Senator then went on to draw attention to the declaration’s other omissions: it says nothing about a collective security guarantee, but “in its entirety” does nothing to dilute the commitment, contained in Article 10, to “close cooperation in conflict prevention and crisis management” and between Ukraine and the European Defence Agency; it ‘declares’ that the treaty says nothing about the employment of Ukrainian citizens in the European Union, but fails to mention that the treaty creates no obstacle to the influx of Ukrainian labour into this same EU. According to Polish Prime minister Beata Szydlo there are already more than a million Ukrainians in her country, most filling the gaps left by the mass outflow of Polish labour to other member states, including the Netherlands. 

“That the declaration states that the treaty does not oblige the EU to give more money to Ukraine does not in any sense mean that this commitment cannot feature when further details are added to the agreement” Van Apeldoorn then pointed out, adding that in any case “as long as the Ukrainian president fails to add his name to the explanations in the declaration which conflict with the text of the Association agreement, his country cannot be bound by it. 

“The National Referendum Enquiry made it clear last year that the most important reason for the voters to say no to the association agreement was the fear that Ukraine is too corrupt to participate in such a far-reaching treaty. The fact that in the agreement the fight against corruption is treated a side-issue rather than a central concern has only added to these fears and played a leading role in bringing about a clear no.” 

Ukraine, as Van Apeldoorn went on to stress, has been shown to be the most corrupt country in Europe, and according to its own people is failing to improve. Many believe President Poroshenko to be heavily involved, as the SP Senator explained. “They were shocked by the revelations in the Panama Papers about their president’s financial gymnastics in faraway tax havens and in Russia, the very country in which according to the president all the misery in his country originates.” 

The public were further shocked when it became known that illegally lining one’s pockets to finance an extravagant lifestyle had become characteristic of their country’s political and legal elites. “On the basis of the electronic declarations of more than 100,000 directors, elected politicians, judges and prosecutors, it emerged that the very people who should be giving people confidence in the future, are confident only in their own future, via as many possessions as possible, from farmland and office buildings, firms and church buildings, luxury cars, jewels, collections of weapons and watches, and above old as much cash as possible, not Ukrainian currency but American or European.” Van Apeldoorn gave some examples: the twenty-four members of the Ukrainian cabinet have between them almost €7 million in cash piled up in their homes; the 450 Members of Parliament have more than $482 million between them. 

“Is what I am doing here today revealing all sorts of secrets, of which others can have no knowledge?” asked the Senator rhetorically. “On the contrary, all of this is publically available information” which, he said, he had discovered during several visits to Ukraine in the last five years in the course of his work with the council of Europe.

“It speaks for itself that our prime minister and his government were well aware of these disturbing facts about Ukraine. Nevertheless the premier, whatever the cost,  wants to anchor our country and the rest of the European Union’s member states to the most far-reaching association agreement ever. According to our prime minister, the association agreement goes beyond Dutch interests. In his view it is a geopolitical necessity that - evidently despite everything – we bind Ukraine to us. Does that not constitute an admission that the nature of the entire association agreement has been completely transformed during the last few years from a primarily economic treaty – one already hatched under the now ousted president Yanukovych – into a political treaty designed to bring Ukraine out of the Russian sphere of influence and into the European? What remains of the interests of the Ukrainian people?”

Van Apeldoorn cited an opinion poll taken in the country at the end of last year which showed that only 3% of the population believe that the situation in their country has improved. Not a single politician or political institution can count any longer on people’s trust.   

For the SP, the Senator stressed, it was and is completely clear. Neither the Netherlands nor Ukraine nor the European Union is ready at this stage to enter into such intensive relations as those described in the first seven articles of the treaty: promoting economic integration and political association, including gradual convergence in foreign and security policy. By bringing Ukraine into the EU sphere of influence the treaty will heighten tensions between Ukraine and Russia as well as the EU and Russia. “The treaty offers opportunities for profit to some European multinationals and Ukrainian oligarchs ,” said Van Apeldoorn “but under existing circumstances no advantages worthy of the name and very many disadvantages to the Ukrainian people. What’s needed first of all therefore is that at least the basics of a democratic constitutional state must be in place before further association with the EU should be considered.”

Van Apeldoorn then returned to what he reminded colleagues was the real point under debate, which was not whether or not this was a good treaty but whether “a treaty emphatically rejected by the people in an advisory referendum can nevertheless be brought into force by government and parliament?” To this question, the SP’s answer was crystal clear, he said: no. 
He then went on to list the reasons why this was the case: firstly, because the Senate itself had added the 30% threshold which made the referendum, if not compulsory, certainly insistent. Secondly, the voters had shown that they knew just what they were doing when they said ‘no’, and why. They did not have sufficient confidence in Ukraine to approve integrating its economy with that of the European Union, seeing the country as too corrupt.  Thirdly, because so many parties had said that they would respect the result of the referendum. Fourthly, because Ukraine had not signed, and was not required to sign, the so-called “binding declaration”, which for this and other reasons carried no legal force.

Van Apeldoorn then turned his attention on those parties which, having said they would respect the referendum result, now appeared prepared to do no such thing. “We know that the Green Left group issued a forceful appeal to the party’s congress not to be instructed to vote for the treaty to come into force, because that would completely contradict what they had up to then committed to in parliament and in the public debate.” While it was true that party congresses represent their membership in a democratic framework, the question remains for us to answer as to whether party congresses can instruct their MPs to make a complete U-turn in relation to a matter currently ongoing.  “That seems a great deal like changing the rules of the game during the match.”

Three other parties, the centrist D66, the Green Left and Labour had moved the original resolution which made advisory referenda possible. “We remember the well thought-out and passionate defence of the democratic importance of this by the resolution’s authors, and its endorsement by the D66 and Labour Party groups. And we remember how it was in particular these groups who wanted to strengthen the legislative proposal through the introduction of a turnout threshold, a wish to which this House agreed, as did the Lower House. And we remember how after the referendum D66 announced, with a heavy heart, that out of respect for the democratic process, it must support the withdrawal of the approval law. And how Labour, even before the referendum took place, stated that rejection should never lead to the unamended passage of the association agreement.” The centre-right CDA had also insisted that the result must be respected, despite its opposition to it having been held in the first place. As Sybrand Buma, leader of the CDA in the Lower House told his party last year, “politicians ignoring the result will lead to a still greater loss of confidence in politics and still more cynicism regarding The Hague and Brussels.” 

Senator van Apeldoorn said that he agreed with this view and then concluded his speech. 

“And so I hope this House will in the end say that the voters have made use of a new legal right, one that we gave them. With this they have given us their advice which, it’s true, is non-binding, but surely exceptionally emphatic, not to put through this association agreement between the European Union and Ukraine.

“Now we are deliberating over having supplemented parliamentary democracy with a form of direct democracy, the advisory referendum, and now the government isn’t happy with making a substantial adjustment of the treaty rejected in the referendum, we must do justice to the verdict of the voters and not support the present law putting it into force.”

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