Publication

This is a translation of a story published by the Ukraine Today, written by Bert Maan and Kateryna Zarembo.On April 6, 2016, Dutch citizens for the first time will be able to test the long-awaited “direct democracy” tool they obtained last year – a referendum on legislative decisions.

As some may know, the subject of the referendum has become the EU-Ukraine Association Agreement. Although, The Netherlands claim it is not about Ukrainian interests, but about the Dutch Euroscepticism.

Anyway, the referendum results will have a direct impact on the Agreement’s fate. The Institute of World Policy (IWP) tried, without fear or favour, to figure out what the Dutch law says about the referendum and what could be its legal consequences.

Some background

The idea of “direct democracy” – voters’ ability to directly influence political decisions – is very popular in the Netherlands. The country’s history records many legislative initiatives of the kind.

The current bill was submitted to the Dutch parliament back in 2005, but voted for only in 2014. However, it took effect on July 1st, 2015. Under the law, a referendum may take place if 300,000 signatures of supporters are gained. The full title of the law is ‘the Law on correcting advisory referendum’.

What does it mean?

The term “advisory” (as opposed to “binding”) in this context suggests the referendum outcome does not cancel the decision directly, yet is the basis for the government and parliament’s future action. However, this does not mean that election results are not important, as many of Ukrainian politicians tend to think mistakenly .

To get the referendum recognized, the voter turnout should be at least 30%. Voters may only answer ‘yes’ or ‘no’ to the question.

What will happen on April 6?

Well, on April 6, 2016, the Dutch voters will answer the question: “Do you support or oppose the EU-Ukraine Association Agreement?”

There may be three referendum outcomes:

– The voter turnout is less than 30%, and the results are invalid (but not unimportant).
– The voter turnout exceeds 30%, and most people vote in favour of the Association Agreement.
– The voter turnout exceeds 30%, and most people vote against the Association Agreement.

Thus, the turnout is a matter of high priority. In the Netherlands, it can vary dramatically. When it comes down to national and the EU-related issues, the voter turnout substantially exceeds 30%. However, the Dutch people are not that enthusiastic about taking part in local elections.

63% of voters took part in the EU Constitution vote in 2005, while, for example, only 9% of people took part in the 2007 elections of the mayor for Utrecht – the fourth most populous city in that country.
The referendum on Ukraine goes to the first category of well-attended elections. Today’s polls show the forthcoming referendum turnout will most likely exceed 30%.

Therefore – and this is vital – it is pointless to expect the low voter turnout. Ukraine has either to win the referendum with a majority of votes or otherwise – lose.

What the law says …

If most voters support the Association Agreement, consequences are as simple as it goes: the Agreement comes into force. Therefore, we better consider the negative case. And this is far from simple.

The Referendum Act regulates the government and parliament actions, considering two scenarios. The first one (described in paragraph 11) applies to the Netherlands’ national laws, the second one (a somewhat simplified method, paragraph 15) applies to “international agreements”.

At first glance, it seems that Ukraine is subject of the second scenario, but this is a misconception. The thing is the Netherlands have also a procedure for “tacit approval” of international agreements – if the Parliament fails to put the Agreement to vote for a long time, it is considered ratified. Paragraph 5 lists such cases.

Meanwhile, the EU-Ukraine Association Agreement was approved under the comprehensive procedure, and if Ukraine loses the Dutch referendum, the Dutch government will have to act according to the first scenario. In this case, the government should submit to the parliament a bill either cancelling or confirming the Agreement.
Consequently, even if Ukraine loses, it depends on the government which “incoming message” will be voted for by the Dutch lawmakers. Thus, the law does not oblige the government to make a proposal for cancellation or termination of the Agreement which was already signed. Even in case of the referendum negative outcome.

“In this case, the referendum will not kill the deal, but will create a legal and political background to make sure it will not come into force in the present form. Although its provisional application will continue,” Ukraine’s Ambassador-At-Large and a representative of Ukraine’s Foreign Ministry Dmitry Kuleba commented on the negative referendum outcome on Tuesday, January 20. “Though its provisional application will continue”.

…and how it will actually turn out

One should not be overly optimistic. In reality, if those who come to the polls on April 6, vote against the Agreement, the government and MPs are unlikely to exercise their right to disregard that. Because, it is not about Ukraine only.

Ignoring the voters’ views may cost the Dutch politicians a high price. Very soon – less than a year after the referendum – the Dutch parliamentary elections are going to take place. Therefore, most Dutch political parties have already publicly stated that the government should act according to the voters’ will.

In fact, it eliminates the “advisory” nature of the referendum. Despite the legal permission to ignore the voting, no doubt the referendum results will be implemented. The political pressure in The Netherlands, does not provide lawmakers with much room for maneuver.

After all, this vote puts to test a “direct democracy” tool in the Netherlands. If the government ignores the results, it will discredit the Dutch decision-makers to a large extent. If the referendum results are not taken into account – right in the very first case – what for the law was adopted then?

Read also Information War: Recent attack on Ukraine ahead of Dutch referendum

Anyway, some room for maneuver still remains. The ratio of those voting “for” and “against” will be vital. If the ratio is small (for example, 45% and 55%), the government will find it easier to defend the need to leave the Agreement in place or explain the necessity for its repeated support in the parliament. Although, they will not be able to avoid re-approval of the Agreement in any case.

Impact on the EU

The results of the referendum will have an impact not only on the Association Agreement, but also on the referendum tool itself – and perhaps not only in the Netherlands but also in other EU member states.

The attitude towards “correcting referendums” in the Netherlands is not straightforward (this, in particular, explained the reluctance of some Dutch citizens to take part in it).

There are those opposed to holding referenda in the Netherlands. They explain that this tool is quite expensive for the national budget, it can become frequently and destabilizing for the Dutch policy. 11 years ago, when this law was developed, no one imagined that in the era of social networks it would be too easy to clock up 300,000 signatures.

If the majority of the Dutch citizens vote “yes” in the referendum on April 6, the tool will more likely lose its attractiveness in the Netherlands in future.

On the other hand, a negative result for Ukraine could become a dangerous precedent for the other EU member states, given Eurosceptic sentiments in various EU countries.

It is probable that due to the idea of referenda, the EU will fail to implement all agreements with the other countries. Because, just 10,000 signatures of the Luxemburg’s residents will suffice to suspend the EU joint decision.

Whatever the referendum results and their consequences are, their far-ranging impact both on Ukraine and the European Union cannot be overestimated.

Authors – Bert Maan, retired judge of the Court of Appeal of Amsterdam, The Netherlands
Kateryna Zarembo, deputy director of the Institute World Policy, Ukraine
with comments from Lada Roslycky, director of strategic communication, Ukraine Today