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The Dutch Referendum

April 1, 2016

This blog has many friends from The Netherlands, among them domestic opinion framers such as Hubert Smeets and Laura Starink (as well as others).  Many of them have frequently been in contact recently in the prelude to the 6th April referendum.

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The recent flow of “bad news” regarding both the political situation and institutional decision making in Kyiv will do nothing to assist its cause immediately prior to the Dutch referendum regarding Ukraine and the EU AA/DCFTA (albeit a non-binding referendum upon Government Netherlands).  With parliamentary voting in favour of ratification completed between April and July 2015, The Netherlands has only to deposit the ratified document with the EU to complete the process.

In Ukraine, overt battle is now joined between the reformers and the entrenched vested interests.  It is a battle that may well rage for some 6 – 8 months, for that is about as long as Ukrainian finance can last without international lenders that will await the political fog clearing.  There will be victories and losses for both sides in the on-going skirmishes.

However, it seems clear that by the end of next week, a new majority coalition will be formed as yesterday’s entry outlined.  Indeed those “behind the curtain” from Odessa travel to Kyiv over the weekend and will remain there until about the 7th April.  That they have been summonsed, go, and expect to remain until that date suggests a solution by that date – and not before time.

Perhaps it will all be accomplished by the 6th April date of the Dutch referendum, though it seems unlikely that even if it be so, it would change the minds of Dutch voters regardless of the position they hold – or the reasons that they hold that position (for some will surely vote “No” simply to give the middle finger to the EU).

The resulting new coalition and any new Cabinet of Ministers will certainly last for 6 months – perhaps a year.  To last any longer will require a significant shift of reformation gear and also several convictions of the odious of national recognition who are currently pending judicial due process.  There will naturally be reinvigorated reform fervour among the new leadership – but how long it will last, or how long before it succumbs to internal and/or external subterfuge is an open question.

To avoid early elections there will have to be a deliberate and sustained effort to get civil society back on-board, notwithstanding repeating the scripture that following any early Verkhovna Rada elections, the probable resulting populist government would very swiftly alienate Ukraine from its external supporters.  The populist devil may have the sweetest tunes, but the public require reminding that the populist devil remains the devil nonetheless.

It is a matter for Government Netherlands as to whether it changes the national position with any resulting “No” vote with regard  to the AA/DCFTA with Ukraine.  Some may see this as the greatest threat for Ukraine.

Others within the EU, considering all EU nations having ratified the AA/DCFTA with Ukraine already, will see a “No” vote as the further fracturing of the EU itself should Government Netherlands enact Article 481 (2) and activate the 6 month agreement termination clause as a result.

Article 481

2. Either Party may denounce this Agreement by notifying the other Party. This Agreement shall terminate six months from the date of receipt of such notification.

Definition of Parties

For the purposes of this Agreement, the term “Parties” shall mean the Union, or its Member States, or the Union and its Member States, in accordance with their respective powers as derived from the Treaty on the Functioning of the European Union, of the one part, and Ukraine of the other part. Where relevant, it refers to Euratom, in accordance with its powers under the Euratom Treaty.”

Every international or regional legal instrument has a “get out clause” for any party to it after all (less jus cogens) – the AA/DCFTA is standard fare when it comes to having a termination clause.  What legal contract doesn’t have a termination clause?

So which is the greater danger to Ukraine if there be a “No” returned by those of the Dutch public that turn out to vote, and should Government Netherlands decide to concede its previous and now ratified position?

As all EU nations have ratified the Agreement, the Dutch may simply decide not to deposit it – something not particularly rare with international or regional legal instruments.  It seems unlikely to activate Article 481 (2) – though it could.

Is a further rupture within the EU the greatest threat to Ukraine should a “No” vote result?

The answer is probably none of the above as far as the immediate future is concerned.  Neither will it be a loss of heart from society or civil society, for their cause is building a democratic and rule of law nation first and foremost.

The greatest threat to Ukraine from any “No” vote will be from its feckless political class – as it always is.  It is quite likely that the political class would become much more inward looking and thus self-destruct quite promptly (and frequently) as contemporary Ukrainian political history ably displays.  Keeping its current outward gaze in the internal battle between reformers and entrenched vested interests presents far better prospects for the reformers.

It is said that the Dutch referendum is currently too close to call – which is perhaps equally true of the current domestic battle too now it be overtly joined.  It remains to be seen whatever the result of the Dutch referendum, the repercussions for the domestic fight now underway.

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