Central and Eastern Europe, Public opinion, the Netherlands, Ukraine

Ukrainians trying (again) to argue against the Dutch ‘No’ while ratification remains uncertain

A guest post by Elitsa Kortenska:

Since 6 April 2016 when a consultative referendum in the Netherlands on the EU’s Association Agreement  with Ukraine resulted in 61 percent votes against it and 38 percent in favour, ratification is on hold. The Netherlands was the last member state whose ratification was needed for its entry into force. Since April, the government and the Prime Minister have postponed decision to withdraw Dutch support for the Agreement several times. In the last couple of months, Dutch Prime Minister Mark Rutte has intensified his efforts in Brussels and in the Netherlands to resolve the problem. He stated repeatedly that the failure to ratify the Agreement would be a ‘massive mistake’ for the Netherlands, as POLITICO reported.

In October Rutte attempted to persuade political parties (see his official letter sent to Parliament) to rally around  and ratify it despite the referendum results. The forthcoming elections are making this a politically risky proposition especially with the initiators of the referendum Baudet and Jan Roos both going into politics with political formations on the right, aiming seats in parliament. Meanwhile, in an interview for a Dutch radio, former Dutch foreign minister and current Vice president of the European Commission Frans Timmermans urged political parties to give a green light to the Agreement and referred to the consultative nature of the referendum. Emphasizing the risk of instability in the region at the event of non-ratification, Timmermans said ‘we should not offer presents to Putin’. Yet the fate of Agreement remains uncertain due to the unwillingness of the Dutch second and first chamber to appear to dismiss the popular vote with national elections around the corner.

Earlier in October, Ukrainian officials, parliament members and civil society tried to argue the case for ratification and discussed the dynamics linked to it at a symposium, organized by the newly launched Netherlands-Ukraine Society. Speakers highlighted the paramount importance of the Treaty for the Ukraine domestic political and economic transformation. From the perspective of the seven Ukrainian students, who had led a six-day ‘For’ campaign just before the referendum date, the negative result meant a need  for more initiatives presenting a positive image of the ongoing transformation in ‘new’ Ukraine and AA-related reforms.

Ukrainian politicians and civil society members present at the event warned about the negative implications of failure of the Agreement. While Dutch citizens’ concerns and the ‘No’ vote must be taken seriously and addressed, according to Taras Kachka this could be achieved without renegotiating or changing the provisions of the Agreement. Since a number of the Treaty provisions have already been enforced, he hoped that that the Dutch ‘No’ would not ‘kill’ the Treaty. ‘The Agreement is not merely a technical tool for integration for Ukraine, but it symbolizes enormous changes in Ukrainian political culture and society’ he argued.

Enforcement of the treaty provisions has achieved progress in important areas of  reform: rule of law and market liberalization, but those have not reached a ‘point of no return’, civil society representatives argued. The Reanimation Reform Package (RRP) for Ukraine is a clear example of Ukrainian civil society engagement in the reform process. Olena Halushka, RRP representative, said: ‘the Maidan is the real evidence that signing the AA was not a political decision taken top-down’, but a result of citizens’ desire for transformation in Ukraine and the ‘Revolution of Dignity’.  Reforms and their enforcement are not irreversible, Halushka warned and emphasized that the political will for adopting and implementing reforms depends on full enforcement of AA provisions and the synergy between civil society and external EU pressure.

Parliamentarians Serhiy Kiral (Samopomich Union) and Vladyslav Golub (Petro Poroschenko Bloc) stressed political and financial support through the AA is key for maintaining political consensus on reforms domestically. Uncertainty over the Dutch decision has weakened the EU’s commitment to the Agreement, while the on-going Russian information war,  propaganda and aggression in Ukraine renders non-ratification extremely risky for domestic reform process, they argued.

While the Dutch ‘No’ cannot be simply disregarded, the implications of the failure of the Treaty could have more negative consequences for EU, the Netherlands and Ukraine than public is aware. According to the symposium speakers, one way to resolve the problem within the Netherlands is through broader public debate, information and communication on the economic benefits of the Treaty for the Netherlands It remains to be seen whether it is already too late for this, in terms of ratification. A decision from Dutch parliament is yet to come, but the delay already costs the EU some credibility, affects political commitment for reforms in Ukraine and potentially contributes to further political deadlock.

Academic research on the EU, Enlargement, Europe in the news, Euroscepticism, Future of the EU, the Netherlands

The contradictions of the Dutch referendum on the Association agreement with Ukraine

As the day of the advisory referendum in the Netherlands on the Association agreement with Ukraine nears, the bulk of the commentary seems to focus on the campaign, its trends and its context rather than the referendum question and the agreement it addresses. There have been lots of commentaries focusing on the geopolitics of the referendum, evaluating Russia’s possible attitude or role, as for example this recent piece  assessing a potential ‘no’ vote as a symbolic victory for Russia. Many analysts note the passive stance taken by the Dutch government and political parties of the government coalition who, after all, participated in the negotiations of the agreement that started all the way back in 2008. In a highly critical post, Judy Dempsey denounces the lackluster campaign by Dutch and European politicians and the lack of visible commitment to the  treaty and the values it embodies (rather than just trade) by the Dutch Prime Minister Rutte himself. In terms of the implications of the referendum results, there is little agreement on the significance of a potential ‘no’ vote. Some, consider the whole exercise to be meaningless, as given the advisory nature of the referendum, the government could ignore the results if they are negative.This post by Korteweg provides an overview of recent history of both the agreement and the Dutch referendum and of potential scenarios after the referendum.

Yet, as Kristof Jacobs pointed out in the SRV blog and also in a debate we held yesterday, the political consequences of ignoring a possible ‘no’ vote would be much wider  and harder to ignore than the legal ones. Both domestic and international consequences could be quite broad and far reaching. At least one of the government coalition parties, the Social Democrats, has committed to respecting the outcome of the referendum. Changing the wording of the Association agreement to satisfy the Dutch voters would also be quite problematic: in a total of 486 articles and 179 pages without the annexes, identifying which bits would have been found objectionable by Dutch votes in case of a ‘no’ majority would be difficult. The EU’s credibility in other international settings and policies, such as the revised European Neighborhood Policy or even ongoing enlargement process with the Western Balkans, would be compromised.

If we accept that future accessions or associations will become more and more politicized, as found in our enlargement assessment project maxcap (see here), we should try to take the question of the referendum seriously and evaluate, to the best of our current knowledge, what effects the Association agreement might have. Given its scope and the fact that establishing a Deep and Comprehensive Trade Area is quite a novel enterprise, as shown in this legal analysis, effects are difficult to estimate ex ante. The political reform provisions in the treaty, however, are both far-reaching and promising, in the clear commitment to domestic reforms in Ukraine (art 6), extensive requirements for transparency and the planned involvement of civil society (articles 299, 443). All other things being equal (which is not a given in Ukraine’s neighbourhood), the Agreement will provide both a roadmap and a set of incentives for reforms in democratic governance, as the EU has done in the past for countries like Bulgaria, Romania or Slovakia. It will be up to Ukrainian policy makers and politicians to take this opportunity. Yet rejecting the treaty by means of a negative vote in the Netherlands, or letting it exist in some kind of legal and political limbo while the Dutch government decides how to react to a potential negative result, would sap what energy and determination exist for reforms in Ukraine. So paradoxically, if we assume that at least some of the initiators of the Dutch referendum care about democracy and citizens, their democratic impulse might kill the attempts to make democracy mean something in Ukraine. This would be a strange outcome indeed.


Enlargement, Uncategorized

Time for domestic political debate on future EU enlargement

As Dutch media announced this week, a first opinion poll conducted by a public TV programme EenVandaag showed that a majority of Dutch citizens may vote against the Association agreement with Ukraine in the referendum planned for 6 April 2016. Our colleague Joop van Holsteyn, special professor in electoral research at Leiden University, has warned that it cannot be established how representative the EenVandaag polls are, as they are based on a self-selected panel of citizens. Yet he also stressed that the results suggest the 30 per cent threshold for the validity of the results of the referendum would be easily reached based on these first results. As he also noted the government has so far allocated meagre funds for campaigning, likely with the idea that citizens would not come out and vote.

This attitude by Dutch politicians, if this is indeed the government’s campaign plan, brings uncomfortable memories of their approach to the Constitutional treaty referendum, for which campaigning was both short and uninspired. We all know how this ended up.

Commission President Juncker appeared to advocate for a more pro-active approach, Juncker suggesting in an interview for the NRC Handelsblad newspaper that the government should defend the agreement they have signed. He warned that a Europe-wide crisis could be precipitated by a Dutch ‘no’ in the advisory referendum.

The arguments for the Association agreement need to be put clearly on the table and some of the myths spread by the initiators should be discussed openly. Contrary to what the initiators of the referendum have claimed, the agreement does not open the door to Ukrainian EU membership in the short or even medium term. As we have argued here, the EU has been very careful to leave relations with Ukraine open-ended. The initiators also claim that the treaty will lead to the provision of millions of financial assistance to Ukraine. They set the question of rejecting it as an issue of national identity and sovereignty, as well as material interest. As we know from public opinion analyses in Europe, perceived material interests and identity are the most important determinants of public opinion trends. So the initiators of the referendum and their arguments should be taken seriously, despite their selective approach to the facts. A rational presentation of counter-arguments may not suffice. For those of us who see the Association agreement as a useful tool for supporting much needed reforms in Ukraine, need to discuss the implications for stability and security in Europe and also the Netherlands (including migration) in case the agreement is rejected.

Furthermore, the broader implications of the politicisation of the ratification of the agreement should be considered. The EU – and the Netherlands , in the Council of Ministers -is negotiating with a number of Western Balkan candidates for membership. In mid-December 2015, the EU opened the first two chapters of negotiations with Serbia, marking some real progress after a year of stagnation. Serbs see this as a historic step, an achievement they have reached, paid for with difficult compromises over Kosovo. The opening of the next two chapters, 23 and 24: on Judiciary and Fundamental Rights and Justice, Freedom and Security, is expected to take place in the first half of 2016.

The EU’s influence on Serbian foreign policy, however, is precarious and seen by many to depend on further progress in accession negotiations. As our research in discourses on EU membership in Serbia has shown, many Serb citizens see relations with Kosovo as the most painful step their country has to take on the road to membership. The high domestic cost of concessions on Kosovo means that Serbian leaders may not be able to maintain commitment to reforms for a very long period of time. Therefore, they have set for themselves the ambitious goal to be ready for membership in 2020.

Back to the Dutch referendum and its implications for this process: if the Association agreement is rejected  – not for legal, but for political reasons some Dutch political parties may follow a negative referendum result – EU’s conditionality in enlargement would be much less credible. Serbia and other current candidates may, with good reason, ask themselves whether they are willing to pay the cost of adjusting to the EU when their accession could be put on hold in a similar referendum in the future. After all, accession treaties still require unanimity to come into force. Another good reason for Dutch political parties to campaign vigorously in the current referendum – and for the government to inform its citizens more regularly of progress and decisions reached in enlargement negotiations.




Back to the USSR? Guest post: What kind of Eurasian Union might Ukraine be joining?

A guest post from our colleagues from Birmingham Dr. Rilka Dragneva and Dr. Kataryna Wolczuk, who have investigated the Eurasian Customs Union, the purported alternative to the EU-Ukraine Association Agreement. First published in Edward Elgar’s blog.

 “Ukraine is again at the centre of global attention after its government failed to sign the Association Agreement with the EU. This failure was interpreted as succumbing to Putin’s pressure to join the Customs Union of Russia, Kazakhstan and Belarus instead of re-orienting westward. There is little doubt that Ukraine’s full accession to this Union would be a major trophy for Putin, both domestically and internationally. The details of this volte-face remain obscure, but after years of negotiation, it was unexpected to say the least.

Ukraine has faced a dichotomy: Eurasia or Europe? Either choice carries hefty implications. Not signing was seen in the West as evidence of Ukrainian ruling elites acting on their old rent-seeking inclinations, fearful of the costs of EU-style modernisation. In contrast, Russia viewed the decision as a valiant refusal to submit to EU pressure and a pragmatic rejection of a deal with ephemeral, long-term benefits in favour of current and visible gains.

However, does the rejection of the EU deal in Vilnius mean that membership of the Eurasian Customs Union is Kyiv’s best option? How clear is the commitment and how credible is the Customs Union’s promise?

‘The Road Map’

No formal decision to accede to the Customs Union has been made by the Ukrainian government. We know that Kyiv is keen to restore ‘normal trade relations’ with Moscow and is considering a ‘Road Map’ for cooperation with the Customs Union (interestingly, the same phrase used to name the accession instruments of Armenia and Kyrgyzstan). In the case of Ukraine, detail as to this ‘Road Map’ is absent – other than Prime Minister Azarov’s cryptic message (‘we have many plans’, zn.ua, 1 December). Putin-Yanukovych’s meeting failed to shed further light either. The Ukrainian government’s priority appears to be the return of the status quo i.e. the situation before Russia woke up to the reality of the EU option.

Ukraine has been a reluctant participant in Post-Soviet integration regimes, exhibiting a preference for ‘pick and mix’ formats (the Commonwealth of Independent States), observer status (the Eurasian Economic Community of 2000) or general, declarative frameworks (the Common Economic Space of 2003). In 2011, it joined the revamped CIS free trade area, a non-institutionalised treaty regime. Thus, since independence Ukraine has demonstrated an on-going recalcitrance to submit to a binding, asymmetric integration regime. However, it may be that the political tensions in Ukraine, underpinned by Russia’s pressures, will force the issue.

Certainly, President Yanukovich has declared his ‘dream of European integration’. As the post-Vilnius flurry of activity to extract a better deal from the EU has shown, there is some substance to his assurances that Europe remains the geopolitical choice of Ukraine. Yet, his room for manoeuvre is becoming ever more circumscribed, meaning that he may well ‘sit on the fence’ as long as possible. This is at best a strategy for avoiding decision-making rather than looking to the future.

Joining which Union?

Perplexingly, it is unclear which Eurasian integration regime Ukraine might join? Currently, there is the Customs Union which has no legal personality: it is an institutionalised treaty regime within the Eurasian Economic Community. As this status complicates rules on membership, accession is a function of signing the numerous agreements establishing the Customs Union and the Single Economic Space.

A new Treaty on the Eurasian Economic Union is currently in preparation with the official draft likely to be publicly available in the spring 2014. The Eurasian Economic Union will incorporate the Customs Union and disband the Eurasian Economic Community. The Treaty is likely to have several chapters distinguishing commitments within the Customs Union, the Single Economic Space and other areas of cooperation. It is thought that some countries, like Kyrgyzstan, are to join only the Customs Union. Therefore, there are likely to be several membership categories. It is unclear whether the different degree of integration will translate into different terms of participation in the bodies of the Eurasian Economic Union. At present, institutional uncertainty prevails.

How real is the promise of the Customs Union?

The Eurasian Development Bank has highlighted the systemic as well as sector-specific economic advantages of Ukraine’s membership in the Customs Union. Other economic analyses are not as optimistic. While this is a complex issue, several points stand out.

The Eurasian choice might benefit sectors in Ukraine with strong dependencies on the Russian market. Yet, it will not be a costless option. Ukraine has relatively low trade tariffs and imports technologically sophisticated goods from the EU. These goods are important for Ukraine’s modernisation. Because of trade diversion, the Eurasian choice would result in a decrease of EU imports and increase (of lower quality items) from the Eurasian market, and above all, Russia.

More importantly, the Customs Union fails to address the modernisation of domestic institutions. Underestimated by many observers, the Customs Union has led to the adoption of new customs regulation aligned with international norms and has thus been an important vehicle for domestic legal reform. Yet, as many years of transition studies show, changing laws on the books does not necessarily lead to improved business practices and implementation. The Customs Union does not purport to change the nature of domestic institutions in the manner that the EU does. The powers and functioning of customs authorities, for example, remains a domestic matter. The Customs Union strives for improved coordination and exchange of information, but it is coordination of what is in place. Additional agreements aiming at capacity building might be put in place but they are clearly the subject of a process of separate negotiations with its own (geo)political dynamics.

While the importance of rule-compliance is noted (at least by experts in the permanent regulator of the Union, the Eurasian Economic Commission) it has been insufficiently addressed. The prevailing view is that if a high political decision is made, the authority of the Presidents will ensure its implementation. Clearly, despite the various monitoring powers granted to the Commission and the Court of the Eurasian Economic Community, access to the highest political level is the best way to getting things done. It is direct access to the top that will ensure discipline rather than dependence on rule-based compliance by domestic institutions, as is the case in the West. Thus, the inescapable fact is that the Customs Union is based on (and perpetuates) the politically centralised model prevailing in most post-Soviet states.

The speed with which the Eurasian project has developed is noteworthy – often, the quality of the institutional and legal design has been sacrificed to ensure that deadlines are met. Its current legal regime is over-complex and fragmented (see our book Eurasian Economic Integration: Law, Policy and Politics). There is the promise of the codification and simplification of that regime going on in parallel to the drafting of the Treaty on the Eurasian Economic Union, itself subject to tight deadlines and an ambitious agenda for cooperation. 

Finally, particularly as far as sensitive issues are concerned, it is consensus at the highest level that determines decisions. Asymmetries in bargaining power may be somewhat constrained, yet Russia ultimately remains able to shape trade-offs. In areas which remain subject to bilateral cooperation, such as energy, the multilateral framework is very ‘thin’ at present: in that field, Ukraine would remain one-on-one with Russia.

Thus, even if one accepts the optimistic scenarios emanating from Ukraine’s membership of the Customs Union, the realisation of the predicted benefits is far from guaranteed. Whether the current Ukrainian government realises this remains to be seen.”