Human rights referendum: Dissonance between ‘the will of the people’ and fundamental rights?
| Date | 01 June 2020 |
| DOI | 10.1177/0924051920923614 |
| Author | Ignatius Yordan Nugraha |
| Published date | 01 June 2020 |
| Subject Matter | Articles |
Article
Human rights referendum:
Dissonance between ‘the
will of the people’ and
fundamental rights?
Ignatius Yordan Nugraha
Ghent University, Gent, Belgium
Abstract
Referendums and popular initiatives have proliferated in many parts of the world as part of the
effort to improve the quality of democracy and enhance citizen participation in policy making.
However, even before the surge of populist nationalism in the 2010s, referendums have become a
sort of weapon to restrict various rights. Furthermore, the juxtaposition between ‘the will of the
people’ and human rights has once again brought back the classical criticism against direct
democracy that it constitutes ‘a tyranny of the majority’ that could erode minority rights. With
these concerns in mind, this paper is written to analyse the dissonance between human rights
referendums and international human rights law through a positivist lens. The overall goal is to
determine whether States have an ex ante obligation to prevent a referendum on a subject matter
that is contrary to human rights.
Keywords
Referendum, plebiscite, popular initiative, citizen-initiated mechanism, International Covenant on
Civil and Political Rights with capitals
1. INTRODUCTION: THE DILEMMA OF DIRECT DEMOCRACY
VIS- `
a-VIS HUMAN RIGHTS
On 7 November 2000, the people of Alabama cast their ballot to decide whether they would
be in favour of a constitutional amendment repealing the prohibition of interracial marriage
in the constitution. Although this prohibition was already rendered obsolete by the US
Corresponding author:
Ignatius Yordan Nugraha, Hasselt University, Martelarenlaan 42, 3500 Hasselt, Belgium.
E-mail: yordan_313@hotmail.com
Netherlands Quarterly of Human Rights
2020, Vol. 38(2) 115–133
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0924051920923614
journals.sagepub.com/home/nqh
NQHR
NQHR
Supreme Court in Loving v Virginia,
1
the referendum was still required by law to remove
the provision from the constitution. In the end, the majority supported the amendment.
However, it is worth noting that 40.51%voted against interracial marriage, which is quite
a significant percentage.
2
This was not the first time a referendum on human rights was held. In Liechtenstein, voters
rejected women’s suffrage three times in 1968, 1971 and 1973.
3
Finally, in 1984, the effort to
enfranchise women in that principality passed with a narrow margin of 119 votes.
4
There were
even referendums with a subject matter that is flagrantly intended to limit the exercise of a certain
right, such as the 2009 Swiss minaret referendum in which a large majority of 57.51%supported a
constitutional ban on the construction of new minarets.
5
Furthermore, in recent times, there are
various referendums being held on human rights matters that are still subject to extensive contro-
versy under the jurisprudence of international human rights law, such as the 2015 Slovenian same-
sex marriage referendum,
6
the 2018 Irish abortion referendum,
7
and the 2018 Irish blasphemy
referendum.
8
When the result of these sort of referendums is favourable in the eyes of human rights defenders,
it will usually be applauded.
9
However, ‘the will of the people’ does not always align with
international human rights law. Furthermore, referendums may also intentionally be called by a
populist party to provoke a clash with international law, including international huma n rights
jurisprudence.
10
Back in 1992, the Swiss Democrats launched a popular initiative titled fu
¨r eine
vernu¨nftige Asylpolitik (‘for a sensible asylum policy’) to summarily deport asylum seekers who
entered the country in a clandestine manner without any possibility of appeal. This initiative was
later invalidated by the Swiss Federal Parliament due to the finding that it violates the prohibition
of refoulement.
11
This raises the issue of whether States are legally allowed to hold a referendum whose subject
matter could lead to a direct violation of international human rights law. When such a proposition
1. Loving v Virginia, 388 U.S. 1 (1967).
2. ‘Alabama Interracial Marriage, Amendment 2 (2000)’ (Ballotpedia)
Amendment_2_(2000)> accessed 18 June 2019.
3. Dieter Nohlen, Philip Sto¨ ver, Elections in Europe: A Data Handbook (Nomos 2010) 1173-1174.
4. ibid 1174.
5. Thomas Stephens, ‘Minaret result seen as ‘‘turning point’’’ (Swissinfo, 29 November 2009)
minaret-result-seen-as–turning-point-/7793740> accessed 18 June 2019.
6. Marja Novak, ‘Slovenia rejects same-sex marriages in a referendum’ (Reuters, 20 December 2015)
article/us-slovenia-rights-idUSKBN0U30BS20151220> accessed 18 June 2019.
7. Jon Henley, ‘Irish abortion referendum: yes wins with 66.4%– as it happened’ (The Guardian, 30 May 2018)
theguardian.com/world/live/2018/may/26/irish-abortion-referendum-result-count-begins-live> accessed 18 June 2019.
See also Giulia Santomauro, ‘Referendum as an Instrument of ‘‘Policy Change’’ on a Crucial Bioethical Issue: A
Comparative Case Study on Abortion in Italy and Ireland’ (2019) 1 Nomos: Le attualit`a nel diritto 1.
8. Emma Graham-Harrison, ‘Ireland votes to oust ‘medieval’ blasphemy law’ (The Guardian, 27 October 2018)
theguardian.com/world/2018/oct/27/ireland-votes-to-oust-blasphemy-ban-from-constitution> accessed 18 June 2019.
9. See ‘Ireland: Marriage Equality Affirms Inclusion’ (Human Rights Watch, 23 May 2015)
05/23/ireland-marriage-equality-affirms-inclusion> accessed 18 June 2019. See also Aisling Reidy, ‘Ireland Votes
Overwhelmingly to Repeal Abortion Ban’ (Human Rights Watch, 26 May 2018)
ireland-votes-overwhelmingly-repeal-abortion-ban> accessed 18 June 2019.
10. See Maya Hertig Randall, Eleanor McGregor, ‘Reconciling Direct Democracy and Fundamental Rights: The Case of
the Swiss Minaret Initiative’ (2010) Tijdschrift voor Constitutioneel Recht 428.
11. ibid 431.
116 Netherlands Quarterly of Human Rights 38(2)
To continue reading
Request your trial