Why Do We Need International Legal Standards for Constitutional Referendums?

Recently the use of constitutional referendums has become increasingly common in Europe and beyond. National governments tend to initiate or support referendums to settle constitutional questions. For instance, in 2013 in Croatia the electorate was asked to, and indeed did, define marriage as a union between a woman and a man. Two years later, Irish voters approved changing the Constitution to extend civil marriage rights to same-sex couples. In 2016 Italian voters refused the extensive constitutional reform proposed by the Italian government. The British people decided to leave the EU after their government put the Brexit decision to a referendum vote. The Hungarian government asked the electorate to refuse the EU refugee allocation scheme to protect the country’s “constitutional identity.” This spring a referendum was held in Turkey on constitutional changes that crucially expanded presidential powers. And we all remember the illegitimate Crimean status referendum of 2014.

These examples show that the result of a referendum can be as critical as that of a general election. Sometimes it is even more critical, when changing the country’s constitutional setting is at stake. Theoretically, the referendum is an expression of the sovereignty of the people. Ostensibly one of the main goals of holding a referendum is to ensure the participatory rights of the citizens. But in practice referendums do not always serve democratic purposes: they are very often populist, manipulative or even lead to antidemocratic results. In other words, in some cases the referendum is not about using but abusing popular sovereignty. Nevertheless, there are no internationally recognised legal standards and mechanisms concerning constitutional referendums.

Important substantive and institutional guarantees ensure the democratic quality of the general elections ...

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