Human rights referendum: Dissonance between ‘the will of the people’ and fundamental rights?

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.