The legal basis for referendums can be divided into the following categories: international law, constitutional law and local autonomy law.
A referendum means citizens making decisions by direct vote.
In a broader sense, therefore, elections are also a kind of referendum. The difference is that elections are held to elect people while what are generally called referendums are held to decide on issues.
Referendum laws are domestic; their status is below that of constitutional laws. Referendum laws are not the legal basis for direct people power. At best, referendum laws are legal regulations for implementation procedures.
First, the legal basis for referendums involving international issues such as a country's sovereignty, independence or the ceding of territory -- such referendums are also called "plebiscites" -- comes from international law. It is a supra-constitutional right. Sometimes a country has not even been established when this right is exercised.
Certainly, in such situations, one does not need to rely on domestic legislation or incorporation of the right to referendums into a constitution. Besides, this is a right that no domestic law can eliminate.
The right to self-determination is a basic supra-legal human right. Its scope includes sovereignty, the freedom to decide on political structures and independence in terms of economic resources and so forth. Referendums are one of the concrete ways to express this right.
After the 18th and 19th centuries, referendums were frequently held in Europe to gauge the residents' wishes regarding the ceding and merger of territories.
After World War II, all the so-called "dependent territories" -- many territories of uncertain jurisdiction, non-self-governing territories, trust territories, protectorates and so on -- decided on their national status by referendums held under the supervision of concerned countries and the UN Trusteeship Council.
The referendums on independence held in the three Baltic nations, Canada's Quebec Province and East Timor, as well as Australia's referendum on setting up a new republic, belong to this type. The timing of such referendums can be determined entirely by governments according to the circumstances.
Second, constitutional-level referendums are called "referendums." They primarily mean the entire citizenry, by way of a vote, decides on constitutional changes, national laws or policy issues. As a rule, such referendums are regulated by constitutional provisions. They are normal systems within constitutional frameworks, and their exercise is national in scope. Switzerland incorporated referendum rights into its constitution in the early days of the 1848 federation. The country has held more than 400 referendums so far.
In Japan, constitutional amendment proposals and the review of supreme court justice candidates must be confirmed by national referendums.
Also, while Taiwan has been discussing the referendum issue, Rwandan citizens were recently holding a referendum on a draft constitution.
In Taiwan, constitutional-level referendums have long been incorporated into constitutional provisions. They have not been practiced for more than 50 years because of executive and legislative negligence. It is not that the citizens have no such right.
In 1993, Japan proposed a referendum law that still has not been passed today, but Japan has held many referendums since the post-war constitution went into effect.
Third, referendums on the local autonomy level (also called "residents' votes") mean that local self-governing organizations and residents, by way of direct democracy, decide on laws and policies specific to that locality. Normally they can be held by way of local self-governance regulations, but they are generally also regulated by constitutional or local autonomy laws in order to verify their legal force. Referendums on local public policies such as setting up incinerators or landfills belong to this type.
Referendum issues involving international law do not need to have domestic constitutional laws and statutes as their legal basis. One can find their basis directly in international law. The legal basis for referendums in international law primarily includes: self-determination, treaties and resolutions by international organizations.
In the relationship between international and domestic law, one does not need to consider whether the referendum on the international law level has any basis in domestic law as long as it is compatible with the principles of international law. This is because the international community has widely adopted the view that international law is superior to domestic law.
Self-determination is the legal basis for national independence, but self-determination is not necessarily exercised by referendums. When a people adopts the referendum method to exercise their right to self-determination, such a referendum is directly related to independence. It is an important procedure in achieving independence.
In this sense, any arrangement or decision concerning a change to the status quo must be decided upon by the entire people. No strong power, government, party, organization or individual can take away or limit such a right. Referendums held on the basis of this right are "plebiscites," which belong on the level of international law.
In comparison, if a referendum is not used as a basis for national independence, but merely to confirm the legality of national status, then such a referendum does not change the subjective status quo even though it in a sense involves sovereignty issues. Instead, it is an act of a political nature.
Therefore, the word "referendum" is used here. The true basis for independence in this case is the self-determination that has long been exercised.
Li Ming-juinn is an assistant research fellow at the Institute of International Relations, National Chengchi University.
Translated by Francis Huang
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