International norms guaranteeing the participation of citizens in the referendum



In this article, the author examines international acts regulating the referendum area. In the course of studying international norms, it is revealed that today there are only regional acts. The author proposes the creation of uniform standards for all states in holding a referendum, justifying this by the fact that the goal of a referendum in each country is the same.

Keywords : state, international act, international area, human rights, obligation, affairs, regional.

First of all, the referendum is a right, the right of the people, the deprivation of which is practically impossible at the present time in a period of intense striving of states to build a democratic state. By its properties, we attribute this right to the political rights of citizens, due to the fact that the referendum allows the people to resolve the political issues of the country.

The post-war reforms of the last century served to create various international organizations whose activities were aimed at protecting human rights and interests by uniting the countries of the world. It would be fair to cite as an example, first of all, the United Nations, which has become a powerful impetus in strengthening the status of a person and his value. In 1948, on December 10, at the third session of the UN General Assembly, by resolution 217 A (III), the Universal Declaration of Human Rights was adopted. The purpose of this international act was to unite all the legal and political institutions of the countries of the world to a common scheme. In other words, it was a universalization of human rights that allowed the application of generally accepted international standards in different territories and periods in relation to every existing society.

The significance of this international act was in the recognition by states of its binding nature and the normative consolidation of human values based on natural law and excluding inhuman and degrading relations in every society.

To be sure, the adoption of such an act has not been an easy process in the past. The different positions of states, which differ from each other in the cultural and religious characteristics of all societies, have created many difficulties in reaching an agreement within the world community. However, the result suggests that it is realistic to create unified mechanisms in the field of human rights.

Thus, this declaration has become the foundation for the following international standards in regulating the implementation and protection of human rights in the international space.

We would like to point out Article 21 of the Universal Declaration, which states that:

1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right of equal access to public service in his country.
3. The will of the people must be the basis of the authority of the government; this will must find expression in periodic and non-falsified elections, which must be held with universal and equal suffrage by secret ballot or by other equivalent forms ensuring freedom of suffrage [1] .

This norm of an international legal act clearly establishes the need for the democratic formation of state power. After all, it seems impossible to protect the value of a person in a country where there are no forms of democracy. The significance of the above article lies in the fact that it directs states to create conditions where citizens do not become objects of state power, but subjects of its implementation, thereby pointing to the forms of exercising the right to govern, such as elections and equivalent forms, for example, a referendum.

Also, the keyword of the article of the declaration is «will». In other words, the people must be heard and the state must obtain their consent in exercising its power.

Although the declaration is advisory in nature and is defined by many scholars as «good intentions, rather than a strictly legal approach» [1] there are still recognitions by many jurists around the world of this act as functioning as a document of customary law. In our opinion, despite the fact that the Universal Declaration of Human Rights was adopted almost a century ago, it still embraced all the basic principles and set the standards that are necessary to improve the level of protection of human rights and interests to this day.

The International Covenant on Civil and Political Rights, unlike the Universal Declaration, has its own legal force and is binding on all states that have ratified it. To date, more than 170 states, including Uzbekistan, undertake to comply with the established norms of the above-mentioned international legal act. This means that more than half of the world's countries follow the norms of this legal document.

Considering the pact article by article, we should note article 25 where paragraph «a» states that «Every citizen shall have, without any discrimination whatsoever, without unreasonable restrictions, the right and opportunity to take part in the conduct of public affairs, either directly or through freely elected representatives» [2]. Accordingly, each participant of the state is obliged not only to give the right, but also to create the opportunity, namely the conditions for the realization of the right to take part in state administrative affairs directly or through elected representatives.

Derogation from obligations under the Covenant on Civil and Political Rights is provided only in emergency situations in the state. And in such cases, the Covenant obliges the State Party to inform the other States parties to the Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons for such a decision under article 4. Communication must also be made through the same intermediary as to the date on which it ceases such derogation [2]. This means that the norm establishes the obligation of the party to the pact as a justification for derogating from the observance of the rights enshrined in this legal document. In other words, this document does not allow groundless restriction of the rights of citizens of participating states.

Since the establishment of the Commonwealth of Independent States, the Inter-Parliamentary Assembly has adopted a sufficient number of model laws. These laws are aimed at creating uniform principles in the implementation of law-making activities in a certain area of public relations of each member state. At the thirty-eighth plenary session of the Inter-Parliamentary Assembly of the CIS Member States, by Resolution No. 38–13 of November 23, 2012, the Model Law «On the National Referendum» was adopted. This law describes in detail the relevant rules that are necessary for the full regulation of the procedure for holding a referendum.

It should be noted that this law fully discloses the definitions of terms that directly affect all referendum processes. This allows us to note the dignity of this law, which does not allow ambiguous or incomplete understanding of the definitions used in the document.

For example, the right to participate in a national referendum in this law is understood as the constitutional right of citizens to vote on referendum issues, as well as to participate in other actions to prepare and conduct a referendum [3]. In our opinion, this is the correct designation of the essence of the right to participate in a referendum, since this right consists not only in voting, which in fact is the most final stage, but also in other important procedures, such as initiation, observation.

To comply with the principles of publicity, openness and transparency during the referendum, observers are needed, who, with the most important mission of assessing the compliance of all referendum processes, play a significant role in the exercise of the political rights of citizens.

A special place is occupied by international observers, who are a guarantee of objective control over an important political event like a referendum. And for this reason, two important acts were adopted for the CIS participants in the field of regulating the mission and activities of international observers. The 2004 Regulation «On the Mission of CIS Observers at Presidential and Parliamentary Elections, as well as Referendums in the States Members of the Commonwealth of Independent States» establishes the legal status of an international observer from the CIS.

Paragraph 6 of this provision specifies the rights of the respective observers. And according to this norm, a member of the CIS Observer Mission has the right to:

1. to receive from the electoral authorities the necessary information and copies of the electoral documents specified in the national legislation;
2. contacts with political parties, coalitions, candidates, individuals, election officials;
3. free access to all polling stations and voting premises, including on the voting day;
4. to observe the voting process, the counting of votes and the establishment of its results in conditions that ensure the visibility of the procedures for counting ballots;
5. to get acquainted with the practice of considering complaints (applications) and claims related to violations of the legislation on elections (referendums);
6. to inform representatives of electoral bodies about their observations, recommendations — without interference in the work of election bodies (referendum);
7. to publicly express their opinion on the preparation and conduct of elections (referendums) after the end of voting [4].

Along with the rights of international observers from the CIS, this provision also specifies their obligations. But, the Declaration of the Inter-Parliamentary Assembly of States — Members of the Commonwealth of Independent States «On the Principles of International Monitoring of Elections and Referendums in the States — Members of the Commonwealth of Independent States» reveals in more detail the duties and principles on the basis of which observers should act.

The above Declaration establishes the following principles to be observed by CIS observers:

–The principle of respect for national sovereignty;

–The principle of openness;

–The principle of universality;

–The principle of reciprocity;

–The principle of professionalism;

–The principle of impartiality;

–The principle of providing effective assistance.

Based on the norms of the two above-mentioned acts, it should be noted that we can regard international observers as participants in the referendum, contributing to the organization and holding of this event on legal grounds, which in turn is one of the guarantees of the full implementation of the political rights of citizens.

It is also worth noting that in 2002 the CIS contributed to the adoption of the first Convention in the international arena that establishes uniform standards for democratic elections. Since the adoption of this Convention, there has been a desire by the Commonwealth countries to universalize the norms governing referendums and elections.

Another important event for achieving this goal can be called the formation of the Consultative Council of the heads of electoral bodies of the CIS states. As indicated on the official website of the Inter-Parliamentary Assembly of the CIS Member States, «The Advisory Council of Heads of Electoral Bodies is being created to exchange experience in ensuring the electoral rights and freedoms of citizens, improving the legal conditions for holding elections and referendums in accordance with national legislation and international obligations of the Commonwealth states» [8].

It is worth noting that the Decree of the President of the Republic of Uzbekistan dated April 4, 2023 No. 109 approved an agreement on the organization of the above Advisory Council, signed at a meeting of the Council of Heads of State of the Commonwealth of Independent States on October 14, 2022 in Astana.

The European continent has its own revised Guidelines on the holding of referendums, approved by the Council of Democratic Elections at its 69th online meeting (7 October 2020) and adopted by the Venice Commission at its 124th online Plenary Session. The first norm worth noting is the norm on the conditions of the electoral right. The conditions indicate a recommendation that proposes granting the right to foreigners after a certain period of residence the right to vote in a referendum at the local level. This issue is regulated in a normative sense by the Convention on the Participation of Foreigners in Public Life at Local Level, which is binding on the members of the Council of Europe that have signed this act.

In the national legislation, the above norm is reflected in the federal law of the Russian Federation «On the legal status of foreign citizens in the Russian Federation». It states that foreign citizens permanently residing in the Russian Federation, in the cases and in the manner prescribed by federal laws, have the right to elect and be elected to local self-government bodies, as well as participate in a local referendum [5].

In our opinion, the legal personality of foreign persons at the local level in a referendum is quite appropriate and justifies itself, due to the fact that this referendum resolves local problems that primarily concern local residents of the relevant territory. And for real observance of the principle of human value, states need to provide foreign persons living on their territory for a sufficiently long time, which may mean their possible contributions to this country, to provide the right to participate in political events of at least local significance.

It is necessary to note the norm of this code providing for equality of effort, which indicates the obligatory provision of equality of conditions for supporters and opponents of the draft legislative act, submitted as a question to a referendum. And determines that this is expressed in the neutrality of administrative bodies [6]. This norm is necessary in all national laws governing the referendum, due to the fact that the most powerful campaigning always takes place on the part of the state, and this, in turn, does not ensure not only the equality of the parties, but also the free expression of the will of the population.

Thus, we should understand that today there are various uniform standards at the regional level in the international arena that regulate the area of the referendum. And in our opinion, it is necessary to create these uniform rules regarding the institution of a referendum, due to the fact that this political event concerns absolutely everyone, regardless of gender, race, nationality and other circumstances. In other words, a referendum is not an event related only to some particular category of peoples. This is a political event, the purpose of which is the same in all states, namely the legal establishment of the opinion of the people. Therefore, it is quite expedient to create uniform general provisions for all democratic states for holding a referendum by adopting a binding international act, which as a result can serve as a guarantee of the people's rights to participate in a referendum and improve national legislation regulating this area.

References:

1. Universal Declaration of Human Rights https://www.un.org/en/about-us/universal-declaration-of-human-rights;
2. Covenant on Civil and Political Rights https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights;
3. Модельный закон «О национальном референдуме» утвержденный постановлением МПА СНГ от 23.11.2012 г. № 38–13 http://www.parliament.am/library/modelayin %20orenqner/278.pdf;
4. Положение «О Миссии наблюдателей от СНГ на президентских и парламентских выборах, а также референдумах в государствах — участниках Содружества Независимых Государств утвержденный Решением Совета министров иностранных дел СНГ от 26 марта 2004 года https://docs.cntd.ru/document/901937360;
5. Федеральный закон от 25.07.2002 № 115−ФЗ «О правовом положении иностранных граждан в Российской Федерации» https://www.consultant.ru/document/cons_doc_LAW_37868/;
6. Guidelines on the holding of referendums adopted by the Venice Commission at its 124th online Plenary Session https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2020)031-e;
7. Зыбайло А. И. «К вопросу о правовом статусе Всеобщей декларации прав человека и ее влиянии на правотворческий и правоприменительный процессы» Журнал международного права и международных отношений 2008 — № 4 — https://evolutio.info/ru/journal-menu/2008–4/2008–4-zabailo.
8. https://iacis.ru/novosti/sovet_mpa_sng_news/v_sng_budet_obrazovan_konsultativnij_sovet_rukovoditelej_izbiratelnih_organov