РЕФЕРЕНДУМ ЯК СПОСІБ РОЗВ'ЯЗАННЯ ТЕРИТОРІАЛЬНИХ СПОРІВ: PRO ET CONTRA

Abstract

The article focuses on the analysis of the application of the direct forms of democracy for the purpose of the resolution of the territorial disputes between the states and the way to determine the fate of the territory in question. The purpose of the article is to analyze theoretical and practical peculiarities of applying a referendum as a mean of resolution of the territorial disputes based on the state and legal experience, western legal tradition doctrine and comparison of its advantages and disadvantages. The research methodology is based on the combination of the analysis and synthesis methods, logical, formal legal, teleological and anthropological methods. Application of these methods allows evaluating the principal features of a referendum, and advantages and disadvantages of its application towards the resolution of the territorial disputes. The conclusion of the article is that the analysis of the principal features of a referendum and plebiscite as the forms of direct democracy in the context of their application towards the resolution of the territorial disputes has demonstrated that despite of all of the positive features of these legal institutes as a way of democratic expression of the people's will, the disadvantages of its application prevail. The most serious and principal drawbacks which distort the concept of applying referendum for determining the fate of a disputed territory are: inability to determine the range of persons who are allowed to take part in a referendum, different legal bases of the disputing states, high probability of manipulation, bias and even overt fraud during organization and holding a referendum, violations of the basic principles of the electoral law, absence of an obligation to respect the result of such a referendum for a disputing state, especially in case the referendum was held by the other side of the dispute or by a third party. The above mentioned factors lead to the situation when the legal positions of the disputing parties are undetermined, ambiguous, controversial and disputable and thus can be ignored or challenged by the other party; as a result, the territorial dispute remains unresolved.