The debate regarding military service brings all this out in the open, because there are not so many rational arguments for keeping it as it does not help to strengthen national security in any way, but rather weakens it by misplacing resources into meaningless and futile activities. The direct economic cost for the young men missing from study or work for a period may be calculated, but it is much more difficult to calculate the indirect social costs that military service creates (for example by entrenchment of gender stereotypes). Culturally, it is difficult to combine the peaceloving peasant individualist Estonian nature with the idea of collective national defence. Huge pompuous armies are not very Estonian.

Outdated gender stereotypes are a real problem in Estonia. The state is working hard to change them on one hand, but on the other hand it also reinforces them by limiting military service requirement to young men only. Many people still think that man should be the one who takes care of the family and protects it, and that those who have not participated in the military service are somehow less worth in that regard.

Military service is also a threat to democracy. Not only does it teach conformism and discipline, it is also patriotic brainwashing (although admittedly not very effective). Nationalism is good only when it is moderated and respectful of others, not when it is used in political debate.

Read more (in Estonian):

Endine kaitseminister ei poolda ajateenistuse kummardamist: http://www.postimees.ee/?id=286584,

Kas ajateenistust ootab hääbumine? http://www.postimees.ee/?id=286404,

Aaviksoo: sõjaväekohustus püsib veel vähemalt sajandi http://uudised.err.ee/index.php?06209174

Read my article from 2008 (in Estonian): http://www.postimees.ee/250608/esileht/arvamus/338259.php

The European Court of Human Rights is a powerful court and its decisions are in general taken very seriously. Although some countries (Russia for example) have at times flounted the Court’s decisions, this is rather an exception to the rule. Moreover, in Estonia for example ECtHR case-law is usually considered as part of (or even superceding) our constitutional law. It is referenced in Supreme Court decisions and used a lot in legal analysis. Therefore any judgment of the ECtHR is indirectly an important addition to Estonian law as well.

It should be mentioned that the ECtHR case-law applies in 47 countries from Azerbaijan to United Kingdom, from Russia to Iceland (full list of signatories). All European Union Member States are a part of the Convention and EU treaties (its constitutional framework) also have great regard to the Convention. One needs to keep in mind that whereas the Court of Justice of the European Union only settles disputes relating to EU law for EU Member States (27 in total), the ECtHR has to be mindful of 47 different countries with diverse cultural backgrounds and attitudes.

That being said, the ECtHR has been innovative in its intrepretation of the Convention. It has refused to stay within the original meaning of the Convention and has used teleological or functional intrepretation (not strictly looking at the text, but the general purpose of the Convention), looking at the Convention as a ‘living document’.

Coming to Thursday’s judgment in the case of Schalk and Kopf v Austria there are several important aspects that should be highlighted and which also give some ideas about future developments. The case involved an Austrian same-sex couple who complained to the ECtHR that their rights have been infringed under the Convention because Austria has not allowed them to marry each other. In Austria, the law specficially states that marriage is for two persons of the opposite sex (a provision that has been unchanged since 1812), and from 1 January 2010 there is a new law allowing registered partnerships only for same-sex couples. The rights under the Registered Partnerships Act resemble those of the rights for married couples.

The applicants claimed the violation of several articles of the Convention. The most obvious one is Article 12, which provides for the right to marry and to found a family:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

In its application of the article and subsequent case  law, the Court first found that wording of the article and intention in the 1950s was not to include the option of same-sex marriage. It went on to state that it cannot depart from that meaning unless there has been a significant social change in majority of states:

Although, as it noted in Christine Goodwin, the institution of marriage has undergone major social changes since the adoption of the Convention, the Court notes that there is no European consensus regarding same-sex marriage. At present no more than six out of forty-seven Convention States allow same-sex marriage (p.58)

The Court then analysed the issue in context of the EU Charter of Fundamental Rights and its commentaries, which became binding on EU Member States 1 December 2009. In Article 9 of the Charter, reference to men and women were dropped, but commentary of it states that it is not meant to provide the right of same-sex marriage to all MS. The Court therefore held that there is no obligation for the state coming from Article 12 to provide the right to same-sex marriage, but did not completely exclude same-sex marriage from the application of Article 12 either:

Regard being had to Article 9 of the Charter, therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable to the applicants’ complaint. However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State. (p.61)

The applicant also claimed that their right to family life under Article 8 was violated and they were discriminated against under Article 14, because prior to Registered Partnerships Act there were no possibility to have their relationship recognised by the state. There the Court took a large step forward. It had previously held that same-sex relationships were a matter of private life, not family life. However, emphasising the rapid advancement of same-sex partnerships and marriage in Europe, the Court changed its position:

94. In view of this evolution the Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.

Regarding discrimination and whether there could be discrimination between same-sex and opposite-sex couples (one can only discriminate between people if they are in “relevantly similar situations”), the Court stated that:

99.  While the parties have not explicitly addressed the issue whether the applicants were in a relevantly similar situation to different-sex couples, the Court would start from the premise that same-sex couples are just as capable as different-sex couples of entering into stable committed relationships. Consequently, they are in a relevantly similar situation to a different-sex couple as regards their need for legal recognition and protection of their relationship.

The Court took the practical approach and stated that because Austria had provided the registered partnership option, it can only be at fault if it did so too late. The Court stated:

105.  The Court cannot but note that there is an emerging European consensus towards legal recognition of same-sex couples. Moreover, this tendency has developed rapidly over the past decade. Nevertheless, there is not yet a majority of States providing for legal recognition of same-sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes.

106.  The Austrian Registered Partnership Act, which entered into force on 1 January 2010, reflects the evolution described above and is thus part of the emerging European consensus. Though not in the vanguard, the Austrian legislator cannot be reproached for not having introduced the Registered Partnership Act any earlier.

This should give pause for thought to all those European states which still do not provide any legal recognition of same-sex relationships. By citing the “emerging European consensus” the Court could conceivably pave the way to in not too distant future saying that the consensus has emerged. The fact that the Court might be on the way to finding that should be evidenced also by the close four to three vote on finding no violation of the Article. In their dissenting opinion judges Rozakis, Spielmann and Jebens stated that they considered that there indeed was a violation of Article 14 together with Article 8 in this case:

8. Having identified a “relevantly similar situation” (paragraph 99), and emphasised that “differences based on sexual orientation require particularly serious reasons by way of justification” (paragraph 97), the Court should have found a violation of Article 14 taken in conjunction with Article 8 of the Convention because the respondent Government did not advance any argument to justify the difference of treatment, relying in this connection mainly on their margin of appreciation (paragraph 80). However, in the absence of any cogent reasons offered by the respondent Government to justify the difference of treatment, there should be no room to apply the margin of appreciation. Consequently, the “existence or non-existence of common ground between the laws of the Contracting States” (paragraph 98) is irrelevant as such considerations are only a subordinate basis for the application of the concept of the margin of appreciation. Indeed, it is only in the event that the national authorities offer grounds for justification that the Court can be satisfied, taking into account the presence or the absence of a common approach, that they are better placed than it is to deal effectively with the matter.

9. Today it is widely recognised and also accepted by society that same-sex couples enter into stable relationships. Any absence of a legal framework offering them, at least to a certain extent, the same rights or benefits attached to marriage (see paragraph 4 of this dissent) would need robust justification, especially taking into account the growing trend in Europe to offer some means of qualifying for such rights or benefits.

On a final note, the applicants also claimed the violation of Article 1 of Protocol 1 (i.e. the Right to Property), because of disadvantageous tax treatment but failed to substantiate that more. It could be intresting to see the Court’s evaluation of Article 1 of Protocol 1 in light of same-sex couples not having the same financial benefits as opposite-sex couples do.

Recently the system was modified so that now the state “orders” for example an x number of social sciences (business, law, etc) students from one university and y number of social sciences students from another. Again, these numbers are based purely on favours, ministerial whims and how a given university stands in the eyes of the Ministry officials. Therefore, when before it was purely up to the state to decide how many lawyers it orders, then now it also depends on the position of the law department within the university (if it is powerful it gets more places, if not then not).

There is fierce competition to certain state-funded places (business, law, IT), whereas certain curricula remain unfulfilled (mostly “hard” sciences). All other students pay themselves fully for their studies and there is a lot of them.

Now, these are the consequences of this system:

1. The students are completely left out of the decision-making on where state funding goes. The students vote with their feet and choose areas of study they think are more benefitial for them in the future. The state funding completely ignores this will of the students and keeps funding areas where no-one wants to study, forcing students to study things they do not want, provided that they cannot afford to pay for the studies themselves.
2. The universities suffer as poor quality and unnecessary departments and faculties are kept afloat by state financing. There is no incentive for improvement, which results in poor quality graduates.
3. In departments/faculties where there is interest by the students, but no or little state financing this means also loss of quality as the departments must relay to a large extent on self-financing students, who work at the same time or who have been unable to get to the few state-funded places.

The OECD has recommended already in 2007 in their review of the Tertiary Education in Estonia that student enrollment should be the basis of higher education strategy:

The Review Team is of the view that Estonia should ensure that any new financing arrangements continue to allow student demand to have a significant influence both on the overall size and shape of the higher education system in Estonia and provision at the institution level. This would entail the state financing institutions on the basis of actual enrolments or graduations rather than purchasing, in advance, places in particular fields and levels of study. Following this line of thinking, we believe that the Estonian government should reflect on extending public subsidies to all students in properly accredited courses at private institutions (once the quality assurance arrangements planned by the 2006-2015 Higher Education Strategy are fully operational) as well as allowing the total number of students receiving public support to be driven by demand rather than rationed.

/–/

Moving to a system in which student demand is the main driver behind the distribution of students between and within institutions would also necessitate the reconceptualisation of the contract between the government and institutions. In a sense the state would move from being a purchaser of a defined set of services to that of a funding partner with students. The Review Team believes that this role remains compatible with a broadly contractual relationship with institutions in which institutions are expected to meet certain requirements particularly regarding quality and orientation to the labour market. In this context, the focus of the contract should move from the specifics of the places purchased to the broad objectives which the government would like institutions to achieve. The negotiation of the contract could become a process whereby the government as a funding partner engages in a strategic discussion with institutions of higher education about directions and means.

The current system of financing simply reinforces the existing structural faults and keeps the higher education system severly handicapped. The universities remain state-oriented, not student-oriented.

Those students who can afford to do so do not go to study what the state wants them to study in order to sustain certain areas of teaching (certain professors), they will pay themselves or go abroad.

Without excellent and motivated students there is no room for competitive research either, and the more bright people move away and contribute to the research of some other country, the poorer Estonia will remain, both academically and economically.

“The question facing Estonia is whether its independence can co-exist with Russian strength. The answer to this question likely depends on Estonia’s reconciling itself to the paradox that, while it can be independent of Russia, it can never be free of Russia. An important step in this reconciliation will be the realization on the part of Estonia that it cannot be restored to its relative ethnic purity of 1940. Rather, Estonia must move beyond ethnic nationalism and pursue a civic-based model of the nation state which will foster a shared identity and loyalty between its ethnic Estonian and ethnic Russian populations. Quite simply, restoration does not require exclusion.”

Source: CREATING THE ETHNIC ELECTORATE THROUGH LEGAL RESTORATIONISM: CITIZENSHIP RIGHTS IN ESTONIA Richard C. Visek, Harvard International Law Journal Spring, 1997

Unfortunately it is not possible to rely only on peasant common sense when thwarting hostile attacks to influence us, because big states use billions for this war without frontiers. Estonia needs an immune system. Our national psychological defence must be constructed to a wide and strong base. Then the external influences and crises will not break our internal connections, society and the state as a whole during bad times.  (my translation)

No, this is not a quote from ’1984′. It is from the speech made on the occasion of the 92nd birthday of the Republic of Estonia by the head of our defence forces. I have never understood why a high-ranking military person should be allowed to make these kind of political speeches at all, but using this kind of Orwellian rhetoric and nobody really caring about it is for me a dangerous sign. Connect it to the recent gaffe by our Minister of Defence who claimed that Estonian independence was a “triumph of national will” which seemed similar to the title of Leni Riefenstahl’s Triumph of the Will.

Nationalism is dangerous: the national unification function it provides threatens individual liberties, and discourages dissent or unpopular opinions, which in turn makes the society more closed. Do not get me wrong, I consider myself proud to be Estonian, but I do understand that the fact that I was born Estonian is random and does not mean that I am somehow better than someone who was born with a different nationality.

In my opinion our concept of nation state must be reconsidered. It is difficult to justify in today’s world the preservation of the Estonian nation as the primary reason for having the Republic of Estonia. We need a separation of the nation and the state.

Some quotes from the respected tech journalists on Apple devices in the past:

The Macintosh uses an experimental pointing device called a ‘mouse’. There is no evidence that people want to use these things.

(John C. Dvorak on the introduction of the original Apple Macintosh in San Francisco Examiner, 19 February 1984)

No wireless. Less space than a nomad. Lame.

(Slashdot editor CmdrTaco comments on the release of the iPod, 23 January 2001)

The original iPhone was also almost universally criticised for lack of many features (some of which have appeared in iPhone 3G and 3GS). So with Apple it is best not to listen to the reviews, but try these things out on your own.

This year’s PÖFF human rights programme includes great documentaries and films as well as exciting discussions.

In reality, the media and most commentators have got it wrong. The EU has worked exactly how it is supposed to work, and having flashier or more popular (or populist) persons chosen would have been the exception, not the way things worked out. The fact is that Lisbon treaty did not change all that much, it was evolutinary, rather than revolutionary development. Even when it was still called the Constitutional Treaty, it was never intended to usher in a new era of a different EU. Things that needed fixing were fixed and fine-tuned and the world will not be much different from 1 December 2009. With Lisbon there has been an added layer to the already existing foundation, nothing more.

I think that van Rompuy and Lady Ashton are perfect because they are not so well known. The EU is not about simplistic populist slogans or strong figureheads, but it is about concensus and being able to make the multi-layered and multi-level governance system work. And for that those two are good candidates.

The EU is not, and does not work like a state. That’s why the EU’s “president” (actually the President of the European Council) and “foreign minister” (actually the High Representative of the Union for Foreign Affairs and Security Policy) are not like presidents or foreign ministers of countries. It is also why the European Parliament is not like state parliament or why decision-making process is completely different of that of a state. However, this complexity is not easy to explain.