A new constitution for Estonia

Posted: August 29th, 2011 | Author: | Filed under: Estonia, european union, human rights, law, philosophy, politics, thoughts | 1 Comment »

I do not agree with those who say that Estonia’s current constitution is great for us and nothing should be changed. I think the opposite is true: a new, modern constitution would give more confidence and stability in the otherwise rapidly changing times. A new constitution that is made not out of necessity, but as an opportunity to kickstart Estonia’s development.

The constitution was drafted in almost 20 years ago, in a completly different set of circumstances. Accession to the EU was not on anyone’s minds (nor did the EU exist in its today’s form), the understanding and content of several human rights provisions have been altered, etc. The world around us has changed, and Estonia has changed even more dramatically.

The Estonian constitution has been for me, and I suspect for most Estonians, the most fundamental basis for the existence of the Estonian state. I cannot really remember the first time I read it, but it was during school, and I think it was one of the things that made me decide to study law, instead of anything else. The constitution sets out clearly and powerfully why we have the state and what it does. I was most impressed with the Bill of Rights section, which I thought was a brilliant thing to have. Indeed, I was not and am still not so much interested in the institutions the constitution created, but rather the principles it provides.

Estonia is a part of the EU and this is not reflected well in the constitution. The constitution suffered its heaviest blow with the 2004 Amendment Act and its subsequent interpretation by the Estonian Supreme Court. Today, it is no longer clear to which extent the constitution applies in case it is in conflict with an EU legal act. A new Constitution should state more clearly and confidently the basis according to which Estonia belongs to the EU, and not only that, but the way it operates in today’s multilevel governance framework. This not only applies to the EU level, but also to the relationship between the state level and local governments. The latter subject (i.e. local government functions and their financing) have been one of the most contentious issues in Estonian politics for a long time. Therefore my first proposal would be to describe in a chapter the role of the Estonian state in this framework. The current constitution largely ignores the fact that governance is no longer limited to a single state entity, but is much larger concept.

The Bill of Rights needs updating. There have been many changes in recent decades in the understanding and development of human rights, including for example data protection rights. The family rights section should also be expanded to be more clearly inclusive of all types of relationships. For example, although the current constitution does not prohibit same-sex marriages, these relationships should be more clearly protected. A good, but not perfect, example could be found in the EU’s Charter of Fundamental Rights.

The provisions relating to the nation state should be reviewed. The constitution contradicts itself by providing those who are of Estonian nationality preferential treatment. The preservation of the Estonian nation in the preamble is one of the things that should go, and better protection be afforded to minorities. Multiple citizenship should be clarified in the constitution, the current blanket ban is unfair and dumb. The constitution would provide an opportunity for a truly new societal agreement to involve in the governance of the state also those who have been left out so far (ethnic Russians and other marginalised minorities) and move Estonia forward in the democratic path.

A few other things that I would also rather see changed:

1. Abolish compulsory military service. It has no place in today’s society: it serves no legitimate defence need and is burdensome for the individuals from the liberty perspective as well as the society as a whole.

2. Add innovative  things that pave the way for success, for example the right to access to Internet and the principle of Open Data.

The rules that govern us determine where we go as a society. I think there should be more discussion in Estonia on the most fundamental of these rules, especially on the eve of the 20th anniversary of the Estonian constitution next year. Let’s face it: the current constitution and life in Estonia today have grown apart and need to be re-aligned. Otherwise we will see in future more and more incredible feats of teleological interpretation, which interpret a clause in the constitution to say the exact opposite of its text and that is not good.

Causes are not excuses

Posted: August 12th, 2011 | Author: | Filed under: Estonia, european union, human rights, law, philosophy, politics, things that suck, thoughts | No Comments »

In light of recent extraordinary criminal activity (mass killing in Norway, looting and riots in London, also the gunman at the Estonian Ministry of Defence) there have been calls not to look at the causes of these crimes. These actions have been deemed by some as mad or crazy acts which supposedly took place irrationally, from some sort of natural evil that surfaces from time to time. Those acts might have been desparate and committed by people who are not sane and they are, of course, criminal, but that should not prevent us from looking into why these actions were taken. What was it that has driven some members of the society into these horrific actions against their own societies? As a side note, it is interesting to observe that although the preoccupation of governments have been focused on how to react to an outside terror threat, these actions have been taken by the citizens against their own state.

I do not advocate shifting the blame from the individual who committed the crime to the society on the whole. It is clear that those individuals who were proven to commit a specific act deserve to be punished according to the law. However, in order to prevent such acts in the future, it is important to look at and analyse the causes of these events. The society should also look into things that are wrong and try to remedy these. This way, the horrific events could be turned into possibilities to make a better society. This does not mean that we somehow reward the criminals, because the motivation should not be fear of someone doing something similar again, but to eliminate the root causes of these actions.

Some people (especially those who like to see things in black and white terms) think that there are people who are evil and that is that. Those ‘evil’ people need to be tracked down and put to prison or even killed. That is not the way I look at things. I think people and life in general is much more complex. Goodness and evil are subjective, relative terms that could, at best, relate to specific actions in a specific ethical or moral framework, but not really to the whole of a person.

Faced with complex set of issues that shock or frighten, people tend to seek for strong leaders with simple, harsh measures. However, I think it is best to analyse the situation and also look at the root causes of these criminal events. Trying to ignore problems will not make them go away.

Same-sex marriage/partnership in Europe

Posted: June 26th, 2010 | Author: | Filed under: Estonia, european union, human rights | No Comments »

Two days ago the European Court of Human Rights (ECtHR), which is part of the Council of Europe (not the European Union!) and judges the implementation of the Convention for the Protection of Human Rights and Fundamental Freedoms issued its most recent judgment on same-sex marriage. It is an important decision in many regards and should be analysed in detail to understand where same-sex marriage is going in Europe.

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.

Happy Europe Day

Posted: May 9th, 2010 | Author: | Filed under: european union, youtube | No Comments »

EU’s president and foreign minister

Posted: November 22nd, 2009 | Author: | Filed under: Estonia, european union, law | No Comments »

Last week, relatively unknown Herman van Rompuy and Catherine Ashton were chosen by the EU’s Heads of State over dinner as the EU’s president and foreign minister, respectively. Or that’s how the media story is spun.

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.

Solutions for Estonia’s economic problems

Posted: August 4th, 2009 | Author: | Filed under: education, Estonia, european union, thoughts | 4 Comments »

This post is partly inspired by Edward Hugh’s post on Latvia’s economic problems, where he offers three solutions (after devaluation happens, which he thinks is inevitable):

I think this deterioration needs to be addressed as soon as possible, and I see three large issue.

i) Productive capacity needs to be increased substantially. This means increasing the labour force, and this means (as outlined in the World Bank Report, From Red To Grey) facilitating large scale inward migration. Given the serious political implications of encouraging ethnic Russian migration into your country, I see only two viable source regions, the Central Asian Republics in the CIS, and Sub. Saharan Africa. Possibly this solution will not be widely popular with Latvian voters. Well, they do have the right to choose. Your country can take the measures needed to become sustainable, or you can watch it die, as the economy shrinks, and the young people leave. That, I think, is your choice.

The other two measures you need to take are contingent on the first being implemented, since without the first measure you will simply not dispose of the economic resources for the other two.

ii) A serious policy to support those Latvian women who do wish to have children. But with major financial advantages, not half measures, and propaganda stunts. You need policies that can work, and I know plenty of demographers with ideas.But this needs money. Important quantities of money. And gender empowerment, right across the economy, at every level. We have formal legal equality in the labour market, but evident biological and reproductive inequality, in that only one of the parties gets to bear the children. The institutional resources of the state need to redress this imbalance.

iii) Major reforms in the health system to address the underlying male life expectancy problem. You can only seriously hope to raise the labour force participation rates at 65 and over if people arrive at these ages in a fundamentally healthy condition. In economic terms, simple investment theory shows why this is the case. A given society spends a given quantity of resources on producing a given number of children, those who have citizens who live and work longer evidently get a better return on their investment. If you want to raise Latvian living standards, you have to raise the life expectancy. And this apart from the evident human issues.

I think all of this applies to Estonia as well. The last two are already somewhat handled in Estonia, there are programs which support young families and although male life expectancy is still rather low, more effort is being put in sport promotion programmes for general public, healthy lifestyles are promoted etc. The nordic nature of Estonians (and the Finnish role-model) might also contribute to helping Estonians live longer, although at the moment it looks rather bleak.

I tend to agree with Edward Hugh that many of the problems of Estonia’s economic crises have been caused by lack of people. This was true during the boom times (the labour force shortage helped to push the salaries up quickly) and is even worse now that many truly skilled people move abroad where they are offered better salaries and ways of self-improvement, leaving in Estonia a mass of former construction workers and factory workers who have been laid off and who are probably unable neither to leave Estonia nor re-qualify for another job. Meanwhile, it is still difficult to find well-educated people in many areas, regardless of the growing unemployment rate.

A part of the solution is to train those people at our universities. Fortunately, Estonian public policy of pushing people to go to professional education and not to universities has failed and people are still going to universities en-masse (this year’s admissions has been the highest in recent years). It seems, however, that the funds used for the ill-fated push for professional education could have been used better at supporting universities. It is questionable if the big public universities themselves, still bureaucratic behemots with Soviet-era legacies, can provide the skills, knowledge and values required to educate them. The universities could do more with continuing education as well, offering a range of specialised courses for those seeking to update or refresh their skills and knowledge, but not willing to spend time (and money) on full Master or Doctoral programs.

The second part of the solution is increased immigration of unskilled workers from other non-EU countries. This means a change of paradigm in mainstream politics and suppression of strong nationalistic moods prevalent in the society. None of the major political parties in Estonia recognises or debates is the need to increase immigration. Walking around even in Tallinn’s streets it would be very difficult to spot any people who are non-ethnic Estonians or Russians and are not tourists. This is probably due to the effecient work of the Citizenship and Migration Board, which seems to pride itself on keeping the foreigners (at least those not from EU or US) out. One only needs to look at the low numbers of accepted refugees and asylum seekers for this.

Where should the new immigrants come from? The most obvious (and easiest to stomach politically) might be immigrants from Ukraine, Georgia, Moldova and other countries which many Estonians have compassion to. I am not so sure that a large scale inward migration from Africa will be as welcomed, although sooner or later there will also be more ethnically diverse mix of people in Estonia as well.

In order to have a long-term and sustainable solution instead of the race to the Euro at all costs, immigration policies must be reviewed and inward immigration increased gradually.

Joschka Fischer offers a realistic view of EU-Russia relations

Posted: August 30th, 2008 | Author: | Filed under: european union, politics, russia | No Comments »

In an article in the Guardian, former German Foreign Minister Joschka Fischer offers a rather insightful analysis of the realities of a new Russia – EU relationship. He suggests the EU to take specific steps to counter Russia’s power politics:

This requires several measures:

  • A new political dynamism vis-à-vis Turkey to link this country, one crucial for European security, permanently to Europe;
  • Putting a stop to Moscow’s divide-and-conquer politics by adopting a common EU energy policy;
  • Serious initiative for strengthening Europe’s defence capabilities;
  • A greater EU commitment to Ukraine to safeguard its independence;
  • A greater freedom of travel for all the EU’s Eastern neighbours.

I do not think any of these suggestions are especially difficult to agree upon in the EU, so the initiative should start now.


Posted: August 14th, 2008 | Author: | Filed under: european union, thoughts | No Comments »

Technically, Estonia seems to be in a recession, as our GDP growth has been negative for two quarters in a row. There are some important factors that do not make this a regular recession:

1. Unemployment rates are 4% (which is 0,2% below last quarter and 1% less than last year’s same quarter). So people still have jobs and the incomes of people actually should be growing at a normal rate. People seemed to have been scared off by the media’s talk about a possible recession and the rising prices and simply stopped spending as much as they used to.

2. The real estate market has not collapsed. In July actually the number of transactions rose slightly, which might (or might not) be an early indication of a recovery in that sector and the economy as a whole.

3. The statistics are always behind the times. As we live in August, we get the picture of the state of the economy in the quarter ending 30 June. It is important to see what are the numbers for this quarter, if it is going to be more than this quarter’s growth, the worse will be over.

4. The external factors are looking better as well. Oil prices are falling, euro is weakening slightly (helping exports).

So the thought should be do not panic, there is light at the end of the tunnel.

The price for Kosovo’s independence from Serbia

Posted: August 11th, 2008 | Author: | Filed under: european union, human rights, law, russia, thoughts | No Comments »

There are a large number of areas in a large number of countries where there is a dominant ethnic minority (vis-a-vis the majority nationality in the main part of the country). In Estonia for example North East Estonia, where there are 95% ethnic Russians living in the city of Narva. The same applied for Kosovo and Serbia to a certain degree and the same applies to South Ossetia and Abkhasia in Georgia, Transdnistria in Moldova. This also applies to Scotland and Wales in the UK, parts of the Netherlands, the Basque country in Spain, etc etc.

The current doctrine of international law does not allow for independence for these regions. This principle was breached in the case of Kosovo, and this has also fueled Russian resolve to attack Georgia and try to take South Ossetia and Abkhasia. It is clear that the agressor in Georgia’s case is Russia which has embarked on a development route, which can be described as a neo-Fascism with neo-Soviet crust. However, things should not have been made so easy for them by allowing Kosovo to become independent.

In the EU the role of the Member States is diminishing, there are common values, common principles regarding rule of law, democracy, human rights, etc, which are respected in all of these states. Thus is does not matter much where you live or which nationality you are. The same situation must be strived for in other countries with conflict situations as well. The international law and principles should be strong enough to guarantee a minimal level of protection for all human beings, regardless of where they live.

If we were to accept the example of Kosovo and agree now also to the “right” of South Ossetians to become independent (and merge with Russia), there will be no end for conflicts, both internal and full wars. The world has become a much more dangerous place and it is the job for the community of democratic countries to act decisively to guarantee the peace. Otherwise who knows which country will be next…

Legal study on homophobia in Estonia

Posted: July 5th, 2008 | Author: | Filed under: Estonia, european union, human rights, law | No Comments »

Now that my active participation with TEN and EYP is over, I have been focusing my activities on human rights issues. Namely, I am working to establish in the long-term an Estonian Human Rights Centre, the first step has been to create the Human Rights Centre at International University Audentes. 

One of the projects I have undertaken is to give expert advice on human rights as one of the legal experts for the EU’s Fundamental Rights Agency. One of the first tasks for our team was to complete a Study on Homophobia and Discrimination on Grounds of Sexual Orientation – Estonia (download PDF) which was one of the basis for FRA’s comparative report “Homophobia and Discrimination on Grounds of Sexual Orientation in the EU Member States Part I – Legal Analysis” (full report in PDF, press release).

In the fall, the Human Rights Centre will publish its own report on Human Rights in Estonia in 2007.