Race and racism in Estonia

Current scientific understanding based on modern genetics is that race is not a scientific category, but a completely inaccurate and useless way of distinguishing between groups of people. According to the Human Genome Project:

DNA studies do not indicate that separate classifiable subspecies (races) exist within modern humans. While different genes for physical traits such as skin and hair color can be identified between individuals, no consistent patterns of genes across the human genome exist to distinguish one race from another. There also is no genetic basis for divisions of human ethnicity. People who have lived in the same geographic region for many generations may have some alleles in common, but no allele will be found in all members of one population and in no members of any other. Indeed, it has been proven that there is more genetic variation within races than exists between them.

Therefore I might have more in common in my DNA with someone living somewhere in Africa than someone in Estonia. The European Union has already in 2000 clarified in recital 6 of the Racial Equality Directive (Directive 2000/43/EC), that “[t]he European Union rejects theories which attempt to determine the existence of separate human races.”

It seems, though, that very many people in Estonia have not yet got this message or refuse to believe it. If you read Estonian wikipedia, distinct races do exist (and are also mentioned and described in detail). The same information is still taught in schools, as I understand. In public discourse, races are usually referred to, probably due to the Soviet understanding of races and the widespread dissemination of that information.

Trying to categorise people based on their perceived race, has led to a lot of horrific events in the past, which is why using race even in sociological or self-identification way might not be the best idea. If you subscribe to the idea that distinct races exist, then it is not difficult to find people who argue that this or that race is inferior or superior. There already are a number of classifications based on which people irrationally discriminate or hate groups of people, like ethnic origin, skin colour, language, gender, sexual orientation and beliefs. Unfortunately there are people who not only believe that races exist, but also attribute specific characteristics to people belonging to these made-up races and considering them inferior, which is where racism comes from.

It seems to me that racism is alive and quite prevalent in Estonia. I do not have any substantial research on this (there is a lack of reliable research on this), but I will offer a number of anecdotal evidence, which has made me feel this way. I already mentioned that many people is Estonia react with extreme incredulity when I mention that races are not a scientific basis for categorisation of human beings.

First, there is the word ‘neeger‘ in Estonian language that many people still defend as a valid word to use for black people. It should not be used, but people still do. Second, there are the experiences of people with other skin colour. I recently read Abdul Turay’s fantastic book about Estonia, in which he describes his ordeals when crossing the Estonian border. Similar notions of racism among police and border guards seem to be quite common for asylum seekers also. At Human Rights Centre, where we work with asylum seekers, there are a number of stories of racist behaviour among officials. The final example relates to the media coverage related to the bunch Vietnamese people who were discovered illegally in Estonia, which was anything but fair.

I do not understand why pretend that there are no problems? There is racism in Estonia as well as racist hate crimes. As long as the problem is not faced, the victims of racism will remain marginalised and victimised not only due to the attacks, but also due to the attitudes of the society, which pretends that there is no problem.

How democratic is Estonia?

One way to look at how democratic a country is, is to look at who is represented in the government and parliament and whether this reflects the diversity of the population in the country. Having a diverse group of people in government helps to legitimise the government in the eyes of the minorities and brings better results overall.

The results of the recent census allows to look a little into how well the diversity of Estonian population translates into the mix of people who govern Estonia. I have decided to use just a few charts to show the situation regarding certain areas (all data from Statistics Estonia 2011 Population and Housing Census). Let’s start with citizenship.

Citizenship

As can be seen from the chart, there are more than 190 000 people living more or less permanently in Estonia (ca 16% of population) who do not have Estonian citizenship. These people are not able to vote in Estonian parliamentary elections (although most of them can vote in the local government ones). Non-EU citizens are also not allowed to belong to any political party.

I have deliberately separated the EU citizens living in Estonia from other non-citizens, because their rights are quite well protected by EU law as well as Estonian law. The ca 185 000 non-citizens (more than the total population of Tartu and Narva combined) have mostly, however, Russian (non-EU) citizenship or are stateless.

Obviously, there are no non-citizens in the government or parliament so it is pointless to make these charts.

This means that there is a sizeable part of society that lack any output in national political context. None of the political parties are interested in representing them, because they cannot vote. They do have a strong link to Estonia, as many have been born here and lived here for many years (more than five years, which is generally the legal requirement in the EU to show integration into host Member State). They pay taxes and contribute to the society.

Gender

The gender pay gap is the highest of the EU in Estonia. Things are not much better when comparing political representation. When roughly half of the population is female, only 22% of Members of Parliament are female and only 8% of government ministers (one person). It does not seem that women are well represented in our democratic political system.

Ethnic origin

This category is difficult due to problems with source data, but also the fact that people may identify with multiple ethnic origins. According to the census data, there are people from 192 different ethnic nationalities living in Estonia, with largest groups being Estonians and Russians. Now, it is not easy to find out the ethnic nationalities of members of Riigikogu, but I guesstimate that there are fewer than 25% of ethnic Russians in the Parliament. In government, it is rather easy to see that all of the ministers are Estonians. I might be mistaken, but since re-independence, there has been only one government minister who is not Estonian (Eldar Efendijev who was minister of population 2002-2003).

Other

There are a number of minority groups, which might have issues with political representation (there are no openly gay members of parliament or government, for example). There are only a few people with disabilities in parliament and none in government (at least that we know of).

These are issues that should be addressed in our democracy. Of course it is not possible to mirror in parliament and government exactly the diversity in society, that would be a completely ridiculous exercise, but more should be done to discuss and address why certain groups in society are more and certain groups less represented. In terms of success of the society, the less there are opportunities wasted, the more voices heard, the stronger and better the democracy is. By cutting certain people off from political representation, the whole society loses.

What’s wrong with Rahvakogu?

A new web-based portal has been created in Estonia, called Rahvakogu (People’s assembly in English). It is described as “an online platform for crowd-sourcing ideas and proposals to amend Estonia’s electoral laws, political party law, and other issues related to the future of democracy in Estonia.” The web-based portal is the first step in a process dedicated to amending Estonia’s laws regarding elections, political parties, their funding and inclusion of civil society. In January the ideas are gathered, in February they will be analysed by experts and in March they will be debated at town-hall like events after which they will be presented to the Riigikogu (Estonian Parliament). It is backed by Estonian Cooperation Assembly (an institution hosted by the President mainly dealing with publishing the Estonian human development report and several NGOs). The process got started after a financing scandal concerning the ruling party Reformierakond and subsequent denials by the people involved.

As a disclaimer, it should be mentioned that the things that came up in the scandal were bad and shocking and should receive a response. It is not clear whether the stepping down of the Minister of Justice was an adequate remedy, but it seems that parties will not engage in similar shady deals any longer. One should also not feel anything but great respect towards everyone who have been pressuring those who lied and who want to change the system to be better. In a democracy that is what has to be done, the governing system is never going to be perfect, nor will there ever be perfect politicians. Political party financing scandals are common in all democratic countries, big and small.

It is great to have more people contributing to a democratic governing system. As time goes by, new forms of governance are also appearing, including multilevel and network governance systems, taking into account the multitude of actors involved in governance. That is especially true in the context of the European Union, but also in the level of the state, the local governments, multinational companies, etc. It is great to have more inclusive, more participatory democracy in which politicians are not the only ones with competence or influence.

However, Rahvakogu as a response to the crisis is misguided at best and dangerous at worst.

First, Estonian democracy is at a stage in which it is important to focus not on the “will of the people”, but on the protection of minorities and human rights. Estonia has built up in 20 years a fairly good system of government in which the will of the people seems to translate into policies and rules. There is no election fraud, there is a free and unfettered media, the governing system is one of the most transparent ones I have encountered. You are able to have your say and argue your case. Things are not so good when it comes to understanding that majority is not everything. The classic case is the abolition of the death penalty, but there are also cases like equal rights for same-sex couples, etc, which are not supported by the majority of the population, yet they are something that needs to be done. A modern democracy not only translates the will of the people into policies and laws, but also does this in a way that takes into account human rights, including the rights of the minorities. Otherwise it is a “tyranny of the majority” or ochlocracy or mob rule.

The Constitution is there for a reason. It sets up fundamental rights and the basic governance system, including the institutional set-up as well as law-making processes. It limits the power of those who make rules and protects those who might be impacted.

Rahvakogu takes place outside of the constitutional framework. Because of the context in which it was created, it has huge popular support, which means that it has or at least appears that it has legitimacy. This legitimacy is based on the people and institutions involved, but also the support of the media and the context of perceived failings of the exisiting democratic system. This means that when those Rahvakogu proposals appear in front of the parliament, they carry a lot of importance and support so that it will not be easy for any parliamentarian to say no to them. This means that Rahvakogu becomes kind of ad hoc de facto alternative to the parliament, which is definitely not compatible with the Constitution.

Perhaps I am exaggerating the situation and things are not that bad (they are not that bad yet). However, looking at what has happened in Hungary, one should be very careful. The statements attributed to the people involved in the process have also been worrying. The Charter12 that was a kind of manifesto also contributing to the creation of Rahvakogu includes a passage that states:

A new social contract is needed. Neither the President, the Riigikogu or the Government have shown their desire to change the situation. If the system is incapable of reforming itself, then in order to execute its will and exert pressure, civil society must convene an alternative institution, dominated by representatives of civil society.

So my main argument against Rahvakogu is that it hurts rather than helps Estonian democracy. It tries to fix small things about financing political parties, putting into danger much bigger things like our legitimate democratic institutions. It promotes an understanding of democracy as unfettered rule of the people rather than responsibility that comes with it.

There are a number of other concerns:

1. The process only includes a certain segments of the society. The website is not available in Russian or English, thus leaving out those people who are Estonian citizens or who just live here for a longer time. It shows that when it comes to important social issues, Estonia is still monoethnic and monolingual country (obviously people with no internet do not deserve to have a say as well).
2. The process is opaque. It is beyond bizarre that a process that calls for more democracy lacks basic transparency (i.e. who are the people involved and how, financial issues etc).
3. The hastily organised system is neither well-funded nor thought through. The analysis and impact analysis of proposals will be done supposedly by volunteers for free in a month.
4. E-democracy is great, but it should still be democracy. Technology should be made to serve people, rather than be a thing in itself. Many people involved seem to still have this faith that technology will be the solution to all of our problems. The problem is in us, so the solution is in us as well.
5. There is very little to no criticism of the process in the public discourse, probably out of fear of being unpopular. The people involved are also seem to be taking an arrogant, superior position (specifically the head of the Estonian Cooperation Assembly).
6. It is a diversion from more pressing issues that are crucial for the further development of Estonia (aging population, migration, future of EU). So many people (now also myself) have spent so much time and effort on this, other pressing matters receive little or no attention.

It might be that the above is just an unfounded fear and I should start wearing a tin-foiled hat, perhaps my professional background as a lawyer makes me think in a specific way, but I am really worried about what is going on. I am not sure if it would be worse if the whole thing fails or if it is successful.

Update 13 January 2013

Some more thoughts:

1. There is also the connection of the President to the process, which runs against the idea of separation of powers. The process is mainly managed by Olari Koppel from the Estonian Cooperation Assembly, an institution, which is attached to the Office of the President. Mr Koppel was very recently a senior member of the President’s staff. Also mentioned on the list of collaborators on the project is the Legal Adviser to the President Ülle Madise. A well respected scholar as well as civil servant, I do not think she would get involved in anything that is legally questionable. However, if there is a proposal that comes through from Rahvakogu, it is confirmed by Riigikogu and then it comes to the President’s desk for signature (the President can refuse to sign those drafts into law which he thinks are unconstitutional). Does the President stop the law and what happens if he does or does not do it? (Paragraph edited for clarity on 13 January 2013, at 14:47)

This is a serious issue, as many of the proposals (even those that are presented by “reasonable” people) are possibly contrary to international human rights standards and basic democratic concepts (limitations on political speech, getting rid of equal votes by giving parents and extra vote, etc). The process needs to be such that things such as these do not go through.

2. I will expand a little on some of my short points of concern (my main critique is still the potentially harmful impact to democratic institutions and the democratic process, as elaborated above):

2.1. Laws should never be made according to strict time-pressure. The current schedule is way too tight for even the best minds to go through them in a meaningful way. Considering that there is a lack of competent social scientists in this country (mostly due to lack of adequate funding for social science research), it remains to be seen if the smart-sourcing part really is that smart. Smart legislation requires years long process of getting input from stakeholders and the general society, analysing its impact and then having a debate about it. Doing all that in three months for the hundreds of proposals seems like a mission impossible for me. Especially when there is no financing available. And if there was financing for the analysis, then would it not be correct to organise a public procurement for this, so that the best offer can win (this alone might take three months).

2.2 The fact that there is a list of names on the Rahvakogu website does not make the process transparent. We would not accept if the government only published names of officials and not what they do and what they are responsible for. The fact that we know that there might be 20 000 euros allocated for the process does not make it transparent if we do not know how it is going to be spent.

2.3. The problem is not that there are not enough ideas to make things better in terms of elections and political parties and their financing. The ideas are there and have been there for a long time. Therefore crowdsourcing is quite unnecessary, what is necessary is to enact those amendments. They can be legitimately enacted only following the democratic process and not by bullying the political parties through Rahvakogu to accept them, thus threatening the democratic foundations of this country. This time it might be the ‘good’ guys doing it for a ‘good’ cause, but the same thing might be repeated by people with other motivations in the future.

2.4. The distinction between Rahvakogu and other portals such as the failed Täna Otsustan Mina (Today I Decide) or Petitsioon.ee is quite clear. The former was set up by the government, thus being clearly a part of the democractic process with all the democratic safeguards intact. The latter is a private undertaking for different proposals, one that is neither endorsed by the President nor run by a public organisation, and there can be many such portals, if people wanted to start them up. Most importantly, however, it is the context in which Rahvakogu came to be which might be dangerous. At any other time, it would not have the same impact or perceived legitimacy as it has today.

ACTA, innovation and human rights

The Estonian Prime Minister Andrus Ansip today in the Estonian Parliament ridiculed people who are against the controversial Anti-Counterfeiting Trade Agreement (ACTA). He accused them of paranoia and suggested they wear tinfoil hats and that they have eaten some bad seeds. This seems rather unusual for a top European politician, while Polish and Czech governments are reconsidering their support of ACTA.

For me this is not about paranoia or mob-mentality trying to ruin a perfectly reasonable international agreement. There is a legitimate concern that ACTA, while strengthening the global protections against counterfeiting, will also result in less protections for some of the most fundamental human rights. There have been also people like Linnar Viik saying that rather than helping young new startups, it might stifle them in a difficult-to-navigate labyrinth of intellectual property rights. Instead of fostering innovation and creativity, ACTA might instead will be used to try to fight innovation and preserve business models, which are long overdue to be dismantled. Of course, it is difficult to say what will be the actual impact of ACTA, because much of it depends on the interpretation and implementation of the agreement.

Intellectual property rights are a legal construct, created by people for people for specific goals (to provide creators and inventors incentives to create and invent). Thye give certain exclusive rights (monopolies) to use and licence etc. However, any intellectual property reform will be fought by the monopolies that have been created as they will lose their business even if different system might make more sense for the society as a whole. I refuse to believe that if we were to start afresh with the IPR framework, we would end up with anything remotely similar to the terrible mess we are in today. As a lawyer I feel sorry for my profession as instead of trying to enable and support actual innovation and creation (which in today’s world is usually built upon exisiting technologies or art) we as lawyers mostly work to try to prevent and stop the spread of technology. Fortunately there are some like Karmen Turk or other people at Estonian law firms who see that the IPR system needs reform. (A sidenote: Tallinn Law School will begin from Autumn 2012 with a new Master programme in Law and Technology where these issues can be studied and researched in depth.)

Human rights are in a way very similar to intellectual property rights. Both got started internationally after WWII and reached real global acceptance in the 90s after the collapse of the Soviet Union. After that time both human rights and intellectual property rights have spread internationally all over the globe. However, IPR are usually supported and promoted by multinational corporations whereas human rights do not have such wealthy and organised proponents. At the same time, human rights are at least in most countries considered far more fundamental than IPR.

Intellectual property rights can be also considered human rights, as right to property is also recognised as a human right. However, the case-law of European Court of Human Rights so far has emphasised other rights such as freedom of expression or freedom of speech as more fundamental to the functioning of a democratic society than property rights. With ACTA this balance is under threat.

If there is a choice to have ACTA or not have it then it is for sure better to not have it. What we would rather need more is a global freedom of movement of information agreement, protecting internet from unreasonable interference from states. The European Commission a few years ago proposed to add free movement of knowledge to the EU’s current four fundamental economic freedoms (goods, persons, services, capital). I think that would do much more for both European competitiveness as well as helping creativity and innovation. Sadly, not much has been heard about this idea after 2008.

A new constitution for Estonia

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

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

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.

Next week: Human Rights Week at PÖFF

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

Catching internet trolls

We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.  John Stuart Mill, On Liberty, 1859

In the memokraat blog, the Short Guide to Catching Trolls (Lühike trolliküti käsiraamat ehk ettepanekud online diskussioonitehnoloogia arendamiseks Eestis) was posted discussing the issue of trolling at the reader comment sections of Estonian online news media sites. I briefly participated in the debate, but now will provide here an overview of some issues and questions that I have been thinking about since then.

1. Defining the troll. The Guide defines troll as someone who posts insulting comments in an online environment with the purpose of provoking others and disturb the discussion. What constitutes an insult, provocation or disturbance is subjective to a certain level and depends on the cultural and social background of a person. My comments for the Guide as posted in the comment thread could be considered trolling as at least some people thought that part of my arguments were arrogant (when I suggested that people who are so thin-skinned that they could not tolerate hostile commentary should not read it), the style I write and express my opinions is usually a little provocational and some people might think that it disturbed the discussion. Thus in a wide reading of the definition I am a troll and so is nearly anyone who does not conform to a certain subjective criteria defined by the owner of the site. The banning of such trolls as myself results in discussions that are perhaps non-insulting and uncontroversial, but at the same time also rather valueless in terms of expanding the scope of discussion and bringing in alternative views.

2. Defining the problems? The trollhunters claim that the problems are caused by the technology used for commenting at Estonian online news sites. They claim the technology used is to blame for the exclusion of certain other people (who in a bizarre twist are claimed to be unable to freely use their freedom of speech because they are afraid of others also using it but critically), that this leads to radicalisation of public opinion and intolerance and distorts public opinion. All these claims lack evidence, studies or any research: we are expected to accept these premises as self-evident, when they are actually not.

The biggest unsupported assumption the authors of the Guide make* is that the root of all evil is anonymous commenting, which may or may not be the case.

3. Freedom of speech in an online setting. It is true that freedom of speech is not absolute and the exercise of it also requires responsibility for one’s opinions. However, for acts that bring criminal liability there already is a possibility to identify almost anyone online so the anonymity is only superficial. Thus it is possible at least in theory to make people accountable for their words also now.

50 years ago internet did not exist and therefore the human rights standards we have need to be adopted to the internet era. Certain principles remain the same, but the internet might change the content of certain rights subtantially, including freedom of speech. Offline analogies do not always work in the global unregulated internet with low barriers to entry.

4. Self-regulation is not always best when dealing with human rights issues. The trollhunters state that the least they want is state intervention or regulation. They propose a system of self-regulation, whereby the parties who control the commentary space make an agreement which is then adopted and implemented. In my mind it is dangerous when private entities make deals that involve limits to freedom of speech, because questions of accountability and transparency rise. I also believe that this might be even worse than state regulation, because the state is much more bound by international human rights obligations. So in cases that involve human rights I think it is preferential to have state regulation, rather than allow for private parties who control substantial public discussion space to make their own agreements to limit certain aspects of online activities. In many many spheres self-regulation is possible and works very well, but I am not sure if this is it.

—

In general terms there is another fundamental point why I think any regulation of online commentary space is not beneficial. Net neutrality means that content providers should not restrict specific parts of the internet depending on subjective criteria. The internet has flourished partly because of the freedom it provides and the abscence of walled gardens. What the trollhunters want to create is a walled garden, admittedly with very low walls, but still access to commenting would become more limited.

I also disagree that this discussion should be framed in terms of media freedom. Online commentaries do not constitute media or journalism in my opinion, it is a separate issue and therefore references to media and press freedom indexes do not really matter. The public debate in the matter has also included mostly people from the media sphere and not other areas who have framed the debate in their own terms.

Short rebuttal of the trollhunters critique of anonymity online:

1. The whistle-blower effect. The trollhunters claim that an anonymous tip option might be sufficient cannot be accepted because it is media-centric and would require an interested journalist to pursue the topic and lack of self-censorship in the media. Anonymous hints cannot replace anonymous commentary, they are different things. The trollhunters agree that certain levels of anonymity might be necessary for informing the public, I say it is essential.

2. Balance between insulting and constructive comments. This depends on the topic, but in most cases I would say based on my experience that insulting comments do not prevail over more insightful ones. Again, there are no studies made or statistical data available other than Delfi claiming that insulting comments are only a fraction of the total body of comments. Even if the majority of comments would bring nothing to the debate, is it worth not having the few that do?

3. Censorship. The trollhunters here refer to the right of newspaper editors to choose what to publish. The commentary space is not in my understanding part of the newspaper and can function without it. The fact that newspapers have always edited their stories have been due to physical lack of room in the paper and the need to provide a concentrated overview. The internet does not have these physical limits and there is nothing lost with adding to concentrated overviews and officially sanctioned opinions other stuff as well. The claims of this leading to mob censorship are speculation.

4. Impact of insulting anonymous comments. It is true that some people are more sensitive to criticism and insults than others, but again, there is no need to censor everyone because of this. Some views are controversial and people get offended. If I want to claim that there is no god, then this is offends people and I will be branded a troll. I believe that online commentary space must allow for expression of those less conformist views, which are not published by newspapers. I disagree that it is right to take away the freedom of expression from one group for the benefit of another.

5. Strength or importance of message. See above. I still refuse to accept the approach that it is somehow justified to prefer one group of people to another in terms of who may or may not express their views.

6. Vox populi, vox dei. I agree with the trollhunters that there needs to be no correlation between general public opinion and views expressed in comments, but I think it also depends on the topic. Likewise, I have seen no statistics which confirm that people believe that views expressed in online commentaries represent the general views in the society.

7. Video game violence argument. The idea is that people can insult others virtually so they will not do it offline. I think there is no correlation here, but no studies have been provided saying one thing or the other. The anger people have is in my own opinion a consequence, and not a cause of the processes in the society.

8. Moderated comments loses valuable discussion. This is subjective. If in some specialist finance related forum it works and likeminded people can express themselves better and feel good about it then fine. I do not think that discussion space for general public should work the same way (the danger to stifling of dissent and danger of conformism).

9. Too many comments to moderate. I think the notice and take-down system works pretty well.

10. Topic already discussed. Nothing to say here. Everything should be open for discussion.

11. Notice and take-down. Probably the system could be improved, I think it is disproportional to ban all anonymous comments due to imperfections of the notice and take-down system.

12. Turn to police. In case there is no real threat police should not be involved. If a person says to another that go jump off a cliff then this obviously is not a real threat. Again, in those cases where there is real threat police should be involved. It does not mean that all anonymous comments need to be banned because police does not do their work.

13. Economic factor. I am not sure if the commenting option is ecnomically beneficial or not, but of course that should not be the prevailing argument for or against limiting free speech online.

14. Freedom of speech is why comments are kept. Not a convincing argument, I agree. But I do think that once they have been introduced, stopping the ability to comment wold be problematic as it has almost become a service of general public interest.

15. Historical perspectives. There has been no time like this and therefore parallels with the past might or might not provide insight into dealing with the issue at hand.

* As pointed out by Daniel, I have put words in the mouths of the trollhunters that they think that anonymous commenting is the root of all evil. The trollhunter guide does not state this and it was an exaggeration on my part. However, I still think that the general tone of the Guide seems to connect anonymous expression with the existence of insulting and derogatory comments. I guess it would be fair to say that the authors consider it as a not an insignificant part of all evil 🙂

One person, one vote?

There is a movement in Estonia, which calls for constitutional reform in order to “give voting rights to children” by actually giving more votes to the parents of those children. The website of the movement is consists mostly of slogans and demagougery. It is unfortunate that the disillusion with the Estonian political sphere, which is deplorable, has lead to this instead of a real movement for change.

The movement has three ‘principles’:

• The main principle of democracy is “one person, one vote”
• A child is a citizen
• Therefore a child must have a right to vote

One can agree with the first and the second, but not the third. Not even the proponents of the idea want to do that and have toddlers selecting parliament members, they want to give extra votes to the parents or guardians of those children. That is a terrible idea.

Giving parents extra votes for having children is contrary to the principle of direct elections. In a democratic country a person can take part in the “government of his country, directly or through freely chosen representatives (my emphasis).” The idea of direct elections means that we can choose our representatives directly and freely. A child is unable to freely choose his or her representatives, which means that the principle of direct elections is not followed.

Why is the principle of direct elections so important? Any delegation of the right to vote to someone else is incompatible with democratic minimum standards as it can easily lead to disenfranchising parts of the society. If we give children the right of indirect voting, then this means that we could also perhaps delegate the votes of the mentally ill to their caretakers, prisoners to their families or any other group who cannot vote, but is still a citizen. None of these would even be freely chosen representatives, i.e. children could not choose which wise adult they give their vote to, it has to be the parent or guardian.

In my opinion the fact that such a movement has received quite a substantial support, even by some well-respected journalists, speaks volumes about the weakness of Estonian democracy.

The social consequences would be significant. Spouses disputing who gets to decide how to vote, children disawoving their parent for voting ‘for’ them. The childless, women who are no longer able to give birth and homosexual families are relegated to second class status, where more and more will be taken from them to support the ‘natural’ family. This kind of Estonia I do not want any part of.

Instead of giving more votes to young people, it actually takes them away from them. People tend to marry and have children later, in their late 20s and 30s, which means that the voice of the people in the age range of 18-24 is even lower as they probably do not have children yet.

Of course, the whole idea of having more children in a global world faced with serious overpopulation means that by trying to ensure the continuity of the Estonian nationality, we slightly diminish the survival chances of the entire planet. If all nations of the world adopted having more children of their nationality as the Kantian categorical imperative “act only according to that maxim whereby you can at the same time will that it should become a universal law” we would end up with rapidly overpopulating the globe, making it a much much worse place to live, or potentially destroy humanity altogether. I would not wish for my children and children’s children the fate of constant war over rapidly diminishing natural resources and failing ecosystem. This kind of ‘selfish’ national thinking is dangerous.

I believe Estonia and Estonians have a bright future ahead if we are open and welcoming others among ourselves and our culture.

P.S. The campaign website also includes the homophobic statement that “men and women love each other, and out of that love children are born”, implying that two men or two women could not possibly love each other and found a family.

Annex:

Here is a short overview of the international obligations of Estonia in terms of electoral law.

The Universal Declaration of Human Rights, the 60th anniversary of which was recently celebrated, should be seen as one of the cornerstones of the world order today in terms of democracy and human rights. Article 21 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 shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

The same principle is reiterated within Article 25 of the International Covenant on Civil and Political Rights, which is in principle obligatory for all states to follow:

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

Article 3 of Protocol 1 of the European Convention of Human Rights, which is binding for Estonia, states:

Article 3 – Right to free elections

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

There is also the Declaration on Free and Fair Elections of the Inter-Parliamentary Council, which spells out the direct elections principle.