European Stability Mechanism

Posted: May 8th, 2012 | Author: | Filed under: Estonia, european union, law, thoughts | No Comments »

Currently the Estonian Supreme Court is hearing arguments for and against the agreement establishing the European Stability Mechanism. It was the Estonian Chancellor of Justice who took the extraordinary step of challenging the constitutionality of the part of the treaty which says that the funds could be distributed from the mechanism without approval from the Estonian Parliament (due to the qualified majority system utilised in order to prevent a few smaller states blocking the vote). Both sides have good arguments, but few seem to realise the inevitability of something like the ESM for the future of Europe. The government is really between a rock and a hard place. It has to argue for the ESM, but cannot use a lot of the argumentation that would be politically difficult. The Chancellor can be much more open, as well as the independent legal experts who have submitted their opionions.

The EU is not in a great shape. It faced huge challenges to remain competitive and try to preserve at least part of the welfare state, to deal with aging population, integration of migrants etc. Now, the financial crises has highlighted both the financial and political faults within the system. Scrapping the system is not an option unless people are willing to suffer a major setback to European and global stability and prosperity, so compromises have to be made.

The European Union must become a transfer union. This means that money needs to flow automatically from richer countries to poorer member states (the way it does in the US). Without a transfer union, we will be permanently in the crisis mode and we will have serious problems preserving not only the euro, but the integration project as a whole. Therefore it is inevitable to have a transfer union, which facilitates the movement of resources automatically from the well-off parts of Europe to less well-off parts. We currently have some transfer through the EU budget (via the structural funds), but those sums are too small, too targeted and too inflexible although they are increasingly being used to prop up the economies of states in trouble.

There are few options to enable a stronger transfer union:

  • increase the amount of EU budget and allow the EU to re-distribute wealth in a greater amount. This will probably not work because of the limits and conditions of EU funding;
  • bring a part of taxes, medical and unemployment insurance, education funding and other key social areas to an EU level. This would mean an EU tax of some sort as well as pan-European unemployment and medical insurance schemes. The easiest would be the unemployment insurance, but it might not be enough;
  • create a bulletproof bail-out mechanism, which helps out those who are in need (not only member states, but perhaps their banks and other big businesses);
  • create so-called euro-bonds to fund the bailouts or structural fund projects.

All of these steps will be unpopular for those who pay, unless the politicians are able to explain to people that the EU is not workable in any other way.

This brings us back to the Estonian constitutional debate. A transfer union as such is probably not supported by the current interpretation of the Constitution. There is a fundamental choice that the that will have to made: whether they support the changing of the interpretation of the Constitution to accommodate the transfer union (i.e. lose the parliament’s control over certain parts of the state budget). All other issues are technicalities in my opinion (not insignificant ones, but still technicalities). It was unfortunate political reality that the ESM treaty is not agreed within the EU framework, but that does not stop it becoming EU law.

The European Union is unique. Therefore there is room for creativity regarding interpretation of EU law. There are few established rules, but plenty of legal and political choices to be made, new doctrines to be created. I do hope that the choices made by the Estonian government and Supreme Court will be based on a broad vision of the future of Europe. I hope the decision will be one that established a clear doctrine to be used in future cases involving the relationship of EU law and the Estonian Constitution (of which there is bound to be many).


Uue Euroopa poole

Posted: January 26th, 2012 | Author: | Filed under: eesti keeles, Estonia, european union, law, thoughts | No Comments »

I publish here my article from 5 December 2011 on the future developments of the EU, as published in the Estonian daily Postimees. It is available online behind a pay-wall.

Uue Euroopa poole

Euroopa Liidu praeguses olukorras peegelduvad nii poliitilise juhtimise nõrkus kui ka demokraatliku legitiimsuse kriisi ilmingud, kirjutab Kari Käsper.

Kriisiajad on Euroopa Liidu valitsemise osas asjad selgemaks löönud: kõik näevad, et kui tulevad halvad ajad, vaadatakse ikkagi Angela Merkeli ja Nicolas Sarkozy poole. Unustatud on Euroopa institutsioonid ning olemasolevad valitsemishoovad.

EL justkui toimiks mitmel erineval tasandil: enamikus valdkondades ja headel kasvuaegadel toimib riigiülene õigusloome hästi, samas nõrgalt koordineeritud valdkondades on eriti praegusel kriitilisel hetkel väga selgelt näha poliitilise mugavustegevuse või pigem tegevusetuse tulemusi.

Põhimõtteliselt paistavad käimasoleva kriisi tagant poliitilise koordineerimise puudumise kõrvad. Probleemid, mida algses euroeufoorias 1990ndatel ja veel ka enne kriisi algust ignoreeriti, ei olegi ignoreerimise tulemusel kadunud, vaid on võimendunud. Kogu ELi toimimine on muutunud nii keeruliseks, et sellest ei saa alati aru selles osalevad poliitikudki, meediast või kodanikest rääkimata.

Praegune eurokriis on seetõttu ka sügavam: paanika levib kiiremini kui kunagi varem. Seda süvendab peamiselt ingliskeelse meedia ignorantsus ja vähene huvi ELi toimimise vastu. Britid teatavasti ei ole ELi tuumikus ning ei kasuta mitmeid ELi hüvesid nagu euroraha või Schengen.

Seega pole Mandri-Euroopa poliitikutel sageli võimalustki, sest turud reageerivad (üle) just globaalse ingliskeelse info põhjal, mida produtseeritakse peamiselt euroskeptilises Londonis.

Samas oleks vale väita, et tegemist on vaid ajakirjandusliku paanika, ebaõiglaste ja halvasti informeeritud finantsturgude ja ebapädevate reitinguagentuuride koosmõjus tekkinud probleemidega. Need on vaid süptomid palju laiemale ja sügavamale küsimusele, milleks on ELi valitsemine ja selle demokraatlik legitiimsus.

Just riigiülese valitsemise ja õigussüsteemi nõrkused on finantskriisis välja löönud. ELi juhtimise ebastabiilsus ja demokraatliku legitiimsuse vähesus koos sellega kaasnenud rahva kaugenemisega valitsemisest on peamised põhjused, miks ülemaailmne finantskriis on viinud eurokriisini.

Tegemist on poliitilise juhtimiskriisiga: Merkel ja Sarkozy ei ole Kohl ja Mitterrand. Mitmed mõtlejad, sh Jürgen Habermas on viidanud sellele, et tänapäeva Euroopa poliitiliste juhtide generatsioon ei taha või ei oska Euroopa projekti hingega edendada, sest neil puudub Teise maailmasõja kogemus ning neile on Euroopa projekt tähendanud eelkõige tehnilist ja juriidilist laadi riigiülest koostööd, kompromisside tegemist ja muud sellist, mida on rahvale keeruline selgitada.

Sellega seoses on need riigijuhid nõrgestanud riigiüleste institutsioonide tööd (Euroopa Komisjonist on saanud paljuski kõrvaltvaataja, Euroopa Parlament on praeguses kriisis täielikult unustatud) ning kogu euroala päästetegevust koordineeritakse Euroopa Ülemkogu kaudu, mis ei ole ega olnud kunagi mõeldud demokraatlikuks juhtorganiks.

Samuti on tegemist demokraatliku legitiimsuse kriisiga. Olukorras, kus ELi poliitikud ei ole olnud valmis looma üleeuroopalisi erakondi või kus rahvuslik populism on kindlaim hääletooja, ei ole poliitikutel praeguses olukorras kedagi süüdistada peale iseendi.

Selle asemel et selgitada keerulise ELi väga konkreetseid ja kättesaadavaid hüvesid, on mindud lihtsama vastupanu teed: ebapopulaarsed otsused on sageli tehtud ELi kaudu ning seega ELi legitiimsust veelgi õõnestatud.

Kui paljud Eestigi poliitikutest on ebapopulaarseid otsuseid põhjendanud ELi direktiivide või määrustega, mille poolt nad samas ise ELi institutsioonides hääletasid? Ka ELi institutsioonide demokraatlik legitiimsus on puudulik eelkõige liikmesriikide tegevuse tõttu.

Euroopa Parlament, millel oleks potentsiaal olla maailma võimsaim seadusandlik kogu, ei ole seda positsiooni saavutanud seetõttu, et inimesed, keda parteid sinna esitavad, on sageli teisejärgulised poliitikud, kes saadetakse riigisisesest poliitikast eest ära või siis loorberitele puhkama.

Ka Euroopa Parlamendi valimistel pole põhiküsimus, millised on selle või teise inimese vaated või programm ELi pädevusvaldkondades või kuidas Eesti elanikke neis küsimustes esindatakse, vaid pigem on tegemist siseriikliku poliitmängu sideshow’ga.

Sama kordub erinevatel viisidel teistes riikides ning seetõttu ei osaleta Euroopa Parlamendi valimistel sugugi nii palju kui selle institutsiooni roll igapäevaelus eeldaks. Teine ELi tasandi seadusandlik institutsioon, ELi nõukogu, kannatab teistsugust laadi legitiimsuse probleemide all.

Ministrid, kes nõukogus oma riigi eest siduvalt hääletavad, on siseriiklikus süsteemis täidesaatva võimu esindajad. Üha enamate otsustusvaldkondade liikumine riigilt ELile (mis on olnud enamikul juhtudel hädavajalik) on seega kaasa toonud riigi sees valitsuse kui seadusandja rolli suurenemise ja liikmesriigi parlamendi kui ainsa legitiimse otse valitud esinduskoja rolli vähenemise, mille üle tasub igal kodanikul muret tunda.

Kas ja kui suurt poliitilist kontrolli nende otsuste üle liikmesriigi parlament teostab, on iga riigi enda küsimus, aga häid lahendusi ei tundu olemas olevat. Nõukogus on sageli vaja kiiresti otsuseid teha ja kompromisse leida, mistõttu liikmesriigi parlamendi heakskiitu sellele on praktikas raske saavutada.

Nõukogule on lisaks ette heidetud ka otsustusprotsessi läbipaistmatust. Lahendus ei ole ELi organiseeritud või organiseerimatu laialiminek või siis vähemalt oluline liikumine poliitiliselt koostöölt tagasi, vaid majanduslikule koostööle.

See ei ole võimalik mitmel põhjusel: viimase kahekümne aasta jooksul on üles kasvanud Timothy Garton Ashi poolt «EasyJeti Euroopaks» tituleeritut hindav põlvkond, mille jaoks saavutused nagu euro, piirikontrolli puudumine, võimalus minna tööle soovitud liikmesriiki on iseenesestmõistetav elu osa, mida ei lasta kellelgi enam käest võtta.

Rahvusriik ei ole lahendus, sest rahvusriikide Euroopa oleks veelgi hullem nii sotsiaalses, kultuurilises kui ka majanduslikus mõttes. See tähendaks ka totaalset tagasiminekut Euroopa demokraatlikus valitsemises ja oleks maailmapoliitiliselt mitu korda hävitavam sündmus kui 11. september 2001 või Iraagi ja Afganistani sõjad.

Euroopa annaks vabatahtlikult käest võimaluse mõjutada maailma arenguid meile sobivas suunas ja tooks niimoodi kaasa uue globaalse ebastabiilsuse. Mida siis ette võtta? Tõenäoliselt seisneb lahendus kahes võimalikus variandis, mis mõlemad eeldavad senisest rohkem ja tugevamat Euroopat.

Üks variant on Euroopale demokraatlikku legitiimsust luua läbi seni kaasamata jäänud liikmesriikide parlamentide. See tähendaks, et neile tuleb lisada oluliselt suurem ELi dimensioon ning nii parteid kui juhtpoliitikud peavad Euroopa teemasid oskama ja tahtma kodanikele selgitada.

Näiteks parlamentide Euroopa asjade komisjonidest võiks moodustuda ELi tasandil täiendav demokraatlik seadusandja (näiteks Euroopa Parlamendi teise kojana). Teine, rohkem muudatusi ja poliitikutelt julgust nõudev variant oleks demokratiseerimine ELi tasandil läbi nn Euroopa Ühendriikide tekke.

See tähendaks üleeuroopalist poliitilist ruumi, meediat ja muud sellist, aga ka ELi kodanike suuremat eurooplasetunnet. Pikemas perspektiivis oleks teine lahendus jätkusuutlikum ja tõhusam, aga realistlikum tundub esimene variant. ELi arengut on 1950ndatest alates iseloomustanud kriisid, millele on järgnenud suurem lõimumine ja laienemine.

Seega ei maksa käimasoleva kriisi tõttu pead kaotada ja paanikahoos rumalusi teha. Pigem tuleks olukorrale läheneda pragmaatiliselt, ja enamik Eestigi poliitikuid on adunud, et Eesti huvides on tugev ja demokraatlik Euroopa Liit, mis lähtub õigusriigi põhimõttest. Seda eriti seetõttu, et oleme suhteliselt unikaalselt Euroopas tunnistanud ELi õiguse ühepoolset ülimuslikkust oma põhiseaduse suhtes.

Kari Käsper on Tallinna Tehnikaülikooli õiguse instituudi Jean Monnet’ Euroopa õiguse õppetooli lektor.

5 mõtet

• Euroopa võlakriisi põhjuste puhul oleks vale rääkida ajakirjanduslikust paanikast, ebaõiglastest finantsturgudest ja ebapädevatest reitinguagentuuridest. Need on vaid palju laiemate ja sügavamate probleemide sümptomid.

• ELi riigijuhid on nõrgestanud riigiüleseid institutsioone. Kogu euroala päästetegevust koordineeritakse Euroopa Ülemkogu kaudu, mis ei ole ega ole olnud kunagi mõeldud demokraatlikuks juhtorganiks.

• Tagasipöördumine rahvusriikide Euroopasse tähendaks ka totaalset tagasiminekut Euroopa demokraatlikus valitsemises ja oleks maailmapoliitiliselt mitu korda hävitavam sündmus kui kaksiktornide langemine või Iraagi ja Afganistani sõjad.

• Liikmesriikide parlamentidele tuleks lisada oluliselt suurem ELi dimensioon ning nii parteid kui juhtpoliitikud peavad Euroopa teemasid oskama ja tahtma kodanikele selgitada.

• Praegusele olukorrale tuleks läheneda pragmaatiliselt. Meie huvides on tugev ja demokraatlik Euroopa Liit, mis lähtub õigusriigi põhimõttest.


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.


September 11, 2001

Posted: May 2nd, 2011 | Author: | Filed under: law, memoir, personal, united states | No Comments »

The capture and killing of Osama bin Laden brought me back my memories of September 11, 2001.

I was at a lecture at the time, it was the beginning of my sophomore year at Concordia University Law School.  I had my birthday the day before, but I do not recall any big party or a hangover. It was a lecture of Public International Law by Maureen B Fitzmahan, one of the American permanent lecturers at Concordia. Suddenly, text messages started arriving that New York City is attacked and the whole city blown up, the skyline gone. Everyone was taken aback, but the lecture did go on, people who had relatives or friends in the US were suggested to go and try to contact their relatives. Concordia at the time was very international, with a few American students.

I was quite shocked and thought about the impact to the world when I was waiting for the bus to take me back to my parents flat in Õismäe from Viimsi, where this small private university was located. It was such a clear and beautiful, sunny day, but I wanted to return quickly to find out more what had happened. The world really seemed different.

There have been terrorist attacks before and after September 11, 2011, but not one of those had the same impact on me.


1997 calling

Posted: February 27th, 2010 | Author: | Filed under: Estonia, law, thoughts | No Comments »

Was surfing Westlaw and found the thought below. Remarkable, how little things have actually changed since 1997.

“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


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.


Catching internet trolls

Posted: October 2nd, 2009 | Author: | Filed under: human rights, law, philosophy, politics, thoughts | 7 Comments »

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?

Posted: July 31st, 2009 | Author: | Filed under: Estonia, human rights, law, politics | 2 Comments »

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 electionsIn 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.


Isaiah Berlin Centenary

Posted: May 30th, 2009 | Author: | Filed under: cool, human rights, law, travel | No Comments »

Next week, I will be in Riga, Latvia, attending the centenary of the birth of Sir Isaiah Berlin as a part of the East-East group of young intellectuals from Eastern Europe. It looks like there is going to be a lot of interesting discussions ahead.

Go to www.berlininriga.com for more information about the events.