Brexit and the cosmopolitan world order

Posted: June 27th, 2016 | Author: | Filed under: european union, governance, human rights, philosophy, politics, thoughts | No Comments »

There are those who see the United Kingdom’s exit from the European Union as a prelude to turning back to the times when the main sovereign actor in the world is the (nation) state. However, resorting to the intergovernmental model is not the only option to analyse Brexit, the other views (cosmopolitan pluralist, minimal world state and cosmopolitan democracy) should be analysed as well.

Intergovernmentalists probably see Brexit as a natural consequence of a political union that has stretched too far. There can be no (democratic) legitimate government above the nation state level and thus any attempts at political unions such as the EU are futile if not harmful, this thinking goes.

The negotiation of national parliamentary sovereignty and binding supranational rules have been unsuccessful in the EU-UK case and thus it is only normal that the state that has delegated powers to the EU can now take those back and leave. In this traditionalist thinking, the citizens of the UK had all the rights to vote for Brexit, because it is they who are ultimately in charge of the fate of their country and whatever they do (even if it harms themselves or others) is right.

The cosmopolitan pluralists believe that (nation) state is over or in decline and no longer the centre of sovereign power. Therefore power has been shifting to multiple other levels of government, global, regional, subnational, corporate multinational etc. The state is just one of the levels of a pluralist, complex, interdependent, networked world which does not have a centre of power.

From this perspective, Brexit as a decision by referendum of the UK citizens was unfair: in a cosmopolitan plural world order everyone who is affected should get a say and stakeholders consulted. In an interdependent world why are the citizens of one entity allowed to screw things up for everyone else? Scottish independence is a neat example of the subnational levels of governance exerting influence beyond the nation state. Even if the UK left, this does not mean that we should not continue to democratise the supranational levels of governance (i.e. the EU) and continue building a strong European polity.

The proponents of the minimal world state model are of the view that there are certain universal core principles that apply to all states and all people, which cannot be derogated from and the breach of which will limit state sovereignty. Universal human rights at their core are as such limiting state sovereignty: humanitarian interventions can be used to prevent mass grave human rights violations, such as genocide, in a sovereign state. Other violations might bring sanctions and trade restrictions. This minimal world state is institutionalised through the United Nations Security Council and General Assembly (and other UN bodies) and includes international NGOs as powerful actors. The deliberations at the global level in other matters than human rights as well (millennium development goals) exerts soft pressure to states to comply.

Brexit does not really have a consequence in terms of the minimal world state model, because both the EU and the UK remain a part of it and will need to comply with the core requirements. The influence of the EU and the UK in the world state level might be decreased because of the weakening of the position of the EU.

Cosmopolitan democracy model requires democratic decision-making in all levels, including global. This model sees the future creation of a world parliament and limits state sovereignty only to those issues that are internal to that state. In this case states are subordinated to a global democratic entity and transnational solidarity is the norm, because most problems are not confined to the borders of any one state.

Brexit is a setback to cosmopolitan democracy if one counts the EU as a precursor to eventual global democracy. In a fully developed cosmopolitan democracy Brexit would not matter because nation states would not matter either. The UK leaving the EU would be similar to a redrafting of the administrative borders of a county or district, which does not have global impact.

In conclusion: none of the models of international political theory offer a complete solution. The world is slowly turning away from the intergovernmental model, but neither the minimal world state and cosmopolitan pluralism models are fully existing yet. And even though cosmopolitan democracy is as an ideal an interesting one, it seems to be a long way to go before it can be realised. Brexit can be read as a countertrend towards intergovernmentalism, but it (and the reactions to it) also reflect the unsuitability of the current international political frameworks to deliver. The confusion and reactions in different countries (and the fact that we in Estonia also care deeply about Brexit) can be seen as supporting the emergence of cosmopolitan pluralism as the main framework, but as it also is vague and confusing it does not offer much help. Minimal world state does not seem to be affected much (even though prevalence of nativism might mean even less interest in responsiblity to protect doctrine and thus weakening of the applicability of the model).

Read more:

Zürn, Michael. “Survey Article: Four Models of a Global Order with Cosmopolitan Intent: An Empirical Assessment.” Journal of Political Philosophy 24.1 (2016): 88-119.


UK and EU: a horrible end

Posted: June 25th, 2016 | Author: | Filed under: european union, governance, politics, things that suck, thoughts | No Comments »

With the UK referendum result, it makes sense to look at the troubled relationship that the UK and the EU have had, which might put yesterday’s vote into a perspective.

The UK did not join the EEC in 1958 with the original six because it thought that the much looser European Free Trade Area worked better for them and because it wanted to preserve its existing US and Commonwealth (colonial) trade links and relationships. This was a mistake because that meant that they did not have any say on the initial design of the EU institutions, thus voluntarily sidelining themselves and never being able to call themselves a founding member (which apparently still is relevant) and thus paved the way for the Franco-German engine of European integration.

However, they realised their mistake quickly and already in 1961 applied to join the EEC for the first time. This could have still given them a lot of leverage, because the EEC just did not appear in 1958, but over a gradual 10-year transition period. The French president Charles de Gaulle (in agreement with West Germany’s Konrad Adenauer) vetoed UK’s accession. The UK tried again in 1967, but were again vetoed by France. So for the crucial formation period of the EU, the UK did not have any say on its development.

The UK accession negotiations only became possible after 1969 when Charles De Gaulle had been forced out. So it finally joined in 1973 with Denmark and Ireland (and almost Norway). In 1975 they got worried about the loss of sovereignty and organised a referendum whether to stay or not. They decided to stay with a large, 2 to 1 margin.

Then came Margaret Thatcher, who essentially created the reluctant, half-hearted and antagonistic membership status that the UK has had so far. She fought with the most influential Commission president Jacques Delors and in 1990 her opposition to Europe caused her government to fall and ended her rule of the UK.

For the revolutionary 1992 Maastricht Treaty, which created the EU as a political union, the next PM John Major fought to have the opt-out from the euro and EU’s social rights, continuing the strategy of being a reluctant partner.

Tony Blair came into power in 1997 and was initially much more pro-EU, preparing not for a Brexit, but instead a referendum on the UK’s membership of the eurozone, which, of course, never happened. He also signed up to the social rights aquis. As a reaction, the Conservatives turned more eurosceptic and UKIP started to make gains, winning seats in 1999 European Parliament elections.

Then came the Iraq invasion, which the UK supported, but France and Germany opposed. This caused a lot of mistrust and probably also re-awakened concern in France and Germany regarding where the true loyalties of the UK are. Blair never recovered after that in the eyes of many EU leaders and Gordon Brown did not do much to repair the relationship.

In 2010 David Cameron became the PM and made a series of disastrous decisions on the EU (in order to hold support of the growing eurosceptic faction within the Tory party).

Already in 2009 he had engineered the change of alliances for the Conservative Party in the European Parliament, from the dominant European People’s Party (currently 215 MEPs) to the European Conservatives and Reformists faction (currently 74 MEPs). This meant that the Tory party MEPs were no longer in the same EPP group as Merkel’s CDU or French UMP (now Republicans) and other mainstream right-wing parties, but instead now were in the same fringe group with right-populist parties like the True Finns of Finland and Law and Justice (PiS) of Poland.

In 2011 Cameron angered other EU leaders by vetoing the amendments to the EU treaties on fiscal responsibility forcing the other EU countries to create the European Fiscal Compact outside of EU law. In 2013 he pledged to hold a Brexit referendum, after sustaining long pressure from within his party.

After the 2014 European Parliament elections, he fought against the appointment of Jean-Claude Juncker to the president of European Commission, calling him “the wrong man, from yesterday”. In the end he was only joined by Hungary’s Viktor Orban in voting against Juncker who was appointed to lead the EC.

In the run-up to the UK referendum and now following the result, he not only destroyed the UK’s membership in the EU totally and weakened the EU’s prospects at the worst possible time, he has also diverted the focus of the EU from issues like the migration crisis and other urgent reforms.

Taking the above into account, perhaps a horrible end is better than endless horror, when it comes to the UK-EU relationship.


Brexit

Posted: June 23rd, 2016 | Author: | Filed under: Estonia, european union, politics, thoughts | No Comments »

The UK referendum on withdrawing from the European Union is a significant matter. The UK, which itself almost split less than two year ago in the Scottish independence referendum is going through processes, which almost all states in the world are going through: the movement towards multilevel interdependent governance, a sort of cosmopolitan federalism.

In a way we already have a very loose state for the world, in the form of the UN, G7, IMF, WTO and other institutional frameworks that manage the governance of an increasingly interdependent world. These institutions are opaque, bureaucratic, in many ways unfairly composed, Western-centric and deeply undemocratic, but we cannot organise peaceful living together without them. In a world facing climate change, religious and national conflicts, a global economy that also creates inequality, and rapid technological changes, no country can be an island, and decide by themselves. Without fora to discuss and decide how to tackle and manage these things, life would be much worse for everyone.

The same processes happen in the different regions of the world. The EU is perhaps the most successful example so far, but there are other economic and political unions and blocs have been formed. In trade, in addition to the EU there are EFTA, NAFTA, MERCOSUR, ASEAN, COMESA and many others; 419 different regional trade agreements, according to WTO. These have not just appeared, but serve an important need to coordinate and discuss issues that matter regionally. Here are the main different frameworks in Europe.

Supranational_European_Bodies-en.svg

Source: wikimedia

The trend is clearly in the direction of more states becoming members of more of these frameworks, because it makes sense to do so. This kind of soft-federalism is also called subsidiarity, which means that decisions are made at the level where it makes the most sense to do so, which in itself is a functional/rational approach to decision-making.

Now the (nation) state level seems to be under the most pressure. On the one hand there are forces of subsidiarity that come with globalisation and pull more and more things to the supranational level. At the same time, there is also a drive for more autonomy for sub-state government levels. In some federal states such as Germany, the US and Switzerland, this is managed pretty well. In others, there is considerable conflicts because there are people who do not think they need or want the state they are in (Catalan independence in Spain, Belgium, Scottish referendum, etc).

In parallel to this development, we also see the development of megacities, which are becoming more important than the countries that host them and where there is a huge rift between the cosmopolitan/urban/digital nomads living in those cities and nativists who live in the surronding countryside.

The proof that we already live in this cosmopolitan federalist world is apparent in the huge amount of interest that possible Brexit generates outside of the UK. This interest is there because what the British people decide will have consequences to other people in the world. And in this complex arrangement which has to consider many competing interests, national referendums are not the tools to decide such matters.

But there unfortunately is referendum today in the United Kingdom so I hope that the people of UK vote responsibly and take into account that they make a choice not only concerning the UK, but they make a decision that will also impact all other people in the EU as well. Distractions such as Brexit are not only going to create a lot of unhappy people whichever way the decision goes, but it also stops us from discussing issues that need to be solved together. Imagine having meeting at work about a new product, when one of the participants cannot decide whether he wants to work there or not and makes that the main discussion topic.


Homonegativity and religion

Posted: June 16th, 2016 | Author: | Filed under: diversity, Estonia, thoughts | No Comments »

The horrible massacre of 49 people at the Pulse nightclub in Orlando, perpetrated by who seems to be a non-devout Muslim man of Afghan descent, who was dealing with his own repressed homosexuality and at the same time believed in the hateful ideology espoused by ISIL online, is shocking and deeply painful. There are already those who use the event to incite hatred against Muslims, and others they perceive as dangerous in general. Perhaps then it is useful to look at a more nuanced picture of what connects homonegativity and religion, and see how is this applicable in Estonia.

While it is true that all religions promote homonegativity, the approaches and intensity vary. It is, of course, also not possible to take into account the diversity within the religions, when talking about broad groups. Sebastian Jäckle and Georg Wenzelburger have analysed the attitudes towards homosexuals in 79 countries and ranked religions according to their homonegativity, compared with atheism:

  1. Islam
  2. Catholicism/Protestant Free Churches/Orthodox Christianity
  3. Traditional (European) Protestantism
  4. Hinduism
  5. Buddhism/Taoism/Confucianism
  6. Atheism

Of course, the level of religiosity is also a factor, when it comes to individual attitudes. A devout Christian that associates with others and is exposed to regular anti-gay messages can be more homonegative than someone who has only limited contact with the church, even though both consider themselves believers.

At the same time, religion is not the only, or even the most important thing that impacts attitudes towards homosexuals. We know, globally, from different studies that older people are more homonegative than younger, men more than women. We know that people with low education, lower income and social status are more also more homonegative than others.

The results of the Sebastian Jäckle and Georg Wenzelburger study presented important findings:

  1. The more post-material a person is, the lower their homonegativity. Socio-economic statuses thus matter regardless of religion.
  2. Religiosity of a person matters as well: the more religious an individual is, the more homonegative. However, the impact is different among different religions. The religiosity of a Muslim affects the attitudes towards homosexuals more than the religiosity of a Buddhist.
  3. In terms of countries, the level of development is an important factor. The more highly developed a country is, the less homonegative it is. Other relevant factors include the duration of legalisation of homosexual relations: the longer it has been legal, the less homonegative people are. It also matters whether the country is communist/post-communist or not, with the former being more homonegative than the latter.

In terms of communist legacy, the authors state the following, which is relevant for Estonia: “In communist or post-communist countries, an increase in religiosity leads to a less strong rise in homonegativity than in non-communist countries. This can be explained by the suppression of religion in these countries during the communist rule.”

How are things in Estonia?

In Estonia, the connection between homonegativity and religion has not been researched. When we asked Turu-uuringute AS to conduct a survey in 2014 on the attitudes to homosexuality among Estonians, we also asked about the religious beliefs of respondents. When asked how acceptable homosexuality is, a picture emerged, in which Orthodox Christians were the most homonegative, while atheists were least.

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Acceptability of homosexuality by religious beliefs in Estonia in 2014

At the same time it was interesting to note that even religious people did not associate their homonegativity with religion.

When looking at other results as well, there is a remarkable difference between Russian Orthodox Christians and Lutherans. When looking at a support for same-sex civil unions, 68% of Orthodox were against, with 49% firmly against. Among atheists, more people supported same-sex civil unions than were against.

When discussing homonegativity and religion in Estonia, it seems that religion plays a role, but it is unclear how large of a role. It seems that Russian Orthodox religion is the most homonegative in Estonia, while in other religions the impact is less important. There are a number of further issues this raises, including how to support those LGBTI+ people who grow up in or belong to a religion that is so homonegative.

Further reading:


We need to talk about lawyers

Posted: May 12th, 2016 | Author: | Filed under: Estonia, human rights, law, politics, thoughts | No Comments »

I am a lawyer by training, I teach law and am also a member of the council of Estonian Association of Lawyers. I am proud of my profession and have contributed my small part in advancing the legal education in Estonia at Tallinn University of Technology (where I also was for a while in charge of curriculum development). I think law can play an important role in preventing harmful developments (like mass-surveillance), but sometimes law and lawyers can also fail the society they should be serving.

The on-going criminal trial of the writer Kaur Kender continues to bring out important issues related to the criminal justice system in Estonia. It appears that the prosecutor and the judge have asked during the trial (which is closed from the public) from at least one witness: “why do people waste their lives crossing boundaries?”. If true, that question is an important revelation about some parts of the law and justice system in Estonia.

In Estonia, the overwhelming majority of practising lawyers have graduated from the University of Tartu. Indeed, there was no other place to study law before Estonia re-gained its independence in 1991 and even after that government higher education policies did not (and do not) support diversification of legal education. This means that prosecutors, judges, and defence attorneys share common thinking that has been shaped by their alma mater. The same professor of criminal law has influenced nearly all lawyers in Estonian (criminal) justice system. This thinking is influenced both by the authoritarian Soviet legacy and by the legalistic and formalistic German legal tradition, which carries the thoughts of legal positivism and which became the bedrock during the transition to democratic government.

The lack of diversity of opinion and the conformist education has meant that many lawyers tend to think very much inside the box. They thus innately refuse to challenge authority: until some years ago it used to be an extremely radical proposition among lawyers to criticise the judgments of the Supreme Court. It seems that many lawyers consider themselves strict followers of the grammatical interpretation of specific rules, rather than seeing the social context and the larger goals of specific legal acts.

This is partly reinforced by the rigid legal system itself, which treats prosecutors not as people capable of independent thinking. Article 6 of the current Code of Criminal Procedure obliges the authorities to “conduct criminal proceedings upon the appearance of facts referring to a criminal offence”, even if they think that this does not make a lot of sense. Prosecutor Merika Nimmo has concluded in her analysis in an article published last year in Juridica, that “forgoing the strict application of the principle of compulsory criminal proceedings would, according to the author, undoubtedly help to design a faster, more effective and human-centred criminal procedure”.

In history, we have seen horrible results when lawyers stop thinking about the larger picture and construe their roles strictly legalistically. In the introduction of a booklet published by the United States Holocaust Memorial Museum, on “Law, Justice and the Holocaust”, historians wrote about the role of lawyers in Germany leading to Hitler’s rise to power:

Coming from a longstanding authoritarian, conservative, and nationalist tradition, judges believed deeply in reinforcing government authority, ensuring public respect for the law, and guaranteeing that state actions had a legal basis (Rechtsstaat). At the same time, they valued judicial independence in the form of protection from arbitrary or punitive removal from the bench and freedom from dictates regarding decision making. Above all, they rendered judgment based on such fundamental Western legal principles as the equality of all citizens, the right of an accused person to a fair trial, and the concept that there could be no crime or penalty without prior law.

In spite of these values, political democracy presented serious challenges to the judiciary. Many judges rejected the legitimacy of the democratic Weimar Republic, since it had come about through revolution, which they considered, by definition, a violation of the law. This attitude had long-term consequences for the republic. Judges routinely imposed harsh verdicts on left-wing defendants, whom they regarded with suspicion as revolutionary agents of various foreign powers, while acting leniently toward right-wing defendants, whose nationalist sentiments typically echoed their own. As a result, in the mid-1920s, supporters of the republic proclaimed a “crisis of trust,” demanding the temporary suspension of judicial independence and the removal of reactionary and antidemocratic judges from the bench. Judges regarded these developments with alarm, rejecting proposals for reform as a perversion of justice. Many were convinced that the criticism leveled upon them, which had come from the political left and from parliament, undermined the authority of the state.

When Hitler came to power, he promised to restore judges’ authority and shield them from criticism even as he curtailed their independence and instituted reeducation programs designed to indoctrinate jurists in the ideological goals of the party. The Nazi leadership used a series of legal mechanisms—which, in contrast to the revolutionary overthrow of power in 1918, judges tended to consider legitimate— to gradually assume and consolidate Hitler’s power. Then, step by step, and always under the guise of safeguarding the state, the Nazi leadership imposed legislation that fulfilled its ideological goals of rearmament, military expansion, and racial purification.

In reality, judges were among those inside Germany who might have effectively challenged Hitler’s authority, the legitimacy of the Nazi regime, and the hundreds of laws that restricted political freedoms, civil rights, and guarantees of property and security. And yet the overwhelming majority did not. Instead, over the 12 years of Nazi rule, during which time judges heard countless cases, most not only upheld the law but interpreted it in broad and far-reaching ways that facilitated, rather than hindered, the Nazis’ ability to carry out their agenda.

Nazi Germany is, of course, a thing of the past. But there are lessons to be learned from here. Judges, prosecutors and lawyers do not operate in a vacuum. They are human beings with beliefs, biases and opinions, which do play a role in the work of the judiciary at any country. The US judge and legal scholar Richard Posner argued after the 9/11 attacks that judges should go with the times and prioritise security over liberty:

If it is true, therefore, as it appears to be at this writing, that the events of September 11 have revealed the United States to be in much greater jeopardy from international terrorism than had previously been believed—have revealed it to be threatened by a diffuse, shadowy enemy that must be fought with police measures as well as military force—it stands to reason that our civil liberties will be curtailed. They should be curtailed, to the extent that the benefits in greater security outweigh the costs in reduced liberty. All that can reasonably be asked of the responsible legislative and judicial officials is that they weigh the costs as carefully as the benefits.

Even though I strongly disagree with the position stated above, at least these issues are discussed in the United States. In Estonia, we do have a mostly impartial judiciary according to international standards, but there has not been much discussion about the influence of the authoritarian Soviet legacy among the legal community and the impact of the prevailing conservative legal thinking due to the prevalence of legal positivism as well as the conformism and groupthink which stems from common educational background and the domination of a single law school. Such debates might turn out to be useful.

However, I also think it is equally important that the critics of the criminal justice system learn from the past and do not antagonise lawyers, as a part of the Centre party and some supporters of Kaur Kender or more lenient approach to prosecution of drug-related crimes seem to want to do, but instead work together to change the system to be more fair. It is important to learn from the past and, most of all, encourage independent, out-of-the-box thinking among lawyers as well as cultivate pluralism among legal education in Estonia. This is not only in the interests of better protection of the right to fair trial, but also for the safeguarding of the constitutional order, democracy and all other human rights.

Further reading:


On Untitled12

Posted: February 13th, 2016 | Author: | Filed under: Estonia, human rights, things that suck, thoughts | No Comments »

In Estonia, the controversial author Kaur Kender has published a piece of transgressive literature at nihilist.fm, a free-for-all alternative publishing platform that he himself has helped to create. The Untitled12 story depicts the character’s gradual loss of humanity and includes vile and depraved sexual acts, including against a minor. The publication of the work has resulted in the author being the subject of criminal trial, which has divided the public opinion.

The more traditionalist-conservative people seem to enjoy with glee that a subversive counterculture figure who criticises the status quo, existing hierarchies of power and stagnation of Estonian culture has finally received punishment. They see him as a symbol of a wider threat to nativist culture, Estonian language, to bourgeois living. For them, he is an outsider who is interested in ‘foreign’ rap music and who refuses to conform with the safe, static mainstream of the small Estonian cultural circles. Because he cannot be easily marginalised otherwise, he has to be dealt with some other way: boycotted or possibly put into jail.

Putting Kender to trial seems intuitively wrong to any person who has grown up with liberal democratic ideals. Tolerance of publications that shock, disturb and insult other people is a part of the bedrock of freedom of expression. It would be hollow and meaningless if only conformist mainstream expressions that everyone agrees with are allowed. Indeed, freedom of expression can only be limited if it incites violence against minorities. Even then, books and other forms of artistic expression require from states to meet a much higher burden than other types of expression.

Artists usually occupy spaces in the margins of the society, because they create original works that challenge the status quo in order to shape the culture in a continuous communication. If those margins were cut off and only conformist works allowed, the culture would wither and die quickly. The government and society needs to accommodate these expressions, even if they go against the most basic moral standards. This case is about morality, and not the abuse of children.

The more liberal part of the elite support the view that the trial is a misguided enterprise and blame the authorities in having a too wide of a interpretation of the criminal code, which puts many other works of art in danger. For them, the eventual vindication of the author would be a statement of Estonia as a liberal country. However, it can also be a Pyrrhic victory.

Hannah Arendt described in the Origins of Totalitarianism the public mood in the 1920s. The ‘anything goes’ roaring twenties were a time of redefinition of morality. She wrote:

arendt3

arendt4

Hopefully we are not re-living the preWWII era, but there are dangerous similarities with the current case. Kender is so effective in his onslaught against moral values that he risks (with considerable help from the prosecutors) that the effect of his work could be the opposite of his intentions. That it trivialises the sexual abuse of children or that it actually helps to bring about more mob-mentality, not less. For the mob that is currently rallying behind extreme right this is a sign that the liberal elites have lost it, because they are defending someone who is so profane and who has written something so vile and unacceptable. The liberal elite may become more amoral in the eyes of the masses.

It is difficult to know how this case ends. The debate around it already shapes the reality and creates unintended consequences. It would have been best for the authorities not to get involved, in which this niche work could have remain just that. Whatever the solution that the justice system comes up with, it seems to be a lose-lose proposition for everyone involved.


2015 in review

Posted: December 29th, 2015 | Author: | Filed under: cool, personal, politics, thoughts | No Comments »

Here are my personal, highly subjective best of 2015 awards as a fun way of rounding up the year. Mostly meaning impact, but also subjective taste (for entertainment stuff).

Politics (European and global/western)

Politician of the year: Federica Mogherini – for her leadership during the refugee crisis and Iran negotiations.
Runners-up: Angela Merkel (for her response to the refugee crisis), Justin Trudeau (for offering hope that a new kind of politics is possible), Barack Obama (for not screwing up too much, Cuba policy, Iran, etc). Promising potential: Jeremy Corbyn, Bernie Sanders.

Political event of the year: The refugee resettlement proposal, which re-ignited discussions about the identity of Europe and brought much-needed refugee issue to the forefront.
Runner-up: Eurocrisis

Politics (Estonian)

Politician of the year: Taavi Rõivas – PM proved much more resilient and smart than anyone had expected, leading the Reform Party to electoral victory and successfully forming a government later. Adept at avoiding controversies, Merkel-style.
Runners-up: Jevgeni Ossinovski – for re-energising the social democrats, Edgar Savisaar – Tallinn mayor held onto power amid great personal, legal and political turmoil.

Political event of the year: Parliamentary elections in Estonia
Runner-up: Refugee crisis.

Law

Court judgment of the year: C-362/14 Schrems (CJEU) – huge impact all over the world for invalidating US Safe Harbour agreement, establishing further protections of privacy.
Runners-up:  Obergefell v. Hodges (SCOTUS), Delfi v. Estonia (ECtHR)

Movies

Best movie: Bridge of Spies
Runners-up: Star Wars: The Force Awakens, The Walk
Disappointment of the year: Spectre
Worst film of the year: Chappie

TV

Best TV series: American Horror Story: Hotel
Runners-up: Empire, Veep, Cucumber

Games (Mac, iOS)
Note: I have played very few proper video games this year. Need to get a PS4.

Game of the year: Cities: Skylines
Runners-up: Prison Architect

Music

Artist of the year: Justin Bieber
Runners-up: The Weeknd, Troye Sivan

 

Happy new year! 2016 awaits.


The End of Mass Surveillance?

Posted: October 21st, 2015 | Author: | Filed under: human rights, politics, privacy, technology, thoughts | No Comments »

Mass surveillance, introduced hastily under the pretence of guaranteeing security, is hopefully seeing the beginning of its end in many countries. A perfect example of technological step forward that was made because we could, but actually should not have, mass surveillance was set back only after several protracted legal battles in Europe. It was also an attempt by some to fundamentally reconfigure the relationship between the state and the individual (because without privacy there can be no constitutional democracy, no free elections, no freedom of speech, no human dignity).

The Court of Justice of the European Union (CJEU) showed in several decisions that privacy as a fundamental right is here to stay. The Court started with the quite unprecedented nullification of the Data Retention Directive (Joined Cases C-293/12 and C‑594/12 Digital Rights Ireland) in April 2014:

As regards the necessity for the retention of data required by Directive 2006/24, it must be held that the fight against serious crime, in particular against organised crime and terrorism, is indeed of the utmost importance in order to ensure public security and its effectiveness may depend to a great extent on the use of modern investigation techniques. However, such an objective of general interest, however fundamental it may be, does not, in itself, justify a retention measure such as that established by Directive 2006/24 being considered to be necessary for the purpose of that fight.

As for the question of whether the interference caused by Directive 2006/24 is limited to what is strictly necessary, it should be observed that, in accordance with Article 3 read in conjunction with Article 5(1) of that directive, the directive requires the retention of all traffic data concerning fixed telephony, mobile telephony, Internet access, Internet e-mail and Internet telephony. It therefore applies to all means of electronic communication, the use of which is very widespread and of growing importance in people’s everyday lives. Furthermore, in accordance with Article 3 of Directive 2006/24, the directive covers all subscribers and registered users. It therefore entails an interference with the fundamental rights of practically the entire European population.

It then continued just one month later to establish a strong pro-privacy stance in the Google Spain decision (C-131/12) in which it established “the right to be forgotten” and forced Google to remove certain search results if people legitimately request it.

The latest blow to mass surveillance came earlier this month, when the CJEU declared the EU-US Safe Harbor arrangement void in the Schrems case (C-362/14). Safe Harbor had been used by many US corporations to process the personal data of EU citizens as the US itself lacks as strong privacy laws as the EU requires (which are the toughest in the world). The case, which was brought by Austrian student and privacy activist Maximilian Schrems against the Irish data protection body for their reluctance to take on Facebook resulted in the CJEU stepping in an declaring the whole Safe Harbor arrangement invalid [1].

Apple, Google, Facebook, Microsoft and a lot of others have all been impacted and have made alternative arrangements. Many of them have come out in the support of stronger privacy rights. Microsoft Chief Legal Counsel Brad Smith writes:

But privacy rights cannot endure if they change every time data moves from one location to another. Individuals should not lose their fundamental rights simply because their personal information crosses a border. While never stated quite this directly, this principle underlies every aspect of the European Court’s decision, and it makes sense.

Add to this the daily reality that personal data is often moved not by individuals, but by companies and governments. Typically, individuals are not even aware of where their information is being moved or stored. It is untenable to expect people to rely on a notion of privacy protection that changes every time someone else moves their information around. No fundamental right can rest on such a shaky foundation.[2]

Apple CEO Tim Cook has explained their approach to privacy:

We do think that people want us to help them keep their lives private. We see that privacy is a fundamental human right that people have. We are going to do everything that we can to help maintain that trust. …

Our view on this comes from a values point of view, not from a commercial interest point of view. Our values are that we do think that people have a right to privacy. And that our customers are not our products. We don’t collect a lot of your data and understand every detail about your life. That’s just not the business that we are in.[3]

Cook’s mentioning that “our customers are not our products” is a dig against Alphabet (formerly known as Google) and, of course, Facebook, which are the companies that have built a huge business by enticing a big part of the world’s population to trust them with their private data. Those companies are the ones with the most to lose from the resurrection of the right to privacy. Facebook is already grasping at straws by claiming somehow that better privacy protections endanger the security of users[4]. Google has in the past tried to undermine the privacy concerns against it by riding the freedom of information horse, but has recently also started to take things more seriously as it understands that its business model is threatened. Google’s SVP Rachel Whetstone even offered a rare mea culpa early this year at a speech in Bavaria:

Finally, let me turn to privacy. I want to start by making clear Google hasn’t always got this right. It’s not just about the errors we have made–with products like Buzz or the mistaken collection of WiFi data–but about our attitude too. These have been lessons learned the hard way. But as our swift implementation of the Right to be Forgotten has shown, they are indeed lessons we have learned. [5]

There are plenty of politicians, (security) officials, companies and others who took the decision to ignore the right to privacy and contributed to the creation and utilisation of mass surveillance which has resulted in probably the most large-scale infringement of human rights so far in history. Meanwhile this cost has had no significant benefits: it has not made anyone safer or prevented crimes and even if it did manage to prevent some in the future, it would not be close to the worth the cost to our values, democracy, society and economy.

While it may have seemed to some (including Estonian president and chief tech evangelist Toomas Hendrik Ilves [6]) that so-called Little Sister (i.e. private businesses) is more dangerous to privacy than Big Brother, then now they have been proven wrong. Preserving privacy in the digital age is as much in the interests of tech companies as it is for the consumers and it is still the governments that we should be most worried about. The fight will continue, but in more balanced way because there is more awareness of the cost of mass surveillance. There are a number of court cases pending and there are stronger and stronger voices globally that something has to be done in order to guarantee better privacy protections for everyone.

Thankfully there are those who have dared to start this fight against great pressures. Edward Snowden of course, along with Glenn Greenwald, the Guardian and others deserve thanks from all of humanity for what they did at great personal cost. But we also should be very thankful to the judges who have done their job and used their powers for good. They have proven themselves as the last bastions of rule of law, democracy and human rights (even of our political leaders terribly failed us) and saved us from immediate privacy dystopia. We should all thank them and the people and organisations who brought the cases and continue to do so. They are heroes who have helped and continue to help to nudge humankind to a better future.

Post scriptum: My own small contribution to the fight against mass surveillance was the application I submitted to the Chancellor of Justice (the only independent constitutional rights watchdog) in Estonia to check whether mass telecommunications data retention is unconstitutional (as this was introduced resulting from the now invalid data retention directive). After long deliberations, the Chancellor sadly did not think that data retention is necessarily illegal, but nevertheless considered that privacy safeguards need to be strengthened and requested that the Ministry of Justice conduct a comprehensive analysis of the legislation. See her opinion here (in Estonian).

Further reading:

  1. Behind the European Privacy Ruling That’s Confounding Silicon Valley, New York Times, 9 October 2015.
  2. Smith, Brad. The collapse of the US-EU Safe Harbor: Solving the new privacy Rubik’s Cube, Microsoft on the Issues, 20 October 2015.
  3. Apple CEO Tim Cook: ‘Privacy Is A Fundamental Human Right’, Interview on NPR, 1 October 2015.
  4. Facebook Goes On Privacy Offensive in Europe, WSJ, 13 October 2015.
  5. Whetstone, Rachel. Privacy, security, surveillance: getting it right is important, Google Europe blog, 13 February 2015.
  6. President Ilves: we should worry about the “little sister” instead of the “big brother”

The uniqueness of Yogyakarta

Posted: September 18th, 2015 | Author: | Filed under: cool, diversity, human rights, thoughts, travel | No Comments »

I have just returned from a brief trip to Yogyakarta, Indonesia (better known as Jogja locally), which was interesting in many ways.

First of all, for governance scholars Jogja is quite unique because the Yogyakarta special administrative region is governed by the Sultan of Yogyakarta who is both the hereditary monarch and an executive governor like other heads of regions. During colonial times, the Dutch agreed to have self-government by the Sultan and at the independence of Indonesia it was agreed that the Sultan could continue on as a regional governor. After controversially not appointed as the governor in 1998, the current Sultan, His Majesty Sri Sultan Hamengkubuwono X was democratically elected as governor in 1998 and in 2012 the Indonesian parliament passed a law that the Sultan of Yogyakarta would also inherit the position of the governor. One can say that this is not democratic, but if the Sultan continues to have output legitimacy based on superior performance, then why to bother with the instability, hassle and cost of elections and adopt a wider concept of democratic governance? It is a credit to the Indonesian system that such traditional governance system can exist within a democratic, predominantly muslim country.

Secondly, Jogja is the centre of education and Javanese/Buddhist/Hindu culture and history. This means a lot of students which creates a special kind of liberal vibrance and a relaxed peaceful atmosphere unlike some of the bigger cities. It is also diverse city and one of the most liberal Muslim cities as the Muslim faith and tradition is mixed with ancient Javanese traditions and Hindu and Buddhist legacies. The flexibility of Islam in accommodating and facilitating other religions side by side is very visible and real in Indonesia (which is also the world’s largest Muslim country) and other countries in South East Asia, including also Malaysia.

My previous knowledge of the place was only based on the Yogyakarta Principles, which were adopted in the meeting of international human rights experts at Gadjah Mada University and which formed the second part of an exhibit on LGBTI tolerance which we brought to Estonia from Poland (see the online gallery).


Estonian democracy in 2015: reflections on parliamentary elections

Posted: June 24th, 2015 | Author: | Filed under: elections, Estonia, governance, human rights, politics, thoughts | No Comments »

Estonia has progressed remarkably since 1991 in introducing democratic changes and adopting international standards. In recent years, however, progress has been slow and there is growing danger of erosion of democratic practices. This is worrying, especially in times of economic uncertainty and growing international tensions.

The basis of any representative liberal democracy are free and fair elections. The latest parliamentary elections took place on 1 March 2015 and on 29 May the OSCE/ODIHR election monitoring mission issued their final report. The report received no media coverage and raised no discussions in Estonia, although the conclusions paint a not so positive picture of representative democracy in Estonia. The missionwas limited only to three areas: internet voting, campaign finance and participation of national minorities.

Internet voting

Estonia has built an international reputation for its Internet voting system, which amounted to about 30% of the votes cast. However, a detailed examination by OSCE/ODIHR experts shows a lack of transparency, formalisation of procedures and other significant problems that continue to be ignored by Estonia when it comes to Internet voting. Surely, Internet voting system, if used, should be better regulated and more secure than regular elections, not vice versa.

One of the problem is the lack of transparency of the work of the newly created electronic voting committee, to which there are no formal qualification criteria of membership. In essence, an aspiring dictator could influence the appointments made there and there are very little ways how to ensure that the EVC is independent and balanced.

There is also very little formalisation of the organisation of Internet voting: there are no deadlines or formal procedures related to software development, testing and updates. Shockingly, there is also no backup plans in case a catastrophic event occurs at the server location, which could disrupt voting and cause a significant loss of votes (basically the votes given after the daily backup to a CD; there is no mirroring to another location for example).

There is no end-to-end certification of the system by an independent body, the full audit reports that cover only parts of the system are not made public.  There is still also no end-to-end verifiability of the vote without losing the secrecy of the vote, which means that there is no way to check whether the votes were allocated to the candidate that the person intended to vote for.

The problems with Internet voting are such that still, Estonia remains the only country to use it in an election where the stakes are so high (i.e. main parliamentary elections). Even in a more developed democracy, such system would be problematic on a technical level as the risks are too high, but it seems ill-advised to use it in the form it is today in a country which has only a short record of democracy. Perhaps the reason why Estonia has been able to get away with this, is not because Estonia is so advanced technologically, but because it is not so advanced in terms of democratic practices and respect for the right to vote.

Political party and campaign finance

In terms of party and campaign finances, some progress has been made. However, the report has some good recommendations in it:

  • the limitation of how much can a single person donate in a year,
  • better regulation of how and when public funds during the campaign period,
  • reporting requirements by third parties (applicable for example to anti-gay lobby groups which promoted specific candidates),
  • allow the national election committee, rather than police, to judge on what constitutes outdoor political advertising.

Significantly, the report maintains that the ban on outdoor advertising is not working and thus restricts freedom of expression. The report observes that the justification of the ban by the Supreme Court did not hold up:

In practice, the ruling has not reduced campaign expenditures, as parties displayed posters before the official election period and shifted expenses to other forms of advertising, primarily television.

The report also included some comments regarding the Political Party Finance Supervision Committee (disclosure: I am an alternate member of the Committee appointed by the Chancellor of Justice). The Committee could be influenced as the members do not have tenure and none of the members work full time there. The Committee is also hobbled by lack of resources and investigative powers.

Participation by national minorities

The political participation by the large ethnic Russian minority (ca 25% of the population) continues to be a great challenge for Estonia. The election observers noted that, except for two parties, less than 10% of the candidates were from a minority background. They also expressed concern that election-related official information was only available in the Estonian language, and not in Russian or English. This was also true of the electronic voting interface, which could account for the low level of Internet votes in the predominantly Russian-speaking areas.

The ca 85 000 stateless people living in Estonia continue to lack basic political rights, such as the freedom of association, because they are not allowed to belong to a political party (although they could donate money to them). The OSCE/ODIHR team recommends to step up efforts of naturalisation of stateless people in order to give them basic suffrage rights. However, Estonia’s citizenship policies are among the most restrictive in Europe, and there seems to be no political will to change this, so this issue will stay for a long time.

Conclusion

The state of Estonian elections, based on the three themes that were covered by the OSCE/ODIHR report leaves a lot of room for improvements. It should be noted that the report did not cover other topics, such as the restriction of the right to vote for prisoners and other ongoing issues. In some areas, such as party finance and certain aspects of Internet voting, gradual improvements are possible, if there is willingness on the side of the Estonian authorities to consider these. However, in the area of national minorities and also major aspects of Internet voting, there are larger things in play. In terms of national minorities only a fundamental rethink of the citizenship policies would eliminate the issues and enhance the political participation of minorities. In the area of Internet voting, which is more of a PR project of the Estonian state, a mindset change in the attitudes towards technology and constructive criticism of e-Stonia needs to take place.

The right to vote is a basic and fundamental human right. One can question whether the continued limitation of suffrage to exclude a part of the Russian minority population from political participation and usage of a somewhat flawed and risky Internet voting system primarily for international image-building purposes is compatible with the preservation and strengthening of that human right.

Read:

Final Report of the OSCE/ODIHR Election Expert Team on Parliamentary Elections in Estonia on 1 March 2015