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:


Why A Chairman’s Tale matters

Posted: April 14th, 2016 | Author: | Filed under: cool, diversity, Estonia, human rights | No Comments »

Today, an exhibition entitled “Not Suitable for Work. A Chairman’s Tale” opens in Tallinn. It is a remarkable and important work which details the life story of a gay man living in Soviet Estonia. Added significance is that the exhibition is displayed at the Estonian Museum of Occupations, which is a museum dedicated not to careers or professions, but the military occupations of Estonia during and subsequent to World War II.

The oppression of totalitarian regimes against minorities is a well-known fact, but repression against gays, lesbians, bisexual and transgender people and other such minorities has not received similar attention as against other groups. This is due to the fact that discrimination and violence against LGBTQI+ people has occurred and continues to exist in even the most democratic and progressive countries. It was only in 2009, 55 years after his death that the UK Prime Minister Gordon Brown apologised for the prosecution and chemical castration of Alan Turing, the father of computers, for being gay. Many people who were prosecuted like this all over the world have yet to receive an apology or any compensation. A memorial to homosexuals persecuted during Nazism was only opened in Berlin in 2008, although it was known before that Jews were not the only group that suffered at the hands of the Third Reich. The first groups of people sent to die in the concentration camps were actually people with disabilities.

It is essential for the fight against intolerance based on sexual orientation and gender equality that past injustices do not stay covered up. Remembering violence and discrimination helps to prevent it from happening again. It is also important to recognise that such minorities have always existed even though history books do not tell about them. When discussing the Soviet period in Estonia, too little focus has been placed on the situation of minorities such as LGBTIQ+ people.

Therefore the Estonian society has to be grateful to Jaanus Samma and his team for shedding light to this aspect of Soviet era and help us to understand this period better. Hopefully there will be more people like him who will expand the so far very incomplete knowledge about the history of gay and lesbian, bisexual and transgender Estonia and Estonians, which will be useful not only to us, but also for generations to come.


The President of Exclusion

Posted: March 1st, 2016 | Author: | Filed under: elections, Estonia, politics, things that suck | No Comments »

This year, Estonia will get a new president. This position is largely ceremonial, with very few executive or legislative powers except the possibility to block the proclamation of laws which do not conform to the Constitution. Despite this, the position of the president is seen as in an important symbolic role for the elites, mostly due to the persons that have fulfilled this before.

The current president Toomas Hendrik Ilves has been a liberal moderniser, supporting publicly same-sex partnerships and acceptance of refugees, which are not popular positions. His profile has been more to give voice to Estonia (and himself) abroad and has achieved a lot. This means he is seen favorably by the liberal elites, as well as future minded technologists. For others, his last few years have been overshadowed by his private life.

The president of Estonia is also weak in terms of democratic legitimacy. He is elected by a supermajority of the parliament, which is usually difficult to achieve, or, failing that, an ad hoc electoral body which includes also representatives of local governments in addition to members of parliament.

The institution also carries historical baggage. The first president of Estonia was Konstantin Päts,  who in 1934 overthrew the existing constitutional order and established authoritarian rule. In 1938 he was ‘elected’ president, being the only candidate, because only three state institutions were able to nominate a candidate (these all nominated him) and all political parties were banned. After WWII Estonia had fallen under Soviet Union rule and when it became independent again, the institution of the President was re-established, but this time having totally different powers.

The biggest issue with the legitimacy of the institution relates to that fact that president can only be someone who was born Estonian citizen, i.e. at least one of her or his parents should have Estonian citizenship. This means that current president Toomas Hendrik Ilves qualifies, even though he had been born in Stockholm, educated and brought up in the United States and had not lived in Estonia until he was 40 years old. He also had US citizenship until 1993.

Compare this to one of the more popular Estonian Russian politicians Yana Toom, who was born in Soviet Estonia and has lived in Estonia all her life. Her parents had moved to Estonia during the Soviet era and thus she did not get Estonian citizenship until 2006, when she received it for special services to the Estonian state (most Russians have the option to naturalise, but some have also taken Russian citizenship or remained stateless). In the European Parliament elections in 2014 she was the fourth most popular candidate and was elected as the first Estonian Russian MEP. Unlike Toomas Hendrik Ilves, she will never be able to run for president according to the Constitution, as cannot any other naturalised citizens who are predominantly Estonian Russians, which is ca 16% of the citizens (many more Russians who have been born in Estonia do not have Estonian citizenship, i.e. are either stateless or have Russian citizenship).

The president is the only state institution in Estonia which has this requirement, and this requirement did not exist the 1938 Constitution. It is, however, not the only distinction between Estonian citizens who were those at birth and those who have been naturalised. The citizenship of those who have been naturalised can be taken away in certain situations, which leaves them in position that is vulnerable and produces instability.

It is difficult for me to imagine how it must feel like to be born and live all your life in a country and be denied the right to run for the position of the president just because you happen to belong to a minority. It seems an injustice to me. So even though I generally agree with the liberal stance of the current president, the injustice in who gets to be president taints the whole institution and undermines its legitimacy.

P.S. Yes, there are similar limitations in the US (which some people exploit to question the suitability and discredit presidential candidates), but in the US the system of citizenship is different. Anyone born in the US gets automatic US citizenship. Even so, I also think that the US limitation is unfair and goes against what the US stands for. President Schwarzenegger could have been great.


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.


Same-sex partnerships in Estonia – state of play

Posted: December 13th, 2015 | Author: | Filed under: Estonia, human rights, politics | No Comments »

On 9 October 2014, the Estonian Parliament narrowly adopted the kooseluseadus (Registered Partnership Act), which enables two persons to register their partnership, regardless of their genders. This means that for the first time in Estonia, people who are gay, lesbian or bisexual can enjoy many of the family related benefits and rights that married couples have (marriage is currently only available for different-sex couples).

However, due to concerns that an absolute majority of the parliament (i.e. 51 votes for out of 101 members) was not reachable at that time, those provisions which required an absolute majority along with implementation related changes to other laws were not included in the adopted law. According to the Estonian Constitution, certain areas of regulation need to have an absolute majority, in this case matters related to court proceedings and registers, as well as citizenship issues were the ones which required 51 votes for. The partnership law indeed passed last year with a simple majority of 40 votes for and 38 against, but the matter of passing the implementing acts was delayed until after the parliamentary elections in March this year.

When the implementing acts were initiated by 38 members of the parliament mid-October, they only narrowly stayed in the legislative process after the first reading on 25 November 2015 with 41 MPs voting for and 42 against dropping the implementing acts from the Parliament’s agenda.

Based on the vote in the first reading, here are the positions of different parliamentary factions on the law:

Supporters:

  • Reform Party (30 seats in the Parliament, right-liberal, EU level affiliation ALDE): supports the adoption of implementing laws, but has left the vote open in the Parliament, 25 MPs voted for the acts to stay in the process, 3 did not vote, 2 were not present. Has not taken the lead role as it is also mindful of the position of the coalition partner IRL.
  • Social Democratic Party (15 seats, centre-left, EU level affiliation S&D Group): has been the foremost supporter of registered partnerships and considers it an important issue. In coalition government with Reform Party and IRL. All of its MPs voted for the implementing acts to stay in the legislative pipeline.

Against:

  • IRL (14 seats, centre-right, EU level affiliation EPP): is mostly against, as it blames its loss of 9 seats in the last elections on not standing against the act strongly enough in the previous composition of the parliament. Allowed its MPs to vote freely, and one MP voted with the supporters of the act (11 voted against, 2 did not vote). In coalition government with Reform Party and Social Democrats, currently polling as least popular of all the parties in parliament, with single-digit support.
  • EKRE (7 seats, far right): considers opposition to gay partnerships one of the reasons for its electoral success, aims to use it to gain further support. All members voted against the implementing acts.

In between, but leaning against:

  • Centre Party (27 seats, centrist, EU level affiliation ALDE): mired in internal power struggles and corruption court cases, as well as long-term marginalisation by other mainstream parties, they have not had a consistent position on the law and also allowed a free vote. Its electorate Estonian Russians are more socially conservative than average Estonians. 16 MPs voted against the law, 6 did not vote and 5 were not present.
  • Estonian Free Party (8 seats, conservative?, new party): still looking for a place in the political spectrum, the party proposed its own watered-down proposal that would only apply to same-sex partnerships. 7 members opposed the implementing acts, 1 voted for them to stay in consideration.

In order to obstruct the process of adopting the implementing legislation before the Registered Partnership Act is due to become in force on 1 January 2016, EKRE and Free Party proposed more than 300 amendments to the law. Most of the amendments are meaningless or repetitive and serve the purpose of delaying the discussion of the law. The Legal Affairs Committee of the Parliament was not able to go through all of them so the implementing legislation is not adopted this year and an unpredictable legal limbo has developed.

What has lead to this?

The adoption of the partnership act as well as its implementing acts have not followed the usual route of legislative process. The governing coalition government has not put its full weights behind the law and its implementation; it has been introduced most irregularly by MPs themselves. The issue was omitted from the coalition agreement and the law is one of the points of contention among the coalition partners. The Reform Party has taken a passive approach, preferring to work behind the scenes and not make the passing of the implementing legislation their priority, in fear of losing the support of more conservative elderly voters.

The results of the parliamentary elections meant the addition of two new parties to the parliament is a factor, because electoral volatility could be one of the reasons of less progressive stances on the issue (see Pelz). The conservative vote was essentially split into three, with IRL, Free Party and EKRE all fighting in a crowded conservative space. This makes it more difficult to agree on a compromise. EKRE sees their vocal opposition to the law a chance to gather support for themselves so they have nothing to gain from any kind of compromise.

A longer analysis of the whole process could also be interesting, because the communication decisions made at the introduction of the law (trying to downplay the same-sex part of the act), not having clear and persuasive messages, not sufficiently involving the LGBTI community or other NGOs have all contributed to the situation as it is. The powerful and well-funded counter-campaign by conservative-religious activists and lack of resources and strategy of supporting activists, have also had a considerable impact to how the issues have been framed.

What happens now?

There are several options after the Registered Partnership Act comes into effect in Estonia on 1 January 2016 (i.e. in less than three weeks). As there are no implementing acts, there is going to be considerable confusion initially, but Estonian officials are surely creative enough to be able to find ways how to implement parts of the law without having the implementing legislation (i.e. the notaries will be able to register the partnerships), at least if there is enough will to do it. If there are hiccups in some aspects, these will probably solved in courts or by some ad hoc solution, but there is a strong likelihood that some things remain in a serious legal limbo. In terms of legislation, there are the following options:

  1. Only those implementing acts will be adopted early next year which require a simple majority. This is at the moment the most likely outcome, which leaves some of the more important issues (like intra-partnership adoption) to be fought for in courts unless an alternative solution is found. The changes that need to be made will remain for future consideration.
  2. The implementing acts will not be adopted at all. This means a lot more uncertainty than option 1 (and also more options for court cases).
  3. The implementing acts will be adopted in full. In this case most issues will be solved and the topic will not be returned to until and if there is interest in making marriage gender-neutral, which would not  probably be in the near future.

Could the whole partnership act be annulled?

The Registered Partnership Act cannot be lawfully annulled by the Parliament. Although there are a number of MPs working to annul the act, they do not have enough votes to do it. Even if they did, this would be a breach of the European Convention of Human Rights. It is one thing if the state is not making a positive step of granting same-sex couples equal rights, but a whole another thing if the state deprives those couples of the rights that they already have from 1 January 2016. ECHR case law is quite clear on this and because its jurisprudence is part of Estonian constitutional law, the annulment of the Registered Partnership Act would be clearly unconstitutional. Thus the President would not confirm such an annulment and if there is a referral to the Supreme Court, it would simply confirm the ECHR case law so that the law cannot be annulled.

The only constitutional option to get rid of registered partnerships now is to open up marriage, which in Estonia is a secular institution and constitutionally not limited to a man and a woman (as it is in many other Central and Eastern European states) or offer another, equally good or better solution (which is why a watered down version cannot work as a compromise). In that case, registered partnerships could be slowly phased out (i.e. people could choose to convert them to marriage and no new partnerships would be registered). There is some support for that option, but it is not clear how serious it is. It would surely be pragmatically the best way out of the whole situation.

Further reading:

Overview of the Civil Partnership Act at Estonian Human Rights Centre website.

Full text of the Civil Partnership Act in English.

Pelz, Michael. “Europeanization, Party Systems, and LGBT Rights: The Cases of Estonia, Latvia, Montenegro, and Serbia.”


How state aid killed Estonian Air

Posted: November 8th, 2015 | Author: | Filed under: Estonia, european union, law | No Comments »

The abrupt but expected end of Estonian Air on 8 November 2015 was due to serious breaches of state aid rules. By ‘rescuing’ the airline, the Estonian government instead committed several sins, which were easy to foresee for anyone who have even the slightest understanding of that area of EU competition law.

The aid was to rescue an airline that was not profitable for 10 years, it was given multiple times after several unsuccessful attempts at different business strategies. Sustaining a business which would fail under market conditions is a sin in a market economy. A healthy marketplace is one where innovative and efficient companies grow at the expense of obsolete uncompetitive ones. By giving aid, Estonian government helped a company that should have gone out of business years ago to remain operating. This means that the more efficient companies had no possibility to compete on a fair basis (hence the reason why Tallinn Airport has seen very little competition from other airlines). By giving this unfair advantage to Estonian Air, Estonian government impeded the normal functioning of the Tallinn flight passenger market, a distortion that is not in the interests of consumers.

This means that not only that Estonian taxpayers had to spend a huge sum as an illegal subsidy to a company with no viable business model (money that could have been better spent), but that also everyone flying to and from Tallinn Airport have had to pay significantly higher ticket prices (or not be able to enjoy lower prices). Lack of competition also meant lower interest in entering the market.

State aid is something that is given only in last resort, if nothing else works, but the company can still be viable. It was quite obvious that there is no way that Estonian Air could be viable (no such realistic business plan existed). However, by giving the company state aid, it created conditions where the company did not need to have realistic business plans. Instead, it sends the company a message that however crazy and unrealistic plans there are, the state will in the end cover the losses. This induces reckless and extreme risktaking behaviour (cf Taskila plans). This is why the ‘one time, last time’ principle is so important as it really means that the state aid is there for this one time.

State aid to a non-viable company is also unfair towards other Member States. What if all Member States behaved like Estonia? A subsidy run to the bottom in which all Member States start pouring public money into airlines that would never stand a chance in an open market would be a huge waste of resources. It also undermines the great achivement that is the single European aviation market, which has only existed for less than two decades and has brought so many benefits.

The establishment of a new company with the exact same routes, by the same owner, using again public money seems to me to be another attempt to flaunt these rules. If this company fails in a year or two, will there be another 40 million euros spent on another airline and then another? Why? This does not seem to be following the essence of these rules, and specifically the ‘one time, last time’ rule.

In my opinion, the European Commission has been too lenient in the Estonian Air case, by delaying the obvious decision for so long.

One more important thing.

EU state aid law does not have public enforcement mechanisms (i.e. the European Commission) only, there are also private mechanisms available. This means that there might be claims for damages against the Estonian state by other airlines that have suffered because of this illegal aid. This means that airlines that have had to compete unfairly against the one that has received illegal state aid (i.e. Air Baltic, Finnair, Lufthansa, Ryanair) could claim under national law damages from the Estonian government. Estonian Competition Act is brief on this, but states in § 78 that “[p]roprietary or other damage caused by acts prohibited by this Act shall be subject to compensation by way of civil procedure.” If I were any of these competing airlines I would seriously consider bringing a civil claim in an Estonian court for damages against the Estonian state for giving illegal state aid to Estonian Air. Because the breaches were fairly obvious and very grave, it could well be worth the effort.


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”