Chancellor of Justice's speech at the conference „Estonia's Road to Tolerance“ organised by the British Council in Tallinn

Indrek Teder's speech "All the Children" at the conference Estonia's Road to Tolerance“  organised by the British Council on the 10th of March 2011 in Tallinn.


Since the Chancellor of Justice likes to criticise, or simply put, nitpick, I cannot pass on the opportunity to pick on this pleasant event. Can you imagine that the Estonian Ministry of Foreign Affairs could organise a seminar titled Britain’s Road to Independence in Cambridge? :-) What I mean to say is that even though I support the idea behind the event, it still has a slightly imperialistic and patronising air to it. True, it is somewhat balanced by the fact that among the subjects, one can also find some speeches criticising Britain, presented by Britain’s own “minorities”.
When we talk about tolerance, we cannot help but ask: tolerance towards whom? The issue of tolerance raises questions about whom we define as “our own” and whom do we define as “other”. Tolerance towards “our own kind” is not usually called upon – it is presumed. Of course, the problem is that all of us can be the “other” in certain situations. In Estonia, the specific distinction between “our own kind” and the “other” is related to a person’s nationality. That is to say that based on the unlawfulness of Soviet annexation, Estonia has, since regaining its independence in 1991, refused to grant a nationality “automatically” to everyone who had found their way in the country during Soviet times. Instead, these people have been offered naturalisation, which assumes that they pass an examination on the official language and on the constitution of the country and express a specific wish of becoming an Estonian citizen.
There are around 100,000 non-citizens in Estonia even today. The number of non-citizens is decreasing, but probably not at the speed advisable from the viewpoint of the principles of the democratic inclusion of all permanent residents.
When we speak about tolerance in Estonia, we inevitably come to think of the terms “nationality” and “citizenship”.
According to the Estonian Ministry of the Interior, as of 1 January 2011, there were 1,810 children under the age of 15 with an unspecified citizenship and a residence permit in the country. In addition, there were 508 children under the age of 15 with an unspecified citizenship and no residence permit.
Generally, we can say that there is no significant difference in obtaining fundamental rights in case of children, citizens or not. However, citizenship is a key part of a person's identity, indicating his or her affiliation. According to subsection 7 (1) of the Convention on the Rights of the Child and subsection 24 (3) of the UN International Covenant on Civil and Political Rights, every child has the right to citizenship. Also, it is vital to define the citizenship in order to discontinue the “reproduction” of statelessness.
A major part of fundamental rights is ensured for every person, so children have the right to education, health insurance and benefits, irrespective of their citizenship. When it comes to fundamental rights, the main difference lies in the right to vote, but this does not concern children. Children are also not directly concerned by the restrictions that arise from citizenship and apply to choosing an area of activity and profession, as well as public service (Articles 29 and 30 of the Constitution of Estonia). However, children are concerned when we speak about, for example, a citizen's subjective right to live in Estonia.
The goals of the eternal nationhood in Estonia established in the preamble of the Constitution of Estonia – to ensure the preservation of the Estonian nation, language and culture through times – are superior and realistic goals that must be supported at all times with the correct and appropriate constitutional resources. At the same time, I do not agree with the idea that when we speak about the preservation of the Estonian nation, we merely think about the preservation of the ethnic Estonian nationality. For me, it would be legally constructive to consider the Estonian nation not merely through unspecified ethnic nationality, but through citizenship which, unlike nationality, is determined legally.
What are people united or separated by? What sparks conflicts between them? Not only rational considerations, but maybe also something not that clearly defined, something that people perceive as a uniting factor – an identity. First of all, nationality can be highlighted as an important part of identity. However, where does the nationality originate from and what does it mean? Is it a person’s ethnic origin or does it also involve his or her culture or language or something else that we cannot put our finger on? It is probably easier to define religion as a carrier of identity, but this would already constitute a separate topic.
Nationality-based differentiation and confrontation have been and still are very common all over the world. But should we define a nationality clearly? We can try, but have to admit eventually that there is no clear definition that everyone would accept. We could define nationality as having the citizenship of a particular country (as I understand it from a legal point of view). However, a person’s nationality has always been related to his or her ethnic origin, language, culture, and something else unfathomable. Despite the confusing definition of nationality, it is used often and with the assumption that it creates the same recognition in all addressees: we know it when we see it. It reminds me of a saying by Potter Stewart (1915-1985), the judge of the US Supreme Court, who had to provide a definition for pornography and wrote: “I cannot define it but I know it when I see it"  [1].
On the basis of the law in force, a minor (under the age of 15) whose parents do not have a citizenship, may acquire Estonian citizenship in the form of naturalization if applied for by his/her parents. In the speech of the annual overview of the Chancellor of Justice in the Riigikogu last autumn, I suggested another idea for discussion in the Estonian society. The children (under 15) of parents without a citizenship and with a valid residence permit should be granted Estonian citizenship automatically (I mean parents` application is not needed – this is needed only in case they oppose it) in the form of naturalization, provided that the parents are not against it. Thereby, I would like to highlight that it is the acquisition of citizenship by naturalization, not by birth. This step would be positive both for starting a discussion and as a real act demonstrating that Estonia takes all its fellow countrymen seriously. Of course, one might question the purpose of such a proposal if the existing rules ensure a smooth operation and the number of children without citizenship is on the decline. But the issue concerns attitudes and public declaration. Through such an act, the state declares that it values all children and all countrymen. It would also be based on the best interests of a child and not depend on his/her parents` knowledge on legal acts.
A couple of years ago when I presented the annual overview of the Chancellor of Justice in the Riigikogu, I also addressed the issues of national statehood and nationalism in Estonia. I emphasized the following aspects. It seems to me as if the Estonian national thinking and philosophy need to change gears. The old gear used so far has served the interests of Estonia very well, but maintaining the same speed may lead to the risk of our state machine “breaking down”. We can keep going down this sustainable road only if we change gears. The possible gear change would not mean that the old one was wrong. So far, our principles of nationhood and implementation policy have been correct and constitutional. We might call this change of gear a smooth switchover from nation-centred thinking to citizen-centred thinking. I believe the signs of such a positive change of gear already exist in reality. It would mean selecting a speed appropriate at a particular stage of development. The manifestation of the creation of Estonian nationhood was a manifestation meant for all the nations in Estonia.
The relations between the nations of Estonia and Russia have been and still are strongly influenced by the aspect that I would define as “historical fear“. I have to admit that this definition contains a considerable amount of subjectivity. Since it was during the Soviet occupation that Estonia became multinational (Estonians were deported to Russia and non-Estonians were resettled in Estonia), many Estonians have a subconscious fear that the occupation may recur and Estonians will be destroyed or deported or they would be forced to leave their homeland. This fear is kept alive by the fact that virtually every Estonian family has an ancestor who has been in a Soviet prison or deported to Siberia. At the same time, we can trace bitterness and distrust towards the Estonian state in at least some part of the Russian-speaking population. This could be defined (again subjectively) as exclusion. Therefore, in the interests of the state, the Soviet empire was successful in creating the policy that makes nations antagonistic towards each other even today, although the empire ceased to exist about 20 years ago. Today, we should not and cannot liken people to their nationality and state, but have to consider them according to their personalities and fundamental rights. I think that we can overcome this historical fear by focusing on the things that connect us and not the things that separate us in the case of every person irrespective of his or her nationality. We are connected by common legal values and above all by the fundamental rights of every person. Likewise, negative historical experiences should not determine our existence in future. This of course does not mean that we should deny historical truth.
My proposal has been met with silence. The step would only be “decorative” and insufficient for the people who criticise the nation-centred bases of the Republic of Estonia. But the majority of Estonian politicians/political parties have apparently taken a noncommittal stand on the principle “what will come, will come” and that the issue of unspecified citizenship will solve itself over time.
It probably will be solved over time, but not fast enough and may be on the account of rights of people. It may not be solved completely, unless the state of Estonia takes further steps in decreasing the number of people who do not have Estonian citizenship. My suggestion of changing the rules of naturalisation in the case of children has not been made hastily - instead, it is powered by a political philosophy on a wider scale. We can tell adults to “learn Estonian and express your wish to become a citizen of Estonia”, but in the case of children and young people, this does not quite hold. These children were not born into the USSR; they were born into an independent Republic of Estonia. So the state of Estonia – at least in principle – possesses all the means to teach these children about the language and being of Estonia through school education.
If the state of Estonia began “de-rooting” unspecified citizenship among children, it would be sending a very clear signal that we do not see long-term statelessness – one that is carried from generation to generation – as a standard phenomenon. And if these people have been born in Estonia and have parents who do not have Estonian citizenship, then what is the state whose citizenship they should acquire (instead of Estonia)? I believe that it would also send a clear message to the non-ethnic Estonian residents as well: all people are wanted and necessary. For many people, the message probably comes too late, but I think "better late than never", especially in matters like these.
I believe that in order for a person to be tolerant, the person himself or herself must feel safe and secure at first. No one wants to be so tolerant that as a result of their tolerance, they would lose their job, home, property and/or identity and be laughed at. Estonia has protected its identity and its “own kind” very strongly, having stressed the importance of the Estonian language since the year 1991. But by today, the state of Estonia has become strong enough so as to “pick up” the children born in Estonia to parents who do not have Estonian citizenship. It would be best if we said: we want you to be a part of this country and this nation and we will teach Estonian to you in schools – even if the language is a bit difficult.
I think that it is possible to increase tolerance by something else than by only taking rational steps. The state should also demonstrate generosity and a state based on the rule of law. Generosity would be constituted by “offering” Estonian citizenship to children without a citizenship. It would be a step towards connection. All children are equal – as are all adults. The future perspectives of Estonia depend on how many connecting ideas and values we can find for the population of Estonia.
[1] See the US Supreme Court, Jacobellis vs Ohio (1964). Lauri Mälksoo uses the reference provided in his article Estonian sovereignty in 1988—2008 in the context of defining the concept of sovereignty, but it can also be applied to nationality.