Katrin Nyman-Metcalf

Less is More or More is More? Revisiting Universality of Human Rights

Abstract Human rights are much talked about and much written about, in academic legal literature as well as in political and other social sciences and the general political debate. Indeed, they are so oft en referred to and used as a basis for claims of various kinds that there may be a risk of certain “inflation” in that so much is said to be a human right that the notion loses its essential meaning. Th is article argues that the universality of basic human rights is one of the values of the concept of rights. Th e rights and the understanding and interpretation of rights may have to be purist. Th is may be the way universal human rights as a concept can survive at all. In the modern world there are different trends that to some extent conflict, like the trend of globalisation but also the re- emphasising in different parts of the world of traditional values, whether from a religious background or something else. It appears that the basic dogma of human rights - which has also been called the first universal ideology - that it is the individual and her rights and freedoms that should always be in the centre of any human rights discourse, is abandoned all the more oft en as the central principle. Instead the banner of human rights is used for various political and economic aims

The Future of Universality of Rights

This chapter looks at universality of rights, generally and specifically in the context of the Charter of Fundamental Rights. There are various developments that affect universality, like increased globalisation partially linked to new technologies, which would appear to speak in favour of universality, as in many context national borders matter less and less. At the same time, the Charter is an example of how more specific rights are developed in human rights instruments, rights that are linked to a certain way of life (cultural, economic, traditional) that are limited to a certain region or certain peoples. Such more specific and culturally determined rights may be seen as a superstructure added to global rights or as a new category of rights. Adjustment of fundamental rights to fit different contexts can, in many instances, be achieved through interpretation, which means that the concepts of universality and regional formulation of more specific rights do not have to conflict. There is, however, a limit to how far it is possible to adjust rights through interpretation—especially if the rights are formulated in a very specific manner, as is the case in many places in the Charter. One additional potential complication—a different effect of globalisation—is that states are getting more multicultural and the culturally affected differences in understanding of rights may occur with one country.

e-Governance in Law and by Law

The article provides an overview of various areas of law affected by e-governance. e-governance is often approached as a technical issue, even if it is now mature enough for other aspects to get more attention. It is not unusual that legislators, regulators or others concerned concentrate too much on technological issues and presume that new rules are needed if new technologies are used. However, there should not be much separate legislation or regulation for e-governance, as this risks creating parallel systems rather than benefiting from efficiency gains. What is required is a profound analysis of existing legislation to identify whether and in what contexts new or amended rules may be required. With more and more novel information and communication technology (ICT) solutions for governance, it may get difficult to fit new phenomena into old rules through interpretation only. For example, e-signatures or other identification systems need to be regulated. It must not be forgotten that the perception of reliability and security of e-governance is important as people will not use service they see as insecure, which is why data protection is a priority. Technology and law should work together and complement one another, but the relationship may be less complex than it may appear to the non-initiated. The legal system must be able to include e-governance but does not need to change totally because technologies change.

The Freedom to Conduct Business and the Right to Property: The EU Technology Transfer Block Exemption Regulation and the Relationship Between Intellectual Property and Competition Law

The Charter of Fundamental Rights is a rights catalogue for a modern market economy. It recognises the freedom to conduct business, Article 16, as well as the right to property, Article 17. The second paragraph of Article 17 states that intellectual property shall be protected. The history of the European Union (EU) shows that competition law promoting especially competition across the EU is of primary concern. In this context, there are interesting relations between property rights and the right to conduct business, especially with regard to intellectual property. This article analyses the Technology Transfer Block Exemption Regulation and its accompanying guidelines, assessing to what extent it encourages innovation and maintains effective competition and how it stands up against other like-minded pieces of legislation drafted across the world. The comparison will first show the similarities and then the differences between the approach herein that has been developed and followed in the EU, US, and Japan, among other countries. It will be analysed to what extent this approach towards IPR and Competition law is coherent and how things may possibly stand in the future in this regard. Finally, the authors will attempt to answer these questions: how meaningful and essential is this interface between IPR and competition law, and has the TTBER in particular served its purpose? Are the freedom to conduct business and the protection of the right to property well protected?

Smart Contracting: A Multidisciplinary and Proactive Approach for the EU Digital Single Market

Abstract Smart contracting (SC) is a proactive proposal to operationalize the relational contract theory for the upgrade and improvement of legally relevant exchange. The dynamic institutional environment of the European Union (EU) is a suitable framework for this proposal. SC addresses the interests of the business management, law and information technology practices with a perspective of influence in digital exchange, communication processes and other human and human-machine interactions. This position paper restates the advantages of the concept by highlighting the practical transition pathway SC offers to moderate the growing haste towards the embeddedness of exchange in automated and distributed models. This theoretical contribution supports the systematization of the proactive and legal design research field, and explains the characterization, operationalization and specification of the SC concept.

Usability Factors in Transactional Design and Smart Contracting

This book chapter contextualizes the origins of the proactive law movement to explain its current developments and advance its conceptual underpinnings towards applications of the perspective closest to the digital economy and electronic trade with regard to transactions and contracts. It aims at proposing transactional design as an expression of smart contracting practices, explaining its scope within the principled conflict management and dispute resolution collaborative culture. Additionally, standards of efficiency, effectiveness, and satisfaction are taken from within the computer sciences and the law to present an integrated taxonomy of usability parameters for the planning and assessment of sustainable business and other human transactions consigned in electronic texts mediated by technology. It is argued that the applicability of such integrated cross-disciplinary models is ensured given the growing reach and range of digital services and also because their formulation reflects the interconnected society principles, needs, and capacities. While featuring innovative aspects in alternative contracting practices, it refrains from addressing visualization in depth. However, the complexity of engaging with semiotic analysis of visualization techniques in legal interface design is signalled as an especially worthy field for further research.

Exporting Good Governance Via e-Governance: Estonian e-Governance Support to Eastern Partnership Countries

Estonia is a globally recognised leader in e-governance, having bypassed many countries when it comes to development of public e-services as well as e-democracy. From having been at the receiving end of international assistance and advice only a couple of decades ago, Estonia is now sharing its expertise—not least with Eastern Partnership countries for which it is especially well placed, sharing common history. The introduction of e-governance presents questions on what legal reforms or new laws that are necessary to support the technological process and also fundamental and principled questions related to values and attitudes to governance. Is it possible with the help of e-governance to export principles of good governance? In this chapter, the question is seen from the side of the exporter as well as from the side of the recipients, primarily Moldova and Ukraine. Details of e-governance transition in these countries is described, and it is discussed what it is that makes countries receptive to assistance to further good governance and democracy.

“Is This Really What I Voted For?” – On The Legitimacy Of European Integration

ABSTRACT This paper discusses the problems and dangers of proceeding with European integration without facing a transparent constitutional debate. The crucial issue demanding clarity is whether the current integration in the form of the EU shall be seen within the framework and concepts of public international law or within those of constitutional law. The authors argue that more intensive integration cannot be achieved on the basis of undermining rule of law and democracy by vacillating between different international law or constitutional law models of proceeding without taking any clear standpoint.

Tutorial: Digital identification as a core element of e-governance

Digital identification is essential in the implementation process of most electronic services in the public sector. This is significant especially, when it comes to advanced and modern services, where a personal approach to each citizen is required. Similarly to the real world, where each individual owns a personal passport with unique requisites to distinguish between individuals, in the digital world, it is likewise important to create and use a mechanism allowing a computer program to differentiate one person from another.

The Potential of the Estonian e-Governance Infrastructure in Supporting Displaced Estonian Residents

This paper examines the possibilities of using the Estonian e-Governance infrastructure in an innovate manner to help displaced Estonian residents in a hypothetical national emergency. We begin by exploring the challenges that displaced persons and aid organizations face throughout three key stages of displacement – flight from conflict zones, temporary displacement, and long term integration. On this basis we analyze how the Estonian e-Governance infrastructure can be used in a refugee emergency. We provide a definition of intangible e-Governance infrastructure. We identify the key component of the existing Estonian e-Governance infrastructure as well as the proposed Governmental Cloud and Data Embassy initiatives. We analyze linkages where the utilization of the infrastructure could potentially counter the challenges of displaced persons and aid organizations. To realize these linkages, we propose a policy to make certain refugee-related, otherwise restricted governmental datasets accessible to international aid organizations. Additionally, we introduce a legal framework for the policy, analyze the technological requirements of its implementation, and discuss its communicational and technology export-related implications.