Does the legal framework of the Estonian national defence need updating?
National defence is no longer merely military defence that includes the activity of the armed forces to combat conventional threats. National security and the ensuring of national security affect the whole society, and therefore all segments of the society, both the public, private and third sector, must contribute to the protection of the state.
In autumn 2015, the Ministry of Justice initiated a revision of national defence law. The aim of the revision was to shape a legal order that would ensure fast and effective combating of threats to public order and national security both in peace time and non-peace time. The main question is how to create a legal order that would protect the state if aggression takes place in peace-time legal space.
It has become clear from the analyses made in the course of the national defence law revision that the following shortcomings need to be resolved.
- The legal framework of the states of defence (including the increased defence readiness and the state of war ) and the special states (including the emergency situation, the state of emergency and the state of war) declared for crisis situations and for resolving them needs updating and interconnecting.
Modern security threats bring about simultaneous crisis situations which complicates concrete definition of crisis situation. Differentiation between all kinds of situations (emergency, emergency situation, state of emergency, state of war) and states (peace- vs. war time) is not necessary due to the dynamics of multidimensional threats – the aim is to find a political consensus in a situation requiring a response, and to act flexibly. Finding a political consensus may be complicated in a time-critical situation where it is necessary to define the essence of a threat that is escalating or that is acquiring characteristics that create the basis for the establishment of different legal special states simultaneously.
- National defence management organisation regulations, and the mutual competences, authorities and functions of the institutions and authorities participating in national defence need harmonisation in order to ensure preparation for and resolution of both military and non-military crisis situations pursuant to the principle of uniform management.
The multitude of overlapping competences, authorities and functions provided for in current legislation make the management of crisis situations unclear and complicated at present.
- To prevent and combat novel threats, clear bases for the restriction of the fundamental rights and freedoms are needed.
The principles of democracy and human rights must be preserved in all crisis situations. The fact alone that a state of emergency or a state of war has been declared to eliminate a threat cannot automatically be a legitimate basis for activities or infringements of fundamental rights and freedoms; the implementation of any restrictive measure must be due to a specific situation.
On the basis of the analyses drawn up in the course of the revision, specific legislative amendments will be developed.