Active armed conflict with another state has generally been recognised as one of the situations that “threatens the life of the nation.” It is explicitly mentioned in Article 15 of the European Convention on Human Rights as a type of emergency that can justify derogation from Convention rights. The Estonian Constitution also mentions "state of war” as one of the situations in which the rights and freedoms of persons may be restricted.
note There are two types of armed conflict – international and internal. International armed conflict is with another state. An internal one is a conflict between government forces and one or more armed groups, or between the groups themselves within the same state. Internal conflict does not automatically justify derogation from human rights. Whether the internal armed conflict is so serious that it threatens the life of the nation must be evaluated in every case.
In Estonia, the possible limitations of fundamental rights and freedoms of persons during an international conflict are regulated by the National Defence Act. Restrictions on rights and freedoms of persons during internal conflicts are regulated by the State of Emergency Act.
The armed activities must usually take place in the territory of the state that makes the derogation. Just because a state is involved in an armed conflict or carries out military missions overseas, does not mean that there is an emergency in that state itself.
International humanitarian law
War does not mean that no rules apply, and that human rights become essentially unprotected. Armed conflicts are covered by international humanitarian law, which among other things regulates what the obligations of the parties to the conflict are to protect the basic human rights of people who are not actively involved in the conflict. It protects the rights and safety of civilians, prisoners of war, the wounded and sick combatants, relief personnel, people in occupied territories and other groups of people who are not actively participating in hostilities, but may be in conflict zones.
International humanitarian law and human rights may apply at the same time. Sometimes they overlap, protecting the same rights to the same level. For example, both international humanitarian law and human rights prohibit torture at all times and with respect to all persons.
In some cases, international humanitarian law may apply instead of human rights. For example, Article 15 of the European Convention of Human Rights allows no derogation from the right to life except in respect of deaths resulting from lawful acts of war. Thus, during war, states may infringe upon the right to life where this is permitted under international humanitarian law.
In other cases, human rights continue to apply during armed conflict and must be observed as far as they do not clash with international humanitarian law.