Human rights in Estonia face pressure from two sides. On one hand it is set to have a correlation with the founding principles defined by the community, the need to secure a living space for Estonian nationality, language and culture. These values cannot be clearly defined: there is a noticeable tendency, which cropped up in the course of the refugee crisis, an attempt to define what is Estonian through skin colour and other hereditary attributes, and not through language or something else an individual can learn – and is thus attainable for everyone. On the other hand the theme of living space is manifested on the level of existence of the state. “Only a certain disposition can make sure the state of Estonia will last through ages,” says this approach, placing all other considerations under the seal of right of communal existence.
The first communal impulse has a parasitical existence on a level, which is democratic in essence. In Estonia, as has been referred, the egalitarian nature of democracy has been bent to serve the interests of a more narrowly defined (ethnic) group. It is unavoidably and apparently clear that groups and individuals who do not share the same imperative, will find themselves, through the mediation of a seemingly democratic decision-making mechanism, in an unequal situation. In reality they have fewer rights, and additionally, their rights in the future will be qualified by the constitutionally in-coded requirement to make sure the dominant ethnic community never loses the majority status on the territory of their state.
Another pressure factor is similarly parasitical on the international law, filling the right of self-determination narrowly with ethnic content. The problem works both ways: besides instrumentalisation of democracy and nationality, or making them a tool for a narrow interest, practicing these both in a diminished way unavoidably distorts, if not disfigures, their content for the Estonian public. The threshold of values is lowered.
Human rights, in essence, belong to the sphere of the state based on rule of law. Along with democracy and international law the state based on rule of law is one of three foundations for the modern value-based world order. Historically, it is primary, as international law is hard to imagine in a world without democracy, and democracy, in turn, is hard to imagine without the foundation of equal rights of people. In practice, this forms a certain hermetically sealed circle: all three principles require the other two in one way or another. Human rights are the platform for ideal values, which can be deduced from practical functioning of the Western world order – its legal practice, conventions, constitutions, etc. Human rights are the historic fruit of this developing practice. The similarity of human rights to Kantian universal rights (applicable for all conceivable people at all times) is not coincidental – but nor is it causal. Immanuel Kant and his successors have derived their systems from Western practices, and then universalised them.
It is important to understand that this origin of universality is built into the definition of a state based on rule of law also when it in practice does not exceed the boundaries of one society.
Every person on the territory of a state based on rule of law has fundamental rights guaranteed by law even when the political, economic and social rights of the state’s subject vary. These same fundamental rights also exist for representatives of state powers acting outside of their territory. In practice, this of course means tension between national interests and things like it, but already for a long time the Western states do not allow their representatives of state powers to kill the natives, etc.
The challenge for Estonia is to acknowledge and detangle for ourselves the conflict contained in our constitution, which increasingly seems to blur the official policy on human rights. If the preamble of the constitution places the duty on the state, with its democracy and legal institutions, to serve a nation or a privileged community, then the founding values of the constitution, as they have been understood by the Supreme Court, clearly dictate the need to respect democracy, state based on rule of law and international law as clear principles. The solution, in any time perspective, can only be to secure complete autonomy of human rights / state based on rule of law within theory and practice of the state’s activity, and keep it independent from communal imperatives, no matter how democratic or serving the norms of international law they are presented as.
Most of the weak points that this annual report points to, but not all, are understandable in the context of this tension and struggle. The rights of national minorities, right to fair trial, sufficient access to legal counselling, depoliticization of top officials, exclusion of any kind of discrimination, preventative empathy of officials in regards to minority problems (whether based on gender, sexuality or culture), political (state based on rule of law and democratic) control over security institutions, codifying the limits of tolerance for criminalization of xenophobia – all this to (today so topical) humane treatment of refugees and asylum seekers and guaranteeing them adequate legal help is a part of this set of problems. A state based on rule of law, if it actually works, can only be a mirage on the untouched horizon of power guaranteed by rights of individuals.
For the state of Estonia – which, on top of it all, has been the member of the United Nations Human Rights Council for three years – human rights at peace time cannot under any excuse be a topic which has to be analysed or can be analysed from the point of view of security policy, preservation of Estonian language or culture, the nation state’s future, or anything similar.