Chile’s constituent experience (2020-2022) and the debate on the legal status of nature

Lanna Thays Portela Moraes, UNL-CONICET

2024

From the second half of the last century, the global scientific community began to question the consequences of human activity and the model of production and reproduction of capital, the intensified technological and industrial advances and the consumerist pattern that generates planned obsolescence. This system has become extremely offensive to life, generating environmental consequences experienced in all corners of the world, raising questions about the awakening of an ethical-environmental conscience in relation to our responsibilities to the planet.

In the face of the obvious environmental and social crisis, new debates are emerging, particularly on the legal status of nature, on modes of production and on the maintenance of North-South subjugation, which are beginning to demand a real and effective participatory democracy and the recognition of legal pluralism. This led to the birth in Abya Yala (Latin America) of the so-called New Latin American Constitutionalism or Andean Constitutionalism movement, a process that strengthened the theories in defence of Nature as a subject of rights and innovated in the drafting of new constitutional pacts through the political, social and, especially, cultural experiences of Latin American countries. It is a complex phenomenon of constitutional transformation in which the peoples seek democratic legitimacy and help to make interculturality a reality, beyond the occasional denunciation of market fundamentalism, with a broader and more universal perspective in the face of the model of civilisation imposed by Western modernity.

This conceptual framework encompasses the Chilean constitutional process, which commenced with the popular demonstrations of 2019. These demonstrations involved individuals taking to the streets and protesting for rights, making them the largest protests the country has witnessed since the Pinochet era. The most notable consequence of the demonstrations was the holding of a national plebiscite in October 2020, in which Chileans approved the drafting of a new constitution by a Constituent Assembly. The aim of this new constitution was to eliminate the constitutional norms adopted during the Pinochet dictatorship. It would be the first constitution in Chile with popular participation and hence democratic. 

The submitted draft described Chile as a “social and democratic state of law”, which should provide goods and services to guarantee several of the rights of the population that are already recognised in almost all other constitutions of Abya Yala. The final text presented on 4 July 2022 to the current president of the country, Gabriel Boric, comprises 178 pages, with 388 articles and 54 transitory norms.

The proposal established a new catalogue of social rights in the areas of health, abortion, education and social security, with an emphasis on indigenous “plurinationality” and the environment. It proposed a change in the legal status of nature, as occured in the legal reforms in Ecuador and Bolivia, which recognised nature as a subject of rights. Some of these elements gave rise to divisions within the country, particularly regarding matters pertaining to the environment and private property, which are considered fundamental tenets of the capitalist system.

Chapter III of the text, entitled “Nature and the Environment”, comprises 24 articles. These articles expressly recognise nature as a subject of rights and address the status of common goods, the legal status of water, minerals and the defence of nature. The discussions on these articles were characterised by significant tension within the Commission on the Environment, Rights of Nature, Natural Commons and Economic Model, which convened 87 times, with some sessions lasting more than five hours and being broadcast live. The Commission was made up of nineteen conventional constituents: Bernardo Fontaine, Bessy Gallardo, Camila Zárate, Carolina Sepúlveda, Carolina Vilches, Constanza San Juan, Félix Galleguillos, Fernando Salinas, Gloria Alvarado, Isabel Godoy, Ivanna Olivares, Jorge Abarca, Juan José Martin, María Trinidad Castillo, Nicolas Núñez, Pablo Toloza, Roberto Vega, Rodrigo Vega, Rodrigo Álvarez and Victorino Antilef. The following topics were proposed for discussion: (a) Environment, biodiversity, principles of bioethics and common natural goods; (b) Rights of nature and non-human life; (c) Constitutional status of minerals; (d) Human and nature’s right to water and constitutional status of water; (e) Constitutional status of maritime territory; (f) Sustainable development, good living and economic model; (g) Economic public regime and fiscal policy; (h) Food sovereignty and safeguarding of ancestral and peasant seed. (i) Climate crisis; (j) Environmental democracy, including the rights of access to participation, information and environmental justice; (k) Constitutional status of energy; (l) Constitutional status of land and territory; (m) Duty of protection, intergenerational justice, environmental crimes and principles of environmental non-regression, including preventive, precautionary and other principles; (n) Antarctic status and status of glaciers and cryosphere; and (n) recognition of the ecological and social functions of property.  After several debates, the text was presented on 04 July 2022 to President Boric and taken to a binding vote in the country on 4 September of the same year. It was then rejected by 62% (sixty-two percent) of the votes.

In an informal discussion at the conference “The Language of Ecological Justice” at the Autonomous University of Madrid, which forms part of the Speak4Nature research project, Professor Ezio Costa addressed the rights of Nature as an emancipatory paradigm for the native peoples of the territory of Abya Yala. He stated that this is a complex issue in Chilean territory. He proceeded to clarify that, on the one hand, Chile has a very large cultural variety and that it is not for all peoples that the rights of Nature are synonym of liberation. He argued that, when taken to the legal field, this paradigm loses its essence for the peoples. Conversely, Chile is currently undergoing two distinct processes of coloniality. The first is a legacy of European modernity, while the second is an internal phenomenon, originating from the centre and affecting other localities within the country. Considering the rich cultural diversity that characterises the continent of Abya Yala, it is imperative to engage in discourse on the rights of Nature from the perspective of the way of life of the majority of the continent’s original peoples. This approach enables the translation of these rights into the legal realm, thereby ensuring their visibility within the modern-colonial, hegemonic world-system. While not all perspectives align with this approach, it undoubtedly represents a continuation of the struggle within the New Andean Constitutionalism.

Further readings and resources:

Bartoli, C. (2022). Chile revolts. From the uprising to the constitutional process, «Diálogos» Incontri con la cultura giuridica latino-americana, Accademia University Press. 

Encina, F. (1961). Resumen de la Historia de Chile. Redacción, iconografía y apéndices de

Leopoldo Castedo, Tomo I, Santiago de Chile,  Ediciones Zig-Zag.

Gumucio, C., Kaffman, M.J. (Coordinatores) (2023). Derechos de la Naturaleza: diálogos interdisciplinarios para su reconocimiento e implementación en Chile, FIMA. 

Lloredo Alix, L. (2022), Los bienes comunes naturales en el proceso constituyente chileno. Viento Sur, n. 184.

Propuesta Constitución Política de la República de Chile (2022). Available at https://www.colegiodeprofesores.cl/wp-content/uploads/2022/07/Texto-Definitivo-CPR-2022-Tapas.pdf

Comisión de Medio Ambiente N°1 de la Convención Constitucional Chile (2021). Available at https://www.youtube.com/watch?v=VrRUJDBwkFc&list=PLsaLSke74_Oip3Jv4afrFLfOVMYzmYSFC