Radiography of an Ecological Constitution: the Chilean Constitutional draft

by Pedro Cisterna Gaete

Lawyer. LLM Global Environment and Climate Change Law, University of Edinburgh. PhD in Law Candidate, University of Edinburgh.

1.     The origins of the constitutional process and the environmental context of Chile

After massive protests in 2019 against the government spurred mainly by the severe inequality of the country, Chilean political parties agreed to reform the 1980 Constitution. On the 5th of October of 2020, around 80% of the Chilean voters supported a new constitutional process led by a popularly elected constitutional convention. In March 2021, the Constitutional Convention (the Convention) initiated its work, firstly defining procedural rules of the Convention and then starting with the substantive discussion on the constitutional provisions. The present blog analyses the enduring relevance of the environmental and climate ambits throughout the constitutional process. After a brief explanation of some of Chile’s environmental and climate challenges, this post examines the procedural rules of the Convention, to turn then into the environmental and climate rules approved by the Convention and subject to the approval of the Chilean people by referendum.

Chilean environmental and climate challenges

According to the updated Chilean nationally determined contributions (NDCs), Chile is committed to achieving net zero emissions by 2050, a promise reinforced in article 4 of the recently adopted climate change law. The Chilean national adaptation plan state that the temperature in the country is gradually increasing, turning some parts of the country drier and adversely affecting agricultural activities, especially from the Atacama to the Los Lagos region. In addition, Chile has a delicate social situation, with 10.3% of the population living in poverty and 4.3% in extreme poverty conditions. These figures are relevant for considering some groups’ vulnerability to the adverse consequences of climate change and the lack of adaptive capacity to face climate change. This context makes tackling climate change an essential condition for Chilean future environmental, social and economic well-being. The relationship between environmentally degraded areas and poverty is also reflected in the industrial sacrifice zones, where poor communities are exposed to severe environmental and health damages. These environmental and social inequalities require rapid and effective institutional responses, making a socioecological transition a fundamental priority for progressing.

3.     Incorporating ecological perspectives into the constitutional debate

Chilean social and environmental situation situated climate and environment at the centre of the constitutional discussion. The first illustration of the ecological relevance within constitutional debate was the declaration made by the Convention that the Constitutional Convention was taking place within the context of ‘Ecological and Climate Emergency’. The declaration purported to recognise the critical climatic and environmental conditions under which the Convention was undertaking the constitutional project, especially considering the opportune and undebatable evidence presented in the Sixth Assessment Report of the Intergovernmental Panel on Climate Change.

Weeks after the declaration, the Constitutional Convention published its procedural rules. There, the Convention recognised some principles for guiding the constitutional debate. Among those principles were ‘the respect and carefulness of nature’ the application of an ecological focus, and the principle that the Convention implement all the necessary measures to be ‘coherent and responsible’ with the climate and ecological crisis. In addition, the rules established the principle of ‘socioecological perspective.’ The principle of ‘sociological perspectives reinforces the interaction between nature and humans, and understanding social processes interconnected with ecosystems and nature. Finally, these procedural rules reflect the intention to have a discussion using an ecological lens.

Since the beginning of the plenaries, members of the Convention reflected the significance of considering the environment in the constitutional draft. One of the first debates regarding the environment was the definition of the topics that the ‘Commission on the environment, rights of Nature, natural common goods and economic model’ (the Environment Commission) would have to discuss. Article 66 of the Convention’s statute defined an extensive list of topics the environmental commission would discuss. These themes included topics such as procedural and substantive environmental rights, and the ecological and social function of property, projecting an extensive list of ecological debates within the Convention. 

4.     The climate and ecological provisions

Preceded by the emphasis that the Convention placed on ecological considerations in the procedural rules, the Environmental Commission drafted several clauses for the scrutiny of the Plenary. Although, several of the clauses proposed were rejected by the plenary, the outcome of the discussions achieved significant progress and incorporated substantial environmental rules into the draft Constitution. Chapter 3 of the Chilean Constitutional draft, titled ‘Nature and Environment’, contains provisions relating to protecting the environment and tackling climate change. These provisions reflect meaningful progress in recognising the need to tackle climate crisis and defend biodiversity.

Before explaining some of the relevant aspects of chapter 3, it is indispensable to highlight that in Chapter 2 on fundamental rights, the constitutional draft recognises the right to a healthy environment. This clause constitutes a substantial change compared to the current constitutional rule that recognises environmental rights. Article 19.8 of the current Chilean constitution recognises the right “to live in an environment without pollution”. One of the apparent differences between both clauses is that the existing constitution establishes a negative obligation not to pollute. Nevertheless, the Chilean environmental law does not outlaw tolerable pollution, defining an environment without pollution as one in which the pollutants are in low concentrations and periods than those constituting a risk to the “health of the people, the life quality of the population, the preservation of the nature and the conservation of the environmental patrimony”. Therefore, those who cause tolerable pollution are deemed to comply with environmental rights. By contrast, the constitutional draft recognises the right to a healthy environment as a positive obligation. It obliges the state to take measures to prevent the occurrence of pollution and other measures aimed at making the environment more adequate for a healthy life.

Now turning the analysis into chapter 3 on Environment and Nature, article 127 of the Constitution recognises the rights of nature. It states that the government and society have the duty to protect and respect nature. Additionally, article 127 obliges the state to adopt an ‘ecologically responsible administration’. The recognition of rights of nature was not without controversy, with critiques arguing that this rule could block sustainable initiatives that rely on the environment or sustain Chilean economic development. However, the literature has recognised that incorporating the rights of nature is a vital step for ‘protecting the planet’s life support systems’. In addition, the constitutional draft, in article 333, states that rights of nature are enforceable in the environmental courts.

The Constitutional draft also defines special protection for biodiversity, stating in article 130 that “the restoration of wild species in an adequate quantity and distribution for supporting the viability of their populations and assuring the conditions to survive and avoid extinction”. Similarly, it establishes a protected area system for preserving, restoring and conserving natural spaces involving local communities. The draft constitution further establishes the office of the ‘defender of nature’ with the obligation to protect the rights of nature and biodiversity. The defender of nature is an autonomous public institution empowered to audit the acts of the state and private entities and propose recommendations. In addition, it can present legal actions to relevant courts and tribunals when environmental and nature rights are violated.

Article 134 adapts the common law public trust doctrine through provisions on “natural common goods”. The constitutional draft defines “natural common goods” as those on which the state has a special duty of custody to guarantee the rights of nature and the interest of future and present generations. The constitutional draft limits the exercise of property rights on some natural common goods, such as water, air, territorial sea, beaches, and those recognised by international law. The limit on property rights is also an expression of the ecological and social function of land, recognised by article 138 of the constitutional draft. Finally, article 134, leaves scope for the recognition of new natural common goods, making the rule adaptable for future environmental challenges.

Another relevant point about the ecological provisions of the Chilean Constitutional draft is article 129, which mandates the state to adopt prevention, adaptation and mitigation measures to tackle  risks and vulnerabilities’ produced by the ‘climate and ecological crisis.’ This rule marks substantive progress in shaping ecological institutions and a climate-conscious state. First, even when it is not the first constitution expressly referring to climate change, it is the first one to use the term “climate crisis”. This improvement can encourage the state to take measures regarding climate change and all the social, economic, political and environmental effects provoked by the phenomenon. Article 129 also highlights the relevance of international cooperation in facing climate change, recognising how vital it is to continue complying with climate international treaties and instruments.

5.     An uncertain result

On the 4th of July 2022, the Constitutional Convention delivered the constitutional draft to President Gabriel Boric, who called a referendum for the 4th of September 2022, where the Chilean voters will decide to approve or reject the constitutional project. Since 2019, Chilean society has experienced many political and social changes plus a severe pandemic that shocked the world.

The decision regarding approving or rejecting the constitutional draft requires pondering various factors. Regarding the content of the constitutional project, citizens will evaluate the political system, the recognition of plurinationality, new social and environmental rights, and contingent ecological clauses. Indeed, the ecological progress that this constitutional draft entails in recognising rights, establishing environmental institutions, and defining state climate obligations is a promising path for making an ecological, resilient and climate-friendly country. All of these environmental elements contribute to making- in general- the constitutional draft a better political and juridical instrument to confront the country’s future challenges.

On the 4th of September, we will know if the Chilean people fairly pondered the climate and ecological progress of this constitutional draft, so that Chile could have its first ecological and democratic constitution.