When Chilean streets erupted in 2019 demanding the resignation of the President, many political analysts predicted that the country would be pulled into years of political struggle and instability as it has in many Latin American nations post dissent. However, the Chileans decided to break this cycle by voting to create a new Constitution. The Constituent Assembly was created with the task of rewriting the nation’s Constitution, with representation from indigenous communities and, for the first time ever, gender parity. The Constituent Assembly, unfortunately, did such a ‘good job’ that Chileans rejected the new Constitution. The new Constitution presented a utopian society in which the majority of the population decided is to ‘progressive’ for the nation. With rights to disconnection, neurodiversity and even stronger rights for indigenous communities (with nearly 13 per cent of the Constitution addressing ecological issues). The constitutional assembly failed to recognize the ethos of its population, which is mostly centrist. It would have also granted autonomy to indigenous communities, which many people would divide the nation While the intention was to finally move away from the Pinochet Constitution, the leftist agendas of current President Gabriel Boric failed to impress Chileans or rather overwhelmed them.
While most rejected the Constitution for its utopian and state-centric nature, Investors and Business are breathing a sigh of relief. Had the new Constitution been adopted, it would have made a significant impact on Chile’s foreign investment. With provisions for freezing mining concessions, regulating water rights and reducing compensation awards for expropriated property, ‘exploitation’ of resources would have been made a lot harder. Fearing the rumors about an environment and indigenous law-friendly changes in the constitution, FDI in Chile had suffered in the last three years leading up to the rejected draft. This could also be a reason why it was rejected. Many felt such a strong environmental protection policy in the constitution undermined the progress the nation had made in the last three decades in terms of market-friendly economic development. The current constitution favours private ownership in health, education and other social sectors. Financial advisors also predicted that the nation could not afford to be this progressive. Climate Change policy is often very expensive, and many developing nations may need to prioritize other issues before tackling climate change. While the environment would have thrived under the new constitution, it would have driven away the investor who fund the nation’s progress.
The new Constitution would have put Chile along with 37 other nations that Constitutionally protect the environment and indigenous communities. It would have put Chileans ahead of most Latin American nations and one of the most progressive and ‘woke’ constitutions in the history of the continent. It would have moved Chile from one of the most conservative countries to one among the most progressive in terms of gender parity, indigenous rights and environmental policy. While many are criticizing Chile for losing out on the opportunity, it is important to respect the outcome of the referendum. The Constitution must represent its people. While progressive constitutions are indeed the need for a more sustainable future, if it fails to provide for the present, they would divide the nation. Most people find comfort in their Constitution, and it is largely tied to one’s national identity. While this draft would have been an international environmental activist’s dream, it simply failed to represent the people of Chile. Chile now has a chance to get the new constitution right, and the international community is watching to see its outcome.
President Boric has committed to building a new draft that would be more inclusive and that would resonate with the majority of the people. However, it is believed that environmental policies would still be a priority as 91 per cent of the population believes that climate change must be a priority of the government. However, this time it is likely that it would be a more balanced approach, hoping to find common ground between environmental protection and economic development. Inspirations can be drawn from other Latin American nations, such as Columbia, which had recently made progressive amendments to the Constitution that also represented the will of the people. Attempts to overtly regulate trade agreements will also attract international sanctions. Chile is a party to more than 65 bilateral trade agreements (BITs) and Free Trade Agreements (FTAs), which would have been adversely impacted if the draft had come into effect. It would have been likely that many investors would have pushed back, triggering international arbitration clauses. Chile must ensure it does not violate its international trade obligations in the spirit of change.
Chile indeed needs a new constitution. 80 per cent of the population opted to draft a new one to replace a rulebook written by four generals. However, this time around, the constituent assembly hopefully drafts one that actually unites instead of utopian promises of unachievable targets. The aim must be sustainability.
References
Chile protests: More than one million bring Santiago to a halt (2019) Al Jazeera https://www.aljazeera.com/economy/2019/10/26/chile-protests-more-than-one-million-bring-santiago-to-a-halt/
Chilean Voters Reject a New Constitution That Would Have Provided Groundbreaking Protections for the Rights of Nature (2022) Inside Climate News https://insideclimatenews.org/news/04092022/chile-constitution-rights-of-nature/
The tough job of building institutions (2022) New York Times https://www.nytimes.com/2022/09/06/climate/chile-constitution-climate.html
Chile Now Has a Chance to Get New Constitution Right (2022) Americas Quarterly https://www.americasquarterly.org/article/chile-now-has-a-chance-to-get-new-constitution-right/
Jones Day, Bofill Mir Abogados, Chile’s Proposed Constitutional Changes to Natural Resources Rights Could Have Devastating Effects on Foreign Investors: How Can International Law Protect Them? (2022) https://www.jonesday.com/en/insights/2022/08/chiles-proposed-constitutional-changes-to-natural-resources-rights
Chile constitution: Voters overwhelmingly reject radical change (2022) BBC https://www.bbc.com/news/world-latin-america-62792025
Chile Unveils Its Proposed New Constitution (2022) Foreign Policy https://foreignpolicy.com/2022/07/08/chile-new-constitution-rewrite-boric-protests-pinochet-dictatorship-referendum/
By The European Institute for International Law and International Relations.
