An ecological constitution for Chile

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Photo: Carlos FigueroaPhoto: Carlos Figueroa
By Fabián Vallespin, Fundación Ngenko
The eventual constituent process, which we hope will stem from the plebiscite this  October 25th, will open up the discussion on what elements an “ecological constitution” should contain. Herein, we will try to shine a light on the central elements that a constitution must contain to be considered an environmental one.
As the basic rule of the legal system, the constitution is a social pact that allows the state to be created. It designs the political, legal and even economic model of the country, the latter is questioned by some constitutionalists. In short, it is the Magna Carta that defines how we want to live as a society.
Historically, constitutional changes respond to the challenges of their times, and today the climate and ecological urgency is unequivocal. While Chile’s constituent process arises from a social crisis, we must not forget that this crisis is also environmental. Chile is among the five countries with the most environmental conflicts in the world – the map of Chilean socio-environmental conflicts reflects this situation.
If we add to this the results of the Self-Convoked Local Meetings (ELA) of 2016 (the participative stage of the constituent process initiated during the second Bachelet government) in which more than 200,000 people participated, it is essential that the eventual future Chilean constitution integrate environmental elements. The ELA shows that citizens want the new constitution to contain principles, values and rights related to the environment and its protection as a universal concern.
Now, let us concentrate on what content an ecological constitution could have. It is a question, in broad terms, of: it’s principles; the rights it grants; the regime of ownership of natural resources; the organization of the state and its territory; and finally, establishing primacy in the event of a conflict between rights. As a road map, the constitution should guide the interpretation and meaning of its content.
As for its principles, we find the precautionary principle of sustainable development, participation, information, environmental justice and intergenerational justice. We emphasize the principle of participation which determines that those citizens whose environment is affected can participate in the decision-making process. Environmental justice, for its part, seeks an equitable sharing between environmental burdens and benefits. Intergenerational justice, meanwhile, seeks to ensure the long-term protection of the environment, together with an awareness of present generations and their responsibility for future generations.
What are the rights and duties that an ecological constitution should contemplate? One important point here is that its wording should refer to the fact that these are collective rights, not just individual rights. The right to live in a healthy environment should be recognized, extending the content of the current article 19 No. 8 (the right to a contamination-free environment). We also stress the need to include the right to water and sanitation as a human right, and the protection especially of water as essential for the realization of other rights.
Also, a fundamental question is to determine what relationship do we want to establish between the right to live in a healthy environment and the use and ownership of natural resources? For example, expressly recognize some unappropriated common goods such as forests, rivers, aquifers, glaciers, etc. and strengthen the fact that any concessional regime established on them respects and guarantees the rights and principles of the ecological constitution. One current trend is to grant nature rights and recognize it as a subject of law, as the constitution of Ecuador and Bolivia have done, but here the most important questions are what would that recognition mean? How do we implement that statement in practice? What institutional structure will exist to support this declaration? Finally, we must mention the state's duty to mitigate and adapt to climate change, in order to reaffirm the commitment of the Paris accord of 2015.
In relation to the organization of the state, specifically in relation to territorial planning, it should include notions of ecology for the proper protection of ecosystems. While we recognize that most of this regulation will be at the legislative and regulatory level, centralism has not helped to visualize possible environmental solutions. It is also necessary to recognize the role that each region plays in decisions about its development. The distribution of powers and faculties at local scales is vital not to fall into the current regulation of central power. Local and regional governments should be able to determine the management of their environment and resources. This ensures decision-making based on technical criteria, reduces the capture of power by political power and ensures stability.
Another important point to take into account concerns conflicts between constitutional rights. The debate, content and manner in which the constitution is drawn up will determine its interpretation, and thus the primacy of one right over another. In this way, it is important to give prominence to the protection of the environment, recognizing the social function of property and the limits that derive from it. In the current constitution it is private property that has prevailed leading to overexploitation of resources, strongly impacting the most vulnerable sectors of the population.
For all of the above elements to be effective, they must be able to produce changes. The success of the constitutional content is related to its ability to articulate public policies or legislation, and its ability to resolve constitutional conflicts as mentioned in the previous paragraph.
The whole of these elements seeks to ensure a central place for the environment, to recognize its intrinsic value and to build institutional processes that ensure its effective protection. Just as a constituent process must be participatory and flexible, citizen participation must be the cornerstone of environmental protection to ensure its legitimacy. That is why we hope that participation will be an integral part of Chile's future constitution.