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“The text of the New Constitution that is submitted to a plebiscite must respect the character of the Republic of the State of Chile, its democratic regime, the final and enforceable judicial decisions and international treaties ratified by Chile and that they are in force”.
That was stipulated in the current Constitution after the reform that was made to Chapter XV last December and that enabled the constituent process that has as its first milestone the plebiscite of next October 25.
For those who have defended the idea that the writing of the possible new Fundamental Charter “does not start from a blank page”, this paragraph is fundamental. It establishes that the work carried out by the Convention – be it constitutional or mixed – must consider the international agreements that Chile has signed up to now.
According to the website of the Library of National Congress, it is established that only at the United Nations level, our country has signed 407 international agreements. On the other hand, the document “International Treaties signed and ratified by Chile on Human Rights” from the same institution and published in January of this year estimated that Chile has ratified 27 agreements within the Universal Human Rights System and 12 at the inter-American level.
Likewise, there are free trade agreements and economic agreements. Along these lines, Chile maintains 29 in force since the return to democracy.
But how is this “respect” for the treaties already signed translated into the drafting of a new Constitution? The question and its interpretations have been an obligatory subject for several jurists who closely follow the constitutional discussion. The majority agrees that what is expressed in the reform to Chapter XV acts as a limit to what is discussed in the constituent body since rights and principles that emanate from the signed treaties must be followed and respected.
In that sense, for the former Chancellor and Doctor of Law, Teodoro Ribera, the possible Convention that is chosen “is not one that is going to exercise total, absolute and dictatorial power. Rather, it has a power that has some limitations derived from the current Constitution ”.
Ribera adds that “international treaties, whatever their nature, to the extent that they establish rights for the States, make the States have to respect international law because they cannot expressly invoke their domestic law as a defense to breach their international law.” For the former minister of Sebastián Piñera, it is also relevant that free trade agreements and investment agreements with other countries are respected in order to relieve the right to undertake and the right to property.
Along the same lines, the also former Chancellor, Ignacio WalkerHe noted that “Chile took a gigantic step in 1989 by incorporating the ratified treaties that are in force and the reform of last December ratified that respect for the treaties is a limitation to the deliberation and decision of the Constituent Convention.”
The former president of the DC refers to the milestone of 1989 after the triumph of “No” when the “Agreement for the Transition to Full Democracy” was launched, which proposed the reform of the Constitution of ’80. Among the amendments to this legal body is that of Article 5, which established that “the exercise of sovereignty recognizes as a limitation respect for the essential rights that emanate from human nature and that”s duty of State organs to respect and promote such rights, guaranteed by this Constitution, as well as by international treaties ratified by Chile and that are in force”.
The truth is that this issue was debated extensively before the reform of Chapter XV was approved, first agreed by political parties in a transversal way and then drafted by a technical commission. Maria Cristina Escudero, a politician and who was part of that table, explains that “the commitments that the State of Chile has acquired cannot bypass the institutional regulations where Chile is inserted. This is mainly intended for human rights treaties and border agreements because what the Convention has to do is a new Constitution and not terminate international agreements.
Escudero adds that, by virtue of the drafting of a new Fundamental Charter, our international agreements could be revised later: “The convention cannot meet one day and say ‘we do not like the Pact of San José, from tomorrow it will not be ‘, because the treaties depend on the legal continuity of the State, not on the Constitution ”.
More about Reconstitution
As a “classic legal discussion” lawyers and lawyers describe the question about the constitutional status of treaties. In Chile, these agreements are not in the Magna Carta, but they do have the force of law and for many the issue will be central in the discussion of the new Constitution.
For the professor of international law at the Catholic University, Alvaro Paúl, respect for the treaties in the new Constitution cannot be interpreted as being above the current Charter. “In some way, the rule is to prevent Chile from violating international obligations. That it is said that the constituent is going to have as a limit what the international treaties establish, is not saying that international treaties are above the Constitution, but that they will be above those who draft this specific document, “said Paúl. However, with respect to treaties related to Human Rights, for some, this assessment is different.
Claudio Troncoso, academic of international law at the University of Chile, pointed out that what was done in the 1989 reform “was to give a constitutional value to the Human Rights contained in international treaties.” “This is a matter that is subject to interpretation because there is no such clear provision that indicates it, but one infers it by interpreting the rule. When one says that Human Rights constitute a limit to sovereignty, obviously you cannot place them at a lower level than the Constitution”Added Troncoso.
In 2002, the Constitutional Court of our country indicated that the International Criminal Court can be classified as “a supranational court” and that it would differ from the international courts established in treaties ratified by Chile. Thus, the TC pointed out, that since sovereignty resides in the nation, “the only authorities that can exercise sovereignty are those established by the Constitution,” and that the constitutional reform of 1989 “did not establish that international treaties on essential rights had a hierarchy equal to or higher than the fundamental lawl “.
What is the problem with giving a higher rank to these treaties? For some jurists: the selection of the rule to apply and the lack of certainty of the judges is one of the main obstacles to settle this discussion.
In this sense, Rodolfo Figueroa, director of the Department of Public Law at the Diego Portales University, believes that “there is no solution for this.” “People who specialize in Human Rights and international treaties do not agree on what hierarchy they should have. There was a majority that considers them of constitutional rank, but they do not agree on what to do with cases of contradiction, “added Figueroa.
An example of this is what happened in the case “Atala Riffo and girls v / s Chile”, where judge Karen Atala denounced the State of Chile in 2010 before the Inter-American Court of Human Rights for “discriminatory treatment and arbitrary interference in the private and family life that she would have suffered due to her sexual orientation in the judicial process that resulted in the withdrawal of the care and custody of her daughters ”.
Given this, the commission alleged that “there is broad recognition in the American states that discrimination based on sexual orientation is prohibited.” Losing the case, the State had to hold a public act of acknowledgment of international responsibility for the facts of this case.
An example of how a solution was reached on the interpretation of the range of treaties is in Argentina. The trans-Andean country, in 1994, made a selection of specific treaties stating that “they have constitutional hierarchy, do not derogate from any article of the First Part of this Constitution and should be understood as complementary to the rights and guarantees recognized by it.”
The neighboring country established in its Magna Carta that “the other treaties and conventions on human rights, after being approved by Congress, will require the vote of two-thirds of all the members of each Chamber to enjoy the hierarchy constitutional”.
Regarding the possible solutions and what a possible convention could implement, Figueroa indicated that “you have to go the long way where it is stated that if the Constitution is changed, any treaty that you want is placed there and does not say that they all join automatically. If it is believed that the right in education, labor matters, etc. they are insufficient and out of date, that the treaties are integrated and thus it will be very clear in the Constitution what is in force in Chile. “
In this sense, the lawyer Tomás Jordán, coordinator of the constitutional process initiated in the second government of Michelle Bachelet, pointed out that in the new Constitution there should be “a clause called ‘conciliation’ between constitutional norms and treaty norms.” Jordán It adds that the constitutional project presented in the government of the former president establishes that international norms have to be reconciled with internal norms and that they would oblige the jurisprudence to incorporate both types of norms.
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