Environmentalists in Chile Are Hoping to Replace the Country’s Pinochet-Era Legal Framework With an ‘Ecological Constitution’

Chile’s constitutional convention, underway in Santiago since July 4, 2021, is the first time a country has re-written its foundational document in the wake of the Paris Agreement and comes as the world reckons with three interconnected environmental crises: climate change, biodiversity loss and toxic pollution.

With most of the 155 delegates being either left-leaning or independent, environmentalists are hoping the convention will seize the moment and enshrine an array of environmental rights and obligations to create a so-called “ecological constitution,” similar to the constitutions of neighboring Ecuador and Bolivia. 

Among the concepts already approved for inclusion in the convention’s draft constitution are the rights of nature (the idea that ecosystems have legal rights to exist and regenerate), the rights of animals to live free from abuse and human rights to environmental information and participation in environmental decision making. The draft also includes recognition that the climate crisis is a consequence of human activity, and the recognition of the government’s duty to promote efforts to mitigate and face the climate crisis. 

The language of some of these provisions, and other possible ideas for inclusion, are still being worked out. The convention’s final draft constitution, due by July 5, must be approved by a national plebiscite before September to take effect as the highest source of law in the country. Otherwise, the existing 1980 constitution drafted under the military dictatorship of Agusto Pinochet will remain in effect. 

The debate inside and outside the convention has been fierce. Conservatives want delegates to adhere to the governing principles from the 1980 constitution, which were influenced by economist Milton Friedman. They see the emphasis on free markets and less regulation as fundamental to Chile’s economic success and export-oriented economy. 

Environmentalists and other progressives say those policies are responsible for the country’s high inequality and environmental problems. They want to see the new constitution set the foundation for a more inclusive and sustainable society. 

The question for convention delegates is whether Chile, a country rich in minerals like lithium and copper, can maintain the economic growth that has made it a standout in Latin America while improving social and environmental outcomes for all citizens. If it can, Chile could become a model for a world in which the benefits of the energy transition and the impacts of climate change are more equitably distributed. 

‘The Obscenity of the So-called Sacrifice Zones’

The convention’s historical moment has been decades in the making. 

Poor and middle-class Chileans have long harbored deep-seated grievances over the country’s inequality and a perception that the government has failed to deliver in key areas like education, health, social security and environmental protection. 

In 2018 alone, 116 environmental protests took place across the country, according to Chile’s national Human Rights Institute. Some of those conflicts stem from the existence of so-called “sacrifice zones,” places where clusters of mines, refineries, chemical plants and other industrial facilities cause extreme levels of pollution near mostly poor communities. 

In Quintero-Puchuncavi, two adjacent towns about 90 miles Northwest of Santiago that are home to about 15 industrial sites, toxic gas leaks in 2018 sent hundreds of people, including school children, to the hospital. In 2019, the Chilean Supreme Court ruled the government was responsible for the extreme contamination, but since then little has changed for residents who are still subject to high levels of sulfur dioxide and particulate pollution. Last month, researchers found people living for more than five years in those communities are more likely to have a malfunction in a gene that is responsible for suppressing tumors. 

People across Chile are also highly vulnerable to climate change, with rising temperatures expected to increase and intensify flooding, droughts, wildfires and landslides throughout the country. Poor air quality from the burning of wet wood for household energy is also a pervasive problem, particularly in highly populated areas like the capital, Santiago. 

Chile’s environmental issues are entwined with one of the main grievances of the poor and middle class: That the benefits of heavy industry go to a small number of elites while the poor and middle class shoulder the burden. Chile is one of the most unequal countries in the Organization for Economic Cooperation and Development, with most of the country’s wealth concentrated at the very top. The highest 1 percent of income earners make up about one-third of Chile’s total income and the top 5 percent make up more than half of total income.

In October 2019, protests over a small increase in Santiago’s metro fares exploded into weeks of social unrest, ceasing only after politicians agreed to hold a constitutional referendum. At the polls, nearly 80 percent of voters said they wanted a new constitution drafted by a democratically elected assembly. 

In a second vote to choose assembly delegates, left-leaning and independent candidates who had campaigned in part on environmental issues took about two-thirds of the seats while right-wing political parties performed worse than expected and now lack enough seats to block proposals they disagree with. 

The makeup of the assembly, which has gender parity and 17 seats reserved for Indigenous communities, augurs well for environmentalists. Patricia Politzer, a Chilean journalist elected to the assembly as an independent, said most convention delegates understand that Chile needs to make progress on protecting the environment, both to address the climate crisis and to end the “inhumane situation” of environmental injustices. 

“We need to end as soon as possible the obscenity of the so-called sacrifice zones. There are thousands of people sacrificing their health and lives to allow others to have a comfortable life,” Politzer said. “I think the protection of nature will become the backbone of the new constitution…allowing for an environmental perspective to influence all institutions.”

An Economic Miracle, But Not for All

Chile’s existing 1980 constitution is filled with idealistic language—it begins by reciting that all men are born free and equal and even includes the human right to a pollution-free environment. But as it has been interpreted by the courts and governing bodies over the last 42 years, protections for private enterprise, free markets and private property rights reign supreme.

Marcos Orellana, the U.N. special rapporteur on toxics and human rights, attributes the existence of Chile’s sacrifice zones, in part, to that constitution.

“In many segments of Chilean society, there is a clear understanding that the extreme neoliberal model that the 1980 constitution, implemented by force, failed to ensure equality,” Orellana said. “The marginalized and poor have been largely excluded from the gains that have come about from increased economic activity.”

In 1990, when Chile’s government transformed from Pinochet’s dictatorship into a new democracy, the government held onto the neoliberal principles set forth in the 1980 constitution. For instance, the country’s 1981 water code, still in force today with some revisions, reduced the government’s planning and regulatory roles while creating a market for the private buying and selling of water rights granted in perpetuity. The system helped create new Chilean industries and made it a top exporter of commodities like avocados and wine.

But, the privatized system has deprived some of the country’s most vulnerable citizens access to clean water for drinking and bathing—a problem compounded by megadroughts made worse by climate change. According to the California-based Pacific Group, at least seven major social conflicts in the past 20 years have taken place over water disputes in Chile, including altercations over high water tariffs, the mining industry’s water use and water privatization conflicting with Indigenous rights. 

“Our economic and political systems have been structured to deal with the immediate and they struggle to deal with long-term issues. That’s caused a dissociation among the private sector with the need to protect the environment,” Orellana said. “But the environment is the foundation for human civilization, and ecosystem services are what makes both life on earth, and the economy, possible.”

A ‘Blank Slate’

For all of Chile’s problems, it is undeniable that the country enjoys lower poverty levels and higher standards of living than most of its neighbors in Latin America. While its regulatory institutions are lean, career officials have a reputation as being capable and experienced, according to former U.S. officials who have worked with the Chilean government.  

Those that defend Chile’s existing institutions and, to some degree, its 1980 constitution, fear that the constitutional convention could upend decades of economic growth and institutional memory. Between 1986 and 2013, Chile increased its gross domestic product by 5.4 percent annually, on average, laying the foundation for a growing middle class and outperforming most other countries in Latin America.

Critics of the convention have argued that adding a long list of rights to the constitution doesn’t guarantee those rights can be fulfilled, particularly if cutbacks to Chile’s business-friendly system lower the tax base. They contend that Chile has to further develop to be able to support social safety systems like Nordic and European countries, and additional constraints on free enterprise and markets will slow that development down.

Critics also argue that constitutions should be compact documents with only the most fundamental of rights—most environmental decisions should be relegated to the policy realm, they say, and subject to the will of voters in periodic elections.  

The convention’s mandate is to begin its work from a “blank slate,” so the assembly can opt to include ideas from past constitutions, or not (certain changes are not permitted, such as changing Chile’s republican form of government and the country’s commitments under international treaties). Those who defend the current system point out that Chile has implemented a number of reforms to its laws over the decades.

Since about 2010, when Chile joined the OECD, it has undergone a renaissance of environmental reforms, including the creation of environmental courts and special agencies to assess the ecological impacts of development projects. 

A bill making its way through the legislature would mandate the phase-out of coal by 2040, and the country has committed to carbon neutrality by 2050. Still, many environmentalists see those changes as too little, too late and still subject to what they say is an unfair advantage given to private and economic interests. 

With little leverage within the convention, some right-wing politicians and their supporters have concentrated on criticizing the assembly as inexperienced (the majority of delegates had never run for office before) and ideologically extreme.

Politzer, the journalist and assembly member, said media reports and rhetoric that casts the convention as embracing radical ideas is wrong. While some of her colleagues have raised controversial proposals, like an initiative to bring more of the mining sector under public management, she said there is no real risk that the full assembly will approve radical proposals.

“I think most convention members understand that we need to make progress on protecting the environment in order to realistically address the climate crisis.  At the same time, it will undoubtedly be necessary to adjust the conditions under which the mining transnationals operate,” she said. 

For proposals to be accepted in the final draft constitution, one of ten commissions must first submit draft proposals to the 155-member assembly. Then, with a two-thirds agreement (103 votes) the assembly can approve the draft in general (which means approving the idea, but not the specific wording of the proposal), approve it in particular (approving the idea and the wording), or reject it (if two-thirds support is not reached). Early on, the assembly rejected the majority of the proposals from the environmental commission, a sign that the assembly is more conservative than that commission. Subsequent proposals incorporated assembly feedback and have had greater success. 

Politzer said the environmental proposals that have been approved so far are not controversial. As an example, she cited the first approved proposal: “the State shall promote dialogue, cooperation and international solidarity to adapt, mitigate and confront the climate and ecological crisis and protect nature.”

“I do not think this is an ‘extreme’ rule, but it seems quite compatible with the international developments and the recommendations by scientists,” she said. 

In addition to provisions guaranteeing the rights of nature and animals, language regarding the preservation of biodiversity was also accepted: “The State protects biodiversity, and must preserve, conserve and restore the habitat of wild native species, in such quantity and distribution that adequately sustains the viability of their populations and ensures the conditions for their survival and non-extinction.”

Public or Private?

One of the most watched topics being debated at the convention is the future of Chile’s mining industry and whether Chile would be better off creating a state enterprise-dominated model, or allowing the private sector to maintain control. 

Chile is a top exporter of copper and lithium, two materials critical for the construction of wind turbines, electric engines and batteries that the world needs to transition to clean energy. Mines and industrial facilities have been at the center of social conflicts over who accrues economic benefits from those activities and who bears the burden of their environmental consequences. 

Social justice advocates have been pushing for a mechanism, like higher taxation, that would distribute more of the wealth generated by Chile’s natural resources to the people who are most affected by the environmental burdens of developing them. Others have called for the government to take a greater degree of control over the mining industry.

The relationship between Chile’s mining industry and the 1980 constitution is complex. The country has always been a mining country, exporting copper and nitrates for fertilizer early on in its history. Before Pinochet came to power, then-President Salvador Allende nationalized the copper industry, which had been owned mostly by U.S. companies. When the Pinochet dictatorship took over, most of the copper industry remained in state hands for years while other industries were privatized. 

With global demand for lithium and copper mining, both water-intensive activities, expected to increase significantly in light of the ongoing energy transition, technological improvements like desalinization to conserve water will be key, according to Paul Simons, the former U.S. ambassador to Chile and the former CEO of the International Energy Agency. 

“A big question there is, who is going to bring that type of very innovative technology to Chile?” said Simons. “A case can be made that Chile may be better off with a heavily regulated private sector.” 

Simons said he questions whether state control of what have been private assets will help solve Chile’s income- and wealth-inequality problems, which he believes are problems that urgently need to be addressed. 

Increasing demand for Chile’s natural resources is already evident in soaring commodity prices, meaning whatever decision the convention makes will have major ramifications for the country and global markets. Regardless of how Chile moves forward, environmental boundaries may already be limiting the industry’s ability to expand in some parts of the nation. 

“The stresses in Northern Chile, you have to go see it,” Simons said. “With the water issues and pollution, it will be difficult for the country to increase beyond where it is now without major investments in technological innovation.” 

A Green New Deal for Chile? 

Environmental, or ecological, rights were left out of foundational human rights documents like the 1948 Universal Declaration on Human Rights, which predated the environmental awakening of the 1970s. But environmental rights became popular after the 1972 Stockholm Conference, which was the first time the human right to a healthy environment was recognized. 

Today, variations of that right are included in about 156 national constitutions or some 80 percent of U.N. member countries (but not the United States). Many human rights experts argue that the right to a healthy environment is a prerequisite for the realization of many other rights, like the rights to life and health.

Lynda Collins, a law professor at the University of Ottawa and author of The Ecological Constitution, blames “ecologically ignorant” legal systems for leading to the climate crisis, biodiversity loss and high levels of toxic pollution. She says that having ecological rights in national constitutions, the highest laws of any country, ensures societies have legal guardrails in place to guide legislation and future development in a sustainable direction.

“It just makes sense to constitutionalize protection for the ecological systems that form the foundations of our societies,” she said. “Constitutions are designed to create a nation-state that survives over time. The only way to do that is to ensure ecological sustainability.” 

Ecuador’s 2008 constitution has the most extensive set of environmental rights. While the inclusion of those ideas hasn’t stopped all environmentally harmful activities in the country, some of the rights have been used to strengthen environmental laws. For instance, in December, a Constitutional Court ruling that interpreted the country’s constitutional rights of nature provision told the government it had to significantly increase the standards of its environmental permitting process for activities that could harm sensitive ecosystems. Earlier this year, that same court again interpreted the constitutional rights of nature, ruling that the provision includes the rights of wild animals and requires the drafting of new legislation to protect those rights.

There is other evidence that ecological constitutional provisions benefit people and the environment. The U.N. special rapporteur on human rights and the environment, David Boyd, has reported that countries with the constitutional right to a healthy environment have more active civil societies involved in enforcing environmental rights and are more likely to hold government and businesses accountable for pollution. 

What is Happening at the Convention Now

Behind the inclusion of new environmental rights and obligations, a group of about 30 so-called ecoconstitutionalist delegates is looking to target the structure of Chile’s government. Some, including Assembly member Amaya Alvez Marín, a law professor from Concepción in the South of Chile, are pushing for articles that would change Chile’s unitary system of government by decentralizing power away from Santiago. 

During a presentation hosted by the University College of London, Alvez Marín said her colleagues want to create a federalist system with geographical regions similar to the division of power between the U.S. federal government and the fifty states. They say more decision-making power should be in the hands of people closest to the impacts of those decisions. 

The role that Indigenous people should play in Chile’s society is another issue that overlaps with environmental considerations. Under existing law, Indigenous peoples have not received the recognition that they are distinct peoples—making the country an outlier compared to other places in the Americas, including the United States. Alvez Marín, said Chile’s recognition that Indigenous peoples have their own worldviews and legal systems is a long-overdue step towards legal pluralism in the country. 

For Manuela Royo Letelier, a lawyer and assembly member from southern Chile, including principles like the rights of nature and animal rights in the new constitution will usher in a new paradigm for the relationship humans have with the natural world.

“It will transform how we build law,” she said. “Thinking of the protection of other beings and establishing the interdependence between people and nature is central to that paradigm shift.”  

As all of these ideas are being worked out, some Chileans worry that the time constraints placed on the assembly—they have had just a year to complete the drafting process—could hurt the final document’s chances of approval by citizens come July and August when a final nation-wide vote will take place. 

Reaching consensus on the draft would be ideal and give the new constitution a high degree of legitimacy, according to Pilar Moraga, deputy director at the  Centre for Environmental Law at the University of Chile. But building consensus is time consuming, a luxury the assembly doesn’t have given its July 5 deadline. 

“If the assembly reaches a common vision for the country, it is possible to build another way forward for Chile, with inclusion and solidarity,” Moraga said. “If not, I fear social conflict will arrive again.”