Climate revolution in Chile: The world's first constitution after the Paris Agreement?

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By Felipe Bahamonde
On September 4, Chile will hold a plebiscite in which citizens will decide whether to approve or reject the draft of the new constitution prepared over the course of a year by the 154 men and women who made up the country’s Constitutional Convention.
This process has been historic for the South American nation.  But it will also be historic for the planet, in terms of climate action and the defense of nature. If the proposed draft is approved, Chile will have the first fundamental charter after the United Nations Paris Agreement, which seeks to combat climate change.  Although at the international level Cuba approved in 2019 important changes to its fundamental charter, these are still considered amendments and not a completely new one, as in the Chilean case.
The constitutional process emerged from the social conflict that, starting in October 2019, lasted for months and traced the path of a constitutional convention that began its work on July 4, 2021.  Its task: to write a new constitution and thus replace the current one, inherited from the civil-military dictatorship of Augusto Pinochet (1973-1990).
In the shadow of the climate crisis
The Paris Agreement - adopted in December 2015 - changed the global context. It was the climax of years of negotiation and the first international agreement to take ownership of one of humanity's greatest crises: climate change and environmental pollution.
The treaty has now been signed and ratified by 193 parties: 192 countries and the European Union. It states that "climate change is a global emergency that transcends national boundaries,” and defines it as a problem that requires coordinated solutions at all levels and international cooperation to help countries move toward low-carbon economies.
Against this backdrop, the global pact established a series of long-term commitments for all nations parties, focusing primarily on reducing greenhouse gas emissions and thus limiting the increase in global temperature to 2°C above pre-industrial levels. The goal: to avoid the most catastrophic effects of global warming.
Despite these laudable intentions, for the fifth consecutive year since it was signed, in 2021 global greenhouse gas emissions rose again and reached an all-time high, as revealed by the latest report of the United Nations Environment Program.
Photo: EuropapressPhoto: Europapress
World Meteorological Organization (WMO) President Gerhard Adrian said in March this year during the German Meteorological Service's annual press conference that he considers it difficult to be able to achieve the Paris Agreement target of keeping global warming below two degrees Celsius. "Unfortunately, at present it looks like we are heading toward an increase in temperatures of between 3 and 4 degrees," he said.
Although the actions taken by the States have not made it possible to achieve the goals set during the first five years of the agreement, it should not be forgotten that this multilateral treaty is the first global agreement in the history of climate negotiations. "With this pact, the representatives of the 195 countries gathered in Paris not only admit that the problem of climate change exists, but also recognize that the increase in temperature is man's responsibility," said former UN Secretary General Ban Ki-moon in 2016 at the end of the United Nations Framework Convention on Climate Change.
Chilean Constitution: Environmental protagonism
The Constitution is the most important document within the nation's political system.  It establishes the foundations of the State, its principles, values and the objectives to which the country aims.
In the proposal to be put to a referendum, Chile completely re-establishes its political and social bases with respect to the environment.  In addition to multiple articles on water, common property, rights of nature, it adds two other unprecedented facts in the world in constitutional matters: it would be the first country in history to declare the existence of the climate and ecological crisis (Article 129); and the first to create an Ombudsman of Nature (Articles 140 to 150).
According to the director of the Law, Environment and Climate Change program of the Universidad de Concepción, lawyer Verónica Delgado Schneider, the fact that the fundamental charter declares that we are in a climate and ecological crisis "generates a radical change in the functioning of the State, since it recognizes the need to carry out an ecologically responsible administration; moreover, this implies modifications and challenges in economic activities, since we recognize the fact that we do not live only for ourselves, but for nature as well."
In addition, the lawyer adds that the influence of the Paris Agreement is evident, since "the change between the Constitution of 1980 and the proposed new Constitution is completely different in environmental matters. Although the 80's Constitution presented certain interesting articles, the environment was always secondary to the market."
"Chile has changed the market mentality, prevailing in the national constitution of 1980, which established a state that guaranteed all people the right to appropriate everything, to a constitution that places great emphasis on environmental protection; important changes in the defense of the environment, mainly in the legal area; and the change in the situation of water in the country, going from a good with the right of appropriation to a common good that can be managed based on administrative authorizations," Delgado points out.
The second measure is the inclusion of a Defender of Nature, which would be an autonomous body, with legal personality and its own assets, whose purpose would be the promotion and protection of the rights of nature and environmental rights guaranteed in the constitution, in international environmental treaties ratified by Chile, and against the acts or omissions of the organs of the state administration and private entities.
According to Article 149 of the draft to be plebiscited there would be regional ombudsmen's offices, which will have the duties of "supervising the government agencies in the fulfillment of their obligations regarding environmental rights and rights of nature; formulate recommendations in the matters of their competence; process and follow up on the claims on violations of environmental rights and derive in their case; deduce constitutional and legal actions, when environmental rights and rights of nature are violated, and the others entrusted by the constitution and the law."
Although there are public defenders in multiple constitutions that fulfill similar roles to this organism, Chile would be the first to install one destined to the public defense of the environmental rights of people and the rights of nature.
"The Defender of Nature comes to improve access to a material justice in the territories and reduce the precariousness of environmental justice for those who do not have the resources for an effective legal or administrative defense. Today, due to its technical and legal specialization, the assistance to people and communities falls on some NGOs that are unable to take charge of the great existing conflicts in Chile," said the constitutional delegate, Vanessa Hoppe.
In Hoppe's view, "it is necessary to understand that there will be new elements in what we understand as environmental justice. In the first place, the rights of nature are recognized as fundamental rights; secondly, the new actions of guardianship to precisely protect those fundamental rights, and thirdly, the proposal to increase the number of environmental courts so that there is one in each region."
According to Sara Larraín, director of Chile Sustentable, "in Chile there were no rights or legal protections of nature, instead protecting for decades the interests of state or private companies that violate established rights."
"With the ombudsman's office, an expeditious access to justice is established, since it can supervise state institutions regarding the rights of nature and environmental rights; process and follow up on claims of violations of these rights and also initiate constitutional and legal actions,” adds Larraín.
The process being carried out by Chile is included in what has been called new Latin American constitutionalism. The subcontinent has been at the forefront of environmental changes, with Ecuador and Bolivia being the first states to constitutionalize the rights of nature. 
Chile may join them, and even more, innovate in this area.  Something that will be defined on September 4 when the nation’s citizens go to the polls to vote whether to approve or reject the new constitution.