- The proposed new constitution sets out a number of principles on which international relations should be based and provides for some changes associated with international treaties.
- It incorporates the enshrinement of the reception and international integration of human rights, which is a novelty.
- It also establishes powers for the Regional Government in international affairs and the constitution of Latin America and the Caribbean as a priority area for international relations.
International Relations in the constitutional proposal
a. Principles of International Relations
According to the proposed Constitution presented by the Constitutional Convention, Chile’s international relations must be based on the following principles: (i) self-determination of peoples; (ii) non-intervention in matters within the domestic jurisdiction of States; (iii) multilateralism; (iv) solidarity; (v) cooperation; (vi) political autonomy; and (vii) legal equality among States. These principles are not defined in the Draft New Constitution.
b. Promotional Aspects of International Relations
The constitutional proposal also provides that Chile‘s international relations are committed to promoting and respecting democracy, human rights, gender inclusion and equality, social justice, respect for nature, peace, coexistence and peaceful conflict resolution, and to recognizing, respecting and promoting the rights of indigenous and tribal peoples and nations in accordance with international human rights law.
c. Priority Zone
Latin America and the Caribbean is declared a priority area in Chile’s international relations.
International Treaties
a. Powers of the Executive and Legislative Branches
The draft of the new Constitution provides that the President of the Republic has the power to negotiate, conclude, sign and ratify international treaties.
With respect to those international treaties that refer to matters of law, they must be approved by the Legislative Branch, except for those concluded in compliance with a law. Nor shall the approval of the Legislative Branch be required for measures adopted by the Executive Branch or agreements entered into by it for the fulfillment of a treaty in force, unless they concern matters of law.
In the case of withdrawal or denunciation of a treaty that has been approved by the Legislative Branch, as well as for the withdrawal of a reservation that the Legislative Branch considered when approving it, the approval of the Legislative Branch shall be required.
b. International Treaty Approval Process
The approval process shall be subject, as appropriate, to the procedures of a regional agreement law. In addition, the approving agreement may authorize the President to issue, during the term of the treaty, provisions with the force of law that he deems necessary for its fulfillment, but this may not extend to matters of fundamental rights, nationality, citizenship, elections and plebiscites.
c. Advertising
All facts relating to the process of negotiation, entry into force, reservations, interpretative declarations, objections, denunciation, withdrawal, suspension, termination and invalidity of international treaties shall be made public.
d. Popular Initiatives
Inhabitants of the territory who have reached the age of sixteen years and meet the percentage and other requirements defined by law shall have the initiative to request the President to sign international human rights treaties.
The following differences between the Draft New Constitution and the current Constitution should be highlighted:
✓ The current Constitution, unlike the proposed Constitution, specifically provides that the provisions of a treaty may be derogated from, modified or suspended only in the manner provided for in the treaties themselves or in accordance with the general rules of international law.
✓ The current Constitution provides that it is the exclusive power of the President to denounce or withdraw from a treaty, for which he shall request the opinion of Congress. On the other hand, the Draft New Constitution does not expressly grant this power to the President.
✓ The current Constitution does not provide for popular initiatives for the signing of international treaties.
Human Rights
The Draft New Constitution enshrines the reception and international integration of human rights. This implies that constitutional rank is granted to: (i) the rights and obligations established in international human rights treaties ratified by Chile and that are in force; and (ii) the general principles of international law and customary international law on human rights.
It also establishes the State’s obligation to promote, respect, protect and guarantee human rights in accordance with the provisions and principles of international human rights law, as well as the duty to prevent, investigate, punish and provide full reparation for human rights violations.
The enshrinement of the reception and international integration of human rights is a novelty of the proposed Constitution, since the Constitution currently in force does not specifically address this issue.
Interference of the Regional Government in International Relations
The Regional Government, defined in the proposed Constitution as “the executive body of the Autonomous Region“, will be responsible, among other duties, for representing the Autonomous Region before international authorities, within the framework of the national policy on international relations, with functions of coordination and intermediation between the central government and the region.
In addition, the Regional Government shall have the authority to enter into and execute international cooperation actions, within the frameworks established by the treaties and conventions that the country enters into for this purpose and in accordance with the procedures regulated by law.
Unlike the proposed Constitution, the current Constitution provides that the supreme administration of each region is vested in a regional government, which is not vested with powers in international affairs and matters.
In conclusion, the main novelties of the proposed Constitution are: (i) it incorporates explicit principles on which international relations should be based; (ii) it contemplates aspects that should be promoted in international relations; (iii) it enshrines the reception and international integration of human rights; (iv) it includes powers for Regional Governments in international aspects, (v) it constitutes Latin America and the Caribbean as a priority area for Chile’s international relations.
However, some aspects of the proposed Constitution have been the subject of objections or questions, such as:
✓ The reference as a regulatory framework to “customary international law” in the field of human rights, since it implies the incorporation of a rather vague concept, unlike the current law where the legal framework is determined by those international treaties signed and ratified by Chile, which provide certainty and precision in the application of its concepts and provisions.
✓ The declaration of Latin America and the Caribbean as a priority area for Chile’s international relations implies a guideline or conditioning for the Executive Branch in the conduct of international relations. In addition, there is a lack of clarity in the scope of this declaration of priority area.
✓ Publicity of international treaty negotiations may be difficult to apply in practice, as such a reservation may be necessary for certain cases, such as territorial boundary agreements.
✓ Popular initiatives to request the signing of international treaties, which even allow those over the age of 16 to participate, could entail a risk of politicizing international relations.
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