Chile’s Constitutional Moment is an Opportunity to Enhance Social Rights

To do justice to such an ambitious goal, the Chilean process should not leave anyone behind. This is a historic occasion to make the case for social rights.

A Chilean man casts his vote at the National Stadium in Santiago (Chile) in October 2020. The more than 2,700 voting centers enabled in Chile for the historic constitutional plebiscite where about 14.8 million Chileans decided at the polls that they wanted to replace the current Magna Carta, inherited from the dictatorship of Augusto Pinochet (1973-1990), and which body should draft the new text, a vote that is considered the more important since the return to democracy. EFE/Alberto Valdés

By Dr. Koldo Casla, Lecturer in Law, University of Essex

In October 2019, a series of protests against public transport fare increases in Santiago unveiled serious cracks in Chile’s economic and social model. “It’s not 30 pesos ($0.40), it’s 30 years,” screamed many of the demonstrators, three decades since the end of Pinochet’s dictatorship. While new leaders have been democratically elected in the last three decades, the socio-economic pillars that underpinned the military regime remained intact. Until now.

The popular protests caught the Chilean political and economic establishment off-guard. Only when the government, opposition, and civil society agreed to initiate a process to reform the 1980 constitution did things calm down, and they were able to find a way forward.

A referendum in October 2020, in the midst of the COVID-19 pandemic, confirmed Chileans’ determination to elect a new convention in charge of writing a new constitution for the country. Representatives were elected in May 2021, and the convention began its proceedings in July. It is the first constituent assembly with guaranteed parity between men and women, as well as minimum guaranteed representation for Indigenous people. The president of the constitutional convention is Elisa Loncón, an academic of  Mapuche descent who was born into poverty.

Neoliberalism’s first theatre of operations in the 1970s, Chile now is experiencing a moment of hope and potential transformation. A significant number of the 155 representatives elected to the constitutional convention pledged to support strong social services, greater equality, and labor rights. Chile has the opportunity to take social rights seriously in this exciting new political process.

Pinochet’s regime adopted the 1980 constitution as an attempt to provide a veneer of legitimacy to the dictatorship. Still in force today, and despite multiple reforms, the constitution contains a number of difficult procedural requirements, such as preventive constitutionality control by the constitutional court, or supermajority requirements in both chambers, particularly insurmountable with the anti-proportional electoral system in place until 2018. These authoritarian enclaves made it difficult when not impossible for left-leaning governments to bring about law and policy changes, let alone progressive constitutional amendments.

The 1980 constitution is also the embodiment of the neoliberal model: It prioritizes private property and a market-driven economy, but it does not guarantee education, healthcare and social security for those in need. The constitution only recognizes the freedom to choose between different providers, for example, in relation to health and social security, but it does not ensure a minimum content for these rights; the right to education and the right to a healthy environment are not justiciable, and the right to adequate housing is nowhere to be found.

In 2016, the UN Special Rapporteur on Extreme Poverty and Human Rights concluded that “the formulations used (in the 1980 constitution) do not generally conform to international standards and are not firmly anchored in the language of rights and obligations. The methods of implementation envisaged are relatively open-ended and non-empowering and do not explicitly include judicial action” in relation to social rights.

Under the 1980 constitution, social rights are not a matter of public service; they are instead tradable goods only available to those who can afford them. And affordability is  unevenly distributed as a result of high levels of inequality. Despite economic growth in recent decades, Chile has one of the highest rates of income inequality in the OECD, both in terms of income and wealth distribution, as well as one of the lowest rates of public spending.

Back in 2015, the UN Committee on Economic, Social and Cultural Rights recommended that Chile should “guarantee the comprehensive recognition and necessary legal protection of economic, social and cultural rights” in a new constitution, “while ensuring that the constitutional reform process is conducted in a transparent and participatory manner.”

Besides international human rights obligations, there is a democratic case for social rights in Chile’s constitutional moment. The fairness of a constitution depends on the extent to which human rights, including social rights, are enshrined in it, with proper accountability for public authorities. At the same time, the democratic legitimacy of a constitution depends on the extent to which the opinions of those most affected by it are taken into account. In a democracy, only when participation is open, transparent, and meaningful, do citizens have reasons to see a constitutional settlement as their own, even when they may not necessarily agree with everything it says.

To do justice to such an ambitious goal, the Chilean process should not leave anyone behind. This is a historic occasion to make the case for social rights. A key responsibility is to listen carefully to those most affected by public policies, by authorities’ decisions, and by their omissions.

That is precisely the immense challenge and opportunity Chile is facing at the moment. The Human Rights Centre of the University of Essex (UK), the University of Concepción (Chile) and the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR) have joined forces in this historic moment of hope and civic responsibility to provide evidence and analysis for the constitutional convention. 

The three partners have brought together fifty academics and practitioners, half of them Chilean and the other half from a wide range of countries, including Argentina, Brazil, Canada, Colombia, England, Ireland, Mexico, Scotland, South Africa and the United States. Together, they are the authors of a new book, freely accessible online in Spanish, that looks at different models of recognition of social rights.

In more than thirty chapters, contributions include legal and multidisciplinary studies about the theoretical foundations of human rights, the role of the judiciary and other accountability bodies, the content of rights (social security, work, health, housing, education, water and sanitation, and the right to a healthy environment), the necessary protection for groups at greater risk of harm, disadvantage and discrimination (indigenous people, persons with disabilities, women, children, and older people), and lessons learned from other constitutional processes around the world (particularly, Brazil, Colombia and South Africa). Besides the international and comparative perspectives, the book also examines what the constitutionalization of social rights may mean in Chile’s legal order.

The majority of Chilean people are pushing for a new constitutional framework that could realize all human rights, including social rights, for everyone. The challenge goes beyond the mere architecture of public institutions and the technical legal formulation of rights. This is an opportunity to revisit the foundations on which Chilean society is built, the type of country and the sort of future Chileans deserve.

This piece was first published on the Open Global Rights website and is reproduced here under a Creative Commons licence. The original post can be accessed here.

The University of Essex has issued a press release and a Q&A about the publication. The Human Rights Centre is hosting an online event on Wednesday 20 October 2021 (5pm – 6:30pm) to launch the publication, and you can register here.

The Business Sector and the Rights to Work and Just and Favourable Conditions of Work

Photo © Marcel Crozet/ILO from Flickr

Dr Marija Jovanovic, Lecturer in Law at the University of Essex, published a new chapter titled ‘The Business Sector and the Rights to Work and Just and Favourable Conditions of Work’ in The Cambridge Companion to Business and Human Rights Law.

The collection was edited by Ilias Bantekas (Hamad Bin Khalifa University, Qatar) and Michael Ashley Stein (Harvard Law School, Massachusetts), and was published in September 2021 by Cambridge University Press.

How can businesses operate profitably and sustainably while ensuring that they are applying human rights? I. Bantekas and M. Stein (eds), The Cambridge Companion to Business and Human Rights Law (CUP 2021)

Marija’s chapter explains the role and responsibility of the business sector in securing the rights to work and just and favourable conditions of work by clarifying the origins, legal nature, scope, and enforcement of obligations placed upon corporate actors.

It explores the differences between the role of businesses and that of states in safeguarding these rights and seeks to establish whether any obligations placed upon business actors are owed to individuals employed by their subsidiaries and suppliers outside of their country of domicile.

The chapter reflects on the three modalities of framing obligations of the business sector to secure the rights to work and just and favourable conditions of work in today’s globalised economy. It also considers whether states have – or should have – an international obligation to enact and enforce legislation that enables individuals from other jurisdictions to seek redress for the violations of the two rights by their corporate nationals.

Marija’s contribution and the further twenty-four chapters of the Companion are intended to serve as both a specialist guide to businesses, states, and consumer organisations and civil society at large in their pursuit of business and human rights related actions and policies, as well as a comprehensive textbook for business and human rights modules.

The animal legal turn: could animals qualify as victims before the International Criminal Court?

The Animals in War Memorial in Hyde Park, London (sculptor: David Backhouse)

Dr. Marina Lostal, Senior Lecturer in Law at the University of Essex, published a new article titled ‘De-objectifying Animals: Could they Qualify as Victims before the International Criminal Court?’ in the Journal of International Criminal Justice.

The article notes that the legal framework of the International Criminal Court (ICC) does not contain any provision concerning animals. Yet, animals frequently appear in both trial and reparations proceedings. The lack of animal regulation at the ICC is problematic insofar as there is now a visible animal legal turn whereby their status as mere objects is increasingly being questioned and remedied at the international and domestic levels.

Dr. Lostal’s article wishes to visibilize the ‘animal question’ at the Court by examining whether they could qualify as victims under Rule 85(a) of the Rules of Procedure and Evidence. While the short answer to this outlandish question is an unequivocal ‘no’, the conclusion reached is not the purpose of the article.

The purpose lies in showing that animals cannot qualify as ‘victims’ just because they are not human beings. Yet, they comfortably meet the other two criteria, namely (a) suffering harm, which (b) results from the commission of crimes within the Court’s jurisdiction. In short, animals may not be humans, but they also suffer in connection with core crimes.

The article concludes with the observation that granting animals the same treatment as human beings is no more objectionable as a matter of legal principle than granting them the status of ‘things’. In the author’s view, this calls for a prompt discussion of the regulation of animals within the Court.

Dr. Lostal recently presented her research at the 2021 European Animal Rights Law Conference held on 17 and 18 September in the Woolf Institute on the Westminster College site in Cambridge. The article can be accessed through the publisher’s website here.

Realising the Right to Health

Photo by Marcelo Leal

The right to health, or ‘the right to the enjoyment of the highest attainable standard of physical and mental health’ to give it its full name, is a fundamental human right which extends beyond a right to healthcare to include a range of pre-conditions for a healthy life.

According to the Office of the United Nations High Commissioner for Human Rights (OHCHR), ‘every State has ratified at least one international human rights treaty recognizing the right to health. Moreover, States have committed themselves to protecting this right through international declarations, domestic legislation and policies, and at international conferences.’

Yet evidence from around the world suggests States’ commitments to ‘progressively realise’ the right to health are yet to lead to practical progress.

What is required, then, to help States move from treaty signing to practical action?

The challenge

While most countries have signed up to treaties containing binding obligations in relation to the “progressive realisation” of the right to health, a lack of clarity on the scope of the right to health and historical confusion regarding appropriate indicators and benchmarks has created ambiguity, which some have used to sidestep their commitments.

What we did

Drawing on the fields of international human rights law and public health governance, research led by Judith Bueno de Mesquita, from our School of Law and Human Rights Centre, has sought to look at the expectations, or norms, in relation to the right to health, in the context of specific health issues, with a particular focus on sexual and reproductive health and rights (SRHR).

In a field that has been dominated by discussions of constitutions and legislation, this research focuses on the framework of regulations and policies required at national level, for implementation.

Bueno de Mesquita was appointed as a consultant by the United Nations Population Fund (UNFPA) to work with two national human rights institutions, the Commissioner for Human Rights, Azerbaijan, and the Ombudsperson Institution of Kosovo. In this consultancy role, she led the research required for national assessments looking at sexual and reproductive health.

These consultancies allowed her to apply her research to country contexts, and assess the degree to which the legislative, regulatory and policy environments were compliant with international human rights standards in the area of SRHR.

What we achieved

In Azerbaijan, the resulting report contributed to the Government taking sexual and reproductive health and rights more seriously, and provided valuable advocacy tools. The report was used to lobby the Azerbaijan Parliament to incorporate sexual and reproductive health issues into the State Program on Demography and Population Development and to develop the National Action Plan on Gender-Based Violence to ensure effective implementation of the 2010 law on domestic violence prevention.

The report was also showcased as a case study in the United Nations Population Fund’s ground-breaking guidance (UNFPA: 2019, pp. 76-78).

In Kosovo, Bueno de Mesquita’s recommendations were contained in the Ombudsperson Institution’s 2016 report, resulting in life-changing impact for rights-holders, including:

  • the provision of free contraceptives to vulnerable groups
  • the supply of low-cost condoms via vending machines
  • a decision to retain contraceptives on the essential drugs list
  • an increase in health inspectorate staffing, with human rights integrated into this organisation’s work
  • steps taken to make maternal death audits consistent with World Health Organisation guidelines
  • and the adoption of a rights-based national HIV action plan.

The impact in Kosovo is ongoing, with the report continuing to inform the next cycle of Azerbaijan’s Reproductive Health Strategy.

In both countries, the research of Judith Bueno de Mesquita has successfully bridged the gap between theory and implementation, supporting significant progress and providing useful examples of how national legislative and policy frameworks can help realise States’ commitments in relation to the progressive realisation of the right to health.

This impact case study was first published on the website of the University of Essex and is shared here with permission and thanks. Read the original story here. You can follow Judith Bueno de Mesquita on Twitter here.

Secure Financing in International Trade

Photo by John Simmons

In August 2021, Dr Anna Mari Antoniou, Lecturer in Maritime and Commercial Law at the University of Essex, published an article on Trade Finance in the Journal of International Banking Law and Regulation.

The article, Bank Security in Letters of Credit: Mere pledgee or something more?, looks at security measures for financial institutions when financing international trade transactions via letters of credit. It examines banks’ security rights as pledgees of shipping documents and potential security rights under The Carriage of Goods by Sea Act 1992.

The article argues that the traditional approach, a bank as pledgee, has limits, and is now superseded by the bank’s position as bill of lading holder under the Act. Though the Act is almost 20 years old, cases concerning the position of banks under it and related issues are still common, for example, The Erin Schulte [2014] EWCA Civ 1382 and Sea Master Shipping Inc v. Arab Bank (Switzerland) Ltd [2018] EWHC 1902 (Comm).

Dr Antoniou argues that pledgee rights are none the less necessary in some circumstances and clarifies how the two positions can work together by proposing a tiered system of rights. The shipping market has been particularly volatile since the 2008 financial crisis and the COVID-19 pandemic has exasperated the situation.

Secure financing is considered a backbone of international trade and the particular financing method, the letter of credit, has often been described as the ‘lifeblood of international commerce’. The combination of this volatility in the market and the importance of the credit in commerce, makes bank security rights a crucial issue to examine.

The proposals in the article provide solutions in practice, enhancing bank efficiency, giving certainty to the parties involved in high value transactions. The proposals also provide a more transparent view of the law, a troublesome area for years, as evidenced by the cases.

Dr Antoniou’s article is available via Westlaw and in print with the full citation: Antoniou, A-M., (2021). Bank Security in Letters of Credit: Mere pledgee or something more?. Journal of International Banking Law and Regulation. 36(9), 367-378.