constitutional rights vs human rights – UAB Institute for Human Rights Blog

Constitutional Changes in Chile

The streets of Santiago were filled with the sounds of horns on September 4th. The vote for a new constitution had finally taken place, after three years of sustained protests, and four decades after the dictator Pinochet first replaced the constitution. The people had spoken, and the social contract between the state and the citizens was transformed.

Calls for a new constitution fueled by social movements

Fig. 1: Source: Yahoo Images; Nearly one million protesters during estadillo social. An aerial view of Plaza Italia and streets filled with hundreds of people, one large Chilean flag held over the heads of some.

On October 18th, 2019, thousands of protesters flooded the streets of the capital city, Santiago, Chile. Originally, protests began over frustrations with a rise in the price of metro tickets but quickly compounded with inequality in the state. According to a Foreign Policy article on Chile’s constitutional overhaul, the massive protests were led by students, workers, farmers, indigenous peoples, and left-leaning progressives. They expressed frustrations over a lack of socioeconomic mobility, unresponsive government and institutions, and a disconnected political class. In some instances, these demonstrations included torching metro stations and tearing down statues of Spanish colonizers. To read more in-depth on the protests, read this blog.

While these protests paralyzed the capital and country for weeks, the protests demanding change resonated outside the urban center and spread across the nation. In central Santiago, Plaza Baquedano has been the place of social protest for decades, and three years on, protesters continue to use this symbolic place to voice dissent on social inequalities.

Fig. 2: Source: Yahoo Images, John Treat; Protesters in Plaza Baquedano demanding a new constitution, December 2019. A crowd of people holding aloft indigenous flags, Chilean flags, and signs.

Known as the Estallido Social, or social explosion, the protests signaled a major development in the attitudes of citizens in the state. Protests eventually culminated in a 12-point agreement for social peace and a new constitution. In the eyes of many protesters, numerous contemporary problems traced back to the constitution ratified in 1980 under the military dictatorship of General Augusto Pinochet.

The citizens of Chile have expressed the need for a new constitution in order to value citizen participation. The constitution written under Pinochet leans toward a conservative interpretation and does not include any formal avenues for citizens to participate. While the Magna Carta has been changed in minimal ways since a return to democracy in 1990, the opposition claim that the constitution should be considered illegitimate since it was instituted under a dictator.

Constitutional change under dictatorial rule

On the 11th of September 1973, democratically elected socialist President Salvador Allende was overthrown by a military coup. He was given an ultimatum — to resign from his position or be detained by the Chilean armed forces.

To better understand this consequential moment, we need to understand the context of economic and political factors that had Chile on the brink of a civil war. A few times during his presidency between 1970 and 1973, Allende had made reference to President Balmaceda (1886-91), a previous executive whose conflict with the legislature led to a civil war. Allende refused to become “another Balmaceda” but also claimed he would not be forced from office alive.

In 1971, Allende began nationalizing companies, mainly copper and telephone, both previously owned by foreign US corporations. As a result, Chile stopped receiving aid from the US, and subsequently, the World Bank, the Export-Import Bank, and the Inter-American Development Bank ceased aid as well. By 1973, inflation, labor strikes, and food shortages were uncontrollable as imports had risen while exports plummeted in the face of plummeting copper prices. Soon after, General Pinochet Ugarte, chief of the armed forces, became the dictator of Chile in a violent coup that resulted in Allende’s death.

The constitution was formally rewritten in 1980 to solidify Pinochet’s regime politically and economically. In the new constitution, Pinochet protected private property to such an extent that Chile became the only country in the world to privatize water. Moreover, the constitution concentrated power in the president, from budgetary decisions to law-making. As a result, the executive in Chile remains among the world’s most powerful governing executives.

In the next two decades, thousands of people would be tortured, executed, or forcibly disappeared under General Pinochet’s repressive authoritarian rule. According to Amnesty International, the number of officially recognized disappeared or killed is 3,000 people between 1973 and 1990 and the survivors of political imprisonment and torture is around 40,000 people. After Chile returned to democracy, Pinochet was charged under universal jurisdiction for crimes against humanity.

The writing of a new constitution

After protests continued and swelled to 1 million people, the government decided in mid-November 2019 that a large concession needed to be made. A referendum was set with two questions: Should Chile replace the 1980 constitution, and if so, who should write it?

In October 2020, 78 percent of the voting population favored a new constitution, with the highest participation since the end of mandatory voting in 2012. Moreover, citizens overwhelmingly supported the new drafting by everyday citizens.

Fig. 3: Source: Yahoo Images; Elisa Loncon. A woman wearing indigenous Mapuche clothing waving.

Elisa Loncon, a member of the Mapuche indigenous group, was selected as the president of the constitutional assembly. From the Office of the High Commissioner for Human Rights, the constitutional process in Chile is the first to include an equal portion of women and men, and also includes the indigenous groups historically discriminated against.

“For the first time in our history, Chileans from all walks of life and from all political factions are participating in a democratic dialogue,” Loncon said.

Not only had the social protests begun a sweeping institutional change in the country focused on the economic and political rights of people, but this moment also signaled a significant expression of self-determination.

The process has received help from the UN Human Rights Regional Office for South America which has provided accessible documents, webinars, and publications on the international framework for human rights.

The resulting constitution embodies the standards of human rights law, with rights focused on indigenous people, women, LGBTQ+ people, people with disabilities, and the environment. Also, the new constitution ensures adequate housing, the establishment of a national healthcare system, employment benefits, and mandatory gender parity in the private and public sectors. This new charter represents a sweeping array of human rights, from civil and political to economic, social, and cultural.

Valentina Contreras, the Chilean representative of the Global Initiative for Social, Economic, and Cultural Rights, said “Human rights are the common thread of the constitutional process.”

Rejection and steps forward

The vote for the new constitution was this September 4th, 2022. After two years of drafting the new constitution, 62 percent of Chileans voted against the new Magna Carta and only 38 percent for it.

The National Public Radio reported on the results of the plebiscite. While most states normally rewrite their constitutions during or shortly after the democratic transition, Chile remains an outlier. Additionally, most new constitutions are short, but in this case, the proposed Magna Carta was 388 articles long and considered “confusing” according to Claudio Fuentes, a Santiago political analyst.

This aided a large disinformation campaign launched by more conservative and centrist citizens, claiming the proposed constitution would disarm the police and confiscate people’s private homes. Still, other citizens saw the draft as a product of anger and tension, identifying the new text strongly with the violent protests that had originally spurred its creation.

This represents a loss not only for the constitutional assembly but a commitment to a broad range of human rights. However, as Gabriel Boric, the current president of Chile stated, “You have to listen to the voice of the people.” Extensive social protests first began the move to redefine the social contract between citizens and government, and now democratic procedures have determined the continuance of this process.

This process is not over, Chileans are still waiting on a new constitution. Centrist-left and right-wing politicians have expressed interest in working with the government on the next draft.

Ultimately, while Chileans voted against the proposed constitution, this remains a poignant moment for human rights. Firstly, the level of dialogue on such topics from people of varied backgrounds and historically discriminated groups remains unprecedented in Chile and illustrates the unfettered self-determination of a people. From people organizing and demonstrating their rights to cooperation between radically different political parties, the constitutional assembly remained committed to a document based on human rights.

Students have once again begun protesting at metro stations in response to the rejection. This dialogue will not stop with the constitutional committee, instead, it has and continues to be embodied by the protesters who sparked the original rewrite.

Human Rights and Guns

**Due to the continuing tragedies of gun violence, especially in schools, and stalled legislation, our series on guns and gun control (from two months ago) will repost over this week.

The gun rights vs. gun control debate is again at the forefront of our national discourse after 17 people lost their lives in a school shooting in Florida last month. School shootings hit close to home for all of us, and especially those of us engaged in education or with school-aged children. As an educator and mother, this is very personal. We need this public discussion on what our children’s lives are worth to us, on guns, and laws and policies that will help protect us in cases of gun violence.

I have noticed that both sides invoke human rights when they advocate for either gun rights or gun control. The human rights case for gun control is pretty clear and straightforward. Gun control advocates base their claims on the most fundamental human right: the right to life and security of the person (Articles 6 and 9, International Covenant on Civil and Political Rights (ICCPR) and Article 3, Universal Declaration of Human Rights). Article 6 ICCPR very clearly states that “no one shall be arbitrarily deprived of his life” and that states have an obligation to ensure the security of all persons. School shootings fall within the realm of arbitrary taking of life, and therefore need to be addressed by the government. The government has a duty to protect people from these types of events. When the government fails to do so, we speak of a human rights crisis, which is what the Amnesty International has called gun violence in the United States.

The “other side”, namely the gun lobby and gun rights advocates, has used human rights language mostly in terms of “right to own a gun”. Gun control has been said to “be the ultimate human rights violation.” However, this rhetoric is highly problematic.

Let me be very clear:

There is no human right to gun ownership.

Human rights are essentially the opposite of guns. Here is why.

According to the preamble to the International Covenant on Civil and Political Rights (ICCPR), human rights “derive from the inherent dignity of the human person’ and are aimed at achieving ‘freedom from fear and want.” Human rights are moral rights with legal implications. They are about the value of each human life, and about people’s most basic needs. Access to food, water, housing, for example, or equal treatment before and under the law and not to endure discrimination on grounds of race, religion, ethnicity, sex or gender, national or social origin, and disability status. These rights are codified in international human rights treaties or part of customary international law.

The right to own a gun is not mentioned in any human rights document.

It is not part of customary international law or a general principle of law as recognized by the international community. It is not general state practice, which is what you would think following the debates in our own country. In fact, the United States is one of three countries in the world that has included the right to bear arms to their constitution, so it is quite an outlier.Therefore, the fact that the right to own guns is a constitutional right (although there is some debate over how to interpret the Second Amendment) does not mean it is a human right.

The reason the gun lobby is proposing a human right to gun ownership is easy to see. First, human rights are “sexy”, they are “in”. Their proposition reflects an overall trend to construct more and more issues in the language of human rights. Second, calling gun ownership a human right also strengthens their argument – who would not want their position to be supported by an inalienable right? But again, this is not what human rights are. You cannot simply take any individual right and call it a human right. As discussed above, human rights carry greater moral weight than individual rights by themselves. This might be splitting hairs to some, but it is an important distinction. It makes all the difference. Third, gun rights advocates often argue that not only is gun ownership is a human right, but also that the government cannot legally limit this right. That is not how rights work, regardless of whether we are talking about a human right or any other right.

No rights are absolute – they are limited by the rights of others. Governments can certainly limit rights, for national security reasons, for example, or to uphold public order, or to confront a health threat. Take freedom of speech as an example: You cannot say anything you want. You cannot incite murder, leak government secrets, or distribute child pornography. The idea that there is a human right to own guns and that this right is unlimited is incorrect.

But what about self-defense? Isn’t there a human right to individual self-defense from which the right to own guns would follow? This is where things get a bit more complicated. The academic literature contests whether self-defense is a human right. No international human rights treaties or resolutions mention the right to individual self-defense, which leads me to conclude that individual self-defense is not recognized by international law (unlike collective self-defense, which is the right of the state under Article 51 of the UN Charter). The right to life and physical security might imply that states must recognize an individual right to self-defense since states will never be able to defend all individuals from being harmed at all times. However,

the entitlements that flow from a human right are not the same as the human right itself.

For example, the right to work does not include a specific right to conclude a contract for employment. Or the right to freedom of movement does not liberate you from rush-hour traffic.

In short, the assertion that there is a human right to individual self-defense has dubious legal and moral foundations, and scant empirical support. The conclusion that this means there is a right to gun ownership for private citizens is clearly false. A conclusion like this would imply that guns are only be used in self-defense. However, studies have shown that guns are not used in self-defense as often as people claim. A recent study by the FBI showed that in 2012, only 259 homicides were justifiable (in self-defense), but 8,342 criminal gun homicides. In other words, for every one (1) justifiable homicide in the U.S. involving a gun, 32 criminal homicides occurred. This ratio does not take into account gun-induced suicides or fatal accidents involving guns. In other words, the assessment of gun rights cannot depend solely on their positive or negative impact on the right to self-defense, since no gun is inherently limited to defensive use.

Studies have clearly demonstrated that more guns mean more homicides (see here, here, and here). Individuals who have a gun are almost 5 times as likely to be shot in assaults than those who don’t have a gun. Other studies show that living in a home with guns is less safe than living in a home without guns (see here and here). Gun proliferation has a negative impact on the right to life and physical security and can lead to human rights violations. It is, therefore, important for the government to take action and regulate and hinder the proliferation of guns as part of its obligation to protect the right to life, as I explained above.

Human rights and guns do not go together. Using human rights to justify gun rights is not only wrong but it is dangerous. Human rights are about the lives of human beings, about freedom, liberty, and the betterment of these lives. Guns or “gun rights” have no place in human rights discourse; countering gun violence, engaging in public discussion, and instituting gun control do, however.

This is the mission of the March for Our Lives, which is scheduled for this Saturday, March 24, to raise awareness of the gun violence in schools. The March’s mission statement reads: “Not one more. We cannot allow one more child to be shot at school. We cannot allow one more teacher to make a choice to jump in front of a firing assault rifle to save the lives of students. We cannot allow one more family to wait for a call or text that never comes. Our schools are unsafe. Our children and teachers are dying. We must make it our top priority to save these lives.”