Constitutional Status of Animals in Chile’s Draft Constitutions of 2022 and 2023: Two Contrasting Approaches

Carolina Cerda Guzman & Ximena Insunza

University of Bordeaux & University of Chile

Chile’s 2022 and 2023 constitution-making processes attracted considerable attention across the world. Even though the two draft Constitutions were rejected by referendum, we think that in terms of environmental issues, they offer instructive examples of two contrasting approaches to these issues, in particular animal rights. Therefore, they are worthy of further study and analysis. On the one hand, Chile’s draft Constitution of 2022’s “avant-garde” approach,  rejected by the Chilean people on 4 September 2022, contained innovative provisions that, we believe, may serve as a model or an inspiration for constitutional reforms beyond Chile. The draft contains 388 articles and 57 transitional provisions. 101 of them deal with environment and nature, and many propose new formulations or insert new topics rarely addressed in constitutional texts. On the other hand, the 2023 draft constitution, rejected on 17 December 2023, adopted a much more conservative approach.

The 2022 draft constitution

This is the case concerning animals. Chile’s 2022 draft explicitly mentioned them. According to article 131.1, animals deserve special protection. The duty of protection lies primarily with the State and must be done in a particular way: by taking into consideration animal sentience. This concept is not new, but recognition of animal sentience in a constitutional text is quite rare. 

Because of this rarity, the legal definition and legal implications of recognizing animal sentience remain largely undetermined, hence the importance of examining the way in which sentience is referred to. If we look at the two times this expression is mentioned in the text (in article 98 and article 131.1), it is possible to draw some conclusions.

Firstly, with regard to article 131.1, this sentience implies the recognition of a right: the animals’ right to live a life free from abuse. This right is not absolute. This article does not prohibit the ownership of animals or animal trade. However, it does require that activities involving animals do not cause unjustified suffering.

Secondly, article 98 transforms it into a principle that should guide sciences and technologies, their applications and research processes. Therefore, scientific research should not constitute in itself a justified reason to subject animals to ill-treatment. This principle forbids subjecting them to cruel testing and, more broadly, it implies the necessity for scientific research to take into consideration the impact that its processes and application could have on animal life.

The following article (article 99.1) confirms this broad interpretation, since it states that the National Council of Bioethics is responsible for "advising State agencies on bioethical matters that may affect (...) animal life, nature and biodiversity (...)".

Moreover, far from limiting themselves to these few elements, the drafters of the 2022 draft Constitution clearly intended this issue to permeate society. This underscores the transformative ambition of the text. Indeed, article 131.2 specifies that all state entities have an obligation to promote education "based on empathy and respect for animals".

Since nature and the environment are a theme that runs through the entire text (present in 8 of the 11 chapters of the draft), animal’s constitutional status should be considered in light of the many other provisions that could have resulted in a more encompassing system of protection.  Animals would have benefited from the recognition of specific “rights of nature” (articles 18, 103 and 127), the protection of biodiversity (article 130) and the ecological function of property (article 52.1), for instance. 

The 2022 draft also created an institutional apparatus for the protection of nature’s interests which included the National Council of Bioethics, Nature Ombudsman's Office, Municipalities and Regions. Even if it is still hard to specify how these different entities could have functioned in a coordinated manner, their multiplicity invites us to think that these bodies had the potential to contribute to the construction of a richer and more protective animal status. 

Constitutional draft of 2022

Art. 98: Sciences and technologies, their applications and research processes must be developed according to the bioethical principles of solidarity, cooperation, responsibility and with full respect for human dignity, the sentience of animals, the rights of nature and the other rights established in this Constitution and in international human rights treaties ratified and in force in Chile.

Art. 99.1: The National Council of Bioethics is an independent, technical, consultative, pluralistic and transdisciplinary body that will have, among its functions, to advise State agencies on bioethical matters that may affect human life, animal life, nature and biodiversity, recommending the dictation, modification and deletion of rules governing these matters.

Art. 131.1: Animals are subject to special protection. The State shall protect them, recognizing their sentience and the right to live a life free from abuse.

Art. 131.2: The State and its entities shall promote education based on empathy and respect for animals

The 2023 draft Constitution

By contrast, the 2023 draft Constitution, which came from a new constitutional process that began in 2022 and that considered the proposal of an Expert’s Commission and a Constitutional Council, adopted a less ambitious approach. It changed the axis of animal protection, reducing it to only one article, which was framed as a constitutional duty. This article established the duty of the State and of individuals to promote the protection of animals and their well-being, as well as to promote their respect through education in accordance with the law. By using the verb ‘to promote’, this constitutional provision seemingly expressed a wish, rather than an obligation. It would have been necessary for legislative development to establish legal obligations that may stem from this provision, and it is far from recognizing animal rights. 

Constitutional draft of 2023

Constitutional Duties

Art. 37

8. It is the duty of the State and of individuals to promote the protection of animals and their well-being, as well as to promote their respect through education in accordance with the law.

Conclusion 

Even if the 2022 constitutional draft did not recognize an absolute right for animals to live a life free from mistreatment, it had provisions that would have created a new status for animals. This would in turn have created new opportunities for the development of a body of jurisprudence around animal’s constitutional rights.

In contrast, the 2023 draft was far less substantive on the issue of animal rights, as it only established the duty of the State and individuals to promote the protection of animals and their well-being, which is already recognized in Chile´s legal system. In other words, it was not a step forward. 

Although a new constitutional process is not currently underway in our country, the demonstrated interest in animal rights in both processes indicates that presumably there will be legal and jurisprudential developments for increased protection.

Carolina Cerda Guzman is an Associate Professor in Public and Constitutional Law at the University of Bordeaux, France.

Ximena Insunza is an Associate Professor and Researcher at the Center of Environmental Law in the University of Chile.

Suggested citation: Carolina Cerda Guzman and Ximena Insunza, ‘Constitutional Status of Animals in Chile’s Draft Constitution of 2022 and 2023: Two Contrasting Approaches’ IACL-AIDC Blog (7 March 2024) Constitutional Status of Animals in Chile’s Draft Constitutions of 2022 and 2023: Two Contrasting Approaches — IACL-IADC Blog (blog-iacl-aidc.org)