Constitutionalizing the Public Trust Doctrine in Chile

Abstract

Chile, whose public has experienced widespread dissatisfaction with Chilean environmental policies, seems poised to use the ongoing redrafting of its constitution to entrench the public trust doctrine in its fundamental charter. The ancient doctrine, emanating from Roman law and reflected in the 13th century Spanish treatise, Las Siete Partidas, offers the promise of making publicly enforceable commitments to environmental protection that under current Chilean law have been discretionary, and therefore unfulfilled. This paper explains what the public trust doctrine would mean to Chileans if the constitutional drafting process, scheduled for completion in 2022, includes the public trust doctrine, as advocated by an interdisciplinary white paper sponsored by the Chile California Conservation Council in 2021. The white paper drew on language from the Pennsylvania Constitution in making its recommendations. The proposed constitutional revisions would enable Chile to meet the environmental challenges ahead while accommodating the country’s commitment to private property.

Keywords: comparative law, international law, public trust doctrine, environmental law, natural resources law

JEL Classification: H11, H23, H77, H82, K11, K23, K32, Q01, Q15, Q23, Q24, Q25, Q28, Q34, Q38, Q45, Q54, Q57, Q58