CONSTITUTIONAL CHALLENGES OF THE SOUTH: INDIGENOUS WATER RIGHTS IN CHILE - ANOTHER STEP IN THE “CIVILIZING MISSION?

Abstract

This article explores the struggles of indigenous rights based on the adoption of the 1980 Chilean Constitution, under an authoritarian frame, that resulted in water being considered as a commodity and, therefore, subject to radical market rules that serves as a relevant local example in conflict with ratified international treaties. The argument proposes a critical approach to establish a continuum of the recurring rejection of the ancestral beliefs of Indigenous People since colonial times. In light of the actual constituent process for drafting a new constitution in Chile (2015), the article evaluates the emancipatory potential of Chile’s early sovereignty proposal on natural resources and later articulations of water as a human right. The argument assesses the possibility of including alternative views in the constituent debate over water, under the light of Third World Approaches to International Law [TWAIL] and Latin American International Law [LAIL] legal scholarship, aiming to find space in the Chilean constitutional realm for non-extractive perspectives.