One of the most redeemable points of the proposed Constitution of 2022 was the incorporation of Antarctica as one of the topics addressed in the highest norm of our legal system. Article 240 did not contain all the indispensable elements, but its very existence was to be welcomed. In this new constitutional attempt, Antarctica should once again occupy a prominent place.
There are three matrix ideas to record. The first is that the Chilean Antarctic Territory is a “special territory”, in a double sense. On the one hand, because it is subject to both national sovereignty and an international regime. On the other, because its unique environmental and geographical characteristics condition the action of the State. The second idea concerns the importance of environmental protection and the promotion of scientific activities. This legitimizes before the international community the sovereign Chilean presence in such latitudes, and validates our actions as custodians of spaces that interest all Humanity. It also reinforces the action that as the guiding State of the last port/airport is exercised from Punta Arenas and Puerto Williams to protect Antarctic and sub-Antarctic ecosystems. The third idea is one of policy coherence. Since the Chilean Antarctic Territory is an integral part of the national territory, the Constitution applies to it as in the rest of the country. But, due to natural conditions, self-interests or international commitments, it is necessary to limit certain fundamental rights and guarantees there, or to severely condition their exercise. For that to be constitutionally legitimate, the Magna Carta itself must empower such a restriction.
According to the structure for the new Constitution approved by the Expert Commission, Antarctica could be dealt with in three chapters: “Government and Administration of the State”, “Government and Regional and Local Administration”, or “Protection of the Environment, Sustainability and Development”. Although there are arguments in one direction or another, the first of the chapters named should be preferred. Beyond its link with the Magallanes and Chilean Antarctic Region, and representing this matter an international/national/regional reality, it cannot be forgotten that its scope compromises the country as a whole. It is an essential part of our foreign policy and considers the work of a number of ministries. Also, being of the greatest importance the environmental aspects, Antarctica is for Chile a geopolitical challenge that goes far beyond it or scientific activity.
The times when countries give each other constitutional rules are exceptional in their history. The current process, for the reasons well known, is particularly brief and will proceed quickly. In fact, we are already quite advanced in it. For this reason, the incorporation of Antarctic issues in the Constitution must be done as soon as possible, before it is too late to avoid what would be a very serious omission in the new constitutional text.
When the world order seems to be reconfiguring and international attention on the Southern Continent intensifies, it is essential that Chile strengthen its Antarctic action in fact and law. Fixing its importance in the text of the new Constitution is an excellent way to do this. Conversely, it would be a serious sign of disinterest not to record it. So far, the Expert Commission has omitted this very important topic, but there is still time to correct this severe neglect.
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