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Social movement reflections on FTAs in the new Chilean constitution

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Interview with Lucía Sepúlveda Ruiz

Lucía Sepúlveda is spokesperson for Chile Mejor sin TLC and Movimiento por el Agua y Territorios. She is also in charge of seeds at the Pesticide Action Network RAP-Chile.

To follow Lucía on Twitter: @lusr20

By, 23 May 2022

In the last three years, mass mobilisations in Chile have shaken the entire continent, both for their persistence in the face of violent repression, and for the breadth of the social demands they have raised. The severe social, economic and environmental impacts of neoliberal policies that have been surgically applied in the South American country are a constant focus. Adherence to the "Washington Consensus" has brought with it a compulsion to sign free trade agreements (FTAs) for more than two decades. Still, Chile, along with Malaysia and Brunei,, has not have not yet ratified the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11). The opening of a process to draft a new constitution in Chile was thud seen by movements as a chance to not only stop the TPP-11, but also future FTAs.

In this context, interviewed Lucía Sepúlveda, spokesperson for Chile Mejor sin TLC (Chile Better off without FTAs) and Movimiento por el Agua y Territorios (Movement for Water and Territories), on 28 April 2022. That same day, the constitutional convention was voting in plenary on the possibility of establishing referendums for the ratification of FTAs in Chile, should they receive the approval of the Senate. The debate was about the possibility of giving the people the last word on FTAs through direct democracy. The pressure to stop this proposal was very high, both from the business community and conservative sector, as well as from abroad. The European Commission sent its head of diplomacy, Josep Borrell, to Santiago to ensure that the modernisation of the Chile-EU Association Agreement would not be put at risk. The plenary ended up voting against establishing a referendum.

On 14 May, the demands of the popular bloc and indigenous peoples regarding not only the referendum but also the safeguarding of the state’s sovereignty to regulate, by only signing FTAs that rely on tribunals led by arbitrators appointed by the signatory countries themselves, were again rejected in the final plenary session. This was the result of an alliance between right-wing political forces and members of President Boric’s coalition government, with the exception of the communists. There was also pressure to include in the constitution clauses identical to the European Union’s investment court system for resolving investor-state disputes. [1]

The final draft of the new constitution has no direct democracy tools to revise or repeal FTAs or bilateral investment treaties. We will have to see if President Boric, who as a member of parliament opposed the TPP-11, calls on the Senate to ratify the agreement, once the new constitution is approved. We’ll also have to see if he signs the modernisation of the FTA with the European Union.

Here we summarise Lucía’s answers to our questions, collected before the votes. The Chilean activist reflects on key elements to the struggle against free trade deals at the local and international levels. We also recommend watching the recording of the full interview. What are the origins of the Chile Mejor Sin TLC mobilisations?

Lucía Sepúlveda: In 2015, thanks to Julian Assange - whose freedom and non-extradition we demand - we learned about the content of the TPP-11. We were shaken by the Wikileaks leaks, especially by the chapter on intellectual property, regarding seeds and medicines. This is how we came together as Chile Mejor Sin TLC, which was extended to a plurinational level, integrating at the time, indigenous peoples organisations together with social, environmental, trade union and peasant organisations, and some political organisations, as well as individuals. We established alliances at the international level as well. We are part of América Latina Mejor Sin TLC and we are in contact with networks such as the World March of Women, among others.

Chile has not yet ratified the TPP-11. What are the possibilities for maintaining this position, in the context of the new government?

It is our struggle that has so far prevented the TPP-11 from being ratified. Successive governments wanted to sign it quickly. We held an unofficial referendum, which resulted in a vote against the TPP-11. But on 10 October 2019, the Senate was about to approve it. Everything was suddenly "frozen" by a social outburst and popular revolt. In all the mobilisations, among the demands for water, health, social security and decent housing, education - which reflected how badly we were living in Chile - we heard "No to the TPP-11".

The TPP-11 is not the only treaty on the table that seeks unlimited guarantees for investors, as shown by the process to “modernise” the agreement with the European Union (EU). The big challenge for the popular bloc is to overcome the resistance from the right, but also from people linked to forces that have long ceased to be socialist. They are closely linked to big corporations and mega-projects, and they are blocking new measures that would allow us to stop free trade agreements. Until now, FTAs were passed in secret. As part of our struggle, we have managed to make the connection clear between the economic model and the impacts of those treaties over more than twenty years. This is a very special moment, as there is an onslaught from the economic and political right and their partners in the centre, including some in the Frente Amplio. Within the constitutional convention there is an important popular bloc, including above all independents and indigenous members. Despite the resistance of most of the political parties, we managed to get an important article debated, which would have put the ratification of FTAs to referendum, as a form of direct democracy.

In the framework of the proposed political constitution currently being drafted by the constitutional convention, is there progress being made on the demands of the popular initiative "Let’s secure peoples’ sovereignty in free trade agreements!", such as Chile’s withdrawal from the International Centre for Settlement of Investment Disputes (ICSID), the withdrawal from bilateral investment treaties and the comprehensive audit of the impacts of existing FTAs and BITs?

It is a difficult process. We collected signatures in favour of the initiative and managed to take them to the convention. It started with a lot of momentum, but gradually lost strength and substance due to attacks from the mainstream media. They started the campaign to reject the new constitution before it was even written. The convention is organised in commissions, and one of them is the "commission on environment, natural common goods, rights of nature and economic model". This is where the issue of FTAs is discussed. The convention members have come under a lot of fire, even though they are people who are well prepared, and also have a deep knowledge of how people live in the territories. Our initiative was politically sunk, and that was very hard. A proposal was accepted that was closer to that of the European Union in terms of arbitration tribunals. From the outset, one of the obstacles was that we were imposed a two-thirds majority instead of a simple majority, as decision-making mechanism. The popular bloc does not have a two-thirds majority. However, we were agreeing on some points with other members of the convention. One of them was the referendum on ratification and permanent information at all stages of the FTA negotiating process.

The way in which disputes between states and investors are resolved is another important dimension. Initially, we proposed that disputes be settled in national courts, and that Chile should leave ICSID. But the lineup of forces did not allow us to take this forward. What was agreed was a demand for permanent, autonomous and independent tribunals, though we did not know if this would be accepted. At the same time, we looked for ways to safeguard the autonomy of the state to draft laws, rules and regulations, so that their sovereignty vis-à-vis investors under trade or investment treaties is protected. We tried to prevent corporations from bringing claims of "indirect expropriation" for environmental or social regulations enacted by the state. This risk is included in new treaties, such as the TPP-11 and the agreement with the EU. Now we are very close to the new government signing the EU deal. At the same time, we hope that the points we raised will, at the very least, change the negotiation of the agreement with the EU. Piñera renegotiated that agreement in the middle of the pandemic, with the same secrecy as before. Therefore, Boric’s government should restart the negotiation and not just sign what he inherited.

What are the main dates for mobilisation around the constituent process in 2022? And what would be your message for mobilisations against free trade and investment protection agreements in other countries and continents?

The referendum to approve or reject the new constitution is on 4 September 2022. It is a symbolic date because it is the date Salvador Allende was voted into power. There will undoubtedly be a huge mobilisation. It will be a new "battle of Chile", because the elites want to defend their privileges and the new constitution marks a breakthrough.

We fought for a constituent assembly, in which organisations would have participated directly. Impossible deadlines were imposed on the process. The first measure was voted in July 2021 and in July 2022 everything will be finished. Therefore, we have had very little time to debate. We must recognise that, due to the nature of this process it was not possible to do what we, social movements, had planned: to besiege the convention. We lived through this process with a lot of hope but also with a lot of pain. At the same time, we achieved important victories, such as the recognition of water as an inalienable commons, or the declaration of the rights of nature as part of the constitution’s guarantees. We got substantive parity, the right to freely use and exchange traditional seeds and plurinationality. It was also agreed to have a social state based on the rule of law, leaving behind a state that privatises and promotes subsidiarity. Other important advances have been the recognition of the right to decent housing. More anti-systemic demands such as, for example, proposals from peoples’ feminism, were not successful. But it has been a process in which women’s struggle for their rights has been felt, resulting in a recognition of the right to abortion and to a life free of violence, among others. Our bodies feel the impact of FTAs. And we women are well aware of this, which is why our comrades are participating in this struggle from the territories. They no longer want to live in the sacrifice zones of free trade.

We are paying attention to mobilisations in other regions. We have seen how the struggle has progressed in Europe against the ISDS system, as well as against the Canada-Europe Trade Agreement (CETA) and the Transatlantic Trade and Investment Partnership (TTIP). It is important to connect dry issues such as free trade agreements with our daily lives, our food, our health, the education of our children and grandchildren.

The struggle continues!

More information

Chile Mejor Sin TLC (twitter: @chilesintlc/ Instagram: @chilemejorsintlc)
Ameŕica Latina Mejor Sin TLC
• RAP-Chile, OLCA y TNI, 2021, “Impactos del sistema de protección de inversiones y arbitraje en Chile"


[1The draft only includes a functional recommendation to the ICS (a product of consensus with the Frente Amplio) in article 21, referring to international relations. In clause 12, it stipulates that "when negotiating international investment or similar treaties or instruments, the President of the Republic shall ensure that the dispute settlement bodies are preferably permanent, impartial and independent". The indication originally did not include the word "preferably", and did not reach the two-thirds threshold, so it was subsequently denaturalised.