Constitutio posterior non derogat pactis prioribus? Chiles völkerrechtliche Verträge im Kontext der Verfassungsablösung

Abstract

Chile’s International Treaties in the Context of the Replacement of the Constitution From a public international law perspective, the domestic process ideally does not affect treaty obligations. Already in normal times, however, there are innumerable options to retreat from treaties. The exceptional case of constitutional replacement hardly extends these. Could the ‘eternity clause’ of 2019 (Art. 135 IV of the Chilean Constitution), which states that the contents of international treaties are to be respected, subject the Constitutional Convention to stronger ties than international treaty law itself? This article rejects readings that tried to perpetuate the substantive content of the treaties or to forbid changes that would make termination of treaties necessary. The lack of justiciability and the principle of truthfulness of norms speak against them. The clause only warned to proceed in a manner that is gentle on international law. Based on this, the third part shows Chile’s wide margin to cancel or alter existing treaty regimes and sees opportunities for respect of treaties by practical concordance and the activation of secondary legal protection in accordance with international law in the event of contradictions that cannot be resolved in accordance with treaties.