El efecto directo del derecho internacional en el derecho chileno

Abstract

This Article attempts to articulate a theory about the self-executing character of treaties in Chile, taking as a starting point the allocation of competences effected by the Constitution. The paper highlights the distortion that results when treaties are given direct effect in relation to matters that should be regulated by law, thus contradicting the Constitution that provides that legislation should be the product of a democratic deliberative process undertaken by Congress. Therefore, treaties that attempt to regulate matters that pertain to law, should not be self-executing. Insofar as in Chile constitutional practice ascribes self-executing character to treaties in general, this Article takes that reality as a fact and, on that basis, discusses about the possibilities of applying a restrictive theory of direct effect that would rely on the operation of certain relevant criteria that should be taken into account by state organs when they decide about the self-executing character of international treaties.