La aplicación del Derecho internacional de los derechos humanos en Chile: Diagnósticos y propuestas para una Nueva Constitución transformadora

Currently, Chile is moving towards a New Constitution. In light of this novel context, the present work aims to propose recommendations for the New Constitution to regulate the incorporation of international human rights law based on a model of interaction with domestic law. For this purpose, it is necessary to study the current situation of the incorporation of international norms into Chilean law, reviewing the current constitutional regulation and the application of such norms in different judicial venues. To achieve this objective, we will resort to a descriptive and prescriptive dogmatic methodology, since we will analyze the current problem and propose solutions that allow progress in the protection of the person, along the lines of a transformative constitutionalism. We will also apply a comparative methodology, analyzing how other legal systems deal with this problem. According to our conclusions, the Constitution currently omits to expressly regulate the hierarchy of international human rights law, existing different doctrinal and jurisprudential positions in this regard. Thus, while the Constitutional Court maintains an infra-constitutional hierarchy, the ordinary courts defend the constitutionality block. To overcome this complex situation, it is necessary for the New Constitution to include provisions that grant greater recognition to the process of incorporating the sources of international human rights law, establishing the principles of conforming interpretation and pro homine. Finally, it is necessary that the regulation of powers and procedures on the incorporation of such sources reason with a logic of interaction between international law and domestic law.