The International Law of Social Rights, the Chilean Constituent Process, and the Option Between a Social State Model or a Subsidiary State

Since the political and social consequences of the principle of subsidiarity enshrined in the Political Constitution of 1980 are at the center of the constituent debate that unfolded in Chile, this article seeks to determine, based on an analysis of Chilean and comparative doctrine and jurisprudence, whether norms that limit the content of the future Constitution (art. 135 of the current Constitution) oblige the Constitutional Convention to choose between the models of Subsidiary State or Social State. It is concluded that, on the one hand, the current Constitution does not prevent more and better social policies from State positions, but only the monopoly of the provision of social services by the State; and on the other hand, that the international law of social rights ratified by Chile and that it is in force (one of the limits that could be extracted from the aforementioned article 135) neither establishes a certain understanding of social rights, which must legally limit the decision to adopt the Constitutional Convention in relation to the sociopolitical model that must be consecrated in a new fundamental Charter. Therefore, from the perspective of it established in art. 135 of the Chilean Constitution, the Constitutional Convention remains free to maintain a subsidiary State model in the new Constitution, to advance in the direction of a principle of Social State or to innovate in another direction.