Chile Decrees Confidentiality Despite Court Ruling

10 August 2012

By Dolores Lavalle Cobo

Lavalle Cobo is an Argentine lawyer, member of Centro para la Información Ciudadana (Center for Citizen´s Information)  and author of books and articles.

The Chilean Government published Decree No.155 on July 26 ordering the confidentiality of the legal services hired by the National Directorate of International Limits and Boundaries.

The Directorate is a division of the Ministry of Foreign Relations. Its mission is to preserve and enhance the territorial integrity of Chile, providing technical advice to the Government and participating in the signature of Treaties and agreements, as well as in international forums and in issues related to Chile´s international boundaries and integration policies through the Ministry of Foreign Relations. The decree had been drafted in December 2011 although it was published in July 2012.
This wouldn´t be curious if it wasn’t for a denial request that took place last year.

In November 2011 the Directorate denied a request for the disclosure of information about the names of the lawyers hired to defend Chile before the Hague International Court of Justice and the fees paid to them in the Maritime Dispute with Peru.

After that, the Directorate drafted the Decree (published 7 months later) establishing the secret over any service contracted for the negotiation, implementation or interpretation of international treaties related to any international boundaries as well as their demarcation, the international defense of Chile and its territorial integrity. The hiring of these kinds of services must be previously authorized by a Ministerial Resolution, which in this case can be exempt of publicity (now published and effective).

The Decree may have been a reaction to the appeal presented by the requester before the Transparency Council after the denial of information regarding the Maritime Dispute issue. The Transparency Council in a unanimous decision ordered the Directorate to disclose the information regarding names and fees of the lawyers involved. The Directorate decided to appeal the decision before the Court of Justice last July (decision still pending). (See previous report.)

This is a sensitive matter because the Decree ignores the ruling of the Inter-American Court of Justice in the Claude Reyes v. Chile case, stating that exceptions to the right of access to information can only be imposed by a law of the Congress but not by a Decree of the Executive or other kind of legislation. The ruling of the Inter-American Court is mandatory for the Chilean government. 

Also the reasoning of the Transparency Council in its unanimous decision must be taken into account: in which way can the disclosure of names and fees of professionals affect the national sovereignty and the territorial integrity? The Directorate did not explain neither proved such scenario when it denied the information. It seems that the Decree is meant to be a way to cover or hide activities rather than to protect the public interest.

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