The processes of social responsibility are understood to be voluntary improvements either to the law—by public bodies such as local authorities, governments, etc.—or else by companies in their corporate social responsibility (CSR) policies. However, they are also processes of sustainability: those that meet current needs without compromising the ability of future generations to meet their own, thereby ensuring the balance between economic growth, environmental care, and social welfare. These processes have increased in number and complexity while, in parallel, the world moves toward a state of permanent interconnectivity that constantly impacts on its environment. The public and private sectors are no exception to this premise. Businesses and governments, driven by a society that is increasingly self-aware, are at pains to incorporate social and environmental standards into the production of their goods and services [1
]. In Latin America, processes of CSR are a secondary consideration for enterprises and, since voluntary improvements (CSR) are left in the hands of companies instead of being driven by public authorities, this directly affects the implementation of sustainability processes and the establishment of public policies derived from constitutional texts. [4
]. In general, it is possible to work toward both good and bad simultaneously by establishing clear behaviors of social irresponsibility dressed up as policies of good governance [5
]. According to Bárcena [6
], executive secretary of Economic Commission for Latin America and the Caribbean ECLAC, when asked about industrial policy and the causes of its poor track record in Latin America, it seems that this was due to various misapplied concepts:
Because of hard-core neoliberalism; because of the Milton Friedman School. The Washington Consensus had a major impact on countries like Chile, and the result is an unequal and un-diverse economy. In general, the economic model that has been applied in Latin America is exhausted: it is extractivist, it concentrates wealth in few hands, and shows little technological innovation. No one is against the market, but it must be at the service of society and not the other way around. We need to find new ways to grow and that requires state policies. It is not the market that will lead us toward more technological innovation, for example.
Society is in a constant state of progress and the actions of citizens, companies, public bodies, and governments condition the context in which this change happens. Meanwhile, relations between countries are exercised asymmetrically [7
]. These circumstances influence the widespread perception that natural resources are unlimited when reality shows that society cannot continue to consume and produce at the current rate, that is, with a sense of boundless production, when the resources of the Earth are finite. Furthermore, this production is frequently associated with high levels of pollution and other consequences of an unpredictable nature [8
]. According to the World Meteorological Organization [9
], the concentration in the Earth’s atmosphere of gases that cause climate change is now 407 parts per million. This is 43% more than it was 30 years ago and constitutes the highest figure for three million years. According to Landrigan [10
Pollution is the largest environmental cause of disease and premature death in the world today. Diseases caused by pollution were responsible for an estimated 9 million premature deaths in 2015—16% of all deaths worldwide—three times more deaths than from AIDS, tuberculosis, and malaria combined, and 15 times more than from all wars and other forms of violence. In the most severely affected countries, pollution-related disease is responsible for more than one death in four.
In recent decades, Latin American countries have been highly productive in the drafting of numerous constitutional documents: Latin American countries have, on average, created 20 constitutions each, to a total of some 400 constitutions over the two centuries of their existence. From 1978 to 2008 alone, 15 new constitutions have been adopted within Latin America. With the exception of Bolivia, Costa Rica, Mexico, Panama, Dominican Republic, and Uruguay, all countries in the region have created at least one new constitution in this period. Based on many of these texts, these states may be considered pioneers in constitutional development, often going further than their Western counterparts of similar liberal democratic tradition [11
]. Constitutions clearly play a role in Latin American political history, and their social and environmental impact (at least at the regulatory level) has become clear over the past two decades, notwithstanding the significant obstacles to promoting sustainable development processes in the region such as (1) the persistence of poverty; (2) structural inequalities linked to the culture of privilege; (3) gaps in education, health, and access to basic services; (4) precariousness or lack of work; (5) a dearth of social protection programs; (6) fragile institutional foundations that see politics as an end rather than as a means (examples of this include constitutional measures that contribute to social justice: in times past, presidents personally appointed mayors and governors, as in Bolivia, Venezuela, and Colombia, whereas voters now elect their local leaders); (7) insufficient social investment (in some cases seen as expenditure); and (8) emerging obstacles such as climate change and natural disasters, many of which are aggravated by pollution produced in the region, with long droughts and heavy rains being particular problems of the current erratic weather patterns.
In some cases, the processes of democratization followed on from the provisions of a new constitution; in others, they were the result of agreements between the main political parties, or were even the fruit of popular uprisings that called into question previous regimes—the 1961 Venezuelan constitution is an example of the latter [12
]. In Bolivia, the taste for constitutional reform now in vogue comes after more than a decade of uninterrupted and, until the coup d’état of November 2019 (“The coup d’état in Bolivia was premeditated. The only solution is an agreement to call new elections.” From Sacha Llorenti Soliz, ambassador of Bolivia to the UN, in The Washington Post, 18/11/2019), relatively stable democratic politics (although not without its periods of severe crisis). Chile is not yet undergoing constitutional reform, despite extensive debate to that end by academics and politicians, and is currently mired in a deep social crisis. According to the Chilean Minister of Foreign Affairs, Teodoro Ribera [13
Economic growth alone does not guarantee social peace, and equality is not so much based on economics but rather on dignity and the treatment of citizens, which forces the state to have a different relationship with them. The underlying issue is dignity and the perception of abuse by the state and big business.
In Argentina, the constitution is traditionally given less importance than in Chile; nonetheless, even here there have been extensive debates about constitutional questions (presidential re-election can sometimes be predicated on significant reform). In contrast, Venezuela, Brazil, and Peru busied themselves with constitutional reforms almost from the beginning of their transition to democracy.
Some constitutions have unique features. Only Venezuela’s Constitution of 1999 and Ecuador’s of 2008 provide for the possibility of revoking the mandate of the national executive, while the 2008 Ecuadorian constitution also gives the president the ability to dissolve the legislative assembly in the case of its taking on illegitimate powers or in states of emergency (although this procedure is not linked to a process of parliamentary censure, which was eliminated in 1998, it could be construed as a limitation—albeit indirectly—on parliamentary control over the government). Some of the changes in the constitutions of countries such as Ecuador and Bolivia were linked to the firm leadership of anti-neoliberal reform movements with a strong social commitment [14
]. This ideology promotes economic growth from a fairer, more ethical, and more supportive perspective, one based on the redistribution of wealth through the vehicle of social economy as the guiding principle in reforms. This view is frequently misunderstood by a mass media that exhorts the idea of economic autonomy in any industrial development of the market economy, as if there were only one way to achieve budgetary stability or the eradication of poverty. In fact, many of these current approaches have been used throughout history, as Passet points out [15
Both the concepts of Sumak Kawsay
[Good Living] and the related Mother Earth
—or Pachamama—are novel aspects that are given consideration in the constitutions of Ecuador and Brazil, being mentioned 21 times and seven times, respectively [16
]. The theme of Sumak Kawsay in the constitution of Ecuador certainly establishes one of the most extensive clauses for cultural and ethnic integration to be found anywhere [17
]. Meanwhile, Peruvian constitutionalism is remarkably forward looking in terms of scientific knowledge and maintaining a broad perspective. It engages in a dialogue not only with other Latin American countries, but with European doctrine and legislation. This has certainly enriched its vision, but has also earned Peru a degree of animosity for its approaches in matters of human rights and constitutional jurisdiction [18
In Brazil, the 1988 Constitution (ratified in 1993) ushered in a new era by breaking the cycle of authoritarian regimes that had dominated the country from the military coup of 1964 through to the mid-1980s. It remains a document of great importance for constitutionalism in general [19
]. In 1993, in accordance with constitutional provisions, a plebiscite was held to decide, on the one hand, the form of government (choosing between a monarchy and a republic) and, on the other, the system of government (presidential or parliamentary). The outcome determined—by an 87% majority—to continue with a republican regime within a presidential system, along with a tripartite division of powers. The constitution contains aspects related directly to processes of sustainability, such as the limitation of interests to 12%, state organization of all affairs relating to or derived from the petroleum sector, a single health system, environmental protections, the demarcation of indigenous lands, etc.
In the history of the 16 Bolivian constitutions, most reforms were carried out by de facto regimes and not by democratically elected bodies. The reforms were also not implemented in accordance with the amendment procedures provided for in the constitutional texts. This is a clear illustration of the inadequacy of mere constitutional formulas for guaranteeing governance or ensuring that political factions are subject to the formal rules of the democratic process. The existence of a constitutional text does not suffice to develop a political culture and behavior that promotes the effective consolidation of constitutional democracy. Much constitutional fragility lies in the perception of the rule of law as not being mandatory. In fact, as Rouquié [20
] points out, in Latin America, winning an election is not the same as gaining power.
Another characteristic of Latin American constitutions is their great length. The Brazilian Constitution of 1988 has 315 articles developed through detailed regulation on multiple aspects of political, social, and economic activity. The constitution emphasizes the search for integration not only economically, but in different political, social, and cultural fields of Latin American countries. Historically, it was one of the first constitutions to provide for the integration of the peoples of Latin America at all levels, rather than in mere economic terms, which paved the way for the unification of Latin American nations on the basis of mutual respect for the worldview of each community [21
]. Meanwhile, the history of Bolivian constitutionalism shows that, starting from the first text of 1826, the length of the constitutions has steadily increased. This is reflected in the firm belief that rigorous and detailed regulation facilitates the task of upholding the rule of law and the authority of the constitution. In fact, almost the opposite could be said to be true. In the age of immediacy and lack of humanity, a less detailed constitution lends the political system greater flexibility (but not necessarily greater efficacy) to adapt to social, economic, and political changes, as can be seen in the case of the United States.
Constitutions in Latin America, on the other hand, do not limit themselves to outlining the basic institutional framework for the regime, but rather they represent a political project that reflects the country’s (often ambitious) aspirations, rather than a pragmatic political reality [22
]. Since their independence, most Latin American countries have seen the need to modify their constitutions in response to changing circumstances while the different texts have reflected the ideological trends prevailing at the time they were written. It is estimated that, in Latin America, around 200 constitutional texts have been drafted since independence. From the earliest documents, the greatest difficulty has been one of resolving the tension between the constitutional form as a source of legitimizing authority and what appears to be the continual failure to live up to the principles established in the texts.
The constitutions of Colombia and Brazil place an emphasis on international human rights treaties; they are also the first to embrace the new constitutionalism, which gives great importance to Latin American and Caribbean integration. The constitution of Venezuela is somewhat similar to the Colombian in its emphasis on the need to promote and consolidate Latin American integration, but Venezuela applies an ideology of integration in accordance with the principle of non-intervention and the self-determination of peoples. This calls for the drafting of international treaties on the subject of nationality, especially between bordering states. Venezuela seeks to defend the economic, social, cultural, political, and environmental ideals of the region, indeed of all nations, and recommends that this be a policy of all Latin American states [17
This paper comprises the following aspects. Firstly, a heterodox survey of the principles of sustainability, both social and environmental, contained within Latin American constitutions, with the aim of analyzing their construction, state of progress, and conflicts. Secondly, a study of those key elements of advanced societies that are their existing regulatory mechanisms, and the multidimensional and multidisciplinary commitment to social responsibility in Argentina, Belize, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Jamaica, Mexico, Nicaragua, Panama, Paraguay, Peru, Puerto Rico, Dominican Republic, Uruguay, and Venezuela. Thirdly, a network analysis of the correlations between 40 indicators categorized as economic, social, environmental, and prioritized or specialized attention dimensions, with the aim of producing a panorama of the current state of regulatory and normative development in Latin America. This panorama reveals: (1) the differences between contemporary Latin American constitutions, many of which are grounded in environmental aspects and influence the implementation of sustainable policies; (2) the extent to which constitutions are an effective means of safeguarding environmental resources and the right of all citizens to live unhindered in a stable climate, including the proofing of sustainability processes against changes of government. These aspects not only determine political action in each country, but also affect the future quality of life of the more than 650 million people living in the region.
2. Framework and Literature Review
A constitution reflects, or at least ought to reflect, what a society considers important beyond acquired obligations and the protection of private interests. It is the fundamental law of each state and ranks above all other legislation. Constitutions are the product of the convergence of forces exerted by the social classes and political, economic, and social powers, albeit in unequal measure. Some constitutions have been imposed, others are the result of consensus, and many have been attacked and overturned. Civil disobedience and peaceful resistance are democratic tools with sufficient strength to shake the very foundations of any democracy. All regimes, from the most authoritarian to consolidated democracies, know the effects of this, and one need look no further than the recent indigenous uprising in Ecuador, riots in Chile, the coup d’état in Bolivia, or unanticipated changes of government in Brazil and Argentina. Constitutions are also the products of the age in which they were conceived, of the contemporary preoccupations and existing hegemonic culture that imbued them with the values of their time. Some constitutions bear the marks of the successive modifications they have undergone and some also reflect the timeless needs, desires, and dreams that every people legitimately yearns to develop or acquire.
In other words, constitutions are the result of the reality that led to their creation, and this reality sometimes appears frozen due to a lack of mechanisms for updating and adapting to the logical progress of time. While individual laws and regulations are reviewable, constitutions have sometimes acquired an air of the sacrosanct that forestalls their ability to be brought up to date or be expanded [23
]. Indeed, many current texts represent the antithesis of the laws they enact, being more a constitutional straitjacket: inescapable except through near-impossible pacts between different political forces. According to the constitutional expert, Pérez Royo [24
], in his analysis of the founding document of the current Spanish system of government, “the Constitution will be judged in the future by its ability to respond to the problem of the structure of the state,” a capacity currently also in question in almost any country in Latin America. Metaphorically, the task of updating a constitutional text can sometimes appear to be a case of agreeing with the devil that judgment be passed in hell. Many traditionalist political forces hold to the mantra that the existing text is always better than the chaos that would ensue from change. However, nothing could be further from the truth. Constitutional texts must be living things in constant movement that refer back to their shifting territories, languages, nationalities, and autonomy and ultimately develop an intrinsic ability to incorporate the crucible of social realities that arises from the interrelationships of all of these elements over time. For example, equality between men and women is a question of human rights and is a condition for the achievement of social justice [25
]. Certainly, great efforts have been made by Latin American women to gain recognition in the legal statutes [26
] but, according to the International Labor Organization [27
] “for every hour worked, women receive labor income that is on average 17 per cent lower than men with the same age, education level, number of children in their homes, condition of rurality, and type of work.”
It is worth noting the importance that the Salvadoran Constitution attaches to the human being in dedicating the first of its laws and the whole of its part II to fundamental human rights and guarantees, clearly recognizing the principle that all persons are equal before the law, without restrictions based on differences in nationality, race, sex, or religion. Similarly, no hereditary jobs or privileges are recognized. Honduras, in Article 59 of its constitution, includes a provision similar to the first article of the Salvadoran Constitution, stating that the individual is the supreme focus of society and of the state: everyone has an obligation to respect and protect this right, and the dignity of the human being is inviolable. Honduras also includes a provision on equal pay for equal work while recognizing the right of every person to work, and their freedom to choose their occupation or to resign under the protection of fair conditions [28
]. The Bolivarian Constitution of Venezuela is based around the moral heritage of the state and the values of freedom, equality, justice, and international peace [19
]. The constitution provides that necessary measures be taken to ensure that everyone might procure a productive occupation. To this end, a dignified and decent existence must be provided to ensure the full exercise of this right.
It should be noted that, in the period between the censuses of 2000 and 2010, the number of Latin Americans living in a different place from their place of birth increased by around 32%; in Central America the increase was 35%; in the countries of northern Central America 59%; and in Honduras there was a change of 94% [29
]. Although there are multiple causes, there is no doubt that the lack of work (or at least the precarious nature of employment leading to in-work poverty) pushes a large part of the globalized population of Latin America to seek better prospects elsewhere. In this context, Colombia, in the first article of its constitution, proclaims itself to be a social state under the rule of law, one which is based on respect for human dignity, on employment, and on solidarity among citizens, with priority given to the general interest. The constitution recognizes employment as a right and a social obligation that enjoys the special protection of the state, in all its forms. Everyone has the right to work under decent and fair conditions, and is free to choose their profession or trade. At the same time, the law requires that the holders of certain positions possess the relevant qualifications, and has established the right of the state to inspect and monitor the practice of professions. Occupations, crafts, and trades that do not require academic training are open to all, except those that constitute a risk to society [26
]. Colombia also expressly and openly enshrines the right to the free development of the individual personality, with no more limitations than those imposed by the principle of not impinging on the rights of others and respecting the rule of law; this right encloses the principle of equality by recognizing that each individual has the power to self-determine and give expression to their personality. In turn, it is recognized that any person will be treated on equal terms to others, irrespective of the decisions that individual has taken (again, within the limits of the exercise of any right).
In Peru, the constitution recognizes a person’s fundamental right to equality before the law, and states that no one should be discriminated against on the basis of their origin, race, sex, language, religion, opinion, economic status, or any other characteristic. There are no other laws that explicitly recognize the principle of equality in relation to women, but rather the document addresses rights from a general point of view, without making the issue of gender a special case. The constitution of Peru also rules work to be a duty and a right. It states that employment, in all its forms, is a priority of the state. Special protections are afforded to mothers, minors of working age, and the disabled. The working woman is, therefore, given special recognition in maternity, but no general policy against the discrimination of women is proposed. However, the principle of equal opportunities and freedom from discrimination is enshrined generally in a comprehensive manner [22
The Chilean Constitution begins with the declaration that people are born free and equal in dignity and rights, and that the state is at the service of the individual, its purpose being to promote the common good. To this end, it must contribute to creating the social conditions that allow “each and every member of the national community to be able to be fulfilled spiritually and materially, with full respect for rights and guarantees [established by the constitution]” [30
]. The constitution guarantees all people freedom to work and protection, noting that they have the right to freely choose employment with fair remuneration. Any discrimination that is not based on the capacity or suitability of the person is prohibited, while maintaining the requirement to hold Chilean nationality or be within an age limit for certain types of work. It also ensures admission to all public positions without any requirement other than those established by the constitution and laws. The status of women as workers is not given special provision, nor is their employment protected or accorded specific labor rights.
The constitution of Argentina refers to “new rights and guarantees,” providing for real equality of opportunities between men and women for access to elected office and positions within political parties. This is guaranteed by regulation of political parties and the electoral system. Protection of the right to work in all its forms is written into law and the worker is guaranteed dignified and equitable working conditions, such as a limited working day and adequate breaks [4
In the case of Bolivia, the principle of equality is recognized in Article 6 of the constitution. This pronounces that every human being has a legal status and capacity and enjoys the rights, freedoms, and guarantees recognized by the constitution, without distinction of race, sex, language, religion, origin, economic, or social status. Within these rights, it also details aspects such as food sovereignty, biodiversity, ecological balance, natural resources, soil conservation, alternative energy sources, and the prohibition of chemical weapons. In addition, it recognizes environmental crime, a ban on the privatization of hydrocarbons or other resources held by the state, and forbids the listing of natural resources on the stock market [31
Constitutions, as the bases of the legal order of states, have the role of providing for positive or affirmative actions or measures to ensure the implementation of gender equity principles. It is essential that these be addressed expressly, even if the constitution and laws recognize equality between men and women in general terms. Without a constitutional mandate to put into effect such principles, there is a risk of their becoming mere statements of intent without real content, or measures unlikely to be enacted. Therefore, the constitutional implementation of these positive measures is a major contribution to the construction of a more democratic and egalitarian society.
GDP (Appendix A
) provides a summary of social expenditure as a proportion of gross domestic product (GDP), including the basic food basket among other main indicators of a country’s economy. In Latin America, there are signs that spending on education and health is progressively distributed, while spending on social security and housing has a regressive structure. In the education sector, spending on primary and secondary education represents the progressive component. In aggregate terms, social spending shows a slightly regressive structure that nevertheless improves income distribution due to significant participation in social security systems.
4. Results and Discussion
The tendency to include social and environmental parameters in Latin American constitutions is growing exponentially. Most countries have moved—albeit unequally—toward incorporating specific commitments into their constitutional texts. These ought to be associated with a corresponding budgetary commitment, but often go no further than an expression of intent contained within the articles. Nonetheless, this remains a significant step (provided it is viewed as only a first step). In any event, the social, economic, cultural, and environmental rights written into the constitutions have not appeared by chance: they are the result of multiple processes, such as the logical progress of time and the accumulated knowledge of scientific findings that have been accepted by the public, leading to the modification of habits and demands. Companies also adapt their products, services, and purchases over time in the pursuit of their aim, that is, profitability. For some companies, this establishes a pattern of social responsibility aligned with this goal. It is now relatively easy to access reliable scientific findings and to recognize and, where necessary, avoid both healthy and harmful habits of production and consumption by linking political programs, government action, and constitutional texts to them.
However, the inclusion of such provisions in constitutions does not guarantee their complete protection; in fact they are frequently breached in matters of gender equality (women continue to earn less and have greater difficulty in achieving managerial positions), in fiscal policy (the richest do not contribute in proportion to their wealth and profits), or in environmental aspects (plodding inquiries into environmental catastrophes put off passing judgment due to a lack of means and political will). Worse, companies are simply allowed to continue the production of contaminants or patently toxic products such as bisphenol A, plastics, pesticides, dyes for the textile sector, etc. Constitutions start with an ideological program that must then be developed through legislation and regulation in order to have any effect. However, the progress in environmental protection in Latin America has led to a clear contradiction: the systems of production are clearly extractivist and provide little added value, leading to a kind of impoverishing growth. Would certain countries be so poor if they had fewer natural resources? Can environmental rights be secured where the right to life is not yet guaranteed? These questions highlight the subordination of the Southern Cone nations to the hegemony of advanced countries and the regulatory constructs that protect their investments, companies, and economic models. For example, The European Union shows no interest in knowing—and therefore does nothing to protect—the conditions under which bottled water, cocoa, seafood, minerals, oil, or timber are obtained.
The implementation of regulations is further limited by the real situation in each social and political context, grounded in the fiscal crisis of the 1980s that led to greater economic openness. An additional threat comes from the evangelical churches in Latin America, which today are franchises of neoliberal faith that attempt to supplant government action by the “action of faith.” According to Mendes-Facundes [40
], “Just as Weber showed that Protestantism is closely connected to capitalism, Neo-Pentecostalism will prove to have a similar relationship to neoliberalism since it creates a ‘self-made individual’, in whom the state does not intervene.”
Latin American political administrations established, per se, a production of goods and services that favored investment as a counterweight to the deficiency of their policies and public coffers. While it is true that public policies were inefficient, big business also had an impact by imposing the idea that everything could and should be privatized, leaving public policies in the hands of private organizations without being subject to the electoral process [41
]. Efficiencies were standardized through the neoliberal consensus of New Public Management
. Over time, and taking their lead from processes of corporate social responsibility, public administrations in Latin America set to work on improving governance and public management. One of the first steps in this direction was the readjustment of constitutional texts driven by societies that were trying to remove any semblance of former regimes and all-powerful bureaucracies.
At the public level, the regulatory architecture of each Latin American country contributes to the advancement or regression of the processes of consolidation and social development. In addition, practices of greater environmental sensitivity, such as sustainable development or evidence-based regulations grounded in the findings of independent research centers and universities, can be included in their policies [42
]. According to Baños [43
], “It is well-proven that there are vested interests in fostering certain areas of knowledge. When a conference is organized, one has to ask: Who is behind it? What are the economic interests at stake?” The range of interests for legislating for certain policies that benefit the highest bidder also grows, as in the case of Peru’s recent “sustainable mining” initiative, which presents an apparent utopia of mineral extraction free of social conflicts, environmental harm, or illegal practices. Processes multiply and mimic one another in the form of lobbies; legalized corruption becomes the rule and not the exception; even certain ratings agencies and ombudsmen charged with creating greater transparency and ethical behavior are often quite lacking in these qualities themselves [44
In Latin America, the processes of social responsibility—that is, voluntary improvements in the law—are part of a management model that can be found worldwide: one that shows a determined commitment to corporate marketing dressed up as goodwill without accountability. It is more effective to have high social, environmental, and social economy standards and no CSR processes, rather than to have low regulatory standards with social responsibility processes in place. This is precisely the case in Latin America despite the growing body of social commitments in constitutional texts. Governments are aware of this and adapt their legislative machinery to the needs of transnational corporations. Globally, unilateral actions are standardized, such as in the case of the Global Compact designed by Ruggie [45
] at the request of the United Nations. This “agreement” does not provide for any binding measures, and companies may join voluntarily. The United Nations did not establish budgetary provisions, regulatory bodies, or watchdogs, or any other kind of monitoring mechanisms. In short, a document full of good intentions without any means of enforcement was created under the concepts of “protecting,” “remedying,” and “respect.” (There are a large number of non-legally binding texts whose recommendations are well worth following, as is the case with "The Guidelines of the Organization for Economic Co-operation and Development (OECD) for multinational enterprises, 1976", "The Tripartite Declaration of Principles on Multinational Enterprises and Social Policy of the International Labour Organization (ILO), 1977", "The Performance Standards of Social and Environmental Sustainability of the International Finance Corporation ( IFC), 2006", "The Guidance on Social Responsibility, ISO 26000, of the International Organization for Standardization (ISO), 2010", the "International Peoples’ Treaty on the Control of Transnational Enterprises", etc.) This relatively modern approach, which has its origins in the 1970s, has experienced a vertiginous acceleration in its implementation over the last decade. However, its precise conceptualization varies from country to country. The processes of responsibility, as expressed through the different activities carried out by governments in different contexts, can contribute positively through the establishment of strong legislation that does not leave citizen guarantees to mere goodwill, while operating for its own benefit. It is a management model that is based on the pillars of economic, social, environmental, cultural, ethical, political, and legal responsibility. Therefore, it is clear that it is impossible to avoid the processes of social responsibility on the part of each state although, at the same time, it is possible for a state to renounce its obligations in favor of certain companies that preach goodwill but use marketing for their own interests.
It is not a question of what society demands or what society needs. Civil administrators are the only real leadership; if the administrators in public institutions, especially heads of government, do not take responsibility for the common good (through real mechanisms not mere good will), it is difficult for anyone else to do so. Governments are no longer able to act sovereignly: they are subsumed into supranational bodies with their own interests. They no longer act as guardians of the common good in a pseudo-pluralist society controlled by organizations. In fact, it can be said that states have become too big to take care of small details, and are too small for the big issues. It is worth considering the quality of a country’s democracy on the basis of its protests and reconciliations. Meanwhile, it is difficult to judge a democracy and the social aspects that it is derived from on the basis of delegated representation in which each citizen votes every four years to give a blank check to the executive [46
]. Such circumstances lead to a certain resignation, as Cortina points out [47
“The worst thing that can happen to democracy is that we believe that we have mastered it, because we have not. There is a clear regression in virtually every country. Both traditional democracies, which have lost strength in terms of their freedoms, and those that were close to achieving it, but have not. There is a battle within the democracies themselves, which calls them into question. Yet, in fact, no one can propose an alternative.”
Hence, the establishment of strong ethical commitments and the targeted use of public policy—at the service of the citizen rather than big business—which find expression in the redistribution of wealth. The alternative might mean the dissolution of democracy in the face of an attack by large economic structures representing an oligarchy that perceives its profit expectations to be under threat from social rights seen as expendable accessories [48
]. It should be noted that, for most societies, the greater the levels of justice and equality, the more settled and peaceful they become. Additionally, greater cost savings are derived from the prevention of unrest for states that implement policies from a more social perspective [50
]. An example of this is the Bono de Desarollo Humano
(BDH) [human development welfare payment] in Ecuador, co-financed by the World Bank (WB) and intended for families with limited resources. Public policies are a clear example of an emerging model that, regardless of the amount of economic resources employed by each state, should be developed as the core of every governments’ mission statement at both national and regional levels. Legislators are responsible not only for the administration of economic resources but for acting out of civic, ethical, and sustainable principles, which are to be applied within government.
As set out in Table 1
, Economic Factors, the following economic factors were analyzed within the constitutions of Latin America: (1) Preferential mechanisms of finance for small and medium-sized producers (68% of the constitutions analyzed do not contemplate these); (2) systems of the social and solidarity economy (59% do not contemplate these); (3) sustainable development processes (59% do not contemplate these); (4) equitable distribution of the budget for the implementation of public policies (59% do not contemplate this). It can be seen that all four economic factors are present in the constitutions of Chile and Uruguay, while Belize, Bolivia, Brazil, Costa Rica, Ecuador, Guatemala, and Jamaica include three of them. It should be noted that “preferential mechanisms of finance for small and medium-sized producers” are present in a total of ten constitutional texts, which underlines the importance given to the small producer across the region. Traditional policies, which largely focused on productivity, privatization, deregulation, the industrialization of agriculture, and the liberalization of trade, have failed to put an end to hunger [51
]. It should be noted that employment and income opportunities in Latin America are concentrated in certain neighborhoods, while growth housing areas are located on the outskirts of cities or conurbations, leading to continual asymmetry. Metropolitan normative development pivots mainly around city halls and an economic logic that “uberizes” the day-to-day functioning of all spheres of public and private life. Constant bidding results from a quest for greater profitability that is incompatible with traditional models of family life and leisure time based on processes of gentrification that are not contemplated in any of the constitutional texts analyzed. Cities in Latin America tend to generate humanitarian, social, and economic crises whereby much of the population is pushed out to the suburbs despite the need for intensive labor in the services sector. Consequently, a satisfactory life has become inaccessible to many of the poorest sectors of the population. To remedy this, constitutional texts should ensure: (1) sustainable urban mobility; (2) a threshold level of investment in social infrastructure, and economic and residential reforms in marginalized areas in order not to halt the growth of inequality; (3) tax reforms tailored to each individual using parameters of sustainability and social commitment; (4) the provision of alternative sources of funding; (5) institutional and legislative openness toward new economic models while eliminating those favorable regulatory practices directed at certain transnational corporations that have arisen through national and supranational connivance, supported by unregulated lobbies.
According to OECD Director of Trade and Agriculture, Ken Ash [52
], “Regions that are experiencing rapid population growth are not necessarily those where food production can be increased sustainably, so it is essential that all governments support open, transparent, and predictable agro-food markets.” As an example, today the market for products from the social economy is limited to residual/marginal sectors. At the same time, it should be noted that small and medium-sized enterprises (SMEs) in Latin America/the Caribbean account for more than 99.5% of businesses and generate 60% of formal productive employment, yet a mere 10% of Latin American SMEs export part of their products. By contrast, in Europe, exporting SMEs amount to at least 40% of the total. Another limiting aspect is the lack of support for the cooperative sector, which comprises more than 12% of the world’s population, and more than 3 million cooperative enterprises globally. According to the World Cooperative Monitor, 2019, the world’s 300 largest cooperative and mutual companies have a turnover of more than 2 trillion USD and provide employment to 10% of the total workforce. These new realities of participation in enterprises and governments or other state institutions, must be clearly reflected in the new constitutional texts with concrete provisions, and not, as at present, through mere declarations of intention. In Ecuador, Article 283 states:
“The economy is based on the social and solidarity system; this recognizes the human being as the central figure; it proposes a dynamic and balanced relationship between society, state, and the market, in harmony with nature; and aims to ensure the production and reproduction of the material and intangible conditions that enable good living. The economic system will consist of the public, private, mixed, social, and solidarity economic organizations, and other spheres determined by the Constitution. The social and solidarity economy will be regulated in accordance with the law and will include the cooperative, associative, and community sectors.”
There has been a de facto shift toward the implementation of the social market economy, which has created a number of difficulties: (a) To know if the market has the capacity to be social and sustainable; (b) to establish who will determine this capacity, and by what means, since it is a model that requires neither the state nor society to function effectively. Finally, as a sixth point, constitutions should establish mechanisms for automatic constitutional change with the participation of experts free of vested economic interests; these should be based on the analysis of sustainability and social and ethical dimensions, through advanced methodologies such as the Delphi method.
According to Table 2
, Social Indicators, the social indicators included in the constitutions are: (1) the promotion of exports of small and medium-sized producers and the traditional craft sector (64% the constitutions analyzed do not contemplate this); (2) the incorporation of risk management in public and private institutions (77% do not contemplate this); (3) the provision of legal ombudsman aid to ensure full and equal access to justice (50% do not contemplate this); (4) the prohibition of child and adolescent labor (77% do not contemplate this); (5) the protection of the freedom of the press (41% do not contemplate this); (6) the provision of social security for the rural sector (86% do not contemplate this); (7) the establishment of a social security system (41% do not contemplate this); (8) the establishment of ombudsmen and watchdogs (68% do not contemplate this); (9) the preservation of the cultural and historical heritage of indigenous communities and nationalities (77% do not contemplate this); (10) the prohibition of slavery, exploitation, servitude, and human trafficking (91% do not contemplate this); (11) the repudiation of racism (64% do not contemplate this); (12) social equity (41% do not contemplate this). From the information obtained, it is clear that the Republic of Ecuador has the greatest number of processes of social responsibility in its current constitutional text from among the Latin American countries analyzed. This has been achieved despite the instability of the country between 1996 and 2007 when no democratically elected president was able to complete a full term of office, and there was a high level of social unrest [73
]. From 2008, with the Montecristi Charter, a new constitutional framework was developed (promoted under the administration of former president, Mr. Rafael Correa Delgado) through the period to 2017, with the establishment of an alternative model of development focused on the natural environment and human resources, and based on the Andean worldview of Sumak Kawsay or ‘Good Living.’ This constitutional philosophy standardizes processes of greater equality and redistribution such as development (Article 276.2), food sovereignty (Article 281.4), the social and solidarity economy (Article 283), rights of persons and priority care groups (Article 35) (Political Constitution of Ecuador, 2008). In order to classify rights, the text is divided by themes such as good living, participation, or freedom. For example, in referring to collective rights, these are established as “the rights of communities, peoples, and nationalities.” This new paradigm places Ecuador as among the most advanced countries in the world at the constitutional level. In second place comes Jamaica, with seven constitutional social indicators, and then Chile, Costa Rica, Cuba, and Guatemala with six each.
According to Table 3
, Environmental Indicators, the indicators of environmental concerns included in constitutions are: (1) the protection of ethnic and cultural plurality (41% the constitutions analyzed do not contemplate this); (2) the protection of archaeological sites and remains (55% do not contemplate this); (3) environmental protection (14% do not contemplate this); (4) the promotion and restoration of nature (55% do not contemplate this); (5) the use of clean and non-polluting alternative energies and technologies (55% do not contemplate this); (6) the implementation of projects of afforestation, reforestation, and the restoration of vegetation (23% do not contemplate this); (7) the introduction of ecological and organic technologies in agricultural production (36% do not contemplate this); (8) the administration and management of natural areas (27% do not contemplate this); (9) the introduction of timely policies and measures to prevent negative environmental impacts (32% do not contemplate this); (10) the provision of environmentally responsible exports (32% do not contemplate this); (11) the promotion of non-motorized ground transport (e.g., cycle tracks) (50% do not contemplate this); (12) the provision of measures to prevent species extinction (41% do not contemplate this); and (13) the protection of ethnic and cultural plurality (41% do not contemplate this). Latin America and the Caribbean have the custody of some of the largest ecosystems globally, many of which are in a primitive state and contain great biodiversity. However, the human impact on the environment within the region is a problem that has reached colossal proportions and is currently heading toward catastrophe. This is because many ecosystems are vital sources for the generation of growth and wealth. Hence the need to establish special mechanisms for their protection and promotion as natural reserves that guarantee the existence of all kinds of life.
In seven Latin American countries, 74 per cent of respondents to a survey identified climate change as their most important global concern [74
] and its impact on Latin American countries is estimated to lie between 1.5 and 5% of regional GDP [75
]. In the Americas, the protection of key areas of biodiversity grew by 17% between 1970 and 2010 while, in parallel, less than 20% of key areas of biodiversity remain unprotected. According to the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services [76
“Indigenous peoples and local communities have created a diversity of polyculture and agroforestry systems that have increased biodiversity and molded landscapes. However, the disassociation of ways of life from the local environment has, for many, deteriorated their sense of place, their language, and their local indigenous knowledge. More than 60% of the languages of the Americas and their associated cultures are experiencing difficulties or are in danger of extinction.”
The most obvious consequence is climate change arising from processing goods and services. In fact, it is close to becoming an irreversible process, unstoppable even if almost all global production were to cease. According to Future Earth [77
] “existing fossil-based infrastructure, if it operates for the whole of its life cycle, will take the world above global warming of 1.5 degrees Celsius.” This is not the only problem that exists. The rise in sea temperature, at the same time becoming increasingly acidic and less oxygenated, directly affects marine life in addition to having an impact on the lives of millions of people who make a living from fishing and tourism. The loss of ice and snow tends to make the climate more extreme, sometimes to the point of being incompatible with life, and the degradation of land due to global warming affects 80% of the Earth’s surface [78
]. According to United Nations Development Programme UNDP administrator Steiner [79
] on the measures needed to save the planet:
“The bitter truth is that those who are rich enough will buy their way out. They will buy higher lands; those who are rich enough will move from the island nations that will disappear with the rise of the oceans, be able to pay twice the premiums to insure their properties against flooding and put more air conditioning in their homes. Some begin to use the northern sea route and celebrate the fact that Arctic ice is melting, making it easier to transport fossil fuels. It is the irony of the early 21st century: climate change is a very cruel phenomenon because it has begun to punish those who have contributed least to it. But at some point, even with all the money in the world, you’re not going to buy yourself a different future.”
It is worth noting the various commitments made by Latin American countries at the 2019 Climate Action Summit. Costa Rica proposed the establishment of a decarbonization plan consisting of the following steps: More than 5 billion dollars to be invested in infrastructure for the production of renewable energy; a commitment to reach 60% forest coverage by 2030 (currently 52%); zero emissions in 30% of public transport by 2035, together with the construction of two electric trains. Guatemala proposed the reforestation of 1.2 million hectares by 2032 and the investment of more than 200 million dollars to increase the number of wastewater treatment plants from 50 to 300, including the use of the “biobardas” innovation (locally produced tools that remove 65% of floating debris). Colombia set out two broad areas of commitment: Making 70% of energy production carbon free, in addition to including tax incentives for companies that invest in clean energy; aiming to plant 180 million trees by 2022, along with concrete measures to protect the jungle (this, despite leading the world in the assassinations of world environmental leaders (Colombia is the world leader in murders of environmental leaders; indigenous and local communities have been affected by different types of violence in Colombia and around the world; specifically, 64 people who worked in environmental protection met with violent deaths due to the action of external interests in protected territories. The Philippines is in second place, with 43 leaders assassinated, followed by Brazil with 24, Mexico with 18, Honduras with 14, and Guatemala with 12. Retrieved from Global Witness report 2020). Ecuador proposed to continue reducing the rate of deforestation. Bolivia committed to solving the vulnerability in its water resources by tripling the number of reservoirs by 2030, in addition to improving electricity generation capacity through the use of renewable energies for local and regional development, aiming to cover 100% of the population by 2030. Nevertheless, it should be remembered that all Latin American countries carry out extractivist activities despite the existence of clear and explicit constitutional protections, with fishing (industrial/transnational), mining (metallic/non-metallic/fuel), wIn terms of environmental protection and its various interconnected elements, Chile stands out, with the inclusion of 11 indicators according to analysis. This is followed by Bolivia, Costa Rica, Ecuador, Jamaica, Puerto Rico, Dominican Republic, and Uruguay, with 10 indicators each. However, there is little to separate the countries in their regulatory compliance and environmental promotion. It is paradoxical that all of the texts analyzed, except those of Honduras, Nicaragua, and Peru, establish environmental protection policies and measures even though 55% of countries make no provision for the restoration of natural resources, 23% have no reforestation processes, and 32% do not establish corrective measures in the face of negative environmental impacts. It should be noted that even where there is explicit constitutional protection, both directly and indirectly, extractivist activities are allowed to go forward apace (which should not be taken as synonymous with a drive toward development). The lack of express protection in aspects of ethnic plurality in countries such as Colombia, El Salvador, Guatemala, Honduras, Mexico, and Peru is conspicuous, especially as these are countries for whom the multiculturalism of their ethnicities is a vital resource, and whose ancestral communities are a guarantee of conservation of their biodiversity.ater (bottled, textile, industrial developments), and timber exploitation being particular areas for concern.
In terms of environmental protection and its various interconnected elements, Chile stands out, with the inclusion of 11 indicators according to analysis. This is followed by Bolivia, Costa Rica, Ecuador, Jamaica, Puerto Rico, Dominican Republic, and Uruguay, with 10 indicators each. However, there is little to separate the countries in their regulatory compliance and environmental promotion. It is paradoxical that all of the texts analyzed, except those of Honduras, Nicaragua, and Peru, establish environmental protection policies and measures even though 55% of countries make no provision for the restoration of natural resources, 23% have no reforestation processes, and 32% do not establish corrective measures in the face of negative environmental impacts. It should be noted that even where there is explicit constitutional protection, both directly and indirectly, extractivist activities are allowed to go forward apace (which should not be taken as synonymous with a drive toward development). The lack of express protection in aspects of ethnic plurality in countries such as Colombia, El Salvador, Guatemala, Honduras, Mexico, and Peru is conspicuous, especially as these are countries for whom the multiculturalism of their ethnicities is a vital resource, and whose ancestral communities are a guarantee of conservation of their biodiversity.
Convention 169 of the ILO on Indigenous and Tribal Peoples.
United Nations Declaration on the Rights of Indigenous Peoples, 2014.
United Nations Declaration on the Rights of Indigenous Peoples 61/295, 2008.
Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya. Document A/HRC/18/35 2011.
Sometimes the over-exploitation of indigenous lands has little impact on the processes of sustainability and the local economy, but, for this to be achieved, ancestral rights must be protected, such as through consultations and consent over land use. By way of example, Ecuador has made consistent use of pre-legislative consultations, prior consultations, and environmental consultations; however, judicial conflicts persist. In fact, the government and certain extractivist companies effectively boycott these consultations with procedural requirements that are impossible for indigenous communities to comply with, frequently resulting in decisions aligned with corporate or governmental interests. Yasuní, Sarayaku, and Intag are instances where this has occurred; in the case of water usage in Shagly (Cuenca), communities that sought to defend their rights were prosecuted for rebellion, sabotage, and terrorism. This highlights the government’s manipulation of the judiciary, with military support, to fight processes in a paralegal manner. In Bolivia, the Law on Jurisdictional Demarcation was established, which obtained questionable results by limiting the administration of indigenous justice, bringing about a regression of rights.
At the constitutional level, environmental protection is ubiquitous, except for Honduras (where Berta Cáceres, an indigenous Lenca woman, was murdered for her environmental defense) and Mexico. In the case of the latter, this is despite the 1987 reform of article 25 of the 1983 constitution, which states that economic activities that make use of natural resources should also preserve them by promoting ecological balance. Recently, the Ecological Balance and Environmental Protection Act, the General Climate Change Act, the General Wildlife Law, and the Sustainable Rural Development Act have been implemented, but, constitutionally, Mexico does not protect its designated natural areas. The North American Free Trade Agreement (NAFTA), currently USMCA, has weak environmental protection regulations and pollution frequently crosses the border to the U.S. (Environmental Cooperation in NAFTA and perspectives on USA-CAFTA through ECLAC, 2004); in effect, the agreement allows trade to increase without addressing climate change by not including basic environmental criteria beyond simple programmatic ideas at the voluntary level. (Points 24.13, 24.23, 24.24, and 24.25 of the USMCA encourage companies to introduce environmental measures, that is, processes of corporate social responsibility, with no element of liability. Paragraphs 24.27 and 24.28 indicate the obligation to "recommend, contribute, and provide information regarding the correct implementation of the instruments and not to harass the industry in question," making clear the division between regulation and recommendation. In addition, in the event of a dispute, a panel is to be formed to seek advice, technical assistance or interpretative guidance from each section and to draw conclusions and make recommendations. That is, without recourse to supranational bodies with the capacity for action or the establishment of sanctioning measures at the supranational environmental level.) The treaty itself includes clauses such as 24.22 that create a clear conflict of rights by including the proviso “credible evidence.” Evidence provided by whom? By corporations, by public universities, by pseudo-scientists willing to provide studies for transnational companies that justify their modes of production and extraction, or by committees of experts who allow their panels to be in the pay of the industry they regulate. The functioning of the environment ought to be quite simple, but its management has become complex due the interference of vested interests. Such treaties are easily transferred to any country in Latin America and are more agile than processes of constitutional change, which require a parliamentary majority. However, treaties generate asymmetries since they do not weigh the impacts on the environment. Often the general interest does not prevail and constitutional rules are subverted; for example, it is not clear whether a government has the power to effectively change the constitutional rules of play by evading parliamentary control and establishing, as part of the trade agreements themselves, arbitration courts to settle any dispute. This undermines some of the national sovereignty of each state, disqualifying by action and omission their own courts and creating a de facto contradiction in the term “sustainable development”. It is clear that ethical, responsible, and sustainable trade must be fostered on the basis of wide-ranging regulations and tools, which none of the constitutions analyzed and no trade treaties are capable of guaranteeing. A good principle would be to promote economic development that does not exceed the planet’s limits by establishing ecological protections associated with tax benefits: the greater the sustainability, the better the tax revenue. By way of contrast, 37% of the texts analyzed make no provision for the promotion of agricultural technology, despite this sector’s being one of the leading contributors to global warming, climate change, and other environmental problems (intensive use of water, use of pesticides, inefficient transport, CO2 production, conversion of forests to pasture, extractivism, etc.). Meanwhile, 32% do not contemplate environmentally responsible exports. These are aspects that cannot be remedied (as has been demonstrated throughout history) through processes of corporate social responsibility in collusion with economic profitability.
By way of focusing on the differing impacts of constitutions and their application, it is worth making a comparison between the cases of Peru and Bolivia. In Peru, the 1993 constitution stipulates that the state should promote the “sustainable use of its natural resources” (Article 67) and “the sustainable development of the Amazon” (Article 69). However, since the 1990s, policies have continually fostered extractivism and environmental exploitation. The signing of the Minamata Convention on Mercury has only served to highlight the level of institutional corruption in both Peru and Bolivia, which are the top polluters in the region, since the data on gold production does not match that of the mercury necessary for obtaining the final product. Such circumstances have resulted in the growing intensity of conflicts between local populations and mining companies, especially after 2006. Meanwhile, Bolivia’s 2009 Constitution, in terms similar to the Peruvian text, guarantees “sustainable development, in harmony with nature” (Article 311), even establishing the maximum area of land that an individual citizen can own at 5000 hectares. However, problems still arise from what has come to be called a neo-extractivist model. The characteristics of this model do not differ in terms of the traditional system of environmental and natural resource exploitation; the only difference is that the profits obtained are administered by the state and are redistributed to the population through direct and relatively proportionate social policies. Therefore, there is a clear social component in Bolivia, while in Peru it is the market that ultimately benefits from the profits of extractivism by aligning them to interests that favor corporate social responsibility processes, that is, unenforceable voluntary actions without accountability.
A consequence of this divergence between the Bolivian and the Peruvian models is the difference in the access to and use of technical knowledge. Due to the high costs of production and investment, transnational mining and oil companies tend not to share their knowledge with states, preferring to leverage it through their networks of commercial exploitation to gain access to national markets. In Bolivia, the state control of extractivist activities makes the products cheaper, but at the same time, the exclusion of international corporations and their know-how leads to a slower, less efficient process (it is worth noting, however, that this situation has been addressed to a certain extent through the neoliberal policies of Bolivia’s new politico-military government: The minister for mines, Oropeza, recently signed 1,732 authorizations for mining activities, 822 for cooperatives, 897 for private operators, and 13 for public enterprises). In the Peruvian model, the presence of transnational productive capacity means profits are generated more quickly but with the consequence that wealth is not distributed equitably. Moreover, high rates of job precariousness result and the contracts between extractivist companies and the state rarely provide for the potentially harmful consequences arising from their activities. To compound this, the investment agreements in place operate outside of domestic jurisdiction through arbitration courts designed to favor investors and protect their investments. The relative advantages and disadvantages of the Bolivian and Peruvian models raise the question of whether new sustainability processes can be implemented and deployed when industrial developments do not affect all stakeholders equally, and the deeper question of whether a state can be sustainable when certain corporations operating within it are not.
In Table 4
, Prioritized and Specialized Attention, the factors analyzed were: (1) the creation of specific educational centers and educational programs for persons with disabilities (50% the constitutions analyzed do not contemplate this); (2) the guarantee of equal opportunities for persons with disabilities (50% do not contemplate this); (3) free health care for the elderly (36% do not contemplate this); (4) creation of reception centers for the elderly (55% do not contemplate this); (5) protection against the exploitation of child and adolescent labor (41% do not contemplate this); (6) provision for children and adolescents (55% do not contemplate this); (7) provision for persons deprived of liberty (45% do not contemplate this); (8) special provision for people involved in natural or man-made disasters (32% do not contemplate this); (9) provisions for victims of catastrophic illness (41% do not contemplate these); (10) provision of free healthcare for pregnant women (55% do not contemplate this); and (11) provisions for victims of domestic and sexual violence (45% do not contemplate this). The data obtained show that Ecuador has the highest number of priority commitments with eleven indicators in total, followed by Peru with nine, Paraguay with eight and Bolivia, Brazil, Chile, Colombia, the Dominican Republic, and Uruguay with seven each. It is no mere coincidence that these data agree with the results found in Table 2
, Social Indicators, which also attest to the level of social commitment of these countries. In the case of Ecuador, there has been considerable regulatory development in parallel with the provisions outlined in the constitutional text. Meanwhile, Colombia has expressly and openly enshrined the right to the free development of an individual’s personality, and Venezuela, according to Article 81, mentions the right of “deaf or mute people to express themselves and communicate through Venezuelan sign language” and determines to “incorporate subtitles and translation into sign language” (Article 101).
5. Concluding Remarks
The constitutions of Latin America have formulated a vast number of articles over many years of reform that take into account all manner of needs and interests, such as changes of government, historical claims, populism, and reconciliation after wars and coups. Sustainability and social commitment have been firmly established, helping countries and companies that are truly committed to gaining a competitive advantage by improving the quality of life of their citizens and giving added value to states. Many of these seek to improve political, economic, social, and environmental aspects in their respective countries. From the analysis described here, it is evident that every constitution contains sections focused on social policies such as the preservation of the environment, the rights of persons with disabilities, the protection of indigenous peoples and nationalities and gender equality. For example, according to Article 31 of Chapter IV of the Bolivian Constitution, “Uncontacted Indigenous nations and peoples in isolation enjoy the right to remain in that condition, and to the legal demarcation and consolidation of the territory they occupy and inhabit.” Some countries include articles explicitly aimed at preserving the environment, but these are largely proclamations of ideas that are not effectively implemented, as attested by the extractivism carried out in Panama, Peru, Chile, Bolivia, and Ecuador. Seemingly innumerable laws are drawn up to preserve the environment or to build a better society but without a realistic budget, which is why Latin America, especially in the Andean countries, provides such a clear example of the gap between the proclamation of democracy and its effective consolidation. There is no doubt that the constitutions create significant obstacles to their own effective implementation. Endogenously, the need to secure a large parliamentary majority in order to amend articles hampers constitutional progress. Supranational regulations such as those mandated by the International Labour Organization, United Nations or World Health Organization, which should be subject to simple transposition, cannot be incorporated in a timely manner, nor can legislatures react adequately to the outcome of scientific research lest they be accused of acting unconstitutionally. Similarly, the process of redressing existing constitutional provisions that have been proven to be incomplete or harmful is impeded. Examples of this include the implicit acceptance of certain free trade agreements through which the right to trade is placed before the right to life through the “homogenization” of environmental or health standards linked to economic profitability.
Exogenously, there are various difficulties, some common to all, others specific to certain countries. (1) The concentration of political power to the exclusion of minorities; (2) the implicit invalidation of the texts themselves (Honduras 2009 and Paraguay 2012); (3) the baggage of a country’s political heritage and ingrained public mistrust, as in the case of Augusto Pinochet’s legacy in Chile; (4) the existence of widespread violence against environmental leaders or anti-government policies that minimize regulatory development, as in the case of Colombia, in which the Peace Agreements emphasize sustainability processes in a way that the constitutional text has not; (5) the inclusion of more rights without the attendant institutional improvements, as in the case of El Salvador; (6) the lack of understanding that, in armed conflicts, there is frequently a clear social and environmental agenda; (7) the existence of a number of deficiencies leading to institutional torpor and the failure to act on pending reforms; (8) the defects inherent to the processes of delegative democracy in which representatives, once elected, often distance themselves from the rights demanded by citizens leading to the dichotomy of the electorate and the elected (be it councilor, congressman, or governor); (9) the conservative tendency that permeates constitutions (judicial power and electoral systems included), which in turn protects its traditions and enterprises; (10) the sham democracy inherent to many public authorities in which one elite is replaced by another; (11) the knowledge of legal processes and loopholes by lobbies and transnational corporations that allows them to circumvent existing environmental regulations; (12) the personalization of reforms based around people rather than projects that are stable and lasting, or that seek to find consensus by removing the divisions between political parties; (13) the synergy between what is public and what is private, increasingly blurring the line that should separate them; (14) the power of the media based on their economic might and the interests that lie behind them, frequently turning them into an unopposed power within states; (15) the influence of the commercial, family or friendship ties of experts involved in the regulatory process; and (16) the lack of regulatory convergence or the tendency to aim low, when the focus should be on higher and better standards within each country, province, or municipality. Many officials involved in regulation have neither sufficient training nor a sense of vision, being of limited means and serving private interests rather than seeking to understand the global and multidisciplinary nature of sustainability processes. It is difficult to understand why the social economy should be under the auspices of other ministries, not the ministry of economy, or why the ministry of mines should be independent of the ministry of the environment, yet these situations exist. Should a province promote the extractivist cultivation of non-native flower species—as is the case in Tabacundo and Imbabura, Ecuador—by putting economic concerns before environmental considerations? At the supranational level, the Union of South American Nations (USAN) has been systematically dismantled by the more conservative member nations that put the political dimension before the environmental or social dimension.
There is certainly no one political system that guarantees the stability of any democratic regime. From time to time, different systems are able to resolve conflicts between actors within the institutional framework in order to meet existing demands and help shape and give legitimacy to the stability of democratic regimes. A constitution, then, is a significant step, but one that is frequently poorly developed, audited, and promoted and that can be counterproductive at all levels except in the political dimension. There are bold constitutions that have admirably protected environmental aspects while, at the same time, have failed to guarantee access to basic rights such as education. Currently, more than 160 million Latin Americans have ceased to have access to face-to-face education due to the Covid-19 pandemic, increasing the knowledge gap with an especially marked impact on the migrant and indigenous populations. This rends the social and regulatory fabric, and it opens the door to the creation of stateless states.
Constitutions create tensions, both by action and omission, by setting out intentions without providing the necessary means (in the case of the Andean countries), or by establishing the means without having any intent, as is the case of the most advanced countries of Latin America, which legislate progressively while continuing to be among the most extractivist countries in the world. This highlights the failure of the unilateral processes of CSR as implemented by companies. The traditional production models based on processes of extractivism and outsourced research + development + innovation have become sacrosanct, as have the constitutional texts themselves in terms of their ability to be updated. Nevertheless, one of the constitutional texts with greatest social commitment is that of Ecuador. This came about through determined popular support, which overcame haranguing and clamor to become, today, stronger than ever and squarely based on popular sovereignty and its social ramifications, including the recent popular uprisings.
There are a number of issues common to the whole planet, such as human rights, the environment, and child labor. The approaches to tackling these in Latin America are similar to those of European countries or the United States. Regarding labor, the economic situation in Latin America means that governments have not sufficiently developed their response. Only a few countries, such as Brazil, Chile, Mexico, and Argentina, have made legal reforms in this area.
It is clear that the concept and language of social responsibility has taken hold in recent years. All companies, governments, and citizen groups have similar concepts in mind, but there remains much to be done in terms of implementation, monitoring, promotion, and the measurement of impact on the public sector. This sector, in turn, is the main driver of progress and sustainability in each territory. In order for processes of sustainability to be more readily accepted, implemented, and consolidated, a greater number of social, environmental, and cultural indicators, including those of the social economy, must be introduced and reflected in legislation. To do this, public policies must pave the way through regulations adjusted to social demands and the benefits of acting responsibly. That is why approaches to public procurement might be a useful tool for implementing the social responsibility and sustainability indicators discussed in this study. Many of the constitutions analyzed contain programmatic ideas that frequently lack the means by which they may be complied with, updated, or denounced, establishing a policy of faits accomplis with little provision for redress. This encourages the growing power of the executive over the legislation, leading to the concept of presidential constitutions. In fact, presidents are able to issue emergency decrees that replace the existing legislation, or present bills that are automatically signed into law if the legislature is not (as is frequently the case) quick to react. It is necessary to implement a comprehensive reformulation of the rules governing society, starting with the economy and its corporate interests, so that sustainability processes become the norm and not the exception.
Countries that are socially responsible become more efficient countries, better at managing their processes and natural resources. Responsible public policies, and the programs implemented by them, make countries attractive for foreign investment, enhancing preference and loyalty for such countries in the global market and allowing them to access new, more demanding and more advanced regions in social terms. Legislating responsibly and auditing the actions of governments are priorities for the conservation of humanity and the diversity of life on Earth.