By Juana Toledo, Director of Consejo de Pueblos Wuxhtaj, and member of Consejo del Pueblo Maya/CPO en Guatemala, and Ivette González, Strategic Engagement and Advocacy Director at PODER.

Latin American states actively participate in the negotiations for an international legally binding instrument on business and human rights - including Ecuador, which is a key driver of this process, along with Bolivia, Chile, Colombia, Cuba, Honduras, Mexico and Venezuela. These states have expressed strong views on the scope of the legally binding instrument.

Several of these states have engaged with civil society organisations, listened to affected communities, and participated in analysis and discussion events organised by these organisations. Unfortunately, few have prioritised the inclusion of affected communities when developing their official positions for negotiations each year. Too frequently, states rely on desk experts who are far removed from on-the-ground realities and do not seek perspectives from affected individuals and communities.

Challenges for the participation of affected communities

1. Technical knowledge and language barriers: Affected communities often face significant barriers in understanding the technical texts of international negotiations, which are predominantly in English. This lack of technical and linguistic comprehension limits their ability to effectively participate in the process. Available translations often do not cover all necessary nuances, and Indigenous Peoples' languages are not represented, excluding many communities from the dialogue.
2. Lack of formal consultation: There is no institutionalised mechanism for consulting affected communities during the development, implementation, monitoring, and evaluation of the Treaty process. The participation of these communities in the formulation of states' official positions is often non-existent or superficial.
3. Access and representation barriers: International negotiations take place in distant locations like Geneva, creating a significant barrier to direct participation from affected communities due to a lack of resources. Mechanisms to ensure community contributions are heard and considered in the process are insufficient and often ineffective. Furthermore, postponing sessions at the last minute, as is the case for the 10th session in 2024, can make it unaffordable and unfeasible for affected communities to attend, and demonstrates a lack of consideration for the daily activities and plans that victims have in their communities, with family, and processes such as seeding and harvesting.
4. Intersectional and gender perspective: It is necessary to consider the differentiated experiences of women, teenagers and children affected by business activities, including age, race, privilege, sexual orientation, gender identity and gender roles imposed in Latin American societies.

Opportunities to improve community participation

1. Development of institutionalised participation mechanisms: To enable affected communities to influence negotiations effectively, institutionalised participation mechanisms must be established. These mechanisms should ensure communities have access to relevant information, can express their concerns effectively, and can play an active role in the development, implementation, and monitoring of the Treaty.
2. UN Investment in resources and training: This includes translating technical documents into the official UN languages and additional Indigenous Peoples' languages, providing training in legal and technical aspects, and offering financial support for participation in international meetings.
3. Active involvement of parliamentarians and executive officials: Parliamentarians and executive officials should play a more active role in creating an environment that facilitates community participation. This can include promoting policies that ensure the free, prior and informed consent of affected communities before making decisions about business projects impacting them, and national regulation of business activities to respect human rights.
4. Integration of local and gender perspectives: The Treaty and the negotiation process must incorporate local and gender perspectives. Women, especially Indigenous women, often face disproportionate impacts by business activities. Ensuring their voices are heard and their specific needs are addressed is key to developing a fair and effective Treaty; the UN should reinforce its mission and make sure this is realised.
5. Regional advancements: States can work collectively, as they did with the Escazú Agreement, to create binding regional instruments.

Final reflections

Latin America needs to emphasise the importance of negotiating the Treaty and increasing state involvement to protect natural wealth, culture, climate, the environment, and human rights in the region.

Transnational private companies and state-owned enterprises with transnational operations have the power to influence decisions related to human rights, and the damages caused by them often remain unaddressed. Therefore, it is necessary to end corporate lobbying in the region for the exclusive economic benefit of companies, address impunity, and integrate these considerations into the Treaty.

The capital structure of companies responsible for human rights abuses is predominantly transnational. Hence, the Treaty must also apply to these financial companies and activities.

Representative, well-resourced and meaningful participation of women, in all their diverse identities and contexts, is essential to ensure their centrality in all human rights processes.

Currently, there are no regulations for companies to respect human rights and for states to deliver justice to all affected Indigenous Peoples, peasants, Afro-descendant peoples, and many more. This is crucial for guaranteeing human rights and environmental protection, with an instrument that enhances the role of impacted communities defending their rights and ends corporate impunity.

You can read part 1 of this piece here.