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According to Sherwood Ross, one reason is that amongst 28 countries ‘that held prisoners in behalf of the US based on published data’, are a dozen from Africa: Algeria, Djibouti, Egypt, Ethiopia, Gambia, Kenya, Libya, Mauritania, Morocco, Somalia, South Africa and Zambia. [9] In Gambia, for example, President Yahya Jammeh’s acquiescence to the CIA’s need for a rendition site for US torture victims may explain Obama’s blind eye towards his dictatorship.

And in January 2013, Pretoria deployed 400 troops to the Central African Republic during a coup attempt because, ‘We have assets there that need protection,’ according to deputy foreign minister Ebrahim Ebrahim, referring to minerals (according to his interviewer) [14] or to sophisticated weaponry that South Africa gifted the tyrant ruler there, François Bozizé (according to his reply in a debate with me in late February).

By mid-2012, Pretoria’s National Development Plan – overseen from within the SA Presidency and endorsed at the ANC’s December 2012 national conference – provided a variety of mandated changes in policy so as to align with South Africa’s new BRICS identity and functions. These mainly involved pro-business statements for deeper regional economic penetration, alongside the exhortation to change ‘the perception of the country as a regional bully, and that South African policy-makers tend to have a weak grasp of African geopolitics.’ [17] That problem will haunt Pretoria in coming years because, like the political carving of Africa in Berlin in 1884-85, the BRICS 2013 Durban summit has as its aim the continent’s economic carve-up, unburdened – now as then – by what would be derided as ‘Western’ concerns about democracy and human rights. Also invited were 16 African heads of state to serve as collaborators.

This notion, derived from Rosa Luxemburg’s thinking a century ago, focuses on how capitalism’s extra-economic coercive capacities loot mutual aid systems and commons facilities, families (women especially), the land, all forms of nature, and the shrinking state; Harvey’s accumulation by dispossession, and in special cases requiring militarist intervention, Naomi Klein’s ‘Shock Doctrine’. [22]

The forms of BRICS sub-imperialism are diverse, for as Yeros and Moyo remark, ‘Some are driven by private blocs of capital with strong state support (Brazil, India); others, like China, include the direct participation of state-owned enterprises; while in the case of South Africa, it is increasingly difficult to speak of an autonomous domestic bourgeoisie, given the extreme degree of de-nationalisation of its economy in the post-apartheid period. The degree of participation in the Western military project is also different from one case to the next although, one might say, there is a ‘schizophrenia’ to all this, typical of sub-imperialism.’ [23]

the more that specific companies targeted by victims require unified campaigning and boycotts to generate solidaristic counter-pressure, whether Brazil’s Vale and Petrobras, or South Africa’s Anglo or BHP Billiton (albeit with London and Melbourne headquarters), or India’s Tata or Arcelor-Mittal, or Chinese state-owned firms and Russian energy corporations. In this context, building a bottom-up counter-hegemonic network and then movement against both imperialism and BRICS sub-imperialism has never been more important. [24]

Cotton production can involve large-scale pesticide and water use, and human rights abuses such as the use of child labour. Production of the textile fibre rayon can cause deforestation.

By 2010 a second court case had raised the number of Mayan villages with collective ownership of their land to 24. The Belizean government had been barred from granting exploration or extraction licences to these territories without the 'free, prior, and informed consent' of the villagers. Until the government realized these property rights through providing the official title (which is on hold while the government appeals the ruling), the government is barred from “issuing any concessions for resource exploitation, including concessions, permits or contracts authorizing logging, prospecting or exploration.”

The wave of community referenda across Guatemala has involved over 700,000 people, and has occurred in the wake of widespread opposition to Guatemala's controversial Marlin gold mine. The ILO ordered operations at the mine to be suspended, and while Marlin's contamination of the local environment is hotly contested by its Canadian operator Goldcorp, a Tufts University study found a 400 percent increase of arsenic in the area’s groundwater between 2006 and 2009.

Goldcorp recently signed an agreement for a very different type of extraction operation with the Wemindji Cree of northern Quebec, to mine gold and silver at the Éléonore site in the James Bay region. According to Goldcorp's Brent Bergeron (in a Forbes.com article), this is a participatory model that the company seeks to export to their other operations: “We’ve actually had the Cree come down and visit our mine in Guatemala and go out and speak to the local communities”.

This power is reinforced, Scott says, by “a political history in which they have managed to block major unwanted industrial development projects, at great economic and political cost to their proponents. Hence, the Eleonore project is not a very good test of a ‘new approach’ by industry, at least not one adopted on a voluntary basis. External interests have learned, when working on the territory of the Crees, that it can be less costly to get their consent first.”

Umberto Velasquez volunteers in the same committee as Lopez, and critiques what he sees as the manipulations that the company's social investments create: “They come in with their little projects, the company takes photos which they use internationally to boost their image and suggest they have the support of the community.”

Bamaca remembered how - before the company admitted to being a mining operation, when “people didn't know what contamination was” - the company would hold “parties and celebrations in the community, giving sweets to children and beer to adults, knowing this is the local community way. They came in smooth.”

After peace was restored, former elements of a powerful security apparatus geared to domestic repression through massacres, assassinations and rape continued to operate unofficially, becoming known as the ‘hidden powers’. Mayan Nobel Prize winner Rigoberta Menchu rues a missed opportunity for the country: “We should have taken extraordinary measures - as indicated by the peace accords - in the socio-economic sphere to benefit the population, showing that people would have a better life in peace than in war. The conflict had its causes in inequality, in dictatorship. These root causes were not attacked. The root causes are still valid.” 

On 5 February this year, two months after the Q'eqchi' exchange, the village of Conejo gathered to discuss their response to the oil company’s incursion into their territory. The meeting was held in their village community centre, into which entered Manuel Choco, a former activist in Belize's 'Maya Movement' and now permitting officer of the oil company. Two activists of the local indigenous organisation SATIIM (Sarstoon Temash Institute for Indigenous Management) turned on the voice recorders on their mobile phones.

This was the subject of the meeting into which Martin Choco entered and produced a letter, telling the villagers to sign it and get their jobs back. The letter gave US Capital Energy unlimited access to operate seismic lines on Conejo's territory, condemned the leadership for exceeding their authority in sending their original letter of objection, and made no mention of company compensation for the cutting of the illegal lines. Acting on legal advice, the leadership suspended the meeting while Choco continued to collect signatures. Choco's superior is US Capital Energy's representative in Belize, Alistair King, and two days later he said that the letter was written by the villagers themselves and “nothing to do” with the company. Although it lacked the signatures of a majority of Conejo's adult population, he maintained that it granted his company sufficient authority to return to operate the lines that week.

While Alistair King was announcing the return of the company to Conejo's land, and praising the value of having someone like Choco with the company, “who speaks the language”, Conejo's current chairperson Enriqué Makin was walking between the thatched houses scattered through the rainforest. He held a letter, which read: “We did not give US Capital Energy our free, prior and informed consent to conduct seismic testing on our traditional lands affirmed by the Supreme Court of Justice of Belize on [sic] October 2007.” It was signed by the majority of Conejo’s adult population, prompting a showdown meeting between Belize's Department of Geology and Petroleum, the village elders of Conejo, the chairperson and Alcalde, and Martin Choco. The company was ordered to cease operating on Conejo's land and to remove the tags placed along the seismic lines marking the drilling holes for the burial of explosives.

The value of free, prior and informed consent lies in its ability to ensure that the options facing indigenous communities are decided collectively, allowing a degree of meaningful deliberation in lieu of the official, political self-determination that they are generally lacking.

Loosely put, ISDS gives foreign investors an enclave legal status based on their power to invoke rights, and access to public money through a process that is open only to them. Foreign investor rights are Exhibit A, as The Economist put it, in demonstrating that “international trade agreements are a way to let multinational companies get rich at the expense of ordinary people” (The Economist 2014).

The simplest approach to fixing these foreign investor rights is to leave them out of trade and investment agreements. That option was not taken in proposed agreements such as the Canada-EU CETA, the Trans-Pacific Partnership Agreement or the Transatlantic Trade and Investment Partnership. For the first time since NAFTA, these agreements would apply ISDS to relations among developed countries that have court systems superior to ISDS, thus entrenching ISDS as a global institution. Such is the priority given by major governments to entrenching special rights for foreign investors and shifting judicial sovereignty to ISDS arbitrators.

In ISDS at present, foreign investors have elaborate rights, with corresponding responsibilities for countries. Yet ISDS lacks actionable responsibilities for foreign investors.

emarkably, in ISDS, foreign investors are not required to seek a resolution in a country’s courts before bringing an international claim. They are not even asked to supply evidence that domestic courts cannot ensure effective protection before resorting to ISDS. In effect, it is assumed in ISDS that courts fail systematically to offer justice in all countries subject to ISDS, and that ISDS is independent and fair in the manner of a court which, as noted above, it is not.

At a multilateral investment court, this lack of respect for domestic courts must be remedied by incorporating the duty to exhaust reasonably available local remedies into the court’s constituting document.