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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]

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.