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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.

The end game for Chevron may not be winning the lawsuit in Ecuador, but avoiding paying damages if it does lose.

Long ago, U.S. courts decided in Hildton v. Guyot that judgments in foreign courts would not be enforceable if there was “prejudice in the court, or in the system of laws under which it was sitting, or fraud in procuring the judgment.” With the precedence set by the arbitration decision, Ecuador is now in a tough position to prove that its courts meet the highest standards.

In Peru, the IFC put up $23 million to build Yanacocha beginning in 1993, and then financed an expansion six years later. The IFC also holds a 5 percent ownership stake in the mine. (Newmont is the majority owner, with a 51 percent stake. Buenaventura, a Peruvian partner, owns the remaining shares.)

“The gold they take out of our region is stained with blood,” said Milton Sánchez, a leader of the protest movement. “Foreigners wear it on their ears, neck and fingers to look good, but their vanity is at the expense of our suffering. We’ve seen destruction of the culture and environment. Our families are being torn apart.”

Newmont, based in Denver, first identified a rich, untapped vein of ore deposits in the hills above the town in 1986. Raising money to finance a mine proved a challenge. Shining Path, a violent insurgent group, had traumatized the country. Foreign banks and companies were reluctant to invest in Peru. Newmont turned to the IFC, which specializes in lending in places where other banks are afraid to go. In the early 1990s, Yanacocha agents traveled deep into the Andes, buying up property. Many sellers, poor and illiterate, say they did not realize that there was huge wealth locked in the rock under their fields. Others claim their neighbors illegally sold land out from under them.

Throughout this period, Yanacocha downplayed the risks of the mercury spill and water pollution. But behind the scenes, executives at its parent, Newmont, worried about the stream of negative publicity surrounding one of their biggest investments. Larry Kurlander, a Newmont senior vice president, was dispatched after the mercury spill to audit the mine. What he found alarmed him. The farmers were right to worry, Kurlander discovered, according to documents obtained as part of a 2005 Frontline and New York Times investigation. He warned senior Newmont officials that the company had violated environmental regulations on a huge scale, and that the abuses he discovered were so bad that senior management was at risk of “criminal prosecution or imprisonment.” “We are in non-compliance with our operating permits … and that non-compliance occurs virtually 100% of the time,” he wrote. Kurlander, who is retired, did not respond to phone messages left at his home.

The shootings made international news, and in Peru they were greeted with widespread condemnation. In the aftermath, Newmont suspended the Conga project indefinitely. Later that year, the company took the unusual step of issuing a formal apology for past actions. “We are not proud of the current state of our relationship with the people of Cajamarca,” company executives wrote in December 2012. “We want to take the opportunity to acknowledge the mistakes we have made in how we conducted ourselves and conducted business.”

A young black student from the North West has related how she grew up not knowing anyone who spoke English as a first language and had never shared a meal or a classroom with a white person. She came top of her class at school, and entered university a confident student.Early in her first semester at UCT she put up her hand and asked a question. The lecturer misunderstood the question and people chuckled. The lecturer asked her to repeat the question but could not get what she was asking and requested that she see him after class. She never asked a question again. The lecturer was not racist but the student felt deeply humiliated. She knew she wasn’t stupid, so it must be the institution that was making her – and other black students – look inarticulate and second rate.

When UCT removed the statute of Rhodes this was not a one-off concession to the pressure of student anger. The university made a significant declaration that we wanted to make a decisive break with the colonialist past and we are well aware that this demands that we tackle the elusive but extremely powerful creature of institutional racism.