Lithium in International Law: Trade, Investment, and the Pursuit of Supply Chain Justice

Oliver Hailes

Journal of International Economic Law, 2022, vol. 25, issue 1, 148-170

Abstract: Projected demand for renewable energy storage has underlined the importance of lithium-ion batteries, reflected in concern over ‘supply chain security’ for critical minerals. Yet, other voices have called for ‘supply chain justice’ among governments, firms, and communities affected by the social and environmental externalities of lithium extraction. To anticipate disputes and draw a baseline for further research, this article surveys the relevant rules of international law that presently regulate major operations of the lithium industry. First, the material dimensions of lithium are transformed into a workable object of international law, focusing on viable reserves (as opposed to all proven resources) and the analytical priority of territorial jurisdiction. Second, the regulatory regimes of four States with major reserves—Chile, Australia, Argentina, and China—illustrate recurring challenges, such as incentivizing investment in value-added production and the discontent of Indigenous communities. Third, the trade and investment treaties of these States help us to map an international legal framework for the lithium industry, focusing on the World Trade Organization, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and the Regional Comprehensive Economic Partnership. But such treaties may be interpreted in light of a State’s obligations concerning human rights, environmental protection, and Indigenous peoples, giving legal form to the pursuit of supply chain justice in the energy transition.

Date: 2022
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