Abstract
New technologies––from artificial intelligence (AI) and electric vehicles to medical devices and consumer electronics––demand an ever-increasing amount of minerals like lithium, cobalt, and copper. The United States requires these aptly named “critical” minerals to develop AI infrastructure, advance the clean energy transition, and remain economically competitive. As technology continues to advance at an astonishing pace, the U.S. has grown increasingly interested in securing critical minerals from sources in Africa. To obtain critical minerals, the U.S. must utilize investment treaties in its business dealings with African countries. At the same time, international investment law has garnered increased attention due to a worldwide reform effort of the regime.
For decades, poor, capital-importing countries like those in Africa have entered investment treaties with wealthy, capital-exporting countries like the U.S. to spur economic development and protect investors from poor governance. These investment treaty protections have often come at the expense of a capital-importing country’s sovereign right to regulate industry. This imbalance is acute in the mineral sector, where corruption and economic stagnation run rampant. Recognizing the dissatisfaction with the regime, various actors, including the United Nations, the World Bank, regional economic communities, and scholars have begun to propose international investment law reforms.
However, these proffered reforms reinforce the false assumption that underlies international investment law––that investment protection should focus on economic development. This assumption and the reforms that follow from it risk perpetuating the unsatisfactory status quo. To challenge this assumption, this Article integrates previously divergent threads of scholarship. It argues that investment protection must focus on improving governance to achieve its economic development goals. Using the Vienna Convention on the Law of Treaties, this Article makes the novel argument that the common investment treaty provision “fair and equitable treatment” should be reinterpreted to require countries to enforce domestic law. This Article’s reinterpretation better aligns with the historical bases for international investment law. It also furthers the shared U.S-Africa interests to enhance governance, facilitate economic development, and capitalize on the emerging mineral-dominated economy.
Recommended Citation
Taylor Nchako, Reimagining International Investment Law for the Age of Minerals, 83 Wash. & Lee L. Rev. 665 (2026).Available at: https://scholarlycommons.law.wlu.edu/wlulr/vol83/iss2/5
Included in
Energy and Utilities Law Commons, International Law Commons, International Trade Law Commons, Science and Technology Law Commons