The Right to Regulate Critical Minerals and the International Investment Regime: A Perspective from Latin America

Abstract

Historically, Latin America, particularly Spanish America, has shown hesitance towards international investment law due to the principle of non-intervention and the Calvo doctrine’s influence. This stance contributed to the region’s opposition to establishing the International Centre for Settlement of Investment Disputes. However, by the late 20th century, there was a shift toward broadly defined bilateral investment treaties aimed at attracting investments more practically. An increase in arbitration claims prompted a reevaluation of the criticisms regarding international investment law, highlighted by recent cases in Ecuador and Honduras. This important perspective has been emphasized within the scope of climate change mitigation and adaptation policies, especially regarding the safeguard of the right to a healthy environment. The region now faces a choice: either relinquish this international investment law or keep the existing ambiguous treaties. Alternatively, it may reform international investment law to protect the right to regulate, particularly concerning host states’ economic policies, has recently concluded by the Inter-American Court of Human Rights in its Advisory Opinion OC-32/25 regarding the climate emergency. This is crucial for developing mechanisms to encourage foreign investment in critical minerals needed for decarbonization while upholding legitimate policies that protect the right to a healthy environment.