(Ecofin Agency) - As the global race for critical minerals like copper, cobalt, and lithium intensifies, African nations strive to have a more strategic role in these lucrative value chains. Yet, this ambition is hampered by systemic constraints rooted in decades of historical and legal challenges.

An April 2025 report by the International Institute for Sustainable Development (IISD) argues that revising or terminating outdated bilateral investment treaties (BITs) could empower African countries to implement industrial policies for critical minerals. 

These treaties, signed in the 1990s and 2000s, often favor foreign investors with extensive legal protections, including the ability to bypass national courts for international arbitration. The report, titled "International Trade and Investment Agreements and Sustainable Critical Minerals Supply," published in April 2025, critiques these agreements for prioritizing investor protections over state sovereignty. 

The IISD warns that without reforms, resource-rich African nations risk remaining raw material exporters, unable to mandate local processing or enforce fair taxation policies. It cites examples of countries leveraging policy changes to maximize benefits. 

Chile, the world’s top copper producer, is taking a selective approach in its new investment agreements by excluding certain strategic minerals. Meanwhile, Indonesia has canceled several international investment treaties to implement stricter policies in its nickel sector. South Africa, though not mentioned in the report, has been replacing outdated treaties with national laws since 2012 to establish a new framework for investor protection.

This trend reflects a broader movement across Africa. Countries like the Democratic Republic of Congo (DRC), Zambia, Tanzania, and Côte d’Ivoire have been revising their mining codes and contracts to better regulate resource exploitation. However, these reforms often clash with existing bilateral agreements, complicating policy implementation. For instance, in Tanzania, two foreign companies successfully challenged mining reforms in international courts, leading to over $127 million in compensation based on decades-old treaties.

The DRC faces similar challenges, with six bilateral investment agreements still active with major nations such as the U.S., China, , Germany, Switzerland and the Belgo-Luxembourg Economic Union (Belgium-Luxembourg) and France.

Treaties signed between the 1970s and 1990s gave investors broad legal protections but ignored key issues like sustainability, local processing, and social rights. Some of these agreements even prevent the Congolese government from using public interest as a reason to regulate mining activities, limiting its control over strategic metals.

The IISD report stresses that simply revising these treaties won’t be enough. Lasting change requires a bigger plan that includes building strong national industries, improving infrastructure, and creating fair trade partnerships. The goal is not just to escape restrictive treaties but to develop a solid industrial policy.

The stakes are high. The global market for critical minerals could hit $400 billion by 2050, according to the International Energy Agency. But without proper legal and industrial tools, African countries risk missing out. The African Development Bank estimates that if Africa sticks to exporting raw minerals, it will capture only about $55 billion from a value chain worth $8.8 trillion in batteries and electric vehicles.

This article was initially published in French by Emiliano Tossou 

Edited in English by Ange Jason Quenum