The governance of
global trade in critical minerals has gained renewed urgency amid the
accelerating energy transition. The objective to secure access to critical
minerals contends with the industrialization objective of certain trade
restrictions that advance economic diversification goals. Yet, the recent
report on Critical Energy Transition Minerals by the United Nations (UN)
Secretary General’s Panel cautions against static trade rules that hinder
structural transformation and value-addition based on critical minerals.
Considering this backdrop and the 2022 WTO panel ruling in Indonesia – Raw
Materials, this article considers it urgent and necessary to critically examine
the adequacy of prevailing international trade rules pertaining to export
restrictions under the WTO, from the perspective of mineral-rich developing
countries. The panel’s assessment of issues under Article XI:2(a) of the
General Agreement on Tariffs and Trade (GATT), such as the creation of a new
market, and the extension of a ‘critical shortage’ test to the finite,
exhaustible nature of critical minerals, is analysed to understand the
contentious relationship between law and the long-term minerals-based
industrialization plans of a developing nation. The article further identifies
contradictory policy justifications required by different WTO provisions, which
effectively place mineral-rich countries between a rock and a hard place. In
effect, it fills a critical gap in the literature on critical minerals by
focusing on the developmental implications of international trade law for
mineral-rich developing countries. In doing so, it draws attention to existing
legal frameworks and their effects, and aims to inform the design of more
responsive, equitable trade frameworks.